Miller v. Duthu

470 So. 2d 500
CourtLouisiana Court of Appeal
DecidedMay 29, 1985
DocketCA 84 0456
StatusPublished
Cited by15 cases

This text of 470 So. 2d 500 (Miller v. Duthu) 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
Miller v. Duthu, 470 So. 2d 500 (La. Ct. App. 1985).

Opinion

470 So.2d 500 (1985)

Paul MILLER
v.
Jackie L. DUTHU, et al.

No. CA 84 0456.

Court of Appeal of Louisiana, First Circuit.

May 29, 1985.

*501 T. Michael Landrum, Baton Rouge, for plaintiff-appellant Paul Miller.

James H. Morgan, III, Baton Rouge, for defendant-appellee St. Paul Fire & Marine Ins. Co.

Carey J. Guglielmo, Baton Rouge, for defendant-appellee Jackie L. Duthu.

Before COLE, CARTER and LANIER, JJ.

LANIER, Judge.

This litigation commenced as a suit for damages arising from a one car accident brought by the guest passenger in the vehicle, Paul Miller, against the driver, Jackie L. Duthu, and his insurer, State Farm Mutual Automobile Insurance Company (State Farm).[1] State Farm insured Duthu under two policies of insurance on two vehicles: (1) the accident vehicle, a 1979 Ford Pinto with coverage of $100,000/$300,000 for liability, $5,000 for medical payments and $100,000/$300,000 for uninsured/underinsured motorist (Pinto policy); and (2) a 1976 Buick with coverage of $25,000/$50,000 for liability, $1,000 for medical payments and $25,000/$50,000 for uninsured/underinsured motorist (Buick policy). State Farm initially filed an answer. Subsequently, State Farm paid Miller $5,000 in medical payments and $19,912.28 under the liability coverage under the Pinto policy. State Farm then deposited $88,219.53 into the registry of the court. This sum represented the balance of $80,087.72 remaining under the liability coverage of the Pinto policy and $8,131.81 in legal interest and court costs. Miller secured a court order which released to him the funds deposited.

Miller then filed a "motion for declaratory judgment" asserting he was also entitled to recover from State Farm under the uninsured/underinsured motorist coverage of the Pinto and Buick policies. After a hearing, the district court ruled Miller was not covered under the Buick policy but was covered under the Pinto policy and this portion of the claim was not subject to the "limits of liability" clause. State Farm filed a motion for a new trial contending it was error not to apply the "limits of liability" clause. After a hearing on the motion for a new trial, the district court ruled the Pinto policy did not provide uninsured/underinsured motorist coverage, the "limits of liability" clause would eliminate coverage even if it existed and the "limits of liability" clause is valid and in conformity with public policy in the factual posture of this case. Miller sought a new trial which was denied. This devolutive appeal followed.

FACTS

*502 Part IV of the Pinto policy[2] provides uninsured/underinsured motorist (UM) protection (coverage). An uninsured automobile is defined therein as follows:

"uninsured automobile" includes a trailer of any type and means:
(a) an automobile or trailer with respect to the ownership, maintenance or use of which there is, in at least the amounts specified by the financial responsibility law of the state in which the insured automobile is principally garaged, no bodily injury liability bond or insurance policy applicable at the time of the accident with respect to any person or organization legally responsible for the use of such automobile, or with respect to which there is a bodily injury liability bond or insurance policy applicable at the time of the accident but the company writing the same denies coverage thereunder or becomes insolvent within one year after such accident or
(b) a hit-and-run automobile;
but the term "uninsured automobile" shall not include:
(1) an insured automobile or an automobile furnished for the regular use of the named insured or a relative,
(2) an automobile or trailer owned or operated by a self-insurer within the meaning of any motor vehicle financial responsibility law, motor carrier law or any similar law,
(3) an automobile or trailer owned by the United States of America, Canada, a state, a political subdivision of any such government or an agency of any of the foregoing,
(4) a land motor vehicle or trailer if operated on rails or crawler-treads or while located for use as a residence or premises and not as a vehicle, or
(5) a farm type tractor or equipment designed for use principally off public roads, except while actually upon public roads.
[Underscoring added].

Duthu's 1979 Ford Pinto is an "insured automobile" for purposes of excluding it from the definition of an uninsured automobile.

The "limits of liability" provision of the UM coverage provides as follows:

Limits of Liability. (a) The limit of liability for uninsured motorists coverage stated in the declarations as applicable to `each person' is the limit of the company's liability for all damages, including damages for care or loss of services, because of bodily injury sustained by one person as the result of any one accident and, subject to the above provision respecting each person, the limit of liability stated in the declarations as applicable to `each accident' is the total limit of the company's liability for all damages, including damages for care or loss of services, because of bodily injury sustained by two or more persons as the result of any one accident.
(b) Any amount payable under the terms of this Part because of bodily injury sustained in an accident by a person who is an insured under this Part shall be reduced by
(1) all sums paid on account of such bodily injury by or on behalf of (i) the owner or operator of the uninsured automobile and (ii) any other person or organization jointly or severally liable together with such owner or operator for such bodily injury including all sums paid under Coverage A [Bodily injury liability under Part I], and
(2) the amount paid and the present value of all amounts payable on account of such bodily injury under any workmen's compensation law, disability benefits law or any similar law.
(c) Any payment made under this Part to or for any insured shall be applied in reduction of the amount of damages which he may be entitled to recover from any person insured under Coverage A.
*503 (d) The company shall not be obligated to pay under this Coverage that part of the damages which the insured may be entitled to recover from the owner or operator of an uninsured automobile which represents expenses for medical services paid or payable under Part II. [Expenses for medical services].
[Underscoring added].

Because Miller was a person occupying an "insured automobile", he is an "insured" for purposes of the "limits of liability" provision.

The Pinto policy has an amendment which provides, in pertinent part, as follows:

Nothing herein contained shall be held to alter, vary, waive or extend any of the terms, conditions, agreements or limitations of the undermentioned policy other than as stated below.
....
In consideration of the premium at which the policy is written, it is agreed that coverage U is amended by changing the term "uninsured automobile" to "uninsured motor vehicle or underinsured motor vehicle" except in the definition of "uninsured automobile" where the change is to "uninsured motor vehicle". It is further agreed that the following definition is added.

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Bluebook (online)
470 So. 2d 500, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-v-duthu-lactapp-1985.