Partain v. Peaker

91 So. 3d 1160, 2012 WL 1192153, 2012 La. App. LEXIS 504
CourtLouisiana Court of Appeal
DecidedApril 11, 2012
DocketNo. 46,978-CA
StatusPublished
Cited by1 cases

This text of 91 So. 3d 1160 (Partain v. Peaker) 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
Partain v. Peaker, 91 So. 3d 1160, 2012 WL 1192153, 2012 La. App. LEXIS 504 (La. Ct. App. 2012).

Opinion

GASKINS, J.

I;Safeway Insurance Company (“Safeway”) appeals from a trial court judgment finding that the company’s insurance policy provided coverage for Timothy Peaker when he drove a rented car into the plaintiffs, Jennifer Partain; her minor child, Luke Wesley Partain; Heather Case; and her minor child, Gavon McCoy. For the following reasons, we reverse the trial court judgment.

FACTS

The accident at issue here occurred on April 14, 2006, on the parking lot of Wal Mart in Minden, Louisiana. Peaker was driving a 2005 Mazda that had been rented by Sarah Yocum from Enterprise (“Enterprise”), a car rental company, on April 12, 2006. Peaker was not designated as an additional driver on the rental car agreement. Peaker drove the vehicle into the plaintiffs, who were walking on the lot.

On November 22, 2006, the plaintiffs filed suit for their damages against Peak-er; his insurer, Safeway; Louisiana Farm Bureau Mutual Insurance Company (“Farm Bureau”), the uninsured/underin-sured (“UM”) insurer of Partain; and Allstate Insurance Company, the UM insurer of Case.

On July 3, 2008, Safeway filed a motion for summary judgment, citing the provision in Peaker’s policy which specified that coverage for a non-owned vehicle was provided to the named insured “provided the non-owned automobile is being used by the named insured with the permission of its owner.” Safeway claimed that Yocum was the only authorized driver |2of the rental car and that Peaker did not have express or implied permission from Enterprise to drive the car. Therefore, Safeway did not provide coverage under its policy for this accident. It does not appear that the motion was ruled upon.

Trial on the matter was held on April 18, 2011. On June 1, 2011, the trial court signed and filed a judgment finding Peak-er to be 100 percent at fault in causing the accident. Damage awards were made to all the plaintiffs. The trial court also apparently found that the Safeway policy provided coverage to Peaker. The trial court stated that the damage awards were subject to the $20,000 policy limit of the Safeway policy. The plaintiffs’ demands against Peaker were dismissed.

Safeway appealed the trial court judgment, claiming that the trial court erred in finding that its policy provided coverage to [1162]*1162Peaker in this case. The trial court clerk’s office notified Safeway that the recording device used at the hearing had malfunctioned and there was no recording of the trial. Therefore, no transcript could be produced. Also, the judge’s oral reasons for judgment were not available.

Due to the lack of a transcript, Safeway filed in this court a motion to remand for new trial in order to take the testimony of Peaker and Dean Jagot, the Enterprise employee who rented the ear to Yocum. The motion to remand for new trial was denied by this court, noting that the lack of a transcript could be corrected by a joint stipulation under La. C.C.P. art. |s2132 and the filing of written reasons by the trial court.1 The parties were given 20 days to enter a joint stipulation.

In their joint stipulation, the parties agreed that Peaker was 100 percent at fault; that claims against Peaker were dismissed to the extent that he was not insured; that the Safeway policy filed in connection with the motion for summary judgment was adopted by reference and introduced into evidence; that the plaintiffs will not appeal the amount of damages; that the issues on appeal will be limited to insurance coverage, and specifically, whether the trial court correctly held that Safeway’s policy insured Peaker while operating the rental vehicle at the time of the accident.

The parties stipulated the testimony of Jagot, the branch manager of Enterprise where the vehicle was rented, and the testimony of Peaker. Jagot testified that he was employed by Enterprise as a branch rental manager and had access to the records dealing with the lease of the rental car involved in this case. He was personally familiar with the terms and conditions of the lease agreement between Enterprise and Yocum. On April 12, 2006, Jagot leased a 2005 Mazda to Yocum, who lived in Princeton, Louisiana.

|4Enterprise sent a “car prep” to Yo-cum’s residence to pick her up and bring her to the Enterprise office to fill out and sign the rental agreement. Yocum came in, filled out and signed the lease agreement. Jagot identified a copy of the lease agreement which was signed by Jagot and Yocum. Yocum paid in cash. Jagot did not remember Peaker being present. Ja-got specifically asked Yocum if there would be any other drivers and she said there would be none. If Yocum had identified Peaker as an additional driver, and if he had a valid driver’s license, he would have been listed on the rental agreement as an additional driver. If Peaker did not have a valid driver’s license, he could not have been listed as an additional driver.

Jagot walked out to the car with Yocum, did a walk-around inspection, and gave her instructions. Jagot never authorized Peaker’s use of the vehicle and was not aware that Peaker would be a driver. Yo-cum was the only authorized driver of the vehicle. Jagot did not authorize Peaker to drive or operate the leased vehicle. Peak-er did not have permission of Enterprise [1163]*1163to operate the car on April 14, 2006. Peaker was not an authorized driver of the vehicle under the lease agreement executed on April 12, 2006.

Peaker stated that on April 14, 2006, Enterprise sent an employee to the house he shared with Yocum.2 He could not remember who called Enterprise. According to Peaker, both he and Yocum talked to the Enterprise employee at their home. The Enterprise employee drove them to lathe Enterprise office in Bossier. Yocum filled out and signed the lease agreement at Enterprise. Peaker believed they did it that way because his driver’s license was not valid. Peaker said that he talked to the Enterprise representative and answered questions asked him by the representative. Peaker claimed that he used his money to pay for the rental. He asserted that he and Yocum used his Safeway insurance policy to rent the vehicle. Peaker stated that no one from Enterprise ever told him that he could not drive the vehicle and he thought he could drive the vehicle. Peaker acknowledged that no one from Enterprise instructed him on operating the vehicle and that Yocum drove the vehicle away from Enterprise. Peaker urged that the actions of the Enterprise representative implied to him that he could drive the car. He only drove the car one time and that was on the date of the accident. Peaker said that Yocum asked him to drive the car because she was too tired to drive. Peaker did not think that he should be driving because he did not have a valid driver’s license, but he thought he had permission to drive the vehicle.

The trial court filed its written reasons for judgment, basically reiterating the written judgment finding that the Safeway policy provided coverage for this accident. Safeway proceeded with its appeal.

INSURANCE COVERAGE

Safeway asserts that the trial court erred in finding that the Safeway policy provided coverage for Peaker under the facts present here. This argument has merit.

| ^Discussion

In Siverd v. Permanent General Insurance Company, 2005-0973 (La.2/22/06), 922 So.2d 497, the Louisiana Supreme Court stated the following concerning the review of fact:

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Cite This Page — Counsel Stack

Bluebook (online)
91 So. 3d 1160, 2012 WL 1192153, 2012 La. App. LEXIS 504, Counsel Stack Legal Research, https://law.counselstack.com/opinion/partain-v-peaker-lactapp-2012.