Carter v. Safeway Insurance Co.

859 So. 2d 279, 2003 La. App. LEXIS 2982, 2003 WL 22439510
CourtLouisiana Court of Appeal
DecidedOctober 29, 2003
DocketNo. 37,788-CA
StatusPublished
Cited by1 cases

This text of 859 So. 2d 279 (Carter v. Safeway Insurance Co.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Carter v. Safeway Insurance Co., 859 So. 2d 279, 2003 La. App. LEXIS 2982, 2003 WL 22439510 (La. Ct. App. 2003).

Opinion

STEWART, J.

Safeway Insurance Company (“Safeway”) appeals the judgment of the Monroe City Court in favor of La’Kisha Jean Carter awarding her $2,000.00 in general damages for the total loss of her vehicle and $850.00 in attorney’s fees. For the reasons set forth below, we affirm the judgment of the trial court.

FACTS

Carter purchased a 1991 Lincoln Town Car on March 19, 2001, from Dan’s Auto Sales in Monroe, Louisiana, and insured it under a policy issued by Safeway. Approximately three months later, in the late hours of June 23, 2001, or the early morning hours of June 24, 2001, the vehicle was stolen from the driveway at her apartment. The burned remains of the car were located by the Monroe Police Department on June 25, 2001.

Carter filed suit against Safeway on April 5, 2002, seeking damages for the total loss of her vehicle and alleging that she should be awarded penalties and attorney’s fees for Safeway’s failure to timely pay her claim. In answer, Safeway asserted a general denial of all the factual allegations in Carter’s petition. On November 4, 2002, Safeway filed an amending and supplemental answer denying coverage under their policy on the basis of sub-paragraph (o) of the exclusions contained in the section entitled “Part IV — Physical Damage.” This exclusion provides that coverage under the policy does not apply:

(o) to loss due to theft under coverage (A) of this part if evidence exists that forcible entry was not required to gain access to the automobile.

|gThe matter came for trial on January 8, 2003. Carter testified that on the evening of June 23, 2001, she returned from a friend’s home and parked the vehicle in question in her driveway, with all the windows closed and the doors locked. She then went into her apartment with the only set of keys to the automobile in her possession. When she awoke the next morning the vehicle was gone. She then called the police who came out to make a report. She testified that there was no broken glass in the vicinity of where the vehicle had been parked and that she had no knowledge of how the perpetrators had gained access to the vehicle. However, Carter did admit that when she purchased the vehicle the driver’s side window was “off the track” and could be pushed down. She further admitted that this defect had not been repaired at the time the vehicle was stolen. Carter testified that she reported the loss to Safeway the same day that the vehicle was located by the police and that a representative of Safeway took her statement at her home. Safeway has never tendered payment for the loss of the vehicle.

Officer Michael Calloway of the Monroe Police Department responded to the call on the morning of June 27, 2001. He testified that he had filled out a report and inspected the area where the car had allegedly been parked. He stated that he found no evidence of broken glass and had no knowledge of how access had been gained to the vehicle. He admitted that after the vehicle was found he had not inspected it so as to be able to determine [282]*282whether there was any evidence that would suggest the method used to gain access to the vehicle.

13As to the value of the vehicle, the court heard testimony from three separate witnesses. Carter testified that she had purchased the car for $2,000.00 just three months prior to its loss. She testified that since purchasing it she had made improvements to the vehicle by replacing the old starter with a new one and buying new tires. She was unsure as to the mileage on the vehicle but indicated that she believed it to have more than 100,000 miles on it despite the indication on the “Bill of Sale” that it only had 43,128 miles on it.

Edward C. Bolden, an automobile body technician, was qualified as plaintiffs expert for the purpose of testifying as to the value of the vehicle. He testified that in estimating the value of the 1991 Lincoln Town Car, he used a 2000 National Automobile Dealer’s Association (NADA) book. Because the book did not list the value for a Lincoln Town Car prior to the 1993 model, Bolden took the loan value for the 1993 model of $5,450.00 and subtracted two years of estimated depreciation totaling $2,500.00. The loan value used assumed that the vehicle had moderate mileage, which Bolden testified to be anywhere from 12,000 to 14,000 miles per year. Bol-den testified that he then added some value back into the car on the basis of the new tires and starter which Carter had added to the vehicle and arrived at a value between $3,500.00 and $3,700.00 for the vehicle.

Lastly, the court heard from Dan Freeman, the owner and operator of Dan’s Auto Sales from whom Carter had purchased the vehicle. Freeman confirmed that he had sold the vehicle for $2,000.00, but he could not remember any specifics about the vehicle other than its white exterior color |4and its red leather interior. He testified that while he did not know the mileage on the vehicle, he believed the 43,128 miles reflected on the bill of sale to be inaccurate since he would not have sold the car for $2,000.00 if the mileage had been that low.

At the conclusion of the trial, the judge allowed the parties to file post-trial memo-randa and took the matter under advisement. On March 6, 2003, the trial court rendered and signed a judgment in favor of Carter awarding her $2,000.00 in damages and $850.00 attorney’s fees. The instant appeal followed. In three assignments of error, Safeway challenges the trial court’s finding of coverage under the policy and the awards of damages and attorney’s fees.

DISCUSSION

Assignment of Error Number 1

In its first assignment of error, Safeway argues that the trial court was manifestly erroneous in finding coverage under the policy because there is “ample evidence that forcible entry was not required to gain access to the automobile.” This assignment is without merit.

In reviewing the record in its entirety, we find no evidence, ample or otherwise, which indicates that forcible entry was not required to gain access to the automobile. Carter testified that when she parked the vehicle for the evening all the doors were locked and all the windows were closed. It is not reasonable to conclude that forcible entry was not required to gain access to the vehicle simply because of the lack of glass in the area where the vehicle had been parked or the officer’s failure to find any other vindication of forcible entry. The only inference that can be drawn from this testimony is that entry was gained in such a manner that left no visible evidence in the area where the car had been parked. [283]*283Officer Calloway even admitted that he had never examined the vehicle. Thus, we cannot conclude from his testimony that forcible entry was not required to gain access to the vehicle.

Safeway also points to the indisputable evidence that the driver’s side window was off its track. While the record confirms this assertion, we find this factor to be unremarkable. There was uncontradicted testimony that while the window was off its track it was also closed at the time that the theft occurred. While the defect in the window may have made it easier for the perpetrator to force open the window (assuming that is how the theft occurred), the fact remains that the perpetrator would have had to force the defective window down to gain access to the vehicle. We likewise find Carter’s admitted failure to inform Officer Calloway of the defective window to be unexceptional.

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Bluebook (online)
859 So. 2d 279, 2003 La. App. LEXIS 2982, 2003 WL 22439510, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carter-v-safeway-insurance-co-lactapp-2003.