Falgout v. Jester

883 So. 2d 515, 2004 WL 2181387
CourtLouisiana Court of Appeal
DecidedSeptember 29, 2004
Docket2004-0434
StatusPublished
Cited by6 cases

This text of 883 So. 2d 515 (Falgout v. Jester) 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
Falgout v. Jester, 883 So. 2d 515, 2004 WL 2181387 (La. Ct. App. 2004).

Opinion

883 So.2d 515 (2004)

James FALGOUT
v.
Walter JESTER, Hampton Inc., Hampton Automotive Inc., d/b/a Hampton Toyota and CNA Insurance Co.

Nos. 2004-0434.

Court of Appeal of Louisiana, Third Circuit.

September 29, 2004.

*516 Victor J. Versaggi, Domengeaux, Wright, Roy & Edwards, Lafayette, LA, for Plaintiff/Appellant James Falgout.

Robert L. Ellender, Attorney at Law, Lafayette, LA, for Defendants/Appellees Beau LeBlanc, Hampton Inc. And Hampton Automotive, d/b/a Hampton Toyota.

Stephen J. Moore, Richard G. Duplantier, Jr., Peter A. Bourgeois, Galloway, Johnson, Tompkins, Burr & Smith, New Orleans, LA, for Defendant/Appellee Columbia Casualty Insurance Company.

Court composed of JIMMIE C. PETERS, GLENN B. GREMILLION, and BILLY H. EZELL, Judges.

JIMMIE C. PETERS, Judge.

James Falgout and Leon Touchet, the plaintiffs in these consolidated actions, appeal the trial court's grant of a partial summary judgment on the issue of insurance coverage in favor of one of the defendants, Columbia Casualty Insurance Company. For the following reasons, we affirm the trial court's judgment in all respects.

DISCUSSION OF THE RECORDS

On September 14, 2001, James Falgout and Leon Touchet were both involved in a motor vehicle accident while traveling on U.S. Highway 167 in Lafayette Parish, Louisiana. They suffered personal injuries when their motorcycles[1] were struck by a vehicle owned by the Hampton Toyota dealership[2] in Lafayette, Louisiana, and being driven by Walter Jester. At the time of the accident, Jester was test driving the vehicle in contemplation of purchasing it from Hampton Toyota. Falgout and Touchet brought separate suits in an effort to recover the damages they sustained in the accident.

Falgout filed suit on July 24, 2002, and Touchet filed suit on August 14, 2002. Both men initially named Hampton Toyota, Jester, and Columbia Casualty Insurance Company (Columbia Casualty) as defendants.[3] Columbia Casualty is Hampton *517 Toyota's general liability insurance carrier. In April of 2003, Falgout and Touchet both added Beau LeBlanc, a Hampton Toyota salesman, as a party defendant. On April 4, 2003, and before the amendments adding LeBlanc as a defendant, Hampton Toyota filed a motion to consolidate the two actions. The trial court executed an order to that effect on August 4, 2003.

In their original petitions, Falgout and Touchet asserted that they both had settled their claims against Jester's liability insurer, State Farm Mutual Automobile Insurance Company, and that Jester remained in the litigation "as a nominal defendant to the extent necessary to pursue the claim for excess damages." They further asserted that Columbia Casualty provided liability insurance coverage to Jester as an insured or omnibus insured under its policy.

On July 16, 2003, and before the trial court executed the consolidation order, Columbia Casualty filed separate motions for partial summary judgment in each of the pending actions. In both motions, Columbia Casualty asserted that its policy precluded liability coverage to Jester for his negligence in causing the accident. After a November 10, 2003 hearing, the trial court granted the motions and rendered judgment to the effect that the Columbia Casualty policy provided no liability coverage for Jester. In response to this ruling, Falgout and Touchet filed separate appeals. These appeals have been consolidated and are now before us. Both Falgout and Touchet have filed the same four assignments of error. The first three address the correctness of the trial court's interpretation of the policy language and the last asserts that the trial court decision is premature.

OPINION

Appellate courts review summary judgments de novo under the same criteria that govern the trial court's consideration of whether or not a summary judgment is appropriate in any given case. Cormier v. Albear, 99-1206 (La.App. 3 Cir. 2/2/00), 758 So.2d 250. "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." La.Code Civ.P. art. 966(A)(2). If there is no genuine issue as to material fact and the mover is entitled to judgment as a matter of law, the motion for summary judgment "shall be granted." La.Code Civ.P. art. 966(C)(1) (emphasis added).

The Columbia Casualty policy is described as both a garage coverage policy and an automobile dealer's policy. The initial declarations page identifies the policy as a "GARAGE COVERAGE" policy and describes Hampton Toyota as a corporation. A second declarations page located toward the end of the policy is entitled "Auto Dealer's General Declarations" and identifies Hampton Toyota's business as that of a "Franchised Auto Dealer." These two portions of the policy lists the various coverages provided by Columbia Casualty. The only coverage at issue in this litigation is that which might be afforded to one who has an accident while test driving a Hampton Toyota vehicle in contemplation of purchasing the vehicle.

The pages following the initial declarations page set forth the specific provisions of the policy, including the following language which appears under "SECTION II-LIABILITY COVERAGE:"

*518 "GARAGE OPERATIONS"-COVERED "AUTOS"
We will pay all sums an "insured" legally must pay as damages because of "bodily injury" or "property damage" to which this insurance applies, caused by an "accident" and resulting from "garage operations" involving the ownership maintenance or use of covered "autos".

Garage operations is defined in the policy as follows:

"Garage operations" means the ownership, maintenance or use of locations for garage business and that portion of the roads or other accesses that adjoin these locations. "Garage operations" includes the ownership, maintenance or use of the "autos" indicated in SECTION I of this Coverage Form as covered "autos". "Garage operations" also include all operations necessary or incidental to a garage business.

In that same section of the policy, the definition of an "insured" appears. That definition reads in pertinent part:

1. Who is An Insured
a. The following are "insureds" for covered "autos".
(1) You for any covered "auto".
(2) Anyone else while using with your permission a covered "auto" you own, hire or borrow except:
....
(d) Your customers, if your business is shown in the Declarations as an "auto" dealership. However, if a customer of yours:
(i) Has no other available insurance (whether primary, excess or contingent), they are an "insured" but only up to the compulsory or financial responsibility law limits where the covered "auto" is principally garaged.
(ii) Has other available insurance (whether primary excess or contingent) less than the compulsory financial responsibility law limits where the covered "auto" is principally garaged, they are an "insured" only for the amount by which the compulsory or financial responsibility law limits excess the limit of their other insurance.

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Touchet v. Jester
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Cite This Page — Counsel Stack

Bluebook (online)
883 So. 2d 515, 2004 WL 2181387, Counsel Stack Legal Research, https://law.counselstack.com/opinion/falgout-v-jester-lactapp-2004.