Simmons on Behalf of Simmons v. STATE FARM FIRE AND CASU. INS. CO.

607 So. 2d 1080, 1992 WL 320085
CourtLouisiana Court of Appeal
DecidedNovember 4, 1992
Docket91-729
StatusPublished
Cited by6 cases

This text of 607 So. 2d 1080 (Simmons on Behalf of Simmons v. STATE FARM FIRE AND CASU. 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
Simmons on Behalf of Simmons v. STATE FARM FIRE AND CASU. INS. CO., 607 So. 2d 1080, 1992 WL 320085 (La. Ct. App. 1992).

Opinion

607 So.2d 1080 (1992)

Debra SIMMONS on Behalf of Her Minor Child Catlin SIMMONS, Plaintiff-Appellee,
v.
STATE FARM FIRE AND CASUALTY INSURANCE COMPANY, et al., Defendants-Appellants.

No. 91-729.

Court of Appeal of Louisiana, Third Circuit.

November 4, 1992.

Laborde & Lafargue, Maxwell J. Bordelon, Marksville, for plaintiff-appellee.

McLure & Pickels, James B. Reichman, Alexandria, for defendant-appellant.

*1081 Before STOKER, YELVERTON and COREIL[*], JJ.

STOKER, Judge.

This is a suit to recover personal injury damages under a rental dwelling policy. On September 20, 1988, Mr. Ivy Normand left a loaded pistol on the footrest of his riding lawnmower. The lawnmower was located on the carport of the house in which he was living as usufructuary. Catlin Simmons, who was four years old at the time, lived with his mother next door to Mr. Normand. Catlin went to the house where Mr. Normand was living and found the gun. Catlin then brought the gun to the house where he was living. While playing with the gun, Catlin shot himself in the hand.

Prior to the accident, Mr. Normand and his wife had donated their house to their daughter, Ms. Margie Drewett, retaining the usufruct of the property until their deaths. Ms. Drewett had taken out insurance on the house and was the named insured under the policy. The policy was entitled "RENTAL DWELLING POLICY—SPECIAL FORM 3."

Ms. Debra Simmons, individually and on behalf of her minor son, Catlin, filed suit against Mr. Normand and State Farm Fire & Casualty Company which had issued the rental dwelling policy to Ms. Drewett. As the trial court noted, the key question at trial was one of policy coverage. Since Mr. Normand was not specifically designated as the named insured under the policy, the policy did not provide liability coverage for any tortious acts that he may have committed unless he otherwise fit the definition of an "insured." Ms. Simmons contended that Mr. Normand was an "insured" based on the following definition of an insured under the policy: "e. any person or organization while acting as a real estate manager for the named insured." (Emphasis added).

State Farm disagreed with Ms. Simmon's position and sought resolution of the coverage issue through a motion for summary judgment. The trial court denied the motion. The case was then tried on its merits.

The trial court found that Mr. Normand was negligent and that his negligence was a cause in fact of Catlin's injury. The court awarded Ms. Simmons $8000 on behalf of Catlin and $4000 for her own mental anguish. The court also found that Mr. Normand was a "real estate manager" as contemplated by the policy. In finding coverage, the trial court stated the following:

"... Ms. Drewett's parents, Mr. and Mrs. Normand, had donated their home to Ms. Drewett and retained the use of the home until their death. The Normands had also donated other properties to their children. It was admitted that this donation was done in anticipation, eventually, of the death of the Normands. They wanted their children to get certain items of property and decided to donate the property while still alive. These actions are common in this area as a method of avoidance of successions.
"Mr. Normand, Ms. Drewett's father, not only continued to live in the house donated to Ms. Drewett, but also acted as an overseer of Ms. Drewett's house as well as the properties of his other children that he and his wife had donated. Ms. Drewett had taken out insurance on her premises and was the named beneficiary of the casualty policies.
"The case at bar involves a young child who picked up a gun that Mr. Normand had intended to use in shooting dogs on the property in question. The child brought the gun to the home he was living in with his mother and shot himself in the hand. The mother came to her son's aid and rushed him to the hospital.
"The key question is one of coverage. The parties agree that, if Mr. Normand was a `Real Estate Manager' for Ms. Drewett, there is coverage under the policy. If he was not a `Real Estate Manager' then there is no coverage.
*1082 "The cases cited by defense counsel have a common thread running through them. In each of the cases cited, the person whose status was being determined, was taking actions on or towards the property in question for his own immediate benefit rather than the benefit of the property or its owner. Any benefit to the property or to its owner was secondary to the benefit being reaped by the person acting.
"In the case at bar, it is obvious that Mr. and Mrs. Normand intended that their children get certain items of property upon the parent's death. Mr. Normand continued overseeing the various parcels of property, not for his own benefit or gratification, but to insure that the properties, at his death, would pass on to his children in the best possible condition. His ultimate goal was the benefitting of his children proprietary interests. The defendant's arguments that this house was, in reality, still her parents is not consistent with the fact that, had the home burned, Ms. Drewett, and not her parents, would have benefitted monetarily. Likewise, the ultimate result of Mr. Normand's overseeing efforts was to benefit his daughter when she ultimately joined her naked ownership with the usufruct of the home after the Normand's death. For these reasons, the court finds that Mr. Normand was a property manager as contemplated by the policy and that, therefore, there was coverage..."

State Farm appealed specifying six issues for our review. Since we reverse the trial court's finding of coverage we will not address the other issues as they are moot concerning State Farm.

In Savoy v. Action Products Company, Inc., 324 So.2d 921, 923 (La.App. 3d Cir.1975), writ denied, 329 So.2d 463 (La. 1976), this court stated that "a `real estate manager' is simply one who manages real estate for another. A manager is one who `conducts, directs or supervises something', Websters 3d International Dict. 1372 (3rd Ed.1966). He is a person who has the conduct or direction of a thing. People v. Boyden, 7 Ill.App.2d 87, 129 N.E.2d 37 (1955)." We also stated that the definition of a real estate manager is a question of law, whereas whether an individual is included within that definition is a question of fact.

As set forth above, the trial court based its holding that Mr. Normand was a "real estate manager" for Ms. Drewett on the premise that Mr. Normand was "overseeing" the property donated to Ms. Drewett not for his own benefit but for the benefit of Ms. Drewett, thus distinguishing the case at hand from "[t]he cases cited by defense counsel." We assume that the cases referred to by the trial court are Savoy, supra, and Jackson v. East Baton Rouge Parish School Board, 348 So.2d 739 (La.App. 1st Cir.1977), which were cited in State Farm's memorandum in support of its motion for summary judgment.

In Savoy, supra, the plaintiff filed suit for personal injury damages sustained in a restaurant when the chair in which the plaintiff was sitting collapsed. Among the defendants named were the lessors-owners of the restaurant, their insurer, and the lessees-operators of the restaurant. The sole issue on appeal was whether the trial court properly dismissed the insurer on a motion for summary judgment.

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607 So. 2d 1080, 1992 WL 320085, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simmons-on-behalf-of-simmons-v-state-farm-fire-and-casu-ins-co-lactapp-1992.