McEachern v. Mills

826 So. 2d 1176, 2002 WL 1877191
CourtLouisiana Court of Appeal
DecidedAugust 16, 2002
Docket36,156-CA
StatusPublished
Cited by5 cases

This text of 826 So. 2d 1176 (McEachern v. Mills) 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
McEachern v. Mills, 826 So. 2d 1176, 2002 WL 1877191 (La. Ct. App. 2002).

Opinion

826 So.2d 1176 (2002)

Johnny Lynn McEACHERN, Plaintiff-Appellant,
v.
John MILLS, State Farm Mutual Automobile Insurance Company and Travelers Indemnity Insurance Company, Defendants-Appellees.

No. 36,156-CA.

Court of Appeal of Louisiana, Second Circuit.

August 16, 2002.

Broussard & Lee by Robert Allen Lee, Francis C. Broussard, for Appellant.

Nelson, Zentner, Sartor & Snellings by Thomas G. Zentner, Jr., for Appellee State Farm Mutual Automobile Ins. Co.

Pettiette, Armand, Dunkelman, Woodley, Byrd & Cromwell by Joseph S. Woodley, for Travelers Indemnity Ins. Co.

Before STEWART, GASKINS and DREW, JJ.

DREW, J.

The sole issue here is whether plaintiff is entitled to recover uninsured motorist (UM) benefits from his employer's automobile insurance coverage. The plaintiff, Johnny L. McEachern, appealed the summary judgment denying coverage and dismissing *1177 his action with prejudice. The judgment is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

For purposes of this appeal, the relevant facts are not in dispute. On August 16, 1997, while in the course and scope of his employment, McEachern was driving his personally owned 1992 Chevrolet Caprice north on Highway 557 in Ouachita Parish. John Mills was driving south on Highway 557 in a 1997 Chevrolet pick-up truck. A third driver, James Shirley, pulled out of a private drive onto the highway causing Mills to swerve his southbound vehicle into McEachern's lane and to collide with McEachern's northbound car. McEachern sustained injuries, including a broken leg which required surgery.

McEachern initially sued Mills and his insurer, State Farm Mutual Insurance Company. In a supplemental and amending petition, McEachern added as a defendant, Travelers Indemnity Insurance Company, the insurer of his employer, American Magnatite. The plaintiff alleged that the Travelers issued to American Magnatite and its subsidiary, Louisiana Magnatite, an automobile liability policy which provided uninsured motorist coverage to McEachern. In the amended petition, McEachern alleged that James Shirley "was insured through Illinois National Insurance" which had paid its $10,000 policy limits. Later, plaintiff dismissed his action against Mills and State Farm pursuant to a settlement. McEachern's own auto insurer was State Farm which also paid $10,000 under plaintiff's State Farm UM coverage.

In its motion for summary judgment, Travelers asserted that McEachern had no coverage under the policy because he was not a named insured for auto liability. Alternatively, if McEachern was found to be an insured for liability coverage, then the UM coverage did not apply because plaintiff was operating his personal vehicle which was not a described vehicle in the policy. Finally, because McEachern elected coverage under his own UM policy, he was prohibited by Louisiana law from "stacking" UM benefits and could not recover under his employer's UM protection.

THE TRAVELER'S POLICY

The relevant portions of the Travelers policy issued to McEachern's employer are:

LIABILITY COVERAGE

. . .

1. WHO IS AN INSURED

The following are "insureds":

a. You for any covered "auto."
b. Anyone else while using with your permission a covered "auto" you own, hire or borrow, except:
(1) The owner or anyone else from whom you hire or borrow a covered "auto." This exception does not apply if the covered "auto" is a trailer connected to a covered "auto" you own.
(2) Your employee if the covered "auto" is owned by the employee or a member of his or her household.
(3) Someone using a covered "auto" while he or she is working in a business of selling, servicing, repairing or parking "autos" unless that business is yours.
(4) Anyone other than your employees, partners, a lessee or borrower or any of their employees, while moving property to or from a covered "auto."
(5) A partner of yours for a covered "auto" owned by him or her or a member of his or her household.
*1178 c. Anyone liable for the conduct of the "Insured" described above but only to the extent of that liability.

LOUISIANA UNINSURED MOTORISTS COVERAGE— BODILY INJURY:

WHO IS AN INSURED

1. You.
2. If you are an individual, any "family member."
3. Anyone else "occupying" a covered "auto" or a temporary substitute for a covered "auto." The covered "auto" must be out of service because of its breakdown, repair, servicing, loss or destruction.
4. Anyone for damages he or she is entitled to recover because of "bodily injury" sustained by another "insured."
5. Anyone else "occupying" an "auto" you do not own and that is a covered "auto" under this coverage part for Liability Insurance and is licensed or principally garaged in Louisiana.

C. This insurance does not apply to:

4. "Bodily injury" sustained by an "insured" while "occupying" by any vehicle owned by that "insured" that is not a covered "auto."

Included in the policy is a COVERAGE PART DECLARATIONS which contains a chart showing coverage and liability limits:

Coverage                    Covered Auto Symbol     Limits of Insurance
                                                    The most we will pay for one
                                                    accident or loss.
Liability                    7 8 9                  $1,000,000
Uninsured Motorists          2                      $  500,000

The definitions of the numerals used in the Coverage Part Declarations are contained in the Business Auto Coverage Form portion of the policy.

SECTION 1 COVERED AUTOS

ITEM TWO of the Declarations shows the "autos" that are covered "autos" for each of your coverages. The following numerical symbols describe the "autos" that may be covered "autos." The symbols entered next to a coverage on the Declarations designates the only "autos" that are covered "autos."

2 = OWNED "AUTOS" ONLY. Only those "autos" you own (and for Liability Coverage any "trailers" you don't own while attached to power units you own). This includes those "autos" you acquire ownership of after the policy begins.

7 = SPECIFICALLY DESCRIBED AUTOS. Only those "autos" described in ITEM THREE of the Declarations for which a premium charge is shown (and for Liability Coverage any "trailers" you don't own while attached to any power unit described in ITEM THREE).

8 = HIRED "AUTOS" ONLY. Only those "autos" you lease, hire, rent or borrow. This does not include any "auto" you lease, hire, rent or borrow from any of your employees or partners or members of their households.

9 = NONOWNED "AUTOS" ONLY. Only those "autos" you do not own, lease, hire, rent, or borrow that are used in connection with your business. This includes "autos" owned by your *1179 employees or partners or members of their households but only while used in your business or your personal affairs.

DISCUSSION

In Magnon v. Collins, 98-2822 (La.7/7/99), 739 So.2d 191, the supreme court explained that appellate courts make de novo reviews of summary judgments on appeal.

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

Related

Halphen v. Borja
961 So. 2d 1201 (Louisiana Court of Appeal, 2007)
Wright v. Louisiana Power & Light
927 So. 2d 1275 (Louisiana Court of Appeal, 2006)
Ray v. City of Bossier City
859 So. 2d 264 (Louisiana Court of Appeal, 2003)
Klein v. Cisco-Eagle, Inc.
855 So. 2d 844 (Louisiana Court of Appeal, 2003)
UNITED RENTALS HIGH. TECH. v. St. Paul Sur.
852 So. 2d 1200 (Louisiana Court of Appeal, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
826 So. 2d 1176, 2002 WL 1877191, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mceachern-v-mills-lactapp-2002.