Mark Mears, Indiv. v. Mark A. Stanley

Opinion

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

08-636

MARK MEARS, ET AL.

VERSUS

MARK A. STANLEY, ET AL.

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APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 2006-960 HONORABLE R. RICHARD BRYANT, JR., DISTRICT JUDGE

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ON REHEARING

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SHANNON J. GREMILLION JUDGE

Court composed of John D. Saunders, James T. Genovese, and Shannon J. Gremillion, Judges.

REVERSED.

James L. Maughan The Maughan Law Firm, L.L.C. 634 Connell's Park Lane Baton Rouge, LA 70806 (225) 926-8553 Counsel for Plaintiff/Appellant: Mark Mears, Individually Andrew Robinson Johnson, IV Plauche, Smith & Nieset P. O. Box 1705 Lake Charles, LA 70629 (337) 436-0522 Counsel for Defendants/Appellees: State Farm Mutual Auto. Ins. Co. Louisiana Escort and Permit Service

Allen J. Mitchell, II Mitchell & Blanco One Lakeshore Dr., Suite 1495 Lake Charles, LA 70629 (337) 436-8686 Counsel for Defendants/Appellees: State Farm Mutual Auto Ins. Co. Mark A. Stanley GREMILLION, Judge.

We granted the rehearing application of the Defendants, State Farm

Mutual Automobile Insurance Company and Louisiana Escort and Permit Service

(collectively, “State Farm”), for the purpose of allowing additional argument. In our

original opinion, we found that the trial court’s grant of summary judgment must be

reversed. After consideration of the additional argument, we find no error in that

result. Mears v. Stanley, 08-636 (La.App. 3 Cir. 12/10/08), __ So.2d __ .

Mark Mears was a passenger in a company vehicle (the first vehicle)

insured by State Farm and being driven by a friend (Stanley), who was an employee

of a vehicle escort company. Although Stanley clearly started out his work activity

in the company vehicle, he was allegedly forced to use a truck owned by his father

(the second vehicle) due to a gas shortage following Hurricane Rita. Mears was

injured in the second vehicle when an accident occurred en route from the home of

Stanley’s father in DeQuincy, Louisiana, to Mears’ home in Lake Charles, Louisiana,

following the storm. For a full discussion of the facts, refer to our previous opinion.

We find that summary judgment was improperly granted in favor of State

Farm. Genuine issues of material fact exist whether Stanley was in the course and

scope of his employment at the time of the accident while he was driving the second

vehicle and whether the second vehicle qualified as a “temporary substitute” under

the terms of the State Farm policy. Accordingly, summary judgment in favor of State

Farm was inappropriate.