Lemoine v. Herrmann

559 So. 2d 898, 1990 WL 35500
CourtLouisiana Court of Appeal
DecidedMarch 29, 1990
Docket89-CA-1095
StatusPublished
Cited by6 cases

This text of 559 So. 2d 898 (Lemoine v. Herrmann) 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
Lemoine v. Herrmann, 559 So. 2d 898, 1990 WL 35500 (La. Ct. App. 1990).

Opinion

559 So.2d 898 (1990)

Kathy H. LEMOINE, Individually and as Parent of Ryan Lemoine
v.
Kenneth J. HERRMANN, McDermott, Inc., and INA Aetna Insurance Company.

No. 89-CA-1095.

Court of Appeal of Louisiana, Fourth Circuit.

March 29, 1990.
Writ Denied June 1, 1990.

*899 R.A. Osborn, Jr., Gretna, for plaintiff/appellant.

Overton T. Harrington, Jr., Waldmann & Harrington, Gretna, for defendants/appellants.

David V. Batt, Lisa Montgomery Lewis, Lobman, Carnahan & Batt, Metairie, for defendant/appellee.

Before SCHOTT, C.J., and KLEES, and ARMSTRONG, JJ.

ARMSTRONG, Judge.

This appeal arises out of two separate suits consolidated for trial, and on appeal. The issues will be treated in this opinion, but separate decisions will be rendered in each case.

Plaintiff, Henry Scroggins ("Scroggins"), and defendant, Kenneth Herrmann ("Herrmann"), appeal the trial court's granting of defendant, State Farm Mutual Automobile Insurance Company's ("State Farm"), motion for summary judgment. We affirm.

This case arises out of an automobile accident which occurred on July 10, 1983, and in which an automobile driven by plaintiff/appellant, Scroggins, was struck by an automobile driven by defendant/appellant, Herrmann, whose vehicle was owned by his employer, defendant, McDermott, Inc. ("McDermott"). Scroggins received moderate injuries in the accident, but his passenger, plaintiff, Kathy Lemoine, was severely and permanently injured. Scroggins and Ms. Lemoine each filed separate suits which were later consolidated. A number of insurance companies were named as defendants in the two suits. One of the original defendant-insurers filed a third-party demand against State Farm, which had issued a personal automobile policy to Herrmann.

Ms. Lemoine settled her claim against McDermott, which became subrogated to her claim against Herrmann. Thereafter, Scroggins settled his claim against McDermott in return for an assignment of rights against Herrmann. In addition, he was assigned by McDermott, Ms. Lemoine's original right against Herrmann. Scroggins went to trial and received a judgment in his favor on each of the two assignments of rights against Herrmann, totalling $50,000.00. Herrmann then filed a petition seeking payment and/or indemnity under the personal automobile liability policy issued to him by State Farm. Scroggins intervened, seeking recognition of his rights as embodied in his judgments against Herrmann. State Farm subsequently filed a motion for summary judgment on the ground that Herrmann's personal policy did not cover accidents while he was driving an automobile furnished or made available for his regular or frequent use, such as the company car being driven by him at the time of the accident. The trial court agreed and subsequently granted State Farm's motion for summary judgment.

On appeal Scroggins and Herrmann claim that the trial court erred in granting State Farm's motion for summary judgment.

La.C.C.P. art. 966(B) provides that a trial court "shall" grant a party's motion for summary judgment:

"[I]f the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law."

A court, in considering a motion for summary judgment, should resolve every reasonable doubt against the mover. Burke v. Occidental Life Insurance Company, 416 So.2d 177 (La.App. 4th Cir.1982).

The issue on appeal centers on a provision contained in Herrmann's State Farm policy. The policy provides liability coverage for "non-owned cars" used by Herrmann. A "non-owned car" is defined in the policy as a car not:

*900 "1. owned by,

2. registered in the name of, or

3. furnished or available for the regular or frequent use of:

you, your spouse, or any relatives."

(emphasis ours)

The policy behind these limitations was stated by this court in Nevels v. Hendrix, 367 So.2d 33 (La.App.4th Cir.1978), where the issue concerned a provision excluding coverage for automobiles furnished for the "regular use" of the employee. We said:

"[T]he purpose of the insuring agreement... as to vehicles not owned by the insured, is to provide coverage during the occasional or casual use of such vehicles, but to exclude coverage of the frequent, habitual or principal use of such vehicles which would substantially increase the risks of the insurer beyond those contemplated when the parties entered into the insurance contract.

* * * * * *

"The basic reasoning underlying the `furnished for regular use' exclusion in employment situations is that the family automobile policy is not designed to cover an employer's vehicle regularly used by the employee for employment purposes (since the employer should cover these risks) or an employer's vehicle regularly used by the employee for personal purposes (since if the employer does not cover these risks, the employee should do so at an additional premium because of the additional exposure)."[1]

Portions of depositions taken of Herrmann and two other McDermott employees, Herrmann's immediate and once removed supervisors, were filed into the record in support of State Farm's motion for summary judgment. Based upon these depositions, and the policy provisions, the trial court found that there was no genuine issue as to material fact, and that the policy did not cover the McDermott vehicle Herrmann was driving at the time of the accident.

In his reasons for judgment the trial judge wrote that Herrmann "stated that he used the same car on a daily basis for almost six months prior to the accident." This statement of fact is not supported by the record. At his deposition Herrmann was asked:

"Q [F]rom January 1, 1983 until the accident, how frequently did you use that vehicle?"
A Just about everyday. I didn't have it in January. I didn't get the car till around February, I believe. I don't remember.
Q Okay. Well, that's what I'm trying to—
A On a daily basis.
Q Okay. Between January and February did you use a vehicle?
A We had trucks, company trucks that were assigned to the division.
Q All right. Who was your supervisor?"

The trial judge must have been relying on the above quoted statement by Herrmann as to when he was given the vehicle to use. The quoted testimony only supports the view that Herrmann used the car on a daily basis for a period of time, but was uncertain as to when he began using it. However, the record does contain other evidence which supports a finding that there is no genuine issue as to Herrmann's having been driving a McDermott car which was furnished or available for his frequent use.

There were two types of cars McDermott provided for use by its employees. "Company cars" were those permanently assigned to a particular employee. "Pool cars" were those assigned to an employee on a temporary basis. Herrmann was driving a pool car at the time of the accident. Appellant, Scroggins, filed a supplemental memorandum in opposition to State Farm's motion for summary judgment, which had attached to it a "McDermott pool car inventory form." As argued by Scroggins and Herrmann in their briefs on appeal and at *901 oral argument, this form shows that Herrmann checked out the car in question on May 10,1983.

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Cite This Page — Counsel Stack

Bluebook (online)
559 So. 2d 898, 1990 WL 35500, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lemoine-v-herrmann-lactapp-1990.