Green v. Michael Johnson, State Farm Ins. Agency, Allstate Ins. Co.

241 So. 3d 1188
CourtLouisiana Court of Appeal
DecidedJanuary 10, 2018
DocketNUMBER 2016 CA 1525
StatusPublished
Cited by9 cases

This text of 241 So. 3d 1188 (Green v. Michael Johnson, State Farm Ins. Agency, Allstate Ins. 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
Green v. Michael Johnson, State Farm Ins. Agency, Allstate Ins. Co., 241 So. 3d 1188 (La. Ct. App. 2018).

Opinion

GUIDRY, J.

*1190Plaintiff, Ashanti Green, as tutrix of the minors, Dave Peterson, III and David Peterson, appeals from a judgment of the trial court granting summary judgment in favor of Allstate Insurance Company ("Allstate") and dismissing her claims against Allstate with prejudice. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

On July 16, 2007, Dave Peterson, while driving a motorcycle he had jointly purchased with Benjamin Gibson sixteen days earlier, was struck by an SUV being driven by Michael Johnson. The accident, which occurred as Johnson backed his SUV into a roadway in Baton Rouge, Louisiana, resulted in Peterson's death.

At the time of his death, Peterson resided with his girlfriend, Ashanti Green. The motorcycle was insured by American Southern Home Insurance Company ("American Southern") under a liability policy with uninsured/underinsured motorist ("UM") coverage issued to Green, with Peterson listed as a rated driver. Also, Gibson, the co-owner of the motorcycle, was insured by an automobile liability insurance policy issued by Allstate, which included UM coverage.

Green instituted this suit as tutrix of her two minor sons with Peterson, asserting survival and wrongful death claims on their behalf. Through original and supplemental petitions, Green named as defendants, among others, American Southern as the insurer of the motorcycle and Allstate in its capacity as the automobile insurer of Gibson, alleging that UM coverage was provided to Peterson under those policies.1 Pursuant to a motion to dismiss filed jointly by Green and American Southern, the claims against American Southern under the policy it issued to Green were dismissed with prejudice, with Green reserving all rights to proceed against all other defendants.

Over the course of this litigation, Allstate filed several motions for summary judgment alleging various defenses to UM coverage under the policy it issued to Gibson.2 At issue in this appeal is Allstate's third motion for summary judgment with regard to the policy issued to Gibson, filed on March 4, 2015, wherein it asserted an additional coverage defense based on a specific contractual exclusion in the policy, stating that UM coverage is excluded for bodily injuries incurred in a motor vehicle owned by the insured if the motor vehicle is insured for UM coverage under another *1191policy. According to Allstate, because the motorcycle was insured under the UM provisions of the American Southern policy issued to Green, UM coverage under co-owner Gibson's policy with Allstate was excluded.

Following a hearing on the motion, the trial court agreed and rendered judgment on September 3, 2015, granting Allstate's motion for summary judgment and dismissing plaintiff's claims against Allstate with prejudice. Green now appeals from the trial court's judgment, asserting that the trial court erred in granting summary judgment and dismissing her claims against Allstate, because a reading of the policy shows that it extends UM coverage to the motorcycle Peterson was driving. Green further contends that the exclusion that Allstate attempts to invoke violates public policy as a "back-door" method for rejection of UM coverage, which does not comport with the exclusive method of rejecting UM coverage set forth in LSA-R.S. 22:1295(1)(a)(ii),3 and as an attempt to usurp the insured's right to select the UM policy under which the insured would prefer to recover insurance benefits.

DISCUSSION

In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Lieux v. Mitchell, 06-0382, p. 9 (La. App. 1st Cir. 12/28/06), 951 So.2d 307, 314, writ denied, 07-0905 (La. 6/15/07), 958 So.2d 1199. A motion for summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B)(2).4

When the issue before the court on the motion for summary judgment is one on which the party bringing the motion will bear the burden of proof at trial, the burden of showing there is no genuine issue of material fact remains with the party bringing the motion. Fouquet v. Daiquiris & Creams of Mandeville, L.L.C., 10-0233, p. 3 (La. App. 1st Cir. 9/13/10), 49 So.3d 44, 46. An insurer seeking to avoid coverage through summary judgment bears the burden of proving some exclusion applies to preclude coverage. Fouquet, 10-0233 at p. 3, 49 So.3d at 46.

Interpretation of an insurance policy ordinarily involves a legal question that can be properly resolved by a motion for summary judgment. Miller v. Superior Shipyard and Fabrication, Inc., 01-2683, p. 4 (La. App. 1st Cir. 11/8/02), 836 So.2d 200, 203. An insurance policy is a contract between the parties and should be construed by using the general rules of interpretation *1192of contracts set forth in the Civil Code. Bernard v. Ellis, 11-2377, p. 9 (La. 7/2/12), 111 So.3d 995, 1002. The role of the judiciary in interpreting insurance contracts is to ascertain the common intent of the parties as reflected by the words in the policy. La. C.C. art. 2045 ; Peterson v. Schimek, 98-1712, p. 4 (La. 3/2/99), 729 So.2d 1024, 1029. When the words of an insurance contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent, and the agreement must be enforced as written. La. C.C. art. 2046 ; Fouquet, 10-0233 at p. 4, 49 So.3d at 47.

Every insurance contract shall be construed according to the entirety of its terms and conditions as set forth in the policy, and as amplified, extended, or modified by any rider, endorsement, or application attached to or made a part of the policy. La. R.S. 22:881. Each provision in the policy must be interpreted in light of the other provisions so that each is given meaning; one provision of the insurance contract should not be construed separately at the expense of disregarding other provisions. La. C.C. art. 2050 ; Peterson

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Bluebook (online)
241 So. 3d 1188, Counsel Stack Legal Research, https://law.counselstack.com/opinion/green-v-michael-johnson-state-farm-ins-agency-allstate-ins-co-lactapp-2018.