Creel v. LOUISIANA PEST CONTROL INS. INC.

723 So. 2d 440, 1998 WL 442987
CourtLouisiana Court of Appeal
DecidedDecember 18, 1998
Docket98-146
StatusPublished
Cited by6 cases

This text of 723 So. 2d 440 (Creel v. LOUISIANA PEST CONTROL INS. INC.) 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
Creel v. LOUISIANA PEST CONTROL INS. INC., 723 So. 2d 440, 1998 WL 442987 (La. Ct. App. 1998).

Opinion

723 So.2d 440 (1998)

Charles M. CREEL, et ux., Plaintiffs-Appellants,
v.
LOUISIANA PEST CONTROL INSURANCE, INC. Defendant-Appellee.

No. 98-146.

Court of Appeal of Louisiana, Third Circuit.

August 5, 1998.
Opinion Granting Rehearing September 14, 1998.
Writ Granted December 18, 1998.

*441 Roy Seale Halcomb, Jr., Alexandria, for Charles M. Creel, et ux.

James Berry Reichman, Alexandria, for Louisiana Pest Control Insurance Company.

Before YELVERTON, GREMILLION, and PICKETT, Judges.

GREMILLION, Judge.

The plaintiffs, Charles M. (Michael) and Linda Creel, appeal a judgment of the trial court finding Roy L. Slay, the president of Ray's Pest Control, Inc., an insured under a commercial general liability policy issued by Louisiana Pest Control Insurance Company, Inc. (LPCI) to Ray's. In so finding, the trial court held that coverage was precluded pursuant to an automobile use exclusion contained in the policy. We reverse for the following reasons and award damages.

FACTS

On August 11, 1993, the Creels, along with their three minor children, Cristin, Candace, and Cammie, were traveling west on Louisiana Highway 28 in their 1988 Chrysler LeBaron. Slay, who was in the course and scope of his employment with Ray's, was traveling east on Highway 28 in a 1989 Ford truck. The accident occurred at the intersection of Highway 28 and Louisiana Highway 1207 when Slay attempted to turn left onto Highway 1207 and collided head-on with Linda's vehicle. As a result of this accident, Linda and Michael were seriously injured and their children suffered minor injuries. *442 Slay was cited for making an improper left turn.

The Creels filed suit against LPCI, individually and on behalf of their children, alleging that Slay was employed by and acting within the course and scope of his employment with Ray's, and that coverage was provided for his actions through an insurance policy issued to Ray's by LPCI. In addition to filing an answer, LPCI filed exceptions of no right of action and/or nonjoinder of an indispensable party based on the Creels settlement and release of Ray's and Slay in a suit filed in Catahoula Parish. LPCI also filed a motion for summary judgment arguing that the commercial general liability policy excluded coverage for damages arising from the use of an automobile, and that the truck was owned by an insured, Slay. This motion was denied by the trial court.

LPCI amended its answer three additional times. It first alleged that the commercial general policy did not afford coverage for the damages suffered by the Creels. Next, it admitted that Slay was employed by Ray's and was acting within the course and scope of his employment, but, denied that Ray's was vicariously liable for Slay's actions. Finally, it admitted that Slay was driving east on Highway 28, but denied that Slay was the owner of the Ford truck.

Following a trial on the merits, the trial court issued Reasons for Judgment finding that the insurance policy issued by LPCI did not provide coverage. The trial court held that Slay was an insured under the terms of the commercial liability insurance policy issued by LPCI, but that coverage was precluded pursuant to the automobile use exclusion contained in the policy. A judgment was rendered on September 19, 1997. The Creels appeal this finding.

ISSUES

The Creels raise only one assignment of error on appeal. They argue that the trial court erred in interpreting the term "insured" to include Slay, an executive officer, as an insured while performing his employee duties when the language of the policy excludes executive officers from being insureds. We agree with the Creels, and reverse.

LAW AND DISCUSSION

The interpretation of an insurance contract is a legal question. Mike Hooks, Inc. v. JACO Servs., Inc., 95-1485 (La.App. 3 Cir. 5/8/96); 674 So.2d 1125, writ denied, 96-1924 (La.11/1/96); 681 So.2d 1264. On appeal, the reviewing court is confined to determining whether the trial court was legally correct in its interpretation of the insurance contract. Weeks v. T.L. James & Co. Inc., 626 So.2d 420 (La.App. 3 Cir.1993), writs denied, 93-2909, 93-2936 (La.1/28/94); 630 So.2d 794.

In Ledbetter v. Concord General Corp., 95-809 (La.1/6/96); 665 So.2d 1166, the supreme court listed several legal axioms concerning the interpretation of insurance policies. The court stated:

An insurance policy is an agreement between the parties and should be interpreted by using ordinary contract principles. Smith v. Matthews, 611 So.2d 1377, 1379 (La.1993). The parties' intent, as reflected by the words of the policy, determine the extent of coverage. Such intent is to be determined in accordance with the general, ordinary, plain and popular meaning of the words used in the policy, unless the words have acquired a technical meaning. La. Civ.Code art.2047; Louisiana Insurance Guaranty Association v. Interstate Fire & Casualty Co., 93-0911 (La.1/14/94); 630 So.2d 759, 763. If the policy wording at issue is clear and expresses the intent of the parties, the agreement must be enforced as written. Pareti v. Sentry Indemnity Co. 536 So.2d 417, 420 (La.1988).
Exclusionary provisions in insurance contracts are strictly construed against the insurer, and any ambiguity is construed in favor of the insured. Garcia v. St. Bernard Parish School Board, 576 So.2d 975, 976 (La.1991). However, the rule of strict construction does not "authorize a perversion of language, or the exercise of inventive powers for the purpose of creating an ambiguity where none exists." Muse v. Metropolitan Life Ins. Co., 193 La. 605, 192 So. 72, 75 (1939). Insurance companies have the right to limit coverage in any manner they desire, so long as the limitations *443 do not conflict with statutory provisions or public policy. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94); 634 So.2d 1180, 1183.

Id. at pp. 3-4; 665 So.2d at 1169.

The trial court held that the automobile use exclusion applied in this instance to exclude coverage because Slay was an insured as defined under the policy either as an executive officer or an employee. The trial court relied on Fontana v. Zurich Insurance Co., 430 So.2d 718 (La.App. 2 Cir.), writ denied, 438 So.2d 569 (La.1983), where the court held that an individual can be both an executive officer and an employee of a corporation. In support of its finding, that court looked to the Workers' Compensation Act and cited La.R.S. 23:1044, which provided that "[e]very executive officer ... shall be an employee of such corporation under this chapter."

However, we find that Fontana is distinguishable from the case sub judice for the following reasons. Fontana and the cases discussed therein dealt with cross-employee exclusions which excluded coverage to employees, injured through the actions of their co-employees, because of their entitlement to workers' compensation. Here, non-employee plaintiffs are seeking coverage as the result of the tortious actions of an employee, thus, this is not an instance where the injured plaintiffs have recourse to workers' compensation benefits.

Further, the language of the policy at issue specifically excludes an executive officer from being an employee. The policy issued by LPCI provides:

Section II —WHO IS AN INSURED

1.

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723 So. 2d 440, 1998 WL 442987, Counsel Stack Legal Research, https://law.counselstack.com/opinion/creel-v-louisiana-pest-control-ins-inc-lactapp-1998.