Otwell v. State Farm Fire and Cas. Co.

914 So. 2d 100, 2005 WL 2757327
CourtLouisiana Court of Appeal
DecidedOctober 26, 2005
Docket40,142-CA
StatusPublished
Cited by7 cases

This text of 914 So. 2d 100 (Otwell v. State Farm Fire and Cas. 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
Otwell v. State Farm Fire and Cas. Co., 914 So. 2d 100, 2005 WL 2757327 (La. Ct. App. 2005).

Opinion

914 So.2d 100 (2005)

Michael OTWELL and Karen Otwell, Plaintiff-Appellant
v.
STATE FARM FIRE AND CASUALTY COMPANY, Brandon Morris, Carolyn Lonidier and Danny Lonidier, Defendant-Appellee.

No. 40,142-CA.

Court of Appeal of Louisiana, Second Circuit.

October 26, 2005.

*101 A. Scott Killen, for Appellant.

Martin S. Craighead, for Appellee, State Farm Fire and Casualty Company.

Before WILLIAMS, STEWART and DREW, JJ.

WILLIAMS, J.

Plaintiffs, Michael Otwell and Karen Otwell, filed suit after their minor son, Cory Dale Otwell, was killed in an automobile accident. Plaintiffs now appeal the judgment of the trial court granting a motion for summary judgment filed by defendant, State Farm Fire and Casualty Company ("State Farm"). For the reasons assigned below, the judgment of the trial court is affirmed.

FACTS

The following allegations are set forth in plaintiffs' petition for damages and first amending and supplemental petition for damages. On June 6, 2003, defendants, Carolyn Lonidier and Danny Lonidier ("the Lonidiers"), left home for the weekend, leaving Carolyn's 17-year old son, Brandon Morris ("Brandon"), unattended. On that same evening, Brandon invited a number of minor children to the Lonidiers' home for a party, which extended overnight and into the morning of June 7, 2003. During the party, Brandon, who had a *102 history of alcohol and drug use, consumed alcohol and controlled dangerous substances and made them available to the other minors present.

Cory Dale Otwell, the 16-year old son of Michael and Karen Otwell, attended the party at the Lonidiers' home. In the early morning of June 7, 2003, Brandon borrowed a 1999 Chevrolet Blazer from Jonathan Waltman, one of the other minor party guests.[1] Brandon left the home driving under the influence of alcohol and/or controlled dangerous substances. Cory Otwell was the only passenger in the vehicle. At approximately 5:15 a.m., Brandon failed to negotiate a curve on Louisiana Highway 821 in Lincoln Parish, and the vehicle left the roadway on the right curve. Brandon over-corrected and lost control of the vehicle. The vehicle became airborne, struck a tree on the passenger side of the vehicle and burst into flames. Cory Otwell suffered severe injuries and subsequently died.

Michael and Karen Otwell filed a wrongful death suit, alleging inter alia, the Lonidiers failed to properly supervise Brandon and the minor guests in their home. Plaintiffs named as a defendant State Farm, the Lonidiers' homeowner's insurer.[2] In response, State Farm filed a motion for summary judgment, arguing Cory Otwell died as a result of an automobile accident, and the use of an automobile is excluded under the language of the homeowner's policy.

The trial court granted State Farm's motion. First, the trial court acknowledged that plaintiffs had not alleged that the language of the homeowner's policy is ambiguous. Next, although the trial court recognized that the accident occurred while Brandon was negligently supervised, and the accident presumably would not have occurred but for the negligent supervision, citing this court's decisions in Mahlum v. Baker, 25,876 (La.App. 2d Cir.6/24/94), 639 So.2d 820 and Oaks v. Dupuy, 26,729 (La.App. 2d Cir.4/5/95), 653 So.2d 165, writ denied, 95-1145 (La.6/16/95), 655 So.2d 335, the court concluded that the policy's automobile use exclusion applied because, although Brandon was negligently supervised, he was operating a motor vehicle at the time of the accident.[3]

DISCUSSION

LSA-C.C.P. art. 966 provides, in pertinent part:

A. (1) The plaintiff or defendant in the principal or any incidental action, with or without supporting affidavits, may move for a summary judgment in his favor for all or part of the relief for which he has prayed. The plaintiff's motion may be made at any time after the answer has been filed. The defendant's motion may be made at any time.
(2) The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article *103 969. The procedure is favored and shall be construed to accomplish these ends.
* * *
C. (1) After adequate discovery or after a case is set for trial, a motion which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted.
(2) The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.
* * *

An appellate court reviews the district court's grant of summary judgment de novo, viewing the record and all reasonable inferences that may be drawn therefrom in the light most favorable to the non-movant; in ruling on a motion for summary judgment, the judge's role is not to evaluate the weight of the evidence nor to determine the truth of the matter, but to determine whether there is a genuine issue of material fact, i.e., an issue on which reasonable persons could disagree. Barringer v. Rausch, 39,553 (La.App. 2d Cir.4/6/05), 900 So.2d 232; Peretin v. Caddo Parish School Bd., 39,170 (La.App. 2d Cir.12/15/04), 889 So.2d 1190.

In this case, there is no assertion by either party of a material factual dispute. In fact, State Farm has requested this court "to assume, for the limited purpose of its motion, all allegations of negligence against Carolyn Lonidier, Danny Lonidier and Brandon Morris." Thus, the sole issue present for our review is whether plaintiffs are barred from recovery pursuant to the following automobile exclusion contained within the Lonidiers' homeowner's insurance policy:

Section II — Exclusions
1. Coverage L and Coverage M do not apply to:
* * *
e. bodily injury or property damage arising out of the ownership, maintenance, use, loading or unloading of:
* * *
(2) a motor vehicle owned or operated by or rented or loaned to any insured; or
* * *
f. bodily injury or property damage arising out of:
(1) the entrustment by any insured to any person;
(2) the supervision by any insured of any person;
(3) any liability statutorily imposed on any insured; or
(4) any liability assumed through an unwritten or written agreement by any insured;
with regard to the ownership, maintenance or use of any.... motor vehicle.

An insurance policy is a contract between the parties and should be construed by using the general rules of interpretation of contracts set forth in the Louisiana *104 Civil Code. Edwards v. Daugherty,

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Bluebook (online)
914 So. 2d 100, 2005 WL 2757327, Counsel Stack Legal Research, https://law.counselstack.com/opinion/otwell-v-state-farm-fire-and-cas-co-lactapp-2005.