Losavio v. Kansas City Southern Railway Co.

675 So. 2d 821, 95 La.App. 4 Cir. 2795, 1996 La. App. LEXIS 1135, 1996 WL 293766
CourtLouisiana Court of Appeal
DecidedMay 29, 1996
DocketNo. 95-CA-2795
StatusPublished
Cited by1 cases

This text of 675 So. 2d 821 (Losavio v. Kansas City Southern Railway 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
Losavio v. Kansas City Southern Railway Co., 675 So. 2d 821, 95 La.App. 4 Cir. 2795, 1996 La. App. LEXIS 1135, 1996 WL 293766 (La. Ct. App. 1996).

Opinion

JiCIACCIO, Judge.

Mutual of Omaha Insurance Company, in-tervenor herein, appeals from a judgment of the trial court granting plaintiffs’ motion for summary judgment and exception of prescription filed in response to Mutual of Omaha’s petition for intervention. For the reasons stated herein, we reverse the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

This lawsuit arises from a tragic accident wherein an eight year old boy sustained the traumatic amputation of his left leg after falling from a freight train which was crossing his family’s farm in Lettsworth, Louisiana. The accident occurred on the afternoon of May 28, 1989. On that date, Andreas Losavio, who was then eight years old, and his fourteen year old cousin, Jason Handley, were riding four-wheel all-terrain vehicles on their family’s property. Years before the accident, Kansas City Southern Railway Company, Inc., (“Kansas City”), obtained a right of way across the Lovasio family farm and erected a track dividing the fields of the farm in half. Although the railroad had constructed an underpass under the tracks, the underpass had fallen into disrepair and was rendered impassible for pedestrian or vehicular traffic.

[823]*823On the date of the accident, the two boys were riding their recreational vehicles back and forth through the fields and across the railroad tracks. At some point, a freight train, owned and operated by Kansas City, began to travel Ron the tracks at a speed of 3 — 5 miles per hour. The boys stopped riding their vehicles and waited for the train to pass. However, the boys eventually became attracted to the train and attempted to board the train while it was moving. Andreas Lo-savio attempted to jump to a ladder on one of the cars, but lost his balance and was pulled under the train, suffering the amputation of his left leg at the knee.

As a result of this accident, Andreas Losa-vio required extensive hospitalization and professional health care. At all pertinent times hereto, Mutual of Omaha Insurance Company issued a policy of insurance which provided medical and hospital benefits to members of the Rural Carrier Benefit Plan, of which Andreas’ father, Anthony Losavio, was a member. This plan provided dependent coverage to Andreas Losavio for the injuries sustained in this accident. In connection with the plan, Mutual of Omaha paid medical expenses for and on behalf of Andre-as Losavio in the sum of $237,458.86.

On May 25, 1990, Andreas’ mother, Anita Losavio, individually and on behalf of her minor child, filed this lawsuit against Kansas City and its employees who were involved in this accident. On March 25, 1994, Mutual of Omaha filed a petition of intervention in this lawsuit seeking recovery of benefits paid on behalf of Andreas Losavio based on subrogation provisions in the benefit plan. Mutual of Omaha requested judgment in the amount of $237,458.86 against plaintiffs and Kansas City.

In response to this intervention, plaintiffs filed an Exception of Prescription and an Exception of No Right and No Cause of Action, or alternatively a Motion for Summary Judgment. Defendant, Kansas City, joined in these exceptions. This matter was heard by the trial court on December 5,1994, and on October 17, 1995, the trial court rendered judgment denying the ^Exceptions of No Cause and No Right of Action, but granting plaintiffs’ Motion for Summary Judgment and Exception of Prescription, thereby dismissing the petition for intervention brought by Mutual of Omaha. The trial court assigned lengthy reasons for judgment, concluding that the Mutual of Omaha policy is ambiguous and does not clearly provide sub-rogation rights in this case. The trial court further determined that the intervention was not timely filed in this case, as it is an incidental demand which must have been filed within ninety days of service of the main demand.

Mutual of Omaha now suspensively appeals from this judgment, assigning several errors of the trial court. Appellant contends that the trial court erred in finding ambiguity in the insurance policy, and in failing to determine the true intent of the parties to the contract. Appellant further argues that the trial court erred in finding that the petition for intervention filed in these proceedings had prescribed. We find appellant’s arguments to have merit.

ANALYSIS

The first issue presented for our review is whether the policy language of the Mutual of Omaha benefit plan provides for the right of subrogation to recover benefits paid under the plan. This plan describes the insurer’s right of subrogation on page 6 of the policy as follows:

Subrogation
Subrogation means the Plan’s right to recover any payments made to you [the insured] or your dependent by a third party’s insurer, because of an injury or illness caused by a third party. Third party means another person or organization.

The paragraph which immediately follows this paragraph states:

Plan’s Right of Subrogation
If you or your dependent receive Plan benefits andphave a right to recover damages from a third party, the Plan is sub-rogated to this right. All recoveries from a third party (whether by lawsuit, settlement or otherwise) must be used to reimburse the Plan for benefits paid. Any remainder will be yours or your dependent’s. The Plan’s share of the recovery [824]*824will not be reduced because of attorney’s fees, or because you or your dependent have not received the full damages claimed, unless the Plan agrees in writing to a reduction.
(Emphasis added.)

The defendant and alleged tortfeasor in this ease, Kansas City, is self-insured. Therefore, any settlement or payment in this case will not be paid by an “insurer,” but will be borne by Kansas City itself.

Plaintiffs argued in support of their motion for summary judgment that by the express terms of the contract, Mutual of Omaha only has the right to recover for payments made to their insured by a third party’s insurer, which is not the case here. Plaintiffs argued that as there is no insurer for Kansas City, intervenor has no rights of subrogation pursuant to the first paragraph of the policy.

The trial court found that based on the circumstances presented, the provisions of the policy are in conflict. The court determined that the first paragraph which defines subrogation as a right to recover any payment made to an insured or a dependent “by a third party’s insurer” conflicts with the second paragraph which provides that the Plan is subrogated to the rights of an insured or a dependent to recover from “a third party.” The trial court stated that the policy language cannot be reconciled without ignoring the language of one of the provisions, stating as follows in its reasons for judgment:

On one hand the language clearly limits subrogation to payments by third party insurers. While a following paragraph seems to allow subrogation as to any other right to recover from a third party.

|sThus, the court determined that the provisions of the policy were ambiguous, and the ambiguity must be construed against the party who prepared the contract, Mutual of Omaha. The trial court concluded as follows:

The policy language as thus interpreted does not afford any right of subrogation in this case.

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Bluebook (online)
675 So. 2d 821, 95 La.App. 4 Cir. 2795, 1996 La. App. LEXIS 1135, 1996 WL 293766, Counsel Stack Legal Research, https://law.counselstack.com/opinion/losavio-v-kansas-city-southern-railway-co-lactapp-1996.