Domingue v. Rodrigue

686 So. 2d 132, 1996 WL 739288
CourtLouisiana Court of Appeal
DecidedDecember 20, 1996
Docket96 CA 0567
StatusPublished
Cited by4 cases

This text of 686 So. 2d 132 (Domingue v. Rodrigue) 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
Domingue v. Rodrigue, 686 So. 2d 132, 1996 WL 739288 (La. Ct. App. 1996).

Opinion

686 So.2d 132 (1996)

Yvette DOMINGUE[1]
v.
Robby RODRIGUE, Patterson Insurance Company, Cracker Barrel Stores, Inc. and the Department of Transportation & Development Through the State of Louisiana.

No. 96 CA 0567.

Court of Appeal of Louisiana, First Circuit.

December 20, 1996.
Writ Denied March 14, 1997.

Marvin Gros, Donaldsonville, for Plaintiffs/Appellants, Yvette Domingue, Lloyd Gros, Jr., Heath Gros, Chad Gros, and Tyonia Hebert.

Carlos E. Lazarus, Jr., Houma, for Defendant/Appellee, National Union Fire Ins. Co.

*133 Before WATKINS and KUHN, JJ., and GUIDRY, J. Pro Tem.[2]

CARL A. GUIDRY, Judge Pro Tem.

This appeal follows the dismissal of the defendant, National Union Fire Insurance Company of Louisiana (hereinafter "National Union"), by summary judgment on the basis of a policy exclusion.

FACTUAL AND PROCEDURAL BACKGROUND

On January 15, 1994, plaintiffs' father, Lloyd Gros, was driving a motorcycle in the eastbound lane of Highway 70 in Assumption Parish, when he was struck by the 1982 Delta 88 owned and driven by defendant, Robby M. Rodrigue. Mr. Rodrigue was turning left into a Cracker Barrel parking lot, in front of Mr. Gros, when the accident occurred. Mr. Gros sustained fatal injuries in the accident.

At the time of the accident, Mr. Rodrigue resided with his mother, Elaine M. Rodrigue Clement. Mrs. Clement had in effect an automobile insurance policy, issued by National Union, which is the subject of this lawsuit.

Plaintiffs, children of Lloyd Gros, brought suit against various defendants, including National Union. National Union filed a motion for summary judgment maintaining that no coverage existed for the accident in question under a provision in the policy excluding coverage of any vehicle owned by a family member, other than the insured's "covered auto." The trial court found in favor of National Union and rendered judgment dismissing that defendant. Plaintiffs appeal.

MOTION FOR SUMMARY JUDGMENT

Appellate courts review summary judgments de novo under the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342 (La. 1991); Henderson v. Maloid, 96 CA 0285 (La.App. 1st Cir. 11/8/96); 683 So.2d 342. Louisiana Code of Civil Procedure, article 966 provides that a motion for summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law." See also Thompson v. South Central Bell Telephone Company, 411 So.2d 26 (La. 1982); Dixie Campers, Inc. v. Vesely Company, 398 So.2d 1087 (La.1981); Chaisson v. Domingue, 372 So.2d 1225 (La.1979).

Prior to the enactment of 1996 La. Acts, No. 9, which amended La.C.C.P. 966, summary judgments were not favored, and all doubt concerning a dispute as to a material issue of fact was resolved against granting the motion for summary judgment and in favor of a trial on the merits. Henderson v. Maloid, 96 CA 0285, 96 CA 0286 at p. 3; 683 So.2d at 343-44. See also Robertson v. Our Lady of the Lake Regional Medical Center, 574 So.2d 381 (La.App. 1st Cir.1990), writ denied, 573 So.2d 1136 (La.1991); Penalber v. Blount, 550 So.2d 577 (La.1989); Dupuy v. Gonday, 450 So.2d 1014 (La.App. 1st Cir. 1984). Article 966 now provides in part, "The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969. The procedure is favored and shall be construed to accomplish these ends." As this legislation is procedural in nature, it must be applied retroactively, as well as prospectively. Henderson v. Maloid, 96 CA 0285, 96 CA 0286 at p. 3; 683 So.2d at 343-44. See NAB Natural Resources, L.L.C. v. Willamette Industries, Inc., 28,555 (La.App.2d Cir. 8/21/96); 679 So.2d 477; Short v. Giffin, 96-CA-0361 (La.App. 4th Cir. 8/21/96); 682 So.2d 249. See also La.C.C. art. 6; Cole v. Celotex Corporation, 599 So.2d 1058 (La. 1992).

The burden of proof nevertheless remains upon the mover for summary judgment to show that no genuine issue of material fact *134 exists, and only when reasonable minds must inevitably conclude that mover is entitled to judgment as a matter of law is summary judgment warranted. La.C.C.P. art. 966(G). See Short, 96-CA-0361 at page 3; 682 So.2d at 251-52; Walker v. Kroop, 96-CA-0618 (La.App. 4th Cir. 7/24/96); 678 So.2d 580. See also Robertson, 574 So.2d at 384; Frazier v. Freeman, 481 So.2d 184 (La.App. 1st Cir.1985); Asian International Ltd. v. Merrill Lynch, Pierce, Fenner and Smith, Inc., 435 So.2d 1058 (La.App. 1st Cir.1983). A fact is material if essential to plaintiff's cause of action under the applicable theory of recovery and without which plaintiff could not recover. Henderson v. Maloid, 96 CA 0285, 96 CA 0286 at p. 5; 683 So.2d at 344-45; Roadrunner Motor Rebuilders, Inc. v. Ryan, 603 So.2d 214 (La.App. 1st Cir.1992). Consequently, we must look to the applicable substantive law to determine whether a particular fact in dispute is material. Henderson v. Maloid, 96 CA 0285, 96 CA 0286 at p.5; 683 So.2d at 344-45; Sun Belt Constructors, a Division of MCC Constructors, Inc. v. T & R Dragline Service, Inc., 527 So.2d 350 (La. App. 5th Cir.1988).

INTERPRETATION OF INSURANCE POLICY PROVISIONS

An insurance policy is a contract under the law and the rules established by our Civil Code for the interpretation of agreements are applicable. La.C.C. art. 1945 et seq.; Carney v. American Fire & Indemnity Company, 371 So.2d 815 (La.1979); Albritton v. Fireman's Fund Insurance Company, 224 La. 522; 70 So.2d 111 (1953); Martin v. Phillips, 356 So.2d 1016 (La.App. 1st Cir. 1977). If the words of an insurance policy are clear and express the intent of the parties, the agreement is to be enforced as written; but if there is any ambiguity or doubt, the court must endeavor to ascertain the common intention of the parties by reference to other phrases or words of the agreement, or by similar contracts of the parties. The court must bear in mind that, if a clause or word is susceptible of more than one interpretation, it is to be understood in the sense that would make the obligation effective; doubtful language is to be construed against him who has contracted the obligation. La.C.C. art. 1945, et seq.; Carney, 371 So.2d at 818; Albritton, 70 So.2d at 113; Martin, 356 So.2d at 1018-1019. All ambiguities must be construed in favor of the insured and against the insurer. Breland v. Schilling, 550 So.2d 609 (La.1989). However, courts have no authority to alter the terms of policies under the guise of contractual interpretation when the policy provisions are couched in unambiguous language. Pareti v. Sentry Indemnity Company, 536 So.2d 417 (La.1988).

The National Union policy provides: "We do not provide Liability Coverage for the ownership, maintenance or use of: ... Any vehicle, other than `your covered auto,' which is: ... owned by any `family member'...."[3] The purpose of such an exclusion was pointed out by this circuit in Leteff v. Maryland Casualty Company, 91 So.2d 123 (La. 1st Cir.1956), quoting Fleming v.

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