STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
08-0585
ELLA NICOLE SALVAGGIO, ET AL.
VERSUS
ALLSTATE INS. CO., ET AL.
************
APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT, PARISH OF ST. MARTIN, NO. 68757-A HONORABLE GERARD WATTIGNY, DISTRICT JUDGE
JIMMIE C. PETERS JUDGE
Court composed of Jimmie C. Peters, Elizabeth A. Pickett, and J. David Painter, Judges.
REVERSED AND REMANDED.
David C. Laborde Bradley G. Frizzell The Laborde Law Firm, L.L.C. Post Office Box 80098 Lafayette, LA 70598-0098 (337) 261-2617 COUNSEL FOR PLAINTIFFS/APPELLANTS: Ella Nicole Salvaggio, et al.
Charles C. Garrison Caffery, Oubre, Campbell & Garrison, L.L.P. Post Office Drawer 12410 New Iberia, LA 70562-2410 (337) 364-1816 COUNSEL FOR DEFENDANT/APPELLEE: Southern Farm Bureau Casualty Insurance Co. PETERS, J.
The plaintiff, Nicole Salvaggio,1 appeals from the trial court’s grant of a motion
for summary judgment in favor Southern Farm Bureau Casualty Insurance Company
(Farm Bureau), dismissing it from this litigation. For the reasons set forth herein, we
reverse the trial court’s grant of summary judgment and remand for further
proceedings.
FACTS AND PROCEDURAL HISTORY
This suit arises out of a single-vehicle accident that occurred on December 20,
2003, in St. Martin Parish, Louisiana. The driver, Jeremy Gautreaux, lost control of
his Ford F-150 pickup truck and ran into a ditch. His two sons, Tristen (age 6) and
Tyler (age 3), were passengers in the truck, and both children sustained severe
injuries in the accident.
At the time of the accident, Jeremy Gautreaux and Nicole Salvaggio were
husband and wife but were physically separated and had already begun the legal
process of obtaining a divorce. The trial court having jurisdiction over the divorce
action had granted the parents joint custody of their two children, with Ms. Salvaggio
being named as primary custodian. The court order required that Mr. Gautreaux’s
visitation with his children be supervised by his mother, Theresa Gautreaux. The
order also provided that Mr. Gautreaux was not to drive with the children in his
vehicle unless his mother was present. At the time of the accident, Mr. Gautreaux
was living in an apartment above his parents’ garage.
Ms. Salvaggio named Farm Bureau, Mrs. Gautreaux’s automobile liability
insurer, as one of the defendants in the litigation, asserting that Farm Bureau provided
uninsured/underinsured motorist (UM) coverage for the accident. Farm Bureau
1 Ms. Salvaggio filed her suit individually and on behalf of her minor children. However, for the purposes of this opinion, she will be referred to as the plaintiff. responded by denying coverage and ultimately filed the motion for summary
judgment on the coverage issue which is now before us.
Relying on Sandoz v. State Farm Mutual Automobile Insurance Company, 620
So.2d 441 (La.App. 3 Cir. 1993), the trial court found that Mr. Gautreaux’s pickup
truck was not an “uninsured or underinsured automobile” within the meaning of Farm
Bureau’s policy because Mr. Gautreaux was a resident of Mrs. Gautreaux’s household
and the owner of the vehicle involved in the accident. The trial court granted Farm
Bureau’s motion for summary judgment and dismissed Ms. Salvaggio’s claims
against Farm Bureau. In her one assignment of error on appeal, Ms. Salvaggio asserts
that the trial court erred in not finding that the UM provisions of the Farm Bureau
policy provided coverage for the accident sued upon.
OPINION
This court reviews summary judgments de novo. Supreme Serv. and Specialty
Co., Inc. v. Sonny Greer, Inc., 06-1827 (La. 5/22/07), 958 So.2d 634. A motion for
summary judgment is properly granted if there is no genuine issue of material fact and
the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966;
Travelers Ins. Co. v. Joseph, 95-200 (La. 6/30/95), 656 So.2d 1000. There are no
factual disputes in this motion for summary judgment, so we review whether the trial
court was correct in holding that there was no UM coverage under Farm Bureau’s
policy and that Farm Bureau was entitled to judgment as a matter of law.
The undisputed facts are that Mr. Gautreaux’s truck was insured by US
Agencies, under a policy which provided no UM coverage. Mr. Gautreaux died from
causes unrelated to the automobile accident several months after the accident, and
Ms. Salvaggio had settled the claims against her former husband and his insurer
2 before she filed the instant suit. Farm Bureau’s liability insurance policy covered
Mrs. Gautreaux’s 1998 Pontiac automobile and provided for UM coverage. Farm
Bureau stipulated, for the purposes of the motion for summary judgment only, that
Mr. Gautreaux and the two children were residents of Mrs. Gautreaux’s household
and therefore “insureds” under its policy.
In seeking summary judgment on the coverage issue, Farm Bureau relied on the
provisions of La.R.S. 22:1406(D)(1)(e), which at the time of the accident,2 read as
follows:
The uninsured motorist coverage does not apply to bodily injury, sickness, or disease, including death of an insured resulting therefrom, while occupying a motor vehicle owned by the insured if such motor vehicle is not described in the policy under which a claim is made, or is not a newly acquired or replacement motor vehicle covered under the terms of the policy. This provision shall not apply to uninsured motorist coverage provided in a policy that does not describe specific motor vehicles.
It is clear from this language that because Mr. Gautreaux was occupying a motor
vehicle which he owned, but which was not described in the Farm Bureau policy, that
policy provided no UM coverage for him. However, Ms. Salvaggio points out that
the two children are the “insureds” at issue, not Mr. Gautreaux. She asserts that the
exception set forth in La.R.S. 22:1406(D)(1)(e) does not apply to her children
because they were occupying a vehicle which they did not own. We agree.
The supreme court has addressed the interpretation of this statutory provision
in Mayo v. State Farm Mutual Automobile Insurance Co., 03-1801 (La. 2/25/04), 869
So.2d 96, and reached a decision that supports our conclusion. In that case, Melissa
Mayo sustained injuries in an automobile accident when she was a passenger in a
vehicle being driven by her husband, Scotty Mayo. The vehicle was the separate
2 The statute was redesignated as La.R.S. 22:680 in 2003.
3 property of her husband and was insured by Allstate Insurance Company. State Farm
Mutual Automobile Insurance Company (State Farm) insured another vehicle owned
by Mrs. Mayo as her separate property, and she brought suit against State Farm under
the UM provisions of that policy. State Farm denied coverage, relying on the
language found in La.R.S. 22:1406(D). The supreme court rejected State Farm’s
argument, concluding that although Mr. Mayo was an insured under the terms of Mrs.
Mayo’s policy with State Farm, Mrs. Mayo was not precluded from recovering under
the UM coverage because she was injured in a vehicle not owned by her. In reaching
this conclusion, the supreme court stated:
LSA-R.S. 22:1406(D)(1)(e) provides that UM coverage is inapplicable to injuries of an insured while occupying a motor vehicle owned by the insured.
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
08-0585
ELLA NICOLE SALVAGGIO, ET AL.
VERSUS
ALLSTATE INS. CO., ET AL.
************
APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT, PARISH OF ST. MARTIN, NO. 68757-A HONORABLE GERARD WATTIGNY, DISTRICT JUDGE
JIMMIE C. PETERS JUDGE
Court composed of Jimmie C. Peters, Elizabeth A. Pickett, and J. David Painter, Judges.
REVERSED AND REMANDED.
David C. Laborde Bradley G. Frizzell The Laborde Law Firm, L.L.C. Post Office Box 80098 Lafayette, LA 70598-0098 (337) 261-2617 COUNSEL FOR PLAINTIFFS/APPELLANTS: Ella Nicole Salvaggio, et al.
Charles C. Garrison Caffery, Oubre, Campbell & Garrison, L.L.P. Post Office Drawer 12410 New Iberia, LA 70562-2410 (337) 364-1816 COUNSEL FOR DEFENDANT/APPELLEE: Southern Farm Bureau Casualty Insurance Co. PETERS, J.
The plaintiff, Nicole Salvaggio,1 appeals from the trial court’s grant of a motion
for summary judgment in favor Southern Farm Bureau Casualty Insurance Company
(Farm Bureau), dismissing it from this litigation. For the reasons set forth herein, we
reverse the trial court’s grant of summary judgment and remand for further
proceedings.
FACTS AND PROCEDURAL HISTORY
This suit arises out of a single-vehicle accident that occurred on December 20,
2003, in St. Martin Parish, Louisiana. The driver, Jeremy Gautreaux, lost control of
his Ford F-150 pickup truck and ran into a ditch. His two sons, Tristen (age 6) and
Tyler (age 3), were passengers in the truck, and both children sustained severe
injuries in the accident.
At the time of the accident, Jeremy Gautreaux and Nicole Salvaggio were
husband and wife but were physically separated and had already begun the legal
process of obtaining a divorce. The trial court having jurisdiction over the divorce
action had granted the parents joint custody of their two children, with Ms. Salvaggio
being named as primary custodian. The court order required that Mr. Gautreaux’s
visitation with his children be supervised by his mother, Theresa Gautreaux. The
order also provided that Mr. Gautreaux was not to drive with the children in his
vehicle unless his mother was present. At the time of the accident, Mr. Gautreaux
was living in an apartment above his parents’ garage.
Ms. Salvaggio named Farm Bureau, Mrs. Gautreaux’s automobile liability
insurer, as one of the defendants in the litigation, asserting that Farm Bureau provided
uninsured/underinsured motorist (UM) coverage for the accident. Farm Bureau
1 Ms. Salvaggio filed her suit individually and on behalf of her minor children. However, for the purposes of this opinion, she will be referred to as the plaintiff. responded by denying coverage and ultimately filed the motion for summary
judgment on the coverage issue which is now before us.
Relying on Sandoz v. State Farm Mutual Automobile Insurance Company, 620
So.2d 441 (La.App. 3 Cir. 1993), the trial court found that Mr. Gautreaux’s pickup
truck was not an “uninsured or underinsured automobile” within the meaning of Farm
Bureau’s policy because Mr. Gautreaux was a resident of Mrs. Gautreaux’s household
and the owner of the vehicle involved in the accident. The trial court granted Farm
Bureau’s motion for summary judgment and dismissed Ms. Salvaggio’s claims
against Farm Bureau. In her one assignment of error on appeal, Ms. Salvaggio asserts
that the trial court erred in not finding that the UM provisions of the Farm Bureau
policy provided coverage for the accident sued upon.
OPINION
This court reviews summary judgments de novo. Supreme Serv. and Specialty
Co., Inc. v. Sonny Greer, Inc., 06-1827 (La. 5/22/07), 958 So.2d 634. A motion for
summary judgment is properly granted if there is no genuine issue of material fact and
the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966;
Travelers Ins. Co. v. Joseph, 95-200 (La. 6/30/95), 656 So.2d 1000. There are no
factual disputes in this motion for summary judgment, so we review whether the trial
court was correct in holding that there was no UM coverage under Farm Bureau’s
policy and that Farm Bureau was entitled to judgment as a matter of law.
The undisputed facts are that Mr. Gautreaux’s truck was insured by US
Agencies, under a policy which provided no UM coverage. Mr. Gautreaux died from
causes unrelated to the automobile accident several months after the accident, and
Ms. Salvaggio had settled the claims against her former husband and his insurer
2 before she filed the instant suit. Farm Bureau’s liability insurance policy covered
Mrs. Gautreaux’s 1998 Pontiac automobile and provided for UM coverage. Farm
Bureau stipulated, for the purposes of the motion for summary judgment only, that
Mr. Gautreaux and the two children were residents of Mrs. Gautreaux’s household
and therefore “insureds” under its policy.
In seeking summary judgment on the coverage issue, Farm Bureau relied on the
provisions of La.R.S. 22:1406(D)(1)(e), which at the time of the accident,2 read as
follows:
The uninsured motorist coverage does not apply to bodily injury, sickness, or disease, including death of an insured resulting therefrom, while occupying a motor vehicle owned by the insured if such motor vehicle is not described in the policy under which a claim is made, or is not a newly acquired or replacement motor vehicle covered under the terms of the policy. This provision shall not apply to uninsured motorist coverage provided in a policy that does not describe specific motor vehicles.
It is clear from this language that because Mr. Gautreaux was occupying a motor
vehicle which he owned, but which was not described in the Farm Bureau policy, that
policy provided no UM coverage for him. However, Ms. Salvaggio points out that
the two children are the “insureds” at issue, not Mr. Gautreaux. She asserts that the
exception set forth in La.R.S. 22:1406(D)(1)(e) does not apply to her children
because they were occupying a vehicle which they did not own. We agree.
The supreme court has addressed the interpretation of this statutory provision
in Mayo v. State Farm Mutual Automobile Insurance Co., 03-1801 (La. 2/25/04), 869
So.2d 96, and reached a decision that supports our conclusion. In that case, Melissa
Mayo sustained injuries in an automobile accident when she was a passenger in a
vehicle being driven by her husband, Scotty Mayo. The vehicle was the separate
2 The statute was redesignated as La.R.S. 22:680 in 2003.
3 property of her husband and was insured by Allstate Insurance Company. State Farm
Mutual Automobile Insurance Company (State Farm) insured another vehicle owned
by Mrs. Mayo as her separate property, and she brought suit against State Farm under
the UM provisions of that policy. State Farm denied coverage, relying on the
language found in La.R.S. 22:1406(D). The supreme court rejected State Farm’s
argument, concluding that although Mr. Mayo was an insured under the terms of Mrs.
Mayo’s policy with State Farm, Mrs. Mayo was not precluded from recovering under
the UM coverage because she was injured in a vehicle not owned by her. In reaching
this conclusion, the supreme court stated:
LSA-R.S. 22:1406(D)(1)(e) provides that UM coverage is inapplicable to injuries of an insured while occupying a motor vehicle owned by the insured. The language of that provision suggests that the legislature contemplated an insured, the owner of multiple vehicles, who is injured while occupying another vehicle he or she owns. This means if Melissa had been injured while occupying another vehicle she owns, UM coverage would not apply. Those are not the facts of this case. Only two vehicles are at issue: the one owned by Melissa and the one owned by Scotty. Melissa was injured while occupying the vehicle owned by Scotty. Therefore, we must conclude that LSA-R.S. 22:1406(D)(1)(e) does not preclude Melissa from recovery [sic] UM benefits under her own State Farm policy.
Mayo, 869 So.2d at 106.
Applying that reasoning to this case, because Tristen and Tyler did not own the
vehicle that they were occupying at the time of the accident, the exclusion of La.R.S.
22:1406(D)(1)(e) does not apply.
Farm Bureau also argues that under the language of its policy, there is no UM
coverage because the policy provides that “uninsured or underinsured automobiles”
do not include automobiles furnished for the regular use of Mrs. Gautreaux or a
relative.
4 The policy provides that “[t]he term ‘uninsured or underinsured automobile’
shall not include: (1) an owned automobile or an automobile furnished for the regular
use of a named insured or relative.” Farm Bureau asserts that because Mr. Gautreaux
was a relative of Mrs. Gautreaux, his truck was not an uninsured or underinsured
automobile within the meaning of the policy.
We reject this argument because that interpretation would exclude UM
coverage required by Louisiana’s UM statute, La.R.S. 22:1406. “[I]t is well settled
that our uninsured motorist statute embodies public policy and, thus, any clause in a
policy in derogation of the mandatory requirements set forth in the statute is invalid
insofar as it conflicts with the statute.” Breaux v. Gov. Emp. Ins. Co., 369 So.2d
1335, 1337-38 (La.1979).
DISPOSITION
For the reasons given above, we reverse the trial court’s grant of summary
judgment in favor of Southern Farm Bureau Casualty Insurance Company dismissing
it from the litigation and remand the matter to the trial court for further proceedings.
We assess all costs of this appeal to Southern Farm Bureau Casualty Insurance
Company.