Plaisance v. Fogg

568 So. 2d 1119, 1990 WL 145756
CourtLouisiana Court of Appeal
DecidedOctober 3, 1990
Docket89-371
StatusPublished
Cited by8 cases

This text of 568 So. 2d 1119 (Plaisance v. Fogg) 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
Plaisance v. Fogg, 568 So. 2d 1119, 1990 WL 145756 (La. Ct. App. 1990).

Opinion

568 So.2d 1119 (1990)

Lynn Ann PLAISANCE & Lumbermen Mutual Casualty Company, a Division of the Kemper Group, and United Services Automobile Association (Intervenor), Plaintiff and Appellant (Plaisance) Appellees (Lumbermen & United),
v.
Florence A. FOGG, Montgomery Ward Insurance Company & United Services Automobile Association & Lumbermen Mutual Casualty Company, Defendants-Appellees.

No. 89-371.

Court of Appeal of Louisiana, Third Circuit.

October 3, 1990.
Writ Denied January 4, 1991.

*1120 David L. Colvin, Gretna, for plaintiff/appellant.

Jeansonne & Briney, Katherine M. Loos, Lafayette, Dauzat, Falgoust, Caviness & Bienvenu, Jerry J. Falgoust, Opelousas, Allen & Gooch, Joel E. Gooch, Lafayette, for defendants/appellees.

Before DOMENGEAUX, C.J., and FORET and KNOLL, JJ.

KNOLL, Judge.

Plaintiff, Lynn Ann Plaisance, appeals the adverse decision of the trial court granting the defendant's, Lumbermen Mutual Casualty Company (Lumbermen), motion for summary judgment on the issue of underinsured/uninsured motorist (UM) coverage.

FACTS

On July 25, 1986, Plaisance was seriously injured in an automobile accident when her vehicle, a 1984 Ford Mustang, collided with an automobile being driven by its owner, Florence A. Fogg. At the time of the accident, Plaisance was employed by Huey Henry Breaux, an attorney, and was acting in the course and scope of her employment.[1]

Plaisance filed this suit for damages naming as defendants, Fogg, Montgomery Ward Insurance Company (Fogg's automobile insurer) and United Services Automobile Association (USAA), Plaisance's UM carrier. After some initial discovery, Lumbermen filed its petition of intervention for worker's compensation benefits and medical expenses paid to and on behalf of Plaisance. Plaisance filed a supplemental and *1121 amending petition naming Lumbermen as her UM insurer under a "Business Auto Policy" issued to Breaux.

After Plaisance prevailed in a concursus proceeding and received the $100,000 policy limits of UM coverage from USAA, Lumbermen filed a motion for summary judgment contending that Plaisance was excluded from UM coverage under their policy. Plaisance filed a motion for summary judgment contending that she was afforded UM protection under the Lumbermen policy.

After reviewing the language of the Business Auto Policy, the trial court granted Lumbermen's motion for summary judgment. In its reasons for judgment, the learned trial court stated:

"`Part I of Lumbermen's policy reads, "Insured" means any person or organization qualifying as an insured in the WHO IS INSURED section of the applicable insurance.' Part IV (Liability Insurance), section D.2. defines as WHO IS INSURED the following:
`1. You are an insured for any covered auto.
2. Anyone else is an insured while using with your permission a covered auto you own, hire, or borrow except:
a. The owner of a covered auto you hire or borrow from one of your employees or a member of his or her household.'
Lumbermen's [sic] argues that the recent case of Stewart v. Robinson, [521 So.2d 1241] 87-3 Ct.App. 3rd Cir., Louisiana, March 1988, applies. The Court agrees.
First, Lumbermen's policy in this case does not provide for contractual UM coverage. Secondly, Part I of the policy defines an `insured' as being those listed in the WHO IS INSURED section of the applicable insurance. The applicable insurance, UM coverage, describes an insured as the named insured and `[a]nyone else occupying a covered auto....' (See endorsement CA 2x 17, section D.2.)
Items 2, 3 and 4 describe and designate the covered automobile and the particular insurance coverage applicable to it. Only those autos specifically described and designated are covered for UM coverage. The plaintiff's auto is not described or designated. Only those autos owned by the insured are described or designated. Item 6 lists coverage for employees' automobiles, but this is only for liability purpose [sic]. Therefore, there is no contractual UM coverage.
Second, there is no mandated UM coverage under La.R.S. 22:1406(D)(1)(a). Although Lumbermen's policy does provide liability coverage on the plaintiff's vehicle, per Item 6 as previously noted, this coverage is limited. In Stewart, cited above, the only insured under these conditions were partners and executive officers. In this case, the only insured are non-owners as provided in Part IV D.2. of the policy.
The court in Stewart makes implicit that the language defining WHO IS INSURED in the UM endorsement does not expand the definition of WHO IS INSURED under liability coverage.
Therefore, although the plaintiff's vehicle became a covered vehicle under Lumbermen's policy for purposes of liability, according to Stewart and the other cases it cites, it is clear that UM coverage is mandated under 22:1406(D)(1)(a) only to those persons who are insured for the purposes of liability under the policy. To be the occupant of a covered automobile is not enough for co-extensive coverage. Thus, since plaintiff as owner of the vehicle in question is not an insured for liability purposes, she can not be co-extensively insured for UM coverage under R.S. 22:1406(D)(1)(a)."

In this appeal, Plaisance contends the trial court erred in: (1) failing to find contractual UM coverage; and (2) failing to find statutorily mandated UM coverage.

THE COVERAGE ISSUE

The granting of a motion for summary judgment is appropriate only if the pleadings, depositions, admissions on file, together with any affidavits filed, show that there is no genuine issue of material fact and that the mover is entitled to a judgment as a matter of law. Finley v. Safeco *1122 Ins. Co., 511 So.2d 457 (La.App. 3rd Cir. 1987).

The purpose of this procedural tool is to cut through the meaningless and unsupported allegations, thus getting to the heart of the issues before a trial court and allowing an expedited judgment, if worthy of such. Simon v. Fasig-Tipton Co. of New York, 524 So.2d 788 (La.App. 3rd Cir. 1988), writs denied, 525 So.2d 1048, 1049 (La.1988).

The summary procedure should be used cautiously and sparingly and any reasonable doubt should be resolved against the mover and in favor of a full trial on the merits. Riviere v. Bethard, 422 So.2d 1341 (La.App. 3rd Cir.1982).

Under the jurisprudence regarding the interpretation of insurance contracts, ambiguities in an insurance contract must be resolved according to the general rules governing contract interpretation. Albritton v. Fireman's Fund Ins. Co., 224 La. 522, 70 So.2d 111 (1953). Unless ambiguous, words in an insurance contract will be given their commonly prevailing meaning. La.-C.C. Art. 2047; Breland v. Schilling, 550 So.2d 609 (La.1989). Absent a conflict with law or public policy, insurers are entitled to limit their liability and obligations in a given policy. Benton v. Long Mfg. N.C., Inc., 550 So.2d 859 (La.App. 2nd Cir.1989).

Part I of the policy defines an "Insured" as follows:

"F. `Insured' means any person or organization qualifying as an insured in the WHO IS INSURED section of the applicable insurance.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Magnon v. Collins
739 So. 2d 191 (Supreme Court of Louisiana, 1999)
Johnson v. Davis
697 So. 2d 311 (Louisiana Court of Appeal, 1997)
Armand v. Rhodes
685 So. 2d 546 (Louisiana Court of Appeal, 1996)
Ratcliff v. Theriot
634 So. 2d 1234 (Louisiana Court of Appeal, 1994)
Mills v. Hubbs
597 So. 2d 87 (Louisiana Court of Appeal, 1992)
Bays v. Estate of Zeringue
584 So. 2d 715 (Louisiana Court of Appeal, 1991)
Plaisance v. Fogg
572 So. 2d 63 (Supreme Court of Louisiana, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
568 So. 2d 1119, 1990 WL 145756, Counsel Stack Legal Research, https://law.counselstack.com/opinion/plaisance-v-fogg-lactapp-1990.