Jones v. Louisiana Timber Co., Inc.

519 So. 2d 333, 1988 La. App. LEXIS 92, 1988 WL 3538
CourtLouisiana Court of Appeal
DecidedJanuary 20, 1988
Docket19251-CA
StatusPublished
Cited by13 cases

This text of 519 So. 2d 333 (Jones v. Louisiana Timber Co., Inc.) 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
Jones v. Louisiana Timber Co., Inc., 519 So. 2d 333, 1988 La. App. LEXIS 92, 1988 WL 3538 (La. Ct. App. 1988).

Opinion

519 So.2d 333 (1988)

Daniel W. JONES, Jr., Appellant,
v.
LOUISIANA TIMBER COMPANY, INC., et al, Appellee.

No. 19251-CA.

Court of Appeal of Louisiana, Second Circuit.

January 20, 1988.

*334 Domengeaux & Wright by Bennett Boyd Anderson, Lafayette, for appellant.

Dawkins, Coyle & Carter by William S. Carter, Jr., Ruston, for appellee.

Before JASPER E. JONES, FRED W. JONES, Jr. and NORRIS, JJ.

NORRIS, Judge.

This is a suit for personal injuries that the plaintiff, Daniel Jones, allegedly sustained when a cable on a trailer owned or leased by the defendant's insured, Louisiana Timber, snapped and threw him to the ground. The trial court held that this bodily injury arose out of the use of an automobile and was therefore excluded from coverage under the terms of the General Liability Policy. Jones now appeals and, for the reasons expressed, we affirm.

FACTS

Prior to the accident, Jones was engaged in the trucking business. He owned his own tractor and hauled loads of wood, gravel and other materials by contract. On August 31, 1982, he went to a pulpwood yard operated by Louisiana Timber with the intention of picking up a trailer of pulpwood to be hauled to a paper mill. This trailer was owned or leased by Louisiana Timber and had been loaded by Louisiana Timber's yard manager, Colvin Garrett. Jones hooked up the air hoses from his tractor to the trailer and then went to secure the load. He climbed up the ladder to the trailer and picked up a chain attached to a steel cable. This cable, 3/8 inch thick and about 60 feet long, was permanently attached to the trailer and was used to bind the load securely. The cable apparently got caught on something and would not extend to full length. Standing close to the back of the load but facing the front, Jones tugged at the cable to free it. The cable suddenly came apart and Jones fell 14-16 feet to the ground, sustaining serious injuries.

Jones testified that the cable came apart because it had been tied together in a place where it had broken. Mr. D.C. Greer, one of the partners of Louisiana Timber, also testified that he inspected the cable and found that it had been tied together. He said this was not a good practice and the cable should have been replaced. R.p.p. 116, 117. The yard manager, Garrett, who had prepared the load of pulpwood, admitted in deposition that some of Louisiana Timber's trailers had tied cables but denied any knowledge of the particular one on which Jones was injured. Garrett's dep., 9-10.

As a result of the injury, Jones has undergone two cervical fusions and is totally disabled from performing heavy manual labor, the only kind of work he has ever done. Louisiana Timber, a small two-man enterprise, had two insurance policies, both from defendant Georgia Casualty: a Workers Compensation policy and a General Liability (GL) policy. Pursuant to the Workers Comp policy, Georgia Casualty immediately began paying Jones maximum weekly benefits and medicals, which came to almost $50,000 at the time of trial and are apparently still being paid.

Jones filed this suit in tort against Louisiana Timber on August 29, 1983; he later added as defendants the company's president, D.C. Greer, and Georgia Casualty in its capacity as GL insurer. Eventually, all defendants were dismissed except Georgia Casualty. Trial was held in November 1985; judgment was rendered in February 1987 rejecting Jones's demands.

DISCUSSION

Before addressing the automobile exclusion, we note a procedural issue that Jones has raised in his reply brief. Georgia Casualty filed a motion for summary judgment urging, in essence, that Jones's tort suit was pre-empted by the remedy of workers comp. LSA-R.S. 23:1032, 1061. The trial court referred this to the merits. Trial was held in November 1985. There were two rulings:

(1) April 29, 1986, refusing Georgia Casualty's motion for summary judgment, holding that Louisiana Timber had not customarily hired employees to do the *335 hauling, so Jones could not be considered a statutory employee.
(2) February 10, 1987 judgment dismissing Jones's suit on the basis of the automobile exclusion in the GL policy.

Jones timely appealed the February 1987 judgment and briefed the insurance issue only. Georgia Casualty then filed a brief arguing not only that the trial court was correct on the insurance issue but also that the judgment could be affirmed on the pre-emption issue. By reply brief, Jones argues the insurer cannot argue the pre-emption issue because it neither lodged a timely appeal nor answered Jones's appeal.

This contention is not correct. The trial court's refusal to render a summary judgment is not appealable. LSA-C. C.P. art. 968. Absent a showing of irreparable harm, Georgia Casualty had no way to contest this decision except to wait until there was a final judgment in the case. Furthermore, an appellee is not obliged to answer an appeal unless he wants the judgment modified, revised or reversed in part. LSA-C.C.P. art. 2133. Obviously Georgia Casualty was not interested in modifying the judgment that completely rejected the plaintiff's claim, so there was no necessity of answering the appeal. We have stated repeatedly that appeal lies from the judgment, not from the reasons for judgment. Hardin v. Munchies Food Store, 510 So.2d 33 (La.App. 2d Cir.1987); Cason v. Oglesby, 188 So.2d 718 (La.App. 2d Cir.1966), writ denied 249 La. 842, 191 So.2d 642 (1966). We think the appellee was entitled to argue any grounds that could be reasonably construed to support the judgment. Georgia Casualty was not precluded from raising the workers comp issue in brief.

Because we ultimately hold that the trial court's judgment on the insurance issue is not erroneous, and because this point resolves the case, we will pretermit detailed discussion of the pre-emption issue. We only note parenthetically that Jones, though an independent contractor, spent a substantial portion of his work time engaged in manual labor carrying out the terms of his contract with Louisiana Timber. He was therefore to be treated as an employee of Louisiana Timber's for purposes of comp. LSA-R.S. 23:1021(6). The only question is whether he was performing services arising out of and incidental to his employment in the course of Louisiana Timber's business; unquestionably he was, and his remedy against Louisiana Timber is limited to comp. LSA-R.S. 23:1035, 1032. The phraseology of § 1061, extensively argued in Georgia Casualty's brief, is inapplicable to this case. See Malone & Johnson, Workers' Compensation (13 La.Civil Law Treatise) § 78.

In its general provisions, the GL policy provides coverage for bodily injury and property damage resulting from "logging and lumbering." This coverage is then made subject to specific exclusions, including an "automobile" exclusion:

Exclusions

This insurance does not apply: * * *

(b) to bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of:

(1) any automobile or aircraft owned or operated by or rented or loaned to any insured, or
(2) any other automobile or aircraft operated by any person in the course of his employment by any insured;
but this exclusion does not apply to the parking of an automobile on premises owned by, rented to or controlled by the named insured or the ways immediately adjoining, if such automobile is not owned by or rented or loaned to any insured;

* * * * * *

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Bluebook (online)
519 So. 2d 333, 1988 La. App. LEXIS 92, 1988 WL 3538, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-louisiana-timber-co-inc-lactapp-1988.