Smith v. Rocks

957 So. 2d 886, 2007 La. App. LEXIS 1016, 2007 WL 1428360
CourtLouisiana Court of Appeal
DecidedMay 16, 2007
DocketNo. 42,021-CA
StatusPublished
Cited by3 cases

This text of 957 So. 2d 886 (Smith v. Rocks) 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
Smith v. Rocks, 957 So. 2d 886, 2007 La. App. LEXIS 1016, 2007 WL 1428360 (La. Ct. App. 2007).

Opinion

WILLIAMS, Judge.

| tThe plaintiffs, Kim Smith and Marty Smith, appeal a summary judgment rendered in favor of the defendant, Louisiana Farm Bureau Casualty Insurance Company (“Farm Bureau”). The district court found that the Farm Bureau insurance policy did not provide coverage for plaintiffs’ damages. For the following reasons, we reverse in part, affirm in part and remand.

FACTS

On May 16, 2003, an automobile accident occurred when Sara Cockrell, a minor, attempted to turn left from U.S. Highway 79 onto Panther Drive in Bossier Parish and collided with a vehicle driven by Kim Smith. Sara, whose parents were divorced, was driving a 1997 Toyota Camry owned by her mother, Linda Rocks, and her step-father, Patrick Rocks. The automobile was covered by an insurance policy issued by Allstate Insurance Company (“Allstate”) and Sara was an insured under the policy. As a result of the accident, Kim Smith sustained physical injuries, including a fracture of the left hip, which required surgery.

The plaintiffs, Kim Smith and her husband, Marty Smith, filed a petition for damages against the defendants, Linda and Patrick Rocks and Allstate. Sara’s father, Kevin Cockrell, owned an automobile insured by Farm Bureau. The policy provided coverage to Kevin Cockrell as the named insured and to any relative “while a resident of the named insured’s household.” Subsequently, the plaintiffs amended their petition to add Farm Bureau as a party defendant, alleging that its policy provided coverage to Sara for the accident. Later, the plaintiffs dismissed their action against 12Linda and Patrick Rocks and Allstate.

In September 2004, the plaintiffs filed a motion for partial summary judgment asserting insurance coverage under the Farm Bureau policy on the grounds that Sara was a resident of her father’s household. In response, Farm Bureau filed a motion for summary judgment denying coverage on the basis that Sara was not a resident of Kevin Cockrell’s household.

After a hearing, the district court denied plaintiffs’ motion and granted summary judgment in favor of Farm Bureau, dismissing the insurer from the lawsuit. In [888]*888its written reasons, the court found that Sara was not a resident of her father’s household and was not covered under the Farm Bureau insurance policy. The plaintiffs appeal the judgment.

DISCUSSION

The plaintiffs contend the district court erred in granting Farm Bureau’s motion for summary judgment. In three assignments of error, plaintiffs argue that a genuine issue of material fact exists as to whether Sara was a resident of her father’s household for the purpose of insurance coverage considering the contradictory deposition testimony and the ambiguous policy language.

Appellate courts conduct a de novo review of summary judgment under the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La.7/5/94), 639 So.2d 730. Summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits show that there is no genuine issue as to material hfact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B); Welch v. Technotrim, Inc., 34,355 (La.App.2d Cir.1/24/01), 778 So.2d 728, writ denied, 01-0512 (La.6/15/01), 793 So.2d 1232. The burden of proof remains with the mover. LSA-C.C.P. art. 966(C)(2). However, when the moving party will not bear the burden of proof at trial on the matter before the court on summary judgment and points out an absence of factual support for one or more elements essential to the adverse party’s claim, the non-moving party must produce factual support sufficient to show that he will be able to satisfy his evidentiary burden at trial. Otherwise, there is no genuine issue of material fact for trial, and summary judgment is appropriate. LSA-C.C.P. arts. 966 and 967; Welch, supra.

An insurance policy is a contract between the parties and should be construed by using the general rules of interpretation set forth in the Civil Code. Louisiana Insurance Guaranty Assoc. (“LIGA”) v. Interstate Fire & Casualty Co., 93-0911 (La.1/14/94), 630 So.2d 759. The judicial responsibility in interpreting insurance contracts is to determine the parties’ common intent. LSA-C.C. art. 2045; LIGA supra. Such intent is to be determined in accordance with the general, ordinary and plain meaning of the words used in the policy, unless the words have acquired a technical meaning. Gedward v. Sonnier, 98-1688 (La.3/2/99), 728 So.2d 1265.

If after applying the other general rules of construction an ambiguity remains, the ambiguous contractual provision is to be construed against the drafter, or in the insurance context, in favor of the insured. This rule of Rstrict construction requires that ambiguous policy provisions be construed against the insurer who issued the policy and in favor of coverage to the insured. LSA-C.C. art.2056; LIGA supra.

If a term, such as “resident,” is not defined in the policy, then the term has no absolute or precise meaning. Gedward, supra. Whether or not a person is a resident of a particular place is a question of law and fact to be determined from all of the facts of each particular case. Gedward, supra; Bond v. Commercial Union Assurance Co., 407 So.2d 401 (La.1981)(on rehearing); Jones v. Crane Co., 26,781 (La. App.2d Cir.4/5/95), 653 So.2d 822. In determining whether a person is a resident of a particular household with respect to insurance coverage, the emphasis is upon whether there remains membership in a [889]*889group or a relationship with a person, rather than an attachment to a building; the issue is a matter of intention and choice, not one of location. Gedward, supra; Bearden v. Rucker, 437 So.2d 1116 (La.1983); Jones, supra.

In the present case, the Farm Bureau policy provided that under coverages A and B (bodily injury and property damage), the word “insured” means “the named insured and any resident of the same household.” In the section titled “Use of Other Automobiles,” the policy further provided that the same insurance afforded by the policy for the covered automobile applied with respect to “the use of any other automobile with permission of the owner, subject to the following provisions: (a) under Coverages A and B only, the unqualified word ‘insured’ includes: (1) such named insured and spouse ... and a relative of the named insured or spouse while a resident of [ 5the named insured’s household.” The policy did not define the words resident or household.

In his deposition, Kevin Cockrell testified that Sara’s mother had been given sole custody of their daughters and that he lived approximately five miles from the mother’s home. Cockrell stated that there was no set visitation schedule and that Sara was “free to come over whenever.” Cockrell testified that from January 1, 2003 through May 2003, Sara had spent the night at his house and on those occasions she slept in a guest room which was provided for “whoever comes and stays with us.” He stated that Sara did not keep clothing or any other personal items at his house, she did not have a key to the house and did not receive mail there. Cockrell testified that although he tried to have dinner with Sara at least once a week, several weeks could pass by when he did not see her at all because of her busy schedule.

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Bluebook (online)
957 So. 2d 886, 2007 La. App. LEXIS 1016, 2007 WL 1428360, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-rocks-lactapp-2007.