Gonzales v. Geisler

72 So. 3d 992, 2011 La. App. LEXIS 1062, 2011 WL 4374608
CourtLouisiana Court of Appeal
DecidedSeptember 21, 2011
DocketNo. 46,501-CA
StatusPublished
Cited by6 cases

This text of 72 So. 3d 992 (Gonzales v. Geisler) 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
Gonzales v. Geisler, 72 So. 3d 992, 2011 La. App. LEXIS 1062, 2011 WL 4374608 (La. Ct. App. 2011).

Opinion

GASKINS, J.

11 Economy Premier Assurance Company (“Economy”)1 appeals from a trial court ruling which granted summary judgment in favor of its insured, Dr. James Geisler, holding that Economy provided coverage to him under the facts of the instant case. We reverse and remand.

FACTS

On April 3, 2009, Dr. Geisler was operating a 2007 GMC Yukon XL in the parking lot of E.A. Conway Memorial Hospital when he struck a paint or push cart, which then hit Steven Gonzales. Mr. Gonzales claims injury from the incident.

The GMC Yukon was owned by Geisler Funeral Homes, a separate corporate entity, and operated by Dr. Geisler with that company’s full permission and authorization. The vehicle was insured by Progressive Security Insurance Company (“Progressive”). In March 2010, Mr. Gonzales filed suit against Dr. Geisler and Progressive.

Mr. Gonzales later amended his petition to add Economy, an insurance company that issued a personal automobile liability policy to Dr. Geisler and his wife for a 2007 BMW station wagon. In its answer, Economy denied that the Yukon driven by Dr. Geisler at thé time of the accident was an insured vehicle under its policy.

Dr. Geisler filed a motion for summary judgment and/or for declaratory judgment, asserting that the corporate-owned Yukon was covered under the Economy policy because the Yukon met the “exception” 12to the “non-owned automobile” definition. The Economy policy stated, in relevant part:

We will pay damages for bodily injury and property damage to others for which the law holds an insured responsible because of an accident which results from the ownership, maintenance or use of a covered automobile, a non-owned automobile or a trailer while being used with a covered automobile or non-owned automobile.

On the same page, the policy defined “non-owned automobile” as:

1. [A]n automobile which is not owned by, furnished to, or made available for regular use to you or any resident in your household.
EXCEPTION: An automobile owned by, furnished to, or made available for regular use to any resident in your household, is considered a non-owned automobile when used by you. [Emphasis theirs.]

Dr. Geisler and his wife are listed on the declarations page of the policy as the named insureds. Therefore, under the general definitions section of the policy, the terms “you” and “your” in the policy refer to them.

Essentially, Dr. Geisler argued that coverage was afforded to the Yukon as a non-owned automobile under the policy exclusion because — even if made available to him for his regular use — it was being used by a resident of his household, i.e., himself. In support of his motion for summary judgment, Dr. Geisler filed his own affidavit in which he stated that the Yukon was owned by Geisler Funeral Homes, that he [995]*995was operating it with that company’s permission, and that he had a policy of automobile liability insurance issued by Economy at the time of the accident. He also stated that at the time of the accident, he was a resident of his own | ahousehold. He also filed a list of undisputed facts and a copy of the Economy insurance policy.

The motion for summary judgment was granted on October 11, 2010. However, there is no transcript of the hearing in the record. The signed judgment of October 25, 2010, states:

Judgment is hereby entered declaring the policy of insurance issued by Economy Premier Assurance Company, Policy No. 361037466-0, provides coverage for and defense of Dr. James Geisler, Sr. for the claims being made by Plaintiff, Steven Gonzales, against him in this civil action (subject to and consistent with the other terms and provisions of that contract of insurance).
Economy appealed.

LAW

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Elliott v. Continental Casualty Company, 2006-1505 (La.2/22/07), 949 So.2d 1247; Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180. A motion for summary judgment will be granted 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 the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

In an action under an insurance contract, the insured bears the burden of proving the existence of policy and coverage. The insurer, however, bears the burden of showing policy limits or exclusions. Tunstall v. Stierwald, 2001-1765 (La.2/26/02), 809 So.2d 916; Curry v. Taylor, 40,185 (La.App.2d Cir.9/21/05), 912 So.2d 78; Whitham v. Louisiana Farm Bureau Casualty Insurance Company, 45,199 (La.App.2d Cir.4/14/10), 34 So.3d 1104. Summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion, under which coverage could be afforded. Elliott v. Continental Casualty Company, supra; Reynolds v. Select Properties, Ltd., supra; Palmer v. Martinez, 45,318 (La.App.2d Cir.7/21/10), 42 So.3d 1147, writs denied, 2010-1952, 2010-1953, 2010-1955 (La.11/5/10), 50 So.3d 804, 805.

An insurance policy is a contract between the parties and should be construed using ordinary contract principles. The parties’ intent, as reflected by the words of the policy, determines the extent of coverage. An insurance policy should not be interpreted in an unreasonable or a strained manner so as to enlarge or to restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion. However, if after applying the other rules of construction an ambiguity remains, the ambiguous provision is to be construed against the drafter and in favor of the insured. Curry v. Taylor, supra; Whitham v. Louisiana Farm Bureau Casualty Insurance Company, supra.

Insurance companies have the right to limit coverage in any manner they desire, so long as the limitations do not conflict with statutory provisions or public policy. Elliott v. Continental Casualty Company, supra; Reynolds v. Select Prop[996]*996erties, Ltd., supra; Chretien v. Thomas, 45,762 (La.App.2d Cir.12/15/10), 56 So.3d 298.

[sThe jurisprudence of Louisiana has held that the purpose of the type of exclusionary clause involved here is to exclude from coverage non-owned automobiles over which the insured has “general authority of use.” Curry v. Taylor, supra. The phrase “available for regular use” encompasses the vehicle which is accessible, obtainable and ready for immediate use. The phrase, “furnished for regular use” means that the vehicle is provided, supplied or afforded to the individual according to some established rule or principle or used in steady or uniform course, practice or occurrence as contrasted with being furnished for use only on casual, random, unpredictable or chance occasions. Curry v. Taylor, supra; Whithorn v. Louisiana Farm Bureau Casualty Insurance Company, supra.

The so-called “regular use” exclusion for non-owned autos is a typical and common policy provision.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Ilgenfritz v. Canopius U.S. Ins.
243 So. 3d 1109 (Louisiana Court of Appeal, 2017)
Lodwick, L.L.C. v. Chevron U.S.A., Inc.
126 So. 3d 544 (Louisiana Court of Appeal, 2013)
Byrd v. Linton
117 So. 3d 1268 (Louisiana Court of Appeal, 2013)
Parekh v. Mittadar
97 So. 3d 433 (Louisiana Court of Appeal, 2012)

Cite This Page — Counsel Stack

Bluebook (online)
72 So. 3d 992, 2011 La. App. LEXIS 1062, 2011 WL 4374608, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gonzales-v-geisler-lactapp-2011.