Joseph K. Morrow v. Michael Hildalgo

• Court: Louisiana Court of Appeal
• Decided: December 10, 2003
• Docket: CA-0003-0826
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

03-0826

JOSEPH K. MORROW

VERSUS

MICHAEL HILDALGO, ET AL.

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APPEAL FROM THE THIRTY-THIRD JUDICIAL DISTRICT COURT PARISH OF ALLEN, NO. C-2001-320 HONORABLE JOEL G. DAVIS, DISTRICT JUDGE

OSWALD A. DECUIR JUDGE

Court composed of Ulysses Gene Thibodeaux, Oswald A. Decuir, and Jimmie C. Peters, Judges.

REVERSED.

Keith M. Borne Borne & Wilkes, L.L.P. P. O. Box 4305 Lafayette, LA 70502-4305 (337) 232-1604 Counsel for Defendant/Appellant: Safeway Insurance Company of Louisiana

Gregory J. Laborde LABORDE & LABORDE P. O. Box 52564 Lafayette, LA 70505-2564 (337) 232-9928 Counsel for Defendant/Appellee: Michael Hildalgo

Michael B. Holmes HEBERT, HOLMES & BERTRAND P. O. Dr. 790 Kinder, LA 70648 (337) 738-2568 Counsel for Plaintiff/Appellee: Joseph K. Morrow DECUIR, Judge.

Safeway Insurance Company of Louisiana appeals a trial court judgment

finding that its insured, Michael Hildalgo, intentionally caused the automobile

accident but did not intend to injure the plaintiff, Joseph Morrow. We reverse.

FACTS

On June 15, 2000, Hildalgo, Larry John, Donna Bazinet, and Anna Fontenot

were at a bar in Elton, Louisiana. At 2:00 a.m., they left the bar in Hildalgo’s vehicle

and met Morrow in a parking lot in Kinder. Fontenot and Bazinet exited Hildalgo’s

vehicle, taking a six or twelve pack of beer and got into Morrow’s vehicle. Hildalgo

became angry, and Morrow left with the ladies and the beer. As Morrow proceeded

down Highway 165, Hildalgo pursued and rammed Morrow’s vehicle. He continued

to follow Morrow onto Green Oaks Road and proceeded to ram Morrow’s vehicle

several more times while traveling at speeds in excess of 80 miles per hour. At some

point during this ramming, Morrow sustained soft tissue injuries for which he sought

medical care and for which he was awarded damages.

Hildalgo was insured by Safeway under a policy that excludes coverage for

“bodily injury or property damage caused intentionally by or at the direction of the

insured.” The trial court found that coverage existed under the policy because

Hildalgo intended to cause the accident but did not intend to cause Morrow’s injuries.

Safeway lodged this appeal.

DISCUSSION

Safeway contends that the trial court erred in concluding that coverage existed

under the insurance policy because Hildalgo intended to cause the accident but not the

injuries. Safeway argues that our decision in Flugence v. A & M Farms, Inc., 02-1054

(La.App. 3 Cir. 4/30/03), 843 So.2d 1279, writ denied, 03-1526 (La. 9/26/03), 854

So.2d 364, is on point. In Flugence, the defendant, while driving a tractor pulling a load of sugarcane,

became angry at another driver who had cut in line at the scales. The defendant then

rammed the offending driver’s tractor and trailer causing injury to the driver. This

court, in affirming a grant of summary judgment on the issue of coverage under an

intentional act exclusion, found that the defendant intended to injure the plaintiff

because he either desired the resulting injuries or that they were substantially certain

to follow from his actions. Citing Bazley v. Tortorich, 397 So.2d 475 (La.1981).

Both parties acknowledge that the manifest error standard applies to our review

of the trial court’s determination in this case. After careful review, we find that the

trial court’s finding that Hildalgo did not intend the plaintiff’s injuries is manifestly

erroneous. The record before us strongly suggests that Hildalgo actively desired

Morrow’s injuries. The most glaring evidence of this is Hildalgo’s inability to deny

his intent in clearly self-serving testimony. He testified, that he was “probably

hoping” to injure someone in the vehicle. In backtracking from that statement he said

he was not hoping to injure Morrow – “I just wanted to kick his ass.” Moreover, we

are unable to distinguish this case from our decision in Flugence. Clearly, soft tissue

injuries are substantially certain to follow from ramming a vehicle at 80 plus miles

per hour in an attempt to force it off the road.

We are likewise unconvinced by appellee’s attempt to distinguish Flugence

based on Hildalgo’s intoxication and the size of the tractors in Flugence. The record

reveals that despite his alleged intoxication, Hildalgo was aware of the cause of his

anger and was capable of formulating a plan of action and carrying it out. He clearly

knew he wanted to force Morrow off of the road and attempted to do so by ramming

his vehicle. With regard to the size difference between a tractor and an automobile,

we note that any mitigation warranted by this distinction is counterbalanced by the

extreme speeds involved in this case.

2 Under these circumstances, we find that the trial court erred in concluding that

Hildalgo did not have the requisite intent to trigger the intentional act exclusion in the

Safeway policy.

DECREE

For the foregoing reasons, the judgment of the trial court is reversed. All costs

of these proceedings are taxed to appellee, Joseph Morrow.