Oliver v. Allstate Ins. Co.

991 So. 2d 566, 2008 WL 3120733
CourtLouisiana Court of Appeal
DecidedAugust 6, 2008
Docket2007-CA-1434
StatusPublished
Cited by1 cases

This text of 991 So. 2d 566 (Oliver v. Allstate Ins. 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
Oliver v. Allstate Ins. Co., 991 So. 2d 566, 2008 WL 3120733 (La. Ct. App. 2008).

Opinion

991 So.2d 566 (2008)

Rosemary OLIVER, Willie Jean Anderson and Betty Ann Washington, The Surviving Child of Daisy Mae Washington
v.
ALLSTATE INSURANCE COMPANY, State Farm Mutual Automobile Insurance Company and James Casimier, Jr.

No. 2007-CA-1434.

Court of Appeal of Louisiana, Fourth Circuit.

August 6, 2008.

*567 Frank M. Buck, Jr., New Orleans, LA, for Plaintiff/Appellee, Rosemary Oliver.

David J. Mitchell, Laurie L. DeArmond, Porteous, Hainkel & Johnson, L.L.P., New Orleans, LA, for Defendant/Appellant, State Farm Mutual Automobile Insurance Company.

(Court composed of Judge PATRICIA RIVET MURRAY, Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME).

ROLAND L. BELSOME, Judge.

Defendant-Appellant, State Farm Mutual Automobile Insurance Company ("State Farm"), appeals the judgment awarding damages to Plaintiff-Appellee. For the reasons that follow, we reverse.

FACTS AND PROCEDURAL HISTORY

The facts are largely uncontested in this case. On April 12, 2002, Rosemary Oliver ("Mrs. Oliver") was a guest passenger[1] in a vehicle driven by her husband of 41 years,[2] Alfred Oliver ("Mr. Oliver"), when it was struck by another vehicle operated by James Casimier, Jr. ("Mr. Casimier"). It is not disputed that Mr. Oliver was not at fault in the accident. The collision left Mrs. Oliver with injuries that required medical treatment and expenses.[3] The tortfeasor's insurer[4] settled with Mrs. Oliver for policy limits and she reserved her rights against her uninsured motorist carrier. Unfortunately, the underinsured/uninsured motorist coverage ("UM") policy covering the 1999 Ford Taurus owned and driven by Alfred Oliver had expired.[5] All parties agreed that the vehicle owned by Mrs. Oliver, a 1994 Dodge Intrepid, still maintained valid UM coverage with State Farm.

*568 Although Mr. and Mrs. Oliver were legally married at the time of the accident, they had physically separated as of December 2001. Accordingly, the issue to be determined by this Court is whether a legally married couple that was physically separated at the time of the accident is subject to the same policy provisions and status as a married couple living together. Specifically, this Court must determine whether La. R.S. 22:680(1)(e) and La. R.S. 32:866(E) operate to preclude Mrs. Oliver from recovering under her UM policy with State Farm as an owner, via the community property regime, of the uninsured vehicle involved in the accident.[6]

The trial court concluded that both La. R.S. 22:680(1)(e) and La. R.S. 32:866(E) were inapplicable to the facts of the case and did not prevent Mrs. Oliver's recovery under her State Farm UM policy, awarding damages in the amount of $25,000.00, plus interest and costs. This appeal followed.

STANDARD OF REVIEW

The initial inquiry in reviewing an award of general damages is whether the trial court abused its discretion in assessing the amount of damages. Cone v. National Emergency Serv. Inc., 99-0934 (La.10/29/99), 747 So.2d 1085, 1089; Reck v. Stevens, 373 So.2d 498 (La.1979). Because discretion vested in the trial court is vast, an appellate court should rarely disturb an award of general damages. La. Civ.Code art. 2324.1; Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La. 1993), cert denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). Although reasonable persons frequently disagree about the measure of damages in a particular case, it is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the particular injury to the particular plaintiff under the particular circumstances that an appellate court should increase or reduce the award. Andrus v. State Farm Mutual Auto. Ins. Co., 95-0801 (La.3/22/96), 670 So.2d 1206, 1210.

Additionally, the proper interpretation of a statute is necessarily a question of law, which requires a de novo standard of review. See Holly & Smith Architects, Inc. v. St. Helena Congregate Facility, Inc., XXXX-XXXX, p. 9 (La.11/29/06), 943 So.2d 1037, 1045. Under either standard, we find that the trial erroneously determined that neither La. R.S. 22:680(1)(e) nor La. R.S. 32:866(E) applied to the facts of this case.

DISCUSSION

At the time of the accident, Mr. and Mrs. Oliver owned and maintained a home in both of their names. A review of the record also evidences that Mr. Oliver listed the marital home address as his residence not only on his Louisiana driver's license, but also on the title and registration for the Taurus.[7] Additionally, Mrs. Oliver testified that although Mr. Oliver no longer lived in the marital home, he still had a key to the home, and that between the time of the physical separation and the date of the accident she would see him approximately twice a month.

Based upon this information, State Farm denied Mrs. Oliver's claim, asserting *569 that because she was still legally married to Mr. Oliver, she was therefore an owner of the uninsured vehicle that was involved in the accident and thus precluded from recovering under her UM policy pursuant to La. R.S. 22:680(1)(e). In the alternative, State Farm argued, La. R.S. 32:866(E) precluded Mrs. Oliver from recovering the first $10,000.00 of bodily injury as a result of the accident because she occupied an uninsured vehicle which she owned as community property.

La. R.S. 22:680(1)(e)

In the first assignment of error, Appellant argues that the trial court erred in finding that La. R.S. 22:680(1)(e) did not prohibit Mrs. Oliver from recovery under her UM policy with State Farm, despite finding not only that Mr. and Mrs. Oliver were still married at the time of the accident, but also that the vehicle was uninsured at the time of the accident. La. R.S. 22:680(1)(e) provides as follows:

The uninsured motorist coverage does notapply to bodily injury, sickness, or disease, including death of an insured resulting therefrom, while occupying a motor vehicle owned by the insured if such motor vehicle is not described in the policy under which a claim is made, or is not a newly acquired or replacement motor vehicle covered under the terms of the policy. This provision shall not apply to uninsured motorist coverage provided in a policy that does not describe specific motor vehicles.

La. R.S. 22:680(1)(e)(emphasis added).

Appellant asserts that, pursuant to the mandates of La. R.S. 22:680(1)(e), Mrs. Oliver is precluded from recovering under her own UM policy with State Farm. First, Appellant argues that Mrs. Oliver is precluded from recovery on her own UM policy because she occupied an uninsured vehicle that she owned (the Taurus) pursuant to the community property regime with Mr. Oliver, as the Taurus was registered in Mr. Oliver's name prior to his departure from the marital home.[8] Second, Mrs. Oliver's UM policy with State Farm listed only the Dodge Intrepid; thus, Appellant submits that recovery is also precluded pursuant to the anti-stacking language in La. R.S. 22:680(1)(e) because the vehicle involved in the accident was not described on the UM policy under which Mrs. Oliver sought coverage.

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Related

Williams v. Parish of St. Bernard
49 So. 3d 520 (Louisiana Court of Appeal, 2010)

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Bluebook (online)
991 So. 2d 566, 2008 WL 3120733, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oliver-v-allstate-ins-co-lactapp-2008.