Niven v. Boston Old Colony Ins. Co.

646 So. 2d 1108, 94 La.App. 5 Cir. 348, 1994 La. App. LEXIS 3144, 1994 WL 638078
Louisiana Court of Appeal·Decided November 16, 1994·No. 94-CA-348·Published·Cited by 4 cases

Opinion

646 So.2d 1108 (1994)

Rena NIVEN
v.
BOSTON OLD COLONY INSURANCE COMPANY, et al.

No. 94-CA-348.

Court of Appeal of Louisiana, Fifth Circuit.

November 16, 1994.
Writ Denied February 9, 1995.

*1109 Matthew P. Chenevert, Herman, Herman, Katz & Cotlar, New Orleans, for plaintiff/appellant.

Christopher E. Lawler and Kevin K. Gipson, Donovan & Lawler, Metairie, for defendants/appellees.

Before GRISBAUM, DUFRESNE and GOTHARD, JJ.

GOTHARD, Judge.

This is an appeal of a trial court decision, granting summary judgment in favor of two defendants and dismissing them from the lawsuit. For the following reasons, we affirm.

FACTS

On the evening of February 16, 1988, plaintiff/appellant, Rena Niven, was a passenger in an automobile which was involved in a multi-car collision on Interstate 10, in the area where it overpasses Veterans Memorial Boulevard in Metairie, Louisiana. Ms. Niven and others involved in the accident exited their vehicles and waited for the police to arrive. While waiting on the overpass, a 1984 Dodge Conquest being driven by one of the defendants in this matter, James Ray, collided into the stationary vehicles. Ms. Niven alleges that this subsequent collision caused her to fall over the railing of the overpass and onto the ground approximately thirty feet below. As a result of her fall, Ms. Niven sustained injuries including paralysis in the lower half of her body.

On December 8, 1988, Ms. Niven filed suit in the 24th Judicial District Court for the Parish of Jefferson, State of Louisiana, against, inter alia, Mr. Ray and his liability insurer, Boston Old Colony Insurance Company. Via a fourth supplemental and amending petition, Ms. Niven added as defendants, Chrysler Credit Corporation (Chrysler Credit), the owner of the Conquest, which was being leased to Mr. Ray, and Allstate Insurance Company (Allstate), which held two policies of insurance on the Conquest, in favor of Chrysler Credit.

On October 5, 1992, Chrysler Credit and Allstate (the defendants) filed a motion for summary judgment, asserting that Mr. Ray was not covered by the policies of insurance held by Allstate, and that there was no basis for Ms. Niven's other claims against Chrysler Credit (essentially "negligent entrustment" claims). On November 25, 1992, the trial court rendered judgment, granting the defendants' motion for summary judgment and dismissing plaintiff's suit against them, with prejudice. It is from this judgment that plaintiff appeals, asserting that the omnibus provisions of Louisiana's mandatory insurance law require the reformation of Allstate's insurance policy to grant coverage to Chrysler Credit's lessee (Mr. Ray) and that Chrysler Credit knew or should have known that Mr. Ray's driving record was so poor that its failure to cancel his lease constituted negligent entrustment[1].

APPLICABILITY OF LSA-R.S. 32:900

LSA-R.S. 32:900, which forms part of the Louisiana Motor Vehicle Safety Responsibility Law (L.M.V.S.R.L.)[2], provides in pertinent part:

Sec. 900. "Motor Vehicle Liability Policy" defined
*1110 A. A "Motor Vehicle Liability Policy" as said term is used in this Chapter, shall mean an owner's or an operator's policy of liability insurance, certified as provided in R.S. 32:898 or 32:899 as proof of financial responsibility, and issued except as otherwise provided in R.S. 32:899, by an insurance carrier duly authorized to transact business in this state, to or for the benefit of the person named therein as insured.
B. Such owner's policy of liability insurance:
(1) Shall designate by explicit description or by appropriate reference all motor vehicles with respect to which coverage is thereby to be granted; and
(2) Shall insure the person named therein and any other person, as insured, using any such motor vehicle or motor vehicles with the express or implied permission of such named insured against loss from the liability imposed by law for damages arising out of the ownership, maintenance, or use of such motor vehicle or motor vehicles within the United States of America or the Dominion of Canada, subject to limits exclusive of interest and costs with respect to each such motor vehicle as follows:
(a) Ten thousand dollars because of bodily injury to or death of one person in any one accident, and,
(b) Subject to said limit for one person, twenty thousand dollars because of bodily injury to or death of two or more persons in any one accident, and
(c) Ten thousand dollars because of bodily injury to or destruction of property of others in any one accident.
(d) An owner may exclude a named person as an insured under a commercial policy if the owner obtains and maintains in force another 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.
C. Such operator's policy of liability insurance shall insure the person named as insured therein against loss from the liability imposed upon him by law for damages arising out of the use by him of any motor vehicle not owned by him, within the same territorial limits and subject to the same limits of liability as are set forth above with respect to an owner's policy of liability insurance.

Plaintiff argues that LSA-R.S. 32:900 B(2) requires that the Allstate policies provide coverage for Mr. Ray, notwithstanding the existence of the Boston Old Colony policy. We disagree. As stated by the Louisiana Supreme Court in Hearty v. Harris, 574 So.2d 1234, 1239 (La.1991):

the plaintiff fail[s] to discern the distinction between a "motor vehicle liability policy" and an "automobile liability policy." The term "motor vehicle liability policy" is defined by La.R.S. 32:900(A) as "an owner's or an operator's policy of liability insurance, certified as provided in R.S. 32:898 or 32:899 as proof of financial responsibility, and issued ... by an insurance carrier duly authorized to transact business in this state...." By purchasing a "motor vehicle liability policy" an owner or operator satisfies the requirements of the LMVSRL. In contrast, an "automobile liability policy" is a voluntary policy which has not been certified as proof of a motorist's financial responsibility and does not therefore satisfy the requirements of the LMVSRL.
A [sic] language of La.R.S. 32:900(B)(2) clearly indicates the mandatory omnibus clause requirement applies only when the liability policy in question is certified and used as proof of financial responsibility. New Zealand Ins. Co. v. Holloway, 123 F.Supp. 642 (W.D.La.1954); Gotreaux v. Travelers Ins. Co., 299 So.2d 466 (La.App. 3rd Cir.), writ denied, 302 So.2d 309 (La. 1974); Johnson v. Universal Automobile Ins. Ass'n, 124 So.2d 580 (La.App. 3rd Cir.1960). La.R.S. 32:900(B)(2) does not affect the terms of a voluntary "automobile liability policy" which was not obtained to comply with the requirements of the LMVSRL. (citations omitted).

In the matter before us, the two pertinent Allstate policies were effective from January 1, 1988, through January 1, 1989, and covered *1111 over 150,000 automobiles.

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Niven v. Boston Old Colony Ins. Co., 646 So. 2d 1108, 94 La.App. 5 Cir. 348, 1994 La. App. LEXIS 3144, 1994 WL 638078 (La. Ct. App. 1994).

646 So. 2d 1108 (Niven v. Boston Old Colony Ins. Co.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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