Hawkins v. Fowler

92 So. 3d 544, 2012 WL 1535686, 2012 La. App. LEXIS 569
CourtLouisiana Court of Appeal
DecidedMay 2, 2012
DocketNo. 2011 CA 1495
StatusPublished
Cited by4 cases

This text of 92 So. 3d 544 (Hawkins v. Fowler) 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
Hawkins v. Fowler, 92 So. 3d 544, 2012 WL 1535686, 2012 La. App. LEXIS 569 (La. Ct. App. 2012).

Opinions

McCLENDON, J.

lain this case, plaintiff filed suit seeking to recover damages for injuries she sustained in an automobile accident. The trial court granted summary judgment in favor of Allstate Insurance Company (Allstate), and plaintiff has appealed. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

This matter involves a civil action filed by plaintiff, Fartima Hawkins, to recover damages resulting from a February 5, 2008 automobile accident in Baton Rouge, Louisiana. The accident occurred when Ms. Hawkins’s vehicle was struck broadside by a United States government vehicle (“GOV”) being driven by Sergeant Sean Fowler, a recruiter for the United States Army. Ms. Hawkins filed suit, naming, among others, Sergeant Fowler and his personal liability insurer, Allstate,1 as defendants.

Thereafter, Allstate filed a motion for summary judgment alleging that the policy issued to Fowler excluded coverage for the accident because Fowler lacked permission to use the GOV for commuting purposes or, alternatively, because Fowler used the GOV for his regular use insofar as he drove it back and forth from his home in Baton Rouge to his office in Covington each day. Allstate asserted that its policy did not afford coverage under either alternative and summary judgment was, therefore, appropriate.

Following a hearing, the trial court granted Allstate’s motion for summary judgment. In so ruling, the court found coverage was excluded under the evidence. The court reasoned that if Fowler “had the implied permission, then it falls within the regular use exclusion” because “back and forth to work every day is regular use.” Alternatively, “[i]f he didn’t have permission, then it falls within the lack of permission exclusion.” Plaintiff subsequently filed a Motion for New Trial and/or Reconsideration, which was denied by the trial court.

Plaintiff has appealed, asserting that genuine issues of material fact remain that preclude summary judgment in this matter.

| «DISCUSSION

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Schultz v. Guoth, 10-0343, p. 5 [546]*546(La.1/19/11), 57 So.3d 1002, 1005. Appellate courts review summary judgments de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Costello v. Hardy, 03-1146, p. 8 (La.1/21/04), 864 So.2d 129,137. A motion for summary judgment should only 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 movant is entitled to summary judgment as a matter of law. See LSA-C.C.P. art. 966(B). A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Hines v. Garrett, 04-0806, p. 1 (La.6/25/04), 876 So.2d 764, 765-66 (per curiam).

The burden of proof on a motion for summary judgment remains with the mov-ant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. LSA-C.C.P. art. 966(C)(2). Once the motion for summary judgment has been properly supported by the moving party, the failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. Pugh v. St. Tammany Parish School Bd., 07-p.856,4 p. 2 (La.App. 1 Cir. 8/21/08), 994 So.2d 95, 97 (on rehearing), writ denied, 08-2316 (La.11/21/08), 996 So.2d 1113; see also LSA-C.C.P. art. 967(B).

Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Richard v. Hall, 03-1488, p. 5 (La.4/23/04), 874 So.2d 131, 137. 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. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180, 1183. An insurer seeking to avoid coverage through summary judgment must prove some provision or exclusion applies to preclude coverage. Gaylord Chem. Corp. v. ProPump, Inc., 98-2367, p. 4 (La.App. 1 Cir. 2/18/00), 753 So.2d 349, 352.

In its motion for summary judgment, Allstate alleged that its policy did not provide coverage because either Fowler lacked permission to use the GOV for commuting purposes or, alternatively, the GOV was available for Fowler’s regular use. Specifically, the Allstate policy affords coverage to “[a] non-owned auto used by you [insured] or a resident relative with the owner’s permission. ■ This auto must not be available or furnished for the regular use of an insured person.” Allstate concludes that its policy excludes coverage under any view of the evidence.

It is uncontested that the vehicle was provided for Fowler’s regular use during [547]*547recruiting visits. However, the accident occurred when Fowler was driving from his work in Covington to his home in Baton Rouge. Army policy, as acknowledged by Fowler, does not allow a recruiter to drive the government vehicle to and from work and home (called “domicile to duty”) without written permission from the battalion commander. Nevertheless, Fowler testified that with express verbal permission from his supervisor, Sergeant Thomas Putnam, Rhe drove the vehicle back and forth from home to work “every day.” Fowler indicated that all of the recruiters take their government vehicles home. Sergeant Putnam testified that he was not aware that recruiters used their vehicles to go from work to home, but that it was possible that the recruiters, without his knowledge, took the government vehicles for this use. Sergeant Putnam also testified that Army protocol requires the keys from the government vehicles be kept in his desk in a lockbox, but that the lockbox and the lock to his office had not been in working order for some time.

We recognize, as did the trial court, that there are two permissible views of the evidence under the facts — 1) that Fowler did not have permission to use the GOV, or 2) that Fowler had permission to use the GOV and that it was provided for his regular use. First, if Fowler did not have authority to use the GOV, the lack of permission exclusion would apply.

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92 So. 3d 544, 2012 WL 1535686, 2012 La. App. LEXIS 569, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hawkins-v-fowler-lactapp-2012.