Muller v. Colony Insurance Co.

57 So. 3d 341, 2010 La.App. 1 Cir. 0688, 2010 La. App. LEXIS 1696, 2010 WL 5017272
CourtLouisiana Court of Appeal
DecidedDecember 9, 2010
DocketNo. 2010 CA 0688
StatusPublished
Cited by2 cases

This text of 57 So. 3d 341 (Muller v. Colony Insurance Co.) 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
Muller v. Colony Insurance Co., 57 So. 3d 341, 2010 La.App. 1 Cir. 0688, 2010 La. App. LEXIS 1696, 2010 WL 5017272 (La. Ct. App. 2010).

Opinions

WHIPPLE, J.

|2In this appeal, an insurance company challenges the trial court’s ruling, which found that the commercial general liability policy at issue provided coverage for the plaintiffs injuries. Plaintiff has answered the appeal, challenging issues of allocation of fault and quantum. For the following reasons, we amend and affirm.

FACTS AND PROCEDURAL HISTORY

Janet Sue Muller is a sole proprietor doing business as Sno-Mobile of Louisiana, a snow-party business.1 Conducting a snow party entails creating snow from shaved ice, spreading the snow on a tarp with a rake or squeegee, and coordinating snow games. Normally, conducting a snow party is a two-person job, and Janet, her son and his wife, her daughter and her daughter’s husband, and her daughter-in-law’s mother and brother all assisted in conducting snow parties for Janet’s business. Janet’s husband, William Muller, periodically performed minor maintenance work on the ice-shaving machines, but he rarely assisted in actually conducting snow parties.

On December 24, 2005, Janet’s son and his wife were scheduled to conduct a snow party at an apartment complex in Baton Rouge. However, when her son informed Janet that he and his wife could not conduct the party, Janet asked her husband William to assist her with the party. William’s responsibilities at the party included positioning the truck and trailer with the ice-shaving equipment and shaving the ice into snow, while Janet was responsible for spreading the snow on the tarp. Janet was also trying to keep the children off the tarp until they had finished creating and spreading the snow.

|sWhen William began shaving the ice, he encountered a problem with the ice-shaving machine. Specifically, the belt connected to the top and bottom pulleys was squealing, thus requiring William to remove the protective guard or cover from the machine to tighten the belt. After tightening the belt, William started the machine again to test it, and when he was satisfied that the machine was again working properly, he resumed shaving the block ice into snow. However, after adjusting the belt, William failed to replace the protective cover over the pulley mechanism of the ice-shaving machine.

Meanwhile, Janet, who had not seen William remove the protective cover from [345]*345the machine and who was unaware that he had removed it, began walking toward the location where William was shaving ice in order to spread the snow he had shaved toward the middle of the tarp. However, as she approached the back of the truck where William was working, Janet slipped on the tarp and reached out to grab onto the truck to steady herself. Instead of grabbing onto the truck, Janet apparently reached beyond the side panel of the truck, and her right hand became entangled in the pulley or belt, which was no longer shielded by the guard or cover. As a result of the accident, Janet’s right small finger and ring or long finger were seriously injured, with the small finger being traumatically amputated at the base of the finger. Janet subsequently underwent numerous surgeries and now has permanent disability of her right hand.

On July 25, 2006, Janet filed suit against William, alleging that he was negligent in causing the accident, and Colony Insurance Company (“Colony”), alleging that it had issued an insurance policy insuring William from liability for his negligence herein. Thereafter, Colony and Janet filed cross-motions for partial summary judgment on the issue of insurance ^coverage, with Colony contending that the policy did not provide coverage to William for Janet’s injuries which were incurred within the course of operating Janet’s business and with Janet contending the Colony policy did provide coverage for William’s alleged negligent acts.

Following a hearing on the motions, the trial court rendered judgment, granting Janet’s motion for summary judgment and denying Colony’s motion. Although Colony filed a writ application with this court, seeking review of the trial court’s finding of coverage, this court denied the writ application on the basis that an adequate remedy existed on appeal after the rendition of final judgment on the merits.

Also, William filed an exception of no right of action in response to Janet’s suit against him, averring that because he is Janet’s husband, he was statutorily exempt from liability pursuant to LSA-R.S. 9:291, which provides that a wife cannot sue her husband in .tort for negligent injury while married. Thereafter, on joint motion of Janet and William, the trial court rendered judgment dismissing without prejudice Janet’s claims against William, while reserving her right to proceed against Colony. Accordingly, the matter ultimately proceeded to trial against Colony only.

Following a bench trial, the trial court found that William and Janet were both negligent in causing the accident and assessed 40% fault to William and 60% fault to Janet. The court further found that Janet had suffered $140,000.00 in general damages, in addition to past- medical expenses, all of which it found to be related to the accident, with those amounts to be reduced by Janet’s comparative fault. However, the court found that Janet had failed to prove her entitlement to any future medical expenses. Accordingly, the trial court entered judgment in favor of Janet and against Colony in the amounts of $56,000.00 (representing general Isdamages of $140,000.00 reduced by Janet’s percentage of fault) and $18,889.41 (representing $47,223.53 in medical expenses reduced by Janet’s percentage of fault).

Janet then filed a motion for new trial, contending that the trial court’s. finding that she was 60% at fault in causing the accident was not suppoi'ted by the evidence presented at trial. Following a hearing on the motion, the trial court rendered judgment granting the motion for new trial and reapportioning fault 50% to Janet and 50% to William. • Accordingly, [346]*346the judgment granting the motion for new trial awarded Janet $70,000.00 in general damages (representing a 50% percent reduction for her comparative fault) and $23,611.77 in past medical expenses (also representing a 50% percent reduction for her comparative fault).

From these judgments, Colony appeals, assigning as error the trial court’s finding that Colony’s policy provided coverage to William for his negligence in causing the injuries sustained by Janet, a named insured. Janet answered the appeal, contending that: (1) the trial court erred in casting her with any fault for the injuries she suffered; (2) the trial court erred in failing to award an adequate amount of general damages considering the nature and extent of her injuries; and (3) the trial court erred in failing to award Janet any sum for future medical expenses.

DISCUSSION

Coverage under the Colony Policy

(Colony’s Assignment of Error)

In its sole assignment of error, Colony challenges the trial court’s finding that the commercial general liability (CGL) policy issued by Colony provided coverage to William for his negligence in causing the injuries sustained by Janet, its named insured. An insurance contract or policy is a |ficonventional obligation that constitutes the law between the parties to the contract, the insured and the insurer. Grace v. Crespo, 2007-0397 (La.App. 1st Cir.9/19/07), 970 So.2d 1007, 1012, writ denied, 2007-2010 (La.12/7/07), 969 So.2d 636. The goal of judicial interpretation of a policy’s wording is to determine the intent of the contracting parties. See

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57 So. 3d 341, 2010 La.App. 1 Cir. 0688, 2010 La. App. LEXIS 1696, 2010 WL 5017272, Counsel Stack Legal Research, https://law.counselstack.com/opinion/muller-v-colony-insurance-co-lactapp-2010.