Markovich v. Stauder

685 So. 2d 190, 96 La.App. 5 Cir. 425, 1996 La. App. LEXIS 2880, 1996 WL 658833
CourtLouisiana Court of Appeal
DecidedNovember 14, 1996
DocketNos. 96-CA-425, 96-CA-426
StatusPublished

This text of 685 So. 2d 190 (Markovich v. Stauder) 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
Markovich v. Stauder, 685 So. 2d 190, 96 La.App. 5 Cir. 425, 1996 La. App. LEXIS 2880, 1996 WL 658833 (La. Ct. App. 1996).

Opinion

12D ALE Y, Judge.

This subrogation matter between Governmental Employees Insurance Company (GEICO) and State Farm Mutual Automobile Insurance Company (State Farm) arises out of an automobile accident on February 4, 1990. After various settlements, not at issue here, the matter proceeded to trial between GEICO, as both collision insurer and under-insured motorist insurer of the injured party (Susan Markovich), and State Farm, whose policy allegedly provided coverage to the tortfeasor (Bridgette Stauder). The trial court ruled in favor of State Farm, finding that its policy did not provide coverage to Stauder, and thus GEICO’s subrogation claim was dismissed. We affirm.

Susan Markovich, GEICO’s insured (liability, collision, and UM coverage), was driving a Chevrolet van on Veterans Boulevard in Jefferson Parish when it was struck by a 1989 Hyundai automobile driven by Bridgette Stauder and owned by Tamantha Grimaldi. Markovich sustained bodily injury and her van was damaged. | gThe Hyundai and Gri-maldi were insured for liability coverage with Fidelity Fire & Casualty Insurance Company (who was succeeded by LIGA after Fidelity was placed in liquidation on September 4, 1991). Stauder was a named insured under a policy with State Farm issued to her father, Conrad Stauder.

On October 10,1995, at a scheduled trial of this matter, agreement was reached whereby State Farm would pay GEICO’s subrogated property damage loss claim1 in the sum of $10,000.00 and would also pay GEICO’s $15,-000.00 settlement of Markovich’s bodily injury claim, if the trial court found that State Farm provided coverage for Stauder’s opera[192]*192tion of Grimaldi’s car. At issue for coverage was an exclusion in the State Farm policy’s definition of a “non-owned vehicle.”

On November 30,1995, the Court rendered judgment in favor of State Farm and against GEICO, finding that the amount of Stauder’s use of Grimaldi’s vehicle brought her within the exclusion in the State Farm policy of use of a “non-owned vehicle,” and thus State Farm did not provide coverage. From this judgment, GEICO has appealed. On appeal, GEICO argues that 1) State Farm failed to prove its affirmative defense of no coverage; 2) the trial court’s interpretation of the policy exclusion was manifestly erroneous, or alternatively, that the trial court erred in failing to find the exclusion’s language vague and/or ambiguous; and 3) the trial court’s interpretation of the exclusionary language is contrary to the public policy stated in LSA-R.S. 32: 851 et seq; and 4) that the evidence does not support the trial court's finding that Stauder’s use of the Grimaldi vehicle fell within the exclusion in State Farm’s policy.

| .¡First, GEICO argues that because State Farm did not introduce its policy into evidence, State Farm failed to prove the existence of the exclusion in its policy and, therefore, failed to prove that coverage did not exist. Also, GEICO charges that State Farm did not raise the affirmative defense of an exclusion in any of the answers State Farm filed in this suit and, therefore, State Farm was precluded from presenting evidence on the exclusion.

State Farm counters that GEICO should have introduced the policy, because GEICO, in order to prevail in the subrogation, had the burden of proving that a State Farm policy existed that provided coverage to Stauder. They also argue that the evidence fully supports the trial court’s factual findings.

Regarding GEICO’s complaint that State Farm failed to introduce its policy, the record shows that State Farm admitted that it issued a liability policy to Conrad Stauder (Bridgette’s father) on which' Bridgette was a named insured. It also attached this policy to both its pretrial and posttrial briefs. The policy is listed in State Farm’s pretrial order as a trial exhibit. At trial, the parties' read into the record their stipulation that State Farm would pay GEICO stipulated amounts if the court found coverage for Stauder at the time of this accident or loss under the State Farm policy. These actions by State Farm prove the existence of the policy.

GEICO (as plaintiff in subrogation), in its post trial brief, offers into evidence the State Farm policy which the latter attached to its post trial brief2. As such, we find the existence' of the policy, and its contents, to have been uncontested facts in this trial, and under these circumstances, we find no reversible error in State Farm’s failure to introduce the policy into evidence, and find no need to remand for its 15introduction. See Blanchard v. Means Industries, Inc., 93-715 (La. App. 5 Cir. 3/16/94), 635 So.2d 288.

Second, in brief, GEICO argues that State Farm did not raise the affirmative defense of an exclusion in any answer it filed in this suit, and thus they are precluded from presenting any proof of the applicability of the exclusion. Nippert v. Baton Rouge Railcar Services, Inc., 526 So.2d 824 (La.App. 1 Cir.1988). GEICO’s statement of law is correct. However, GEICO did not object at the trial of this matter to State Farm’s presentation of this testimony and evidence. Moreover, the record as a whole shows that GEI-CO had knowledge of State Farm’s defense and was fully prepared to meet that defense. Therefore, this assignment of error has no merit.

Next, GEICO contends that the trial court's interpretation of the policy exclusion was manifestly erroneous, or alternatively, that the trial court erred in failing to find the exclusion’s language vague and/or ambiguous.

The State Farm policy, on page six, defines the extent of liability coverage.

The liability coverage extends to the use, by an insured, of a newly acquired car, a [193]*193temporary substitute car or a non-owned car. '

The exclusion is contained in Amendatory Endorsement 6025B, which reads:

Non-owned car—means a car not owned by or registered or leased in the name of:
(1) you, your spouse;
(2) any relative unless at the time of the accident or loss:
(a) the car is or has been described on the declarations page of a liability policy within the preceding 30 days; and
(b) you, your spouse or a relative who does not own or lease such car is the driver.
(3) any other person residing in the same household as you, your spouse or any relative; or
(4) an employer of you, your spouse or any relative.
Non-owned car does not include a car:
(1) which is not in the lawful possession of the person operating it; or
(2) which has been operated by', rented by or in the possession of an instired during any part of each of the preceding 21 days; or
lo(3) operated by an insured who has operated or rented any car otherwise qualifying as a non-owned car during any part of more than 45 days in the 365 days preceding the date of the accident or loss.

Specifically, GEICO argues that the exclusion could function to deny coverage to Stau-der while driving any

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

Related

Parker v. AMERICAN GUAR. & LIABILITY INS.
637 So. 2d 788 (Louisiana Court of Appeal, 1994)
Nippert v. Baton Rouge Railcar Services, Inc.
526 So. 2d 824 (Louisiana Court of Appeal, 1988)
Leflore v. Coburn
665 So. 2d 1323 (Louisiana Court of Appeal, 1995)
Blanchard v. Means Industries, Inc.
635 So. 2d 288 (Louisiana Court of Appeal, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
685 So. 2d 190, 96 La.App. 5 Cir. 425, 1996 La. App. LEXIS 2880, 1996 WL 658833, Counsel Stack Legal Research, https://law.counselstack.com/opinion/markovich-v-stauder-lactapp-1996.