Ladner v. Thomas

487 So. 2d 544
Louisiana Court of Appeal·Decided April 11, 1986·No. Nos. CA-3873, CA-4641·Published·Cited by 5 cases

Opinion

GARRISON, Judge.

The trial court judge rendered two judgments. The first judgment, dated January 28, 1985, provides as follows:

“IT IS ORDERED, ADJUDGED AND DECREED that there be Summary Judgment in favor of plaintiff, Gerald L. Lad-ner, and against Hartford Insurance Company in the full sum of TEN THOU[545]*545SAND AND NO/lOO ($10,000.00) DOLLARS, together with legal interest from date of judicial demand based on the endorsement for cargo liability under Section 315 of the Interstate Commerce Act contained in the Hartford Inland Marine Transit Policy No. 43.
IT IS FURTHER ORDERED that all other insurance claims that plaintiff may have against the Hartford Insurance Company or other defendants are reserved to be resolved at the trial of this matter.”

The second judgment, dated June 27, 1985, provides:

“IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of plaintiff, Gerald L. Ladner, and against defendant, Hartford Insurance Company of Southeast, in the full and true sum of one thousand six hundred forty seven and 24/100 dollars ($1,647.24) together with judicial interest from the date of demand until paid and all costs of these proceedings.”

Both judgments were appealed and have been consolidated on appeal.

The trial court judge provided the following written reasons for judgment on June 27, 1985:

“This is a suit to recover the value of lost ceiling fans owned by plaintiff, Jerry L. Ladner, stored in two warehouses and a shipping terminal owned and/or leased by Phillip J. Thomas (Thomas) and Dixie Motor Freight, Inc. (Dixie). The only defendant in the suit is Hartford Insurance Company of the Southwest which issued two policies of insurance to Dixie.
Plaintiff seeks $163,378.40 representing 4,218 fans which disappeared from Dixie’s Josephine Street warehouse in New Orleans. This amount is subject to a credit of $10,000.00 which the Court awarded to plaintiff on a Motion for Partial Summary Judgment on January 28, 1985 under the Uniform Motor Carrier Cargo Insurance Endorsement, Section 215, Interstate Commerce Act contained in the defendant’s Inland Marine Transit Policy (Transit Policy).
Plaintiff also seeks $1,647.24 representing 37 fans missing from either Dixie’s Slidell warehouse or its main shipping terminal in Kenner.
Plaintiff claims that the losses are covered under defendant’s Transit Policy or alternatively under defendant’s Special Multi-Peril Policy (SMP Policy).
Defendant argues that at the time plaintiff discovered the loss, no policy was in effect. Alternatively, defendant contends that the losses were specifically excluded under the terms of coverage.
The first issue is whether the losses occurred during the policy period. Proof by direct or circumstantial evidence is sufficient to constitute a preponderance when the proof, taken as a whole, shows the fact or causation sought to be proved is more probable than not. Rye vs. Terminix Service Co., Inc., 423 So.2d 754, 756 (La.App. 4th Cir.1982).
The Court finds that plaintiff’s evidence proves that the losses occurred during the covered periods under both policies.
The next issue is whether the fans’ disappearance from Dixie’s Josephine Street warehouse is covered under either policy.
An insurance policy is a contract between the parties, and while all ambiguities must be construed in favor of the insured against the insurer, courts have no authority to change or alter its terms under the guise of interpretation when such terms are couched in clear and unambiguous language. Remondet vs. Reserve National Insurance Co., 433 So.2d 792, 795 (La.App. 5th Cir.1983).
Plaintiff testified that after selling a number of fans to T G & Y the remaining 4,218 fans stored in the Josephine Street warehouse vanished. Plaintiff testified that the fans he discovered on the Kenner terminal loading docks were identified with defective fans stored at Dixie’s Slidell warehouse. Defendant’s SMP policy declaration sheet specifically designates coverage for its Kenner terminal only. Therefore, the SMP policy [546]*546afford no coverage for the Josephine Street losses.
Defendant’s Transit Policy specifically covers merchandise transported on certain designated vehicles but excludes coverage on the terminals. Plaintiff presented no evidence to indicate that his merchandise was being transported to a retailer on the designated vehicles. He only stated that the fans were being stored at Josephine Street to be sold at some future date. Therefore this loss is not covered under the Transit policy.
The next issue is whether the Slidell losses are covered under either policy. Defendant’s Transit policy endorsement under Section 21 of the Interstate Commerce Act states:
‘the Company hereby agrees to pay ... any shipper or consignee for all loss of ... property ... for which loss the insured may be held legally liable, regardless of whether the motor vehicles, terminals, warehouses, and other facilities ... are specifically described in the policies or not ...
the Company shall not be liable ... for an amount in excess of $10,000.00 in respect to any ... aggregate losses of or to such property occurring at any one time and place ... ’
The Court finds that the aggregate loss sustained by plaintiff at the Slidell warehouse and Kenner terminal are covered under this provision. The loss sustained at the Josephine Street warehouse occurred at a different time and place for which plaintiff has received an award under a partial summary judgment.
There will be judgment accordingly.”

Plaintiff alleged in his petition that he had entered into a contract with defendants, Thomas and Dixie, to house and to store 5,800 ceiling fans at their Josephine Street warehouse and that 4,218 of the fans disappeared while in their possession. He further alleged that defendant, Hartford, had issued a policy of insurance to defendants covering this loss. He sought to recover $163,378 for the lost fans against the three defendants. Thomas and Dixie were never served. Hartford responded with a general denial.

In December, 1984 plaintiff moved for partial summary judgment against Hartford for $10,000 on the basis of his affidavit and two insurance policies issued by Hartford. The court scheduled this motion for hearing on January 28, 1985, the same day as the trial on the merits. On this date he granted partial summary judgment against Hartford for $10,000 and took the merits of the case under advisement after trial which consisted of the testimony of plaintiff and the admission into evidence of a number of exhibits including Hartford’s insurance policies.

One of these policies is an Inland Marine Transit Policy which provides coverage only for losses occurring while cargo is being transported by specific vehicles described in the policy. It does not cover losses to property stored in terminals.

Free access — add to your briefcase to read the full text and ask questions with AI

Ladner v. Thomas, 487 So. 2d 544 (La. Ct. App. 1986).

487 So. 2d 544 (Ladner v. Thomas) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Venegas v. Amazon.com Inc
W.D. Louisiana, 2022
McGee v. Mutter
67 So. 3d 517 (Louisiana Court of Appeal, 2011)
Rucker v. TEMPS TODAY, INC.
38 So. 3d 1018 (Louisiana Court of Appeal, 2010)
Ladner v. Thomas
489 So. 2d 918 (Supreme Court of Louisiana, 1986)
Ladner v. Thomas
487 So. 2d 548 (Louisiana Court of Appeal, 1986)