STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
07-1264
MAURICE BAROUSSE, ET AL.
VERSUS
WESTERN WORLD INSURANCE COMPANY, ET AL.
************
APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF ST. MARTIN, NO. 05-69971 HONORABLE KEITH R. J. COMEAUX, DISTRICT JUDGE
MICHAEL G. SULLIVAN JUDGE
Court composed of Sylvia R. Cooks, Michael G. Sullivan, and Elizabeth A. Pickett, Judges.
COOKS, J., concurs in the result and assigns additional reasons.
AFFIRMED.
David Benoit Attorney at Law Post Office Box 877 Breaux Bridge, Louisiana 70517 (337) 332-6666 Counsel for Plaintiffs/Appellants: Maurice Barousse Michael Barousse Millie Barousse
Daniel A. Reed Seale, Smith, Zuber & Barnette, L.L.P. 8550 United Plaza Blvd., Suite #200 Baton Rouge, Louisiana 70809 (225) 924-1600 Counsel for Defendant/Appellee: Western World Insurance Company Anthony J. Milazzo, Jr. Hebbler & Giordano, L.L.C. 3636 South I-10 Service Road West, Suite 300 Metairie, Louisiana 70001 (504) 833-8007 Counsel for Defendant/Appellee: Progressive Security Insurance Company
Kelly E. Balfour Attorney at Law 4354 South Sherwood Forest Blvd., Suite 200 Baton Rouge, Louisiana 70816 (225) 298-6720 Counsel for Defendant/Appellee: Progressive Security Insurance Company
Melvin A. Eiden Rabalais, Hanna & Hebert 701 Robley Drive, Suite 210 Lafayette, Louisiana 70503 (337) 981-0309 Counsel for Defendant/Appellee: ACI Portable Toilets, LLC Shelton Cormier SULLIVAN, Judge.
Plaintiffs appeal the trial court’s grant of summary judgment in favor of
Western World Insurance Company (Western World) and denial of summary
judgment in their favor. We affirm.
Facts
On September 5, 2005, Maurice and Michael Barousse were injured, as they
operated their motorcycles on Louisiana Highway 31 in St. Martin Parish, when a
truck driven by Shelton Cormier made an improper left turn. Mr. Cormier was in the
course and scope of his employment driving his employer’s vehicle when the accident
occurred. Maurice, Michael, and Maurice’s wife sued Mr. Cormier and his employer,
ACI Portable Toilets, LLC, and its insurer, Western World, to recover damages.
Western World filed a motion for summary judgment, seeking a judgment
declaring that its policy provides minimum coverage of $10,000 per person and
$20,000 per accident with respect to the Barousses’ claims. The Barousses filed a
motion for summary judgment, seeking a judgment recognizing that Western World’s
policy provides single limit coverage of $100,000 for this accident.
After a hearing on the motions for summary judgment, the trial court took the
matter under advisement. Thereafter, the trial court granted summary judgment in
favor of Western World and denied the Barousses’ motion for summary judgment.
The Barousses appeal.
Issue Presented
The Barousses urge that the trial court’s judgment contravenes
La.R.S. 32:900(B)(2)(d), which provides:
An owner may exclude a named person as an insured under a commercial policy if the owner obtains and maintains in force another
1 policy of motor vehicle insurance which provides coverage for the person so excluded which is equal to that coverage provided in the policy for which the person was excluded. The alternative coverage is required for both primary and excess insurance.
Discussion
The Western World commercial policy provides single limit coverage of
$100,000 for each accident. However, the policy also contains an endorsement that
drops the $100,000 coverage to $10,000 per person and $20,000 per accident for any
driver who is not a “Listed Driver” in the policy. Western World’s motion for
summary judgment is based upon the Listed Drivers Coverage endorsement to ACI’s
policy. The Listed Drivers Coverage endorsement provides in part:
The following exclusion is added:
This insurance does not apply to any “accident” or “loss” while a covered “auto” is driven by anyone other than a listed driver.
For Liability Coverage, this exclusion applies only to the extent our Limit of Insurance exceeds the limits of liability required, in any particular case, by any state’s financial responsibility or similar law.
The Barousses contend that this provision violates La.R.S. 32:900(B)(2)(d),
arguing that La.R.S. 32:900(B)(2)(d) “only allows an owner to exclude a named
person as an insured under a commercial policy if the owner maintains in full force
and effect a policy which would provide equal coverage to the excluded person.”
They urge that the Listed Drivers endorsement is not an endorsement but an exclusion
that “attempts to skirt the provisions of La.R.S. 32:900(B)(2)(d) by reducing
coverage.”
Western World’s policy does not exclude Mr. Cormier from the coverage
provided to his employer. As stated by the Barousses in their argument, the Listed
Drivers endorsement reduces the coverage provided for Mr. Shelton to the minimum
2 required by Louisiana’s financial responsibility law. Thus, Western World’s policy
provides different limits of coverage for listed drivers and unlisted drivers. It does
not conflict with La.R.S. 32:900(B)(2)(d), as it provides the minimum coverage
required by Louisiana law for drivers who are not listed in the policy. Reynolds v.
Select Props., Ltd., 93-1480 (La. 4/11/94), 634 So.2d 1180.
The Barousses also argue that the endorsement which reduces coverage
provided for Mr. Cormier from $100,000 to $10,000 per person and $20,000 per
accident is ambiguous. They first assert that the policy is ambiguous because the
endorsement is an exclusion and is inconspicuously placed in an endorsement, not the
main body of the policy. They cite cases decided by non-Louisiana courts in support
of this contention. Two of the cases cited are inapplicable because the decisions
therein are based upon jurisprudential rules which require that such exclusions be
conspicuous, and there is no comparable Louisiana statute or jurisprudential rule.
Furthermore, although the Listed Drivers Coverage endorsement is not contained in
the main body of the policy, it was completed by hand to identify the insured and
provide the effective date of the endorsement and was signed by a representative of
ACI. Therefore, the endorsement was made conspicuous to ACI’s representative.
The Barousses assert two additional reasons why the policy is ambiguous.
They argue that the title of the endorsement, “Listed Drivers Coverage,” is misleading
because it actually excludes coverage and that the policy is ambiguous because the
application signed by ACI provides in part, “I agree to promptly report all full and
part time drivers” but neither it nor the policy define the term “promptly.”
Western World counters that the policy is not ambiguous, citing the following
provisions contained in the Listed Drivers Coverage endorsement:
3 This insurance does not apply to any “accident” or “loss” while a covered “auto” is driven by anyone other than a “listed driver.”
....
The following is added to Section IV–CONDITIONS
To add a driver to the list of drivers, you must notify your agent or insurance producer in writing of the name, date of birth, date of hire and driver’s license number of the additional driver before that driver operates a covered “auto.”
Louisiana Civil Code Article 2050 provides that “[e]ach provision in a contract
must be interpreted in light of the other provisions so that each is given the meaning
Free access — add to your briefcase to read the full text and ask questions with AI
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
07-1264
MAURICE BAROUSSE, ET AL.
VERSUS
WESTERN WORLD INSURANCE COMPANY, ET AL.
************
APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF ST. MARTIN, NO. 05-69971 HONORABLE KEITH R. J. COMEAUX, DISTRICT JUDGE
MICHAEL G. SULLIVAN JUDGE
Court composed of Sylvia R. Cooks, Michael G. Sullivan, and Elizabeth A. Pickett, Judges.
COOKS, J., concurs in the result and assigns additional reasons.
AFFIRMED.
David Benoit Attorney at Law Post Office Box 877 Breaux Bridge, Louisiana 70517 (337) 332-6666 Counsel for Plaintiffs/Appellants: Maurice Barousse Michael Barousse Millie Barousse
Daniel A. Reed Seale, Smith, Zuber & Barnette, L.L.P. 8550 United Plaza Blvd., Suite #200 Baton Rouge, Louisiana 70809 (225) 924-1600 Counsel for Defendant/Appellee: Western World Insurance Company Anthony J. Milazzo, Jr. Hebbler & Giordano, L.L.C. 3636 South I-10 Service Road West, Suite 300 Metairie, Louisiana 70001 (504) 833-8007 Counsel for Defendant/Appellee: Progressive Security Insurance Company
Kelly E. Balfour Attorney at Law 4354 South Sherwood Forest Blvd., Suite 200 Baton Rouge, Louisiana 70816 (225) 298-6720 Counsel for Defendant/Appellee: Progressive Security Insurance Company
Melvin A. Eiden Rabalais, Hanna & Hebert 701 Robley Drive, Suite 210 Lafayette, Louisiana 70503 (337) 981-0309 Counsel for Defendant/Appellee: ACI Portable Toilets, LLC Shelton Cormier SULLIVAN, Judge.
Plaintiffs appeal the trial court’s grant of summary judgment in favor of
Western World Insurance Company (Western World) and denial of summary
judgment in their favor. We affirm.
Facts
On September 5, 2005, Maurice and Michael Barousse were injured, as they
operated their motorcycles on Louisiana Highway 31 in St. Martin Parish, when a
truck driven by Shelton Cormier made an improper left turn. Mr. Cormier was in the
course and scope of his employment driving his employer’s vehicle when the accident
occurred. Maurice, Michael, and Maurice’s wife sued Mr. Cormier and his employer,
ACI Portable Toilets, LLC, and its insurer, Western World, to recover damages.
Western World filed a motion for summary judgment, seeking a judgment
declaring that its policy provides minimum coverage of $10,000 per person and
$20,000 per accident with respect to the Barousses’ claims. The Barousses filed a
motion for summary judgment, seeking a judgment recognizing that Western World’s
policy provides single limit coverage of $100,000 for this accident.
After a hearing on the motions for summary judgment, the trial court took the
matter under advisement. Thereafter, the trial court granted summary judgment in
favor of Western World and denied the Barousses’ motion for summary judgment.
The Barousses appeal.
Issue Presented
The Barousses urge that the trial court’s judgment contravenes
La.R.S. 32:900(B)(2)(d), which provides:
An owner may exclude a named person as an insured under a commercial policy if the owner obtains and maintains in force another
1 policy of motor vehicle insurance which provides coverage for the person so excluded which is equal to that coverage provided in the policy for which the person was excluded. The alternative coverage is required for both primary and excess insurance.
Discussion
The Western World commercial policy provides single limit coverage of
$100,000 for each accident. However, the policy also contains an endorsement that
drops the $100,000 coverage to $10,000 per person and $20,000 per accident for any
driver who is not a “Listed Driver” in the policy. Western World’s motion for
summary judgment is based upon the Listed Drivers Coverage endorsement to ACI’s
policy. The Listed Drivers Coverage endorsement provides in part:
The following exclusion is added:
This insurance does not apply to any “accident” or “loss” while a covered “auto” is driven by anyone other than a listed driver.
For Liability Coverage, this exclusion applies only to the extent our Limit of Insurance exceeds the limits of liability required, in any particular case, by any state’s financial responsibility or similar law.
The Barousses contend that this provision violates La.R.S. 32:900(B)(2)(d),
arguing that La.R.S. 32:900(B)(2)(d) “only allows an owner to exclude a named
person as an insured under a commercial policy if the owner maintains in full force
and effect a policy which would provide equal coverage to the excluded person.”
They urge that the Listed Drivers endorsement is not an endorsement but an exclusion
that “attempts to skirt the provisions of La.R.S. 32:900(B)(2)(d) by reducing
coverage.”
Western World’s policy does not exclude Mr. Cormier from the coverage
provided to his employer. As stated by the Barousses in their argument, the Listed
Drivers endorsement reduces the coverage provided for Mr. Shelton to the minimum
2 required by Louisiana’s financial responsibility law. Thus, Western World’s policy
provides different limits of coverage for listed drivers and unlisted drivers. It does
not conflict with La.R.S. 32:900(B)(2)(d), as it provides the minimum coverage
required by Louisiana law for drivers who are not listed in the policy. Reynolds v.
Select Props., Ltd., 93-1480 (La. 4/11/94), 634 So.2d 1180.
The Barousses also argue that the endorsement which reduces coverage
provided for Mr. Cormier from $100,000 to $10,000 per person and $20,000 per
accident is ambiguous. They first assert that the policy is ambiguous because the
endorsement is an exclusion and is inconspicuously placed in an endorsement, not the
main body of the policy. They cite cases decided by non-Louisiana courts in support
of this contention. Two of the cases cited are inapplicable because the decisions
therein are based upon jurisprudential rules which require that such exclusions be
conspicuous, and there is no comparable Louisiana statute or jurisprudential rule.
Furthermore, although the Listed Drivers Coverage endorsement is not contained in
the main body of the policy, it was completed by hand to identify the insured and
provide the effective date of the endorsement and was signed by a representative of
ACI. Therefore, the endorsement was made conspicuous to ACI’s representative.
The Barousses assert two additional reasons why the policy is ambiguous.
They argue that the title of the endorsement, “Listed Drivers Coverage,” is misleading
because it actually excludes coverage and that the policy is ambiguous because the
application signed by ACI provides in part, “I agree to promptly report all full and
part time drivers” but neither it nor the policy define the term “promptly.”
Western World counters that the policy is not ambiguous, citing the following
provisions contained in the Listed Drivers Coverage endorsement:
3 This insurance does not apply to any “accident” or “loss” while a covered “auto” is driven by anyone other than a “listed driver.”
....
The following is added to Section IV–CONDITIONS
To add a driver to the list of drivers, you must notify your agent or insurance producer in writing of the name, date of birth, date of hire and driver’s license number of the additional driver before that driver operates a covered “auto.”
Louisiana Civil Code Article 2050 provides that “[e]ach provision in a contract
must be interpreted in light of the other provisions so that each is given the meaning
suggested by the contract as a whole.” Any ambiguity arguably created by the term
“promptly” in the application is resolved when the policy is construed as a whole.
The Listed Drivers Coverage endorsement clearly and unambiguously provides what
“promptly” means and what ACI had to do to obtain $100,000 coverage for its
drivers. Therefore, we need not determine whether the “promptly” is ambiguous.
La.Civ.Code art. 2050. See also Halphen v. Borja, 06-1465 (La.App. 1 Cir. 5/4/07),
961 So.2d 1201, writ denied, 07-1198 (La. 9/21/07), 964 So.2d 338. This assignment
is without merit.
Disposition
The judgment of the trial court is affirmed. All costs of this appeal are assessed
to the Barousses.
4 STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
COOKS, J., concurs in the result and assigns additional reasons.
I concur in the result reached by the majority and specifically note La.R.S.
32:900(B)(2)(d) requires “owners” to secure and maintain “another” policy for the
person excluded in an equal amount in cases involving commercial policies. It does
not require the primary or excess insurer, as in this case, to do anything, nor does it
subject said insurer to additional liability beyond the terms of the contract in the event
an owner fails to comply with the statutory mandate. Plaintiff may have a viable
claim, based on La.R.S. 32:900(B)(2)(d), but that claim is assertable only against the
owner who acquired the commercial policy which triggered the statutory mandate.