Jenkins v. CNA Ins. Co.

726 So. 2d 71, 98 La.App. 1 Cir. 0022, 1998 La. App. LEXIS 3750, 1998 WL 959657
CourtLouisiana Court of Appeal
DecidedDecember 28, 1998
Docket98 CA 0022
StatusPublished
Cited by8 cases

This text of 726 So. 2d 71 (Jenkins v. CNA 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
Jenkins v. CNA Ins. Co., 726 So. 2d 71, 98 La.App. 1 Cir. 0022, 1998 La. App. LEXIS 3750, 1998 WL 959657 (La. Ct. App. 1998).

Opinion

726 So.2d 71 (1998)

Pier F. JENKINS
v.
CNA INSURANCE COMPANY

No. 98 CA 0022.

Court of Appeal of Louisiana, First Circuit.

December 28, 1998.

*72 Frank J. D'Amico, Jr., New Orleans, for Plaintiff-Appellant Pier F. Jenkins.

Michael K. Springman, Metairie, for Defendant-Appellee Continental Casualty Co.

Before: GONZALES, KUHN, and WEIMER, JJ.

KUHN, J.

Plaintiff-appellant, Mrs. Pier F. Jenkins, appeals the trial court's judgment granting a motion for summary judgment filed by defendant-appellee, Continental Casualty Company ("Continental").[1] This appeal addresses:

*73 1) the validity of an insurance policy exclusion of coverage for bodily injury to any family member of the insured caused by the insured or any family member, and 2) whether the policy unambiguously excludes such coverage. We affirm.

I. FACTS

Mrs. Jenkins filed suit against Continental, alleging she was injured by the negligence of her husband, Mr. Bryan D. Jenkins, while she was a passenger/invitee aboard a boat operated by him. More specifically, she alleged that on May 29, 1995, while she and her husband were fishing in their 1984 Chapparal boat in Lake Pontchartrain, her husband noticed a disabled vessel. Mr. Jenkins, who was operating the boat, offered to tow the disabled vessel. Mrs. Jenkins remained on board the boat during the tow operation. The petition further alleged that Mr. Jenkins' failure to properly navigate the boat caused it to crash into a seawall resulting in severe injury to Mrs. Jenkins' right thumb which required surgery. Plaintiff sought to recover damages based on La. C.C. art. 2315; the Jones Act, 46 U.S.C.App. § 688; and the general maritime law of the United States.

Continental answered the suit generally denying Mrs. Jenkins' claims and asserting it is not liable for any damages based on the policy's exclusion of coverage for claims made by a family member for bodily injury caused by another family member. Continental alternatively asserted that Mrs. Jenkins was guilty of comparative negligence. Later, Continental filed a motion for summary judgment on the grounds that the policy issued to Mr. and Mrs. Jenkins did not provide coverage for Mrs. Jenkins' claim.

The general insuring language of Continental's universal security deluxe policy provides personal liability coverage for bodily injury "[i]f a claim or suit is brought against you or any covered person ...." The policy also provides medical expense coverage, as follows in pertinent part:

We will pay medical expenses, up to the amount shown on the coverage summary, incurred or medically ascertained within three years from the date of accident.... "Medical Expense Coverage" applies:
1. If caused by a motor vehicle or boat accident; and
2. If sustained by you or any covered person while occupying your ... boat....[2]
(Footnote added.)

Under the heading, "LIABILITY, UNINSURED/UNDERINSURED MOTORISTS AND MEDICAL EXPENSE LOSSES WE DO NOT COVER," the policy further provides:

We do not provide coverage for:
* * *
6. You or any family member for ... bodily injury to you or any family member caused by you or any family member, except for medical expense payments arising out of automobile accidents.[3]
(Footnote added.)

The trial court granted Continental's motion and signed a judgment in favor of Continental, dismissing Mrs. Jenkins' suit. She has appealed urging that certain provisions of the policy are ambiguous and misleading and should be construed in her favor. Mrs. Jenkins also urges the inter-family injury exclusion contained in the policy: 1) is absolutely null as it pertains to vessels and injuries incurred on navigable waters because it *74 contravenes federal maritime law; 2) unfairly and illegally discriminates against Mrs. Jenkins by providing coverage for non-related passengers, swimmers, harbor workers and water-skiers while not providing coverage for the related passengers or hosts of the vessel; and 3) denies the insured her right to recover pursuant to Louisiana's direct action statute, La. R.S. 22:655 B.

II. ANALYSIS

A. Is the applicable language of the insurance policy misleading or ambiguous?

1. Is the definition of "Covered Person(s)" misleading?

Appellant asserts that the definition of "covered person(s)" provided by the policy is misleading "because it lures the reader to believe that family members living in the household are `covered' when in fact other exclusions to the contrary exist in the policy." Appellant complains that because the definition does not alert the insured to the inter-family injury exclusion, the policy is ambiguous. Appellant does not actually assert that the wording of the definition and/or the exclusion is misleading or ambiguous.

In Ledbetter v. Concord General Corp., 95-0809 (La.1/6/96); 665 So.2d 1166, judgment amended, 95-0809 (La.4/18/96); 671 So.2d 915, the supreme court set forth the following legal axioms concerning the interpretation of insurance policies. The court stated:

An insurance policy is an agreement between the parties and should be interpreted by using ordinary contract principles. Smith v. Matthews, 611 So.2d 1377, 1379 (La.1993). The parties' intent, as reflected by the words of the policy, determine the extent of coverage. Such intent is to be determined in accordance with the general, ordinary, plain and popular meaning of the words used in the policy, unless the words have acquired a technical meaning. La. Civ.Code art.2047; Louisiana Insurance Guaranty Association v. Interstate Fire & Casualty Co., 93-0911 (La.1/14/94); 630 So.2d 759, 763. If the policy wording at issue is clear and expresses the intent of the parties, the agreement must be enforced as written. Pareti v. Sentry Indemnity Co., 536 So.2d 417, 420 (La.1988).
Exclusionary provisions in insurance contracts are strictly construed against the insurer, and any ambiguity is construed in favor of the insured. Garcia v. St. Bernard Parish School Board, 576 So.2d 975, 976 (La.1991). However, the rule of strict construction does not "authorize a perversion of language, or the exercise of inventive powers for the purpose of creating an ambiguity where none exists." Muse v. Metropolitan Life Ins. Co., 193 La. 605, 192 So. 72, 75 (1939). 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. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94); 634 So.2d 1180, 1183.
Ledbetter v. Concord General Corp, 95-0809 at pp. 3-4; 665 So.2d at 1169.

Another pertinent legal axiom is that an insurance contract is to be construed as a whole, and one portion thereof should not be construed separately at the expense of disregarding another. Pareti v. Sentry Indemnity Co., 536 So.2d at 420.

In the present case, appellant seeks to have this court apply only part of the applicable policy language. Although family members are "covered persons" under the terms of the policy, the policy also clearly excludes coverage for bodily injury to those family members when the injury is caused by another family member.

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Cite This Page — Counsel Stack

Bluebook (online)
726 So. 2d 71, 98 La.App. 1 Cir. 0022, 1998 La. App. LEXIS 3750, 1998 WL 959657, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jenkins-v-cna-ins-co-lactapp-1998.