Husband v. Darby

772 So. 2d 359, 99 La.App. 3 Cir. 270, 2000 La. App. LEXIS 2723, 2000 WL 1693541
CourtLouisiana Court of Appeal
DecidedNovember 2, 2000
DocketNo. 99-270
StatusPublished

This text of 772 So. 2d 359 (Husband v. Darby) 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
Husband v. Darby, 772 So. 2d 359, 99 La.App. 3 Cir. 270, 2000 La. App. LEXIS 2723, 2000 WL 1693541 (La. Ct. App. 2000).

Opinion

| ^SAUNDERS, Judge.

Shane Henry rear-ended Henry Husband’s automobile. Husband sustained injuries as a result of the accident. At the time of the accident, Husband was driving his personal automobile and was in the course and scope of employment with Tetra Technologies, Incorporated (Tetra). Subsequently, Husband sued Henry, an uninsured motorist, and National Union Fire Insurance Company (National Union), Husband’s employer’s uninsured motorist (UM) carrier. National Union filed a motion for summary judgment, asserting that Husband was not covered by the issued policy. The trial court, relying upon the holding of Ratcliff v. Theriot, 93-973 (La. App. 3 Cir. 3/2/94); 634 So.2d 1234, writ [361]*361denied, 94-0685 (La.5/6/94); 687 So.2d 1048, sustained National Union’s motion for summary judgment. Husband then appealed to this court and we reversed, holding that the clear and explicit language of the contract extended coverage to Husband. In that opinion, we also overruled our holding in Ratcliff to the extent that the Ratcliff insurance policy was indistinguishable from the insurance policy at issue in the instant case.

Defendant, National Union, then applied for supervisory and/or remedial writs from the Louisiana Supreme Court. The supreme court granted writs and remanded the case to our court for reconsideration of our earlier decision in light of its decision in Carrier v. Reliance Insurance Company, 99-2573 (La.4/11/00); 759 So.2d 37.

On remand we find that, in light of Carrier, Husband was not an insured under Tetra’s National Union policy. Accordingly, we reverse our earlier judgment in favor of Husband, and we rule in favor of the Appellants, Judy H. Darby, et al.

FACTS

On February 2, 1994, Henry Husband was rear-ended by Shane C. Henry, an | ;>underinsured motorist. Husband was driving his personal vehicle and was in the course and scope of employment with Tetra. The accident resulted in Husband being injured.

On January 23, 1995, Husband and his wife, Shelly G. Husband, filed suit against Shane Henry’s natural tutrix, Henry’s liability earner, and Tetra’s UM carrier, National Union. The policy issued by National Union provided $1,000,000 of UM coverage. Husband settled with all parties except National Union.

During the course of the proceedings, National Union unsuccessfully filed several motions and writs in an attempt to deny coverage. However, these motions and writs were denied. In August 1998, Husband filed a motion for summary judgment asserting that as a matter of law, Husband was in the course and scope of employment at the time of the accident. The trial court sustained Husband’s motion for summary judgment. Two weeks prior to trial, National Union filed another motion for summary judgment maintaining that as a matter of law, Husband was not covered under the UM policy. The trial court, relying upon Ratcliff, 634 So.2d 1234, sustained National Union’s motion and dismissed Husband’s case. Husband appealed to this court asserting that the following errors had been made by the trial court:

1. The trial court erred in granting National Union’s motion for summary judgment because National Union’s automobile liability insurance policy clearly and specifically provided UM insurance coverage to Husband.
2. The trial court erred in granting National Union’s motion for summary judgment because the facts of Ratcliff on which the court relied are distinguishable from the present case.
3. The trial court erred in relying on the Ratcliff case because the Ratcliff court ignored the plain language of the automobile liability insurance policy at issue, did not follow Louisiana law on contract and insurance policy interpretation, and because the Ratcliff decision is against the weight of Louisiana jurisprudential authority.
|a4. The trial court erred in granting National Union’s motion for summary judgment because the Louisiana UM statute, La.R.S. 22:1406(D)(l)(a)(i), mandates UM coverage for Husband.

This court addressed the first three assignments together because they essentially claimed that the trial court’s reliance on the court’s decision in Ratcliff, 634 So.2d 1234, was either wrong or distinguishable. We agreed with Husband’s argument, overruling Ratcliff and reversing the trial court’s summary judgment in favor of National Union. This court found it unnecessary to address Husband’s final assignment of error regarding the application of [362]*362La.R.S. 22:1406(D)(l)(a)(i) because the court found that the language of the policy and the endorsement mandated UM coverage for Husband’s automobile.

ON REMAND

This court decided Husband between the Louisiana Supreme Court’s grant of certiorari in Carrier, 759 So.2d 37, and its decision in that case. During the same time frame, the Defendants in Husband applied for writs to the supreme court. The supreme court granted writs” and remanded the case to this court for reconsideration in light of its holding in Carrier.

LAW AND ANALYSIS

CARRIER

At issue in Carrier was whether Carrier’s employer’s insurance policy provided Carrier with UM coverage for his accident. Id. In determining this issue, the supreme court examined the uninsured motorist and liability provisions of the policy to determine whether Carrier was an insured. In doing so, the supreme court reviewed prior decisions of the Louisiana lower courts which had interpreted the same or similar insurance policy language.

| Jn that review, the supreme court examined this court’s decision in Husband v. Darby, 99-270 (La.App. 3 Cir. 11/29/99); 749 So.2d 779, writ granted, cause remanded by, 99-3597 (La.6/16/00); 763 So.2d 613. The Court quoted language from this court’s opinion in Husband which summarized our findings as:

Considering the literal language in Section B(5), Plaintiff is an insured under National Union’s UM provision if his personal vehicle is (1) not owned by his employer; (2) licensed or principally garaged in Louisiana and (3) a covered “auto” under the coverage part for liability insurance. The first two requisites are satisfied. The third requisite requires us to determine if Plaintiffs personal vehicle was a covered “auto” under the liability provision of the contract.
... According to the declarations page, ■a covered “auto” under the liability provision is described as “any ‘auto.’ ” This language is clear and explicit and establishes that Plaintiffs auto is covered under the liability provision, (emphasis added).

Carrier, 759 So.2d at 42, quoting Husband, 99-270 at p. 6, 749 So.2d at 781. The supreme court noted that in Husband this Court concluded that since Husband’s vehicle was a “covered auto” under the liability portion of Tetra’s insurance policy, Husband qualified as an insured under Section B5. Id. The supreme court expressly disagreed, however, with our interpretation of Section B5, finding our interpretation to be unreasonable. .

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Chevalier v. Ream
649 So. 2d 746 (Louisiana Court of Appeal, 1994)
State v. Toney
687 So. 2d 1048 (Louisiana Court of Appeal, 1997)
Carrier v. Reliance Ins. Co.
759 So. 2d 37 (Supreme Court of Louisiana, 2000)
Ratcliff v. Theriot
634 So. 2d 1234 (Louisiana Court of Appeal, 1994)

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Bluebook (online)
772 So. 2d 359, 99 La.App. 3 Cir. 270, 2000 La. App. LEXIS 2723, 2000 WL 1693541, Counsel Stack Legal Research, https://law.counselstack.com/opinion/husband-v-darby-lactapp-2000.