Ranger Ins. Co. v. Mancuso

652 So. 2d 28, 94 La.App. 5 Cir. 464, 1995 La. App. LEXIS 350, 1995 WL 59749
CourtLouisiana Court of Appeal
DecidedFebruary 15, 1995
Docket94-CA-464
StatusPublished
Cited by4 cases

This text of 652 So. 2d 28 (Ranger Ins. Co. v. Mancuso) 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
Ranger Ins. Co. v. Mancuso, 652 So. 2d 28, 94 La.App. 5 Cir. 464, 1995 La. App. LEXIS 350, 1995 WL 59749 (La. Ct. App. 1995).

Opinion

652 So.2d 28 (1995)

RANGER INSURANCE COMPANY
v.
Vincent MANCUSO, Jr., et al.

No. 94-CA-464.

Court of Appeal of Louisiana, Fifth Circuit.

February 15, 1995.

*29 James P. Meyer, Martzell & Bickford, New Orleans, Leonard M. D'Angelo, Harvey L. Strayhan, Jr. & Associates, Metairie, for defendants-appellants.

Paul G. Preston, Christovich & Kearney, New Orleans, for plaintiff-appellee.

Before KLIEBERT, GAUDIN and GRISBAUM, JJ.

GRISBAUM, Judge.

This is an appeal of a declaratory judgment granted to Ranger Insurance Company (Ranger). The trial court found that Ranger's garage liability policy insuring Harry Leslie d/b/a Superdome Gulf Services (Harry Leslie or Leslie) excluded coverage for a tow truck owned by Leslie, but leased to Vitale Michael Kavanaugh (Mike Kavanaugh or Kavanaugh) at the time it was involved in an accident. The Mancusos (the accident victims) and their insurance company, State Farm Mutual Automobile Insurance Company (State Farm), appeal. We affirm.

FACTS

The underlying accident occurred on December 18, 1990. A tow truck, driven by Mike Kavanaugh rear-ended a vehicle driven by Vincent Mancuso at the intersection of Veterans Boulevard and Carrollton Avenue. During the hearing, both Vincent Mancuso and his wife, who was a passenger, testified that, at the time of the accident, the tow truck bore the label "Mike's Towing" on the side doors.

Bronson Adams Turner III was the independent adjuster who investigated this claim on behalf of Ranger. At the hearing on the declaratory judgment, he testified to the following sequence of events:

On December 27, 1990, Turner took a recorded statement from Mike Kavanaugh with his permission. In that recorded statement, Kavanaugh stated to Turner that he was selfemployed and had been using the name "Mike's Towing Service" for the past three years. Kavanaugh also stated he began leasing the tow truck from Harry Leslie in June 1990 for $1000 per month and paid $150 a month to Leslie for insurance.

On December 31, 1990, Turner recorded a telephone conversation with Leslie. In that statement, Leslie explained Kavanaugh was leasing the tow truck from him and that there was no written lease agreement. Leslie did not dispute the fact Kavanaugh was leasing the truck or paying the $1000 a month in rent. Turner stated Leslie abruptly *30 ended the conversation when it was mentioned that insurance payments were being made by Kavanaugh.

On January 2, 1991, Leslie received a Reservation of Rights letter sent by certified mail. The letter explained that Ranger was invoking its policy exclusion due to the lease agreement on the tow truck. This same day, Kavanaugh called Turner to inform him he did not lease the truck but only received a percentage of what the truck earned.

On January 23, 1991, Turner met with Leslie and obtained a signed statement from him. In this statement, Leslie claimed Kavanaugh was his employee and there was never a lease on the vehicle. On January 24, 1991, Turner photographed the tow truck in front of Kavanaugh's apartment. In the photograph, the tow truck bore the logo "Mike's Towing Service" on both doors, with Kavanaugh's home telephone number. There was no indication the truck was associated with Leslie's business. Leslie identified the truck as his in these photographs during the trial.

On January 30, 1991, Turner obtained a written statement wherein Kavanaugh stated he was an employee of Leslie, that he was never an independent contractor, and there was never a lease concerning the truck. He also denied he operated a business known as "Mike's Towing Service." Turner told Kavanaugh he needed to inspect the vehicle and Kavanaugh told him he would bring it by the next day.

On January 31, 1991, prior to going to work, Turner drove by Kavanaugh's apartment and observed the tow truck as bearing logos that read "Mike's Towing Service," with Kavanaugh's home telephone number on it. At approximately 9:15 a.m., Kavanaugh arrived with the tow truck. The logos on the tow truck had been altered. The logos, according to Turner, deleted the word "Mike's" and replaced it with "Chevron," Kavanaugh's telephone number was deleted, and Leslie's business telephone was added.

Based on the insurance policy's exclusion of leased vehicles, on September 21, 1991, Ranger filed a Petition for Declaratory Judgment naming as defendants the Mancusos, Harry Leslie d/b/a Superdome Gulf Services, and Mike Kavanaugh. By Supplemental Petition, Ranger added State Farm, Mancuso's insurer, as a defendant.

After the Sheriff's office was unable to locate Kavanaugh, he was served by a private process server on September 2, 1992. He failed to appear or file an answer within the legal delays. Ranger moved for and was granted a preliminary default and obtained a judgment confirming the default on April 8, 1993. This judgment was not appealed within the legal delays and is now definitive.

On February 3, 1994, the declaratory judgement action was heard against the remaining defendants. At the conclusion of the trial, and submission of post trial memoranda, the trial court, on March 21, 1994, found in favor of Ranger.

ISSUES

(1) Whether the trial court was correct in ruling Harry Leslie leased the tow truck to Mike Kavanaugh;

(2) Whether the trial court incorrectly adjudged that Ranger's exclusion for leased vehicles applied to situations involving individuals who are insured;

(3) Whether the trial court incorrectly adjudged that Ranger's exclusion against coverage for leased vehicles (in this fact scenario) did not violate Louisiana's mandatory omnibus clause, La.R.S. 32:900(B)(2);

(4) Whether the trial court incorrectly adjudged that Mike Kavanaugh was operating Harry Leslie's tow truck for the business of Mike's Towing Service; and

(5) Whether Ranger can limit its policy coverage, if the lease exclusion is void.

DISCUSSION

Standard of Review

A court of appeal may not set aside a trial court's finding of fact in the absence of manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong but whether the factfinder's conclusion was a reasonable one absent manifest error. Even though an appellate court *31 may feel its own evaluations and inferences are more reasonable than the factfinder's, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Stobart v. State through Dep't of Transp. and Dev., 617 So.2d 880 (La.1993).[1]

The idea behind this principle of review is founded upon the trial court's capacity to evaluate live witnesses, as compared with the appellate court's access only to a cold record. The principle also stems from the proper allocation of trial and appellate functions between the respective courts. Thus, where two permissible views of the evidence exist, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Canter v. Koehring Co., 283 So.2d 716 (La.1973).

ISSUE ONE

Here, we conclude that, after a review of the record, the trial judge was presented with two permissible views concerning whether Leslie had leased the tow truck to Kavanaugh, the initial statement given by the two, or their subsequent written statements given after Ranger sent the Reservation of Rights letter. We find the trial court's factual finding was reasonable.

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Bluebook (online)
652 So. 2d 28, 94 La.App. 5 Cir. 464, 1995 La. App. LEXIS 350, 1995 WL 59749, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ranger-ins-co-v-mancuso-lactapp-1995.