Davis v. Scottsdale Insurance Co.

128 So. 3d 471
CourtLouisiana Court of Appeal
DecidedOctober 30, 2013
DocketNos. 13-CA-255, 13-CA-256
StatusPublished
Cited by11 cases

This text of 128 So. 3d 471 (Davis v. Scottsdale 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
Davis v. Scottsdale Insurance Co., 128 So. 3d 471 (La. Ct. App. 2013).

Opinion

HANS J. LILJEBERG, Judge.

| ..¡Plaintiffs appeal a summary judgment granted in favor of one of the defendants, QBE Specialty Insurance Company, dismissing them from this lawsuit. For the following reasons, we reverse.

FACTS AND PROCEDURAL HISTORY

This case arises from a motor vehicle accident that occurred on July 18, 2009, in St. Charles Parish. Knollie Jones was operating a 2006 Mack garbage truck on [473]*473Interstate 310 as it approached the Luling Bridge, when the garbage truck ran out of gas and came to a stop in the right-hand travel lane. Shortly thereafter, Misty Davis, who was operating a 2001 Honda CEV with her daughter, Naomi Davis, as a passenger, collided with the back of the garbage truck and sustained fatal injuries as a result of this collision.

In December of 2006, Ramelli Janitorial Services, Inc. (“Ramelli”) and RKC, L.L.C. (“RKC”), formerly named “Red K Contracting,” entered into a “subcontractor agreement” providing for RKC to “perform all work necessary for removal and disposal of residential trash.” Thereafter, in May of 2007, Ramelli entered into a contract with the City of Kenner to provide solid waste collection and disposal services. Ramelli and RKC agreed that RKC would perform the work provided for the City of Kenner contract. It is alleged that RKC was performing work pursuant to Ramelli’s contract with the City of Kenner at the time of the accident. RKC was the owner of the garbage truck involved in the accident and the employer of the driver, Mr. Jones.

Kenneth Davis, the surviving spouse of Misty Davis, filed suit for damages against several defendants, individually and on behalf of his minor daughter, | .(Naomi Davis. Barry Terrell also filed suit against several defendants on behalf of Hunter Terrell, who was the minor child of Mr. Terrell and Misty Davis. Hunter Terrell has now reached the age of majority and has been substituted as plaintiff. These two lawsuits were later consolidated.

Plaintiffs allege in their original, first supplemental, and second supplemental petitions that several defendants are liable for the damages sustained as a result of this accident, including RKC and Ramelli. The insurers of RKC and Ramelli, namely Scottsdale Insurance Company, RSUI Indemnity Company, and QBE Specialty Insurance Company (“QBE”), were also named as defendants.

On September 7, 2012, Ramelli filed a Motion for Summary Judgment, asserting that it is not liable for any damages in this case and seeking dismissal of plaintiffs’ claims against it. Ramelli contends that because it did not own the garbage truck or employ the driver or anyone responsible for maintaining the truck, it is entitled to judgment as a matter of law. Ramelli contends that Mr. Jones was employed by RKC, which was an independent subcontractor for the collection and disposal of residential and commercial solid waste. It asserts that the terms of the subcontractor agreement between Ramelli and RKC establish an independent contractor relationship. Ramelli claims that it never supervised, controlled, or directed any of RKC’s employees, including Knollie Jones. In support of its position, Ramelli submitted affidavits from the president of Ramelli, Robert Ramelli, and the president of RKC, David Starks, as well as other documents.

In opposition to Ramelli’s Motion for Summary Judgment, plaintiffs filed a memorandum asserting that there are genuine issues of material fact regarding the degree of control Ramelli retained and/or exercised over RKC work and employees, such as Mr. Jones. They note that the subcontractor agreement was entered into prior to the contract between the City of Kenner and Ramelli, and [ ¡¡that the subcontractor agreement does not contain language indicating that RKC was an independent contractor. Plaintiffs further note that the contract between the City of Kenner and Ramelli provides that Ramelli shall supervise and direct the garbage collection and disposal work provided for in the contract. Plaintiffs contend that although RKC employees were not direct employees of Ramelli, Ramelli maintained [474]*474control over the work, as it agreed to do in its contract with the City of Kenner. Thus, plaintiffs claim that the legal doctrines of vicarious liability and/or dual employee are applicable to this case, and that summary judgment in Ramelli’s favor is not warranted.

Also in September of 2012, QBE filed a motion for summary judgment, asserting that the QBE commercial auto coverage insurance policy issued to Ramelli does not provide insurance coverage to Ramelli for plaintiffs’ claims in this case. QBE notes that the policy it issued to Ramelli is not a general liability policy, but rather a commercial auto policy which only provides coverage for damages arising from an accident caused by Ramelli’s ownership, maintenance, or use of a “covered auto,” as defined and listed in the policy. QBE contends that because the garbage truck at issue was not owned by Ramelli and was not listed or designated as a “covered auto” under the terms of the policy, the policy does not provide coverage in the case and plaintiffs’ claims against it should be dismissed. QBE submitted the insurance policy and other documents in support of its motion.

Plaintiffs opposed QBE’s motion for summary judgment, asserting that although the QBE policy does not specifically list the garbage truck at issue as a “covered auto,” the garbage truck was in fact a “covered auto” pursuant to designation symbol 9 in the policy which provides coverage for vehicles not owned by Ramel-li but “used in connection with” Ramelli’s business. Plaintiffs argue that coverage applies in this case where it is undisputed that Ramelli did not |fiown the truck but the truck was clearly being used in connection with Ramelli’s business of waste disposal under its contract with the City of Kenner. Plaintiffs submitted several exhibits in support of their position, including the depositions of Robert Ramelli and David Starks.

The motions for summary judgment filed by both Ramelli and QBE came for hearing before the trial judge on October 25, 2012.1 The motion for summary judgment filed by Ramelli was considered first. After counsel for each party argued their positions, the trial judge denied the motion, finding that there were genuine issues of material fact regarding the degree control Ramelli had over RKC’s employees and/or the work performed pursuant to Ramelli’s contract with the City of Kenner. The trial judge noted that the contract between Ramelli and the City of Kenner provided that Ramelli would control the work.2 The trial judge further stated that she did not believe that Mr. Jones would have been “on the road” on the date of the accident if it were not for the contract between Ramelli and the City of Kenner.

After Ramelli’s motion for summary judgment was denied, the trial court considered the motion for summary judgment filed by QBE. After listening to the arguments of counsel and considering the mo[475]*475tion for summary judgment, memoranda, and the exhibits, which were admitted at the hearing, the trial judge found no coverage for plaintiffs’ claims under the terms of the QBE policy. The trial judge stated that she believed RKC was “doing business with the City of Kenner contract” at the time of the accident. However, she further stated that she |7found RKC and Ramelli to be two separate businesses and that the garbage truck was not being used for Ramelli’s business, but rather was being operated in connection with RKC’s business.

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Bluebook (online)
128 So. 3d 471, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-scottsdale-insurance-co-lactapp-2013.