Kemp v. Clarendon America Insurance Co.

145 So. 3d 1066, 2013 La.App. 1 Cir. 0807, 2014 La. App. LEXIS 1468, 2014 WL 2499409
CourtLouisiana Court of Appeal
DecidedJune 3, 2014
DocketNo. 2013 CA 0807
StatusPublished

This text of 145 So. 3d 1066 (Kemp v. Clarendon America Insurance 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
Kemp v. Clarendon America Insurance Co., 145 So. 3d 1066, 2013 La.App. 1 Cir. 0807, 2014 La. App. LEXIS 1468, 2014 WL 2499409 (La. Ct. App. 2014).

Opinion

McDonald, j.

IsThis litigation arose as the result of an automobile accident in July 2007, in which a 2004 International Truck driven by Larry G. Savoie (Savoie) collided with a school bus driven by Beverly Kemp (Kemp). Kemp filed suit in June 2008 for injuries received in the accident, in which his wife, Mary Ann, joined with a loss of consortium claim. The issue in this appeal is the ranking of the three insurance policies that were undisputedly responsible for the insurance available to settle the claims of the plaintiffs. For the reasons that follow, we reverse and remand.

The 2004 International truck driven by Savoie was personally owned by Jason Holliday (Holliday). Holliday also owned Holliday Trucking, Inc. (Holliday Trucking), which he had established to get into the trucking and hauling business. At the time of the accident, Savoie was making a delivery for Segue Distribution, Inc. (Segue). Segue had a contract with Holliday Trucking for transportation services. Clarendon America Insurance Company [1068]*1068(Clarendon) insured Holliday Trucking. Chubb Custom Insurance Company (Chubb) provided insurance to Segue from October 6, 2006 through October 6, 2007. Hartford Insurance Company (Hartford) provided insurance to Segue from May 18, 2007 through May 18,2008.

The underlying suit has been settled and there are no issues concerning the responsibility of each insurer for the settlement to Kemp. However, in the course of the litigation, Chubb provided a defense to Savoie and now seeks reimbursement from the other insurers for this cost. Each insurer had identical language in its policy concerning primary and excess coverage:

5. Other Insurance
For any covered “auto” you own, this Coverage Form provides primary insurance. For any covered “auto” you don’t own, the insurance provided by this Coverage Form is excess over any other collectible insurance....
|4d. When this Coverage Form and any other Coverage Form or policy covers on the same basis, either excess or primary, we will pay only our share. Our share is the proportion that the Limit of Insurance of our Coverage Form bears to the total of the limits of all the Coverage Forms and policies covering on the same basis.

On December 27, 2006, Segue entered into a Transportation Service Agreement (TSA) with Holliday, whereby Holliday was to perform transportation services. Referring to Segue Distribution, Inc. as the “Company” and Holliday as the “Contractor,” the TSA’s provisions were extensive. It provided that the Contractor would be an Independent Contractor, including for tax purposes, and that “the transportation services performed by the Contractor shall be performed entirely at Contractor’s risk.” The Contractor was responsible for obtaining all permits and licenses, and paying all applicable sales, use, federal, and state income taxes.

Section 4.08 provided, in part:

Contractor shall, at no expense to Company procure, maintain and provide to Company certificates of insurance throughout the Initial Term and successive terms the following insurance with effective dates of coverage being the date hereof:
Commercial Vehicle Liability Insurance covering all vehicles, whether owned, leased or hired, with a combined single limit of $300,000 per occurrence with no aggregate limitation.

Section 7.12 provided that the Contractor would indemnify and hold harmless the Company.

Pursuant to the TSA, Holliday obtained a commercial auto policy from Clarendon that provided a $1,000,000 limit for liability coverage and listed the 2004 International Truck as a covered auto with Larry Savoie as an approved driver. Savoie was employed and paid by Holliday; however, according to Savoie’s deposition testimony, his supervisor was Todd Achee, a Segue employee. Holliday Trucking, Inc., not Jason Holliday, was listed as the “insured” under the policy. As noted, the truck was owned by Holliday personally.

| ¡¡Hartford also issued an insurance policy that covered Segue with a $1,000,000 policy limit. All three insurers at issue, Hartford, Chubb, and Clarendon, were named as defendants in this matter based on the allegation that they each issued an insurance policy that provided coverage for the July 2007 accident and the damages sustained by the plaintiffs. All three policies contained identical “other insurance” provisions, and all policies provided $1,000,000 coverage. The “other insurance” provision is considered in ranking multiple policies to determine which insur[1069]*1069er has the initial liability and which are excess.

The district court ruled that all three insurers provided coverage for the accident but that none provided primary coverage since none was providing coverage for a vehicle “owned” by the insured; thus, all provided excess coverage. Also, the district court found that no insurance company owed defense costs to another, which is a concomitant of the first ruling, because only a primary insurer could owe defense costs for an insured to an excess insurer that paid them. If all insurers provided excess coverage, the insurance companies would pay the damages in pro rata shares. The district court ruled that the three insurance companies each owed a third of the damages.

In February 2011, Chubb and its insured, Segue, filed for leave to file a cross-claim and third-party demand in the district court. These claims were dismissed in the court’s ruling of September 16, 2011, which was finalized in a judgment signed on October 14, 2011, and is the judgment before us for review.

Chubb and Segue appeal, assigning as error the district court’s failure to find that Clarendon’s policy applies on a primary basis and the district’s failure to find that Clarendon owed Segue for the defense costs that Chubb had paid. Chubb also raises as error by the district court the decision that the October 14, 2011 judgment was a final judgment. It maintains that unresolved issues exist concerning the | ^interpretation of the TSA, the status of the TSA as an “Insured Contract,” and Chubb’s entitlement to pursuit charges from Clarendon thereunder.

The court’s finding that the October 14, 2011 judgment was a final judgment (although it was not designated as such until July 2012, based on a motion by Clarendon), required that Chubb’s claims be dismissed. Chubb’s assertion that unresolved issues remain regarding the TSA, is de-pendant on a finding that Holliday and Holliday Trucking, Inc. are a single entity or that the TSA creates a single business entity.

Louisiana jurisprudence is replete with cases holding the corporate veil can only be pierced in extraordinary circumstances, generally involving fraud. Riggins v. Dixie Shoring, Co., Inc., 590 So.2d 1164, 1168— 69 (La.12/2/91), contains a detailed discussion by the supreme court of factors to be considered in “veil piercing” cases and cites numerous cases for each of the factors reviewed. The case establishes that if plaintiffs (creditors) do not allege shareholder fraud, they bear a heavy burden of proving that shareholders disregarded the corporate entity to such an extent that it became indistinguishable from themselves.

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Related

Riggins v. Dixie Shoring Co., Inc.
590 So. 2d 1164 (Supreme Court of Louisiana, 1991)
Terrebonne Concrete, LLC v. CEC Enterprises, LLC
76 So. 3d 502 (Louisiana Court of Appeal, 2011)
Nee v. N. O. Public Service, Inc.
123 So. 135 (Louisiana Court of Appeal, 1929)

Cite This Page — Counsel Stack

Bluebook (online)
145 So. 3d 1066, 2013 La.App. 1 Cir. 0807, 2014 La. App. LEXIS 1468, 2014 WL 2499409, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kemp-v-clarendon-america-insurance-co-lactapp-2014.