Spain v. Travelers Insurance Company

332 So. 2d 827
CourtSupreme Court of Louisiana
DecidedMay 17, 1976
Docket57170
StatusPublished
Cited by37 cases

This text of 332 So. 2d 827 (Spain v. Travelers Insurance Company) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Spain v. Travelers Insurance Company, 332 So. 2d 827 (La. 1976).

Opinion

332 So.2d 827 (1976)

Rosalie SPAIN and Preston Broussard
v.
TRAVELERS INSURANCE COMPANY and Interstate Fire and Casualty Company.

No. 57170.

Supreme Court of Louisiana.

May 17, 1976.
Rehearing Denied June 18, 1976.

*828 Wood Brown, III, Montgomery, Barnett, Brown & Read, New Orleans, for defendants-applicants.

Roger C. Edwards, Abbeville, for plaintiffs-respondents.

*829 DENNIS, Justice.

This is a suit by a legal secretary and her husband to recover for her personal injuries sustained in an automobile accident caused by the negligence of her employer. The secretary, Rosalie Spain, and her husband, Preston Broussard, sued Travelers Indemnity Company and Interstate Fire and Casualty Company, the primary and excess liability insurers, respectively, of the driver of the automobile in which Mrs. Broussard was riding. Both the trial and intermediate appellate courts rendered judgments for plaintiffs. We granted defendants' applications for writs, and for the reasons hereinafter assigned we affirm in part and reverse in part.

The accident occurred about 3:30 p.m. on March 11, 1971 in Lafayette while Mrs. Broussard was riding as a passenger in the right front seat of an automobile which was owned and being driven by the attorney by whom she was employed. They were returning to his law office in Abbeville after having attended a conference in Lafayette with an internal revenue agent pertaining to a federal estate tax return which Mrs. Broussard was assisting her employer in preparing. After the accident the automobile was still operable and the attorney drove Mrs. Broussard back to his office in Abbeville. She completed her usual end of the day office chores and drove her own vehicle home.

Later she developed the symptoms which led to the discovery of the injuries giving rise to this lawsuit. However, the severity of the injuries, the amounts awarded below and the negligence of Mrs. Broussard's employer in causing her injuries are not at issue in this appeal.

Instead, the issue presented for our decision is whether the insurers should be absolved from liability because of an exclusion contained in one of the policies. The basic policy issued by Travelers Indemnity Company with a limit of $5,000 liability for bodily injury to one person contained the following exclusion:

"This policy does not apply under Part I:

"* * *

"(e) to bodily injury to any employee of the insured arising out of and in the course of (1) domestic employment by the insured, if benefits therefor are in whole or in part either payable or required to be provided under any workmen's compensation law, or (2) other employment by the insured;

"* * *."

In the excess policy issued by it, Interstate Fire and Casualty Company agreed to indemnify Mrs. Broussard's employer for the amount of loss in excess of the applicable limits of liability of the underlying insurance in the amount of $95,000 for bodily injury to one person.

However, the excess policy included the following provision:

"The provisions of the immediate underlying policy are incorporated as a part of this policy except for any obligation to investigate and defend and pay for costs and expenses incident to the same, the amount of the limits of liability, any `other insurance' provision and any other provisions therein which are inconsistent with the provisions of this policy."

Both insurers strenuously contend that because Mrs. Broussard's injuries arose out of and in the course of employment by the insured that coverage was excluded under each policy.

The trial court rejected these defenses and held in favor of plaintiffs on the theory that the policy provision excluded all employees incurring injuries within the course and scope of their employment if they were not eligible for workmen's compensation benefits, and that Mrs. Broussard was not so eligible because she was not engaged in a hazardous occupation.

The court of appeal reached the same result except that it did so by concluding *830 the exclusion was invalid because it was ambiguous. The court reasoned that because the insurer had written the ambiguous exclusionary clause, that clause should be construed in the sense most favorable to the insured by rendering it inoperative as to Mrs. Broussard.

We cannot subscribe to the rationale employed by either court below. The exclusion is neither ambiguous as found by the court of appeal nor susceptible to the strained interpretation given it by the trial court. A reading of the exclusion, particularly in light of the numbering used to set off the clauses therein, leaves no doubt as to its meaning: all employees of an insured injured in the course and scope of their employment are excluded from coverage under the policy unless they are domestic employees who are not covered by workmen's compensation.

In Manuel v. Liberty Mutual Insurance Company, 256 La. 480, 236 So.2d 807 (1970), we held that the test to be applied in determining whether an employee's injuries were sustained in the course and scope of his employment within the terms of an exclusionary clause similar to the one involved here is the same test which is applied in determining whether the employee was injured in the course of his employment so as to entitle him to workmen's compensation. In his dissent to the court of appeal opinion in the instant case, Judge Hood ably reviewed the applicable workmen's compensation cases and correctly concluded that Mrs. Broussard was in the course of her employment at the time her injuries were sustained.

Therefore, we hold that the exclusion relieved Travelers of any liability to plaintiffs.

However, plaintiffs argue that because the exclusion was not physically attached to or written into the excess policy, Interstate cannot assert it as a defense. They rely primarily upon La.R.S. 22:628, which provides:

"No agreement in conflict with, modifying, or extending the coverage of any contract of insurance shall be valid unless in writing and made a part of the policy. This Section shall not apply to the contracts as provided in Part XV of this Chapter."

The plain meaning of the statute seems to render invalid any agreement modifying the coverage of an insurance contract unless it is somehow physically made a part of the policy. This section of the Insurance Code appears to have the same purpose as many other sections which require that, in order to have effect, applications, by-laws, or other instruments must be made a part of the policy by attachment, endorsement or some other method.

La.R.S. 22:219 provides, in pertinent part:

"A. The falsity of any statement in the application for any policy covered by this Part shall not bar the right to recovery thereunder unless such false statement materially affected either the acceptance of the risk or the hazard assumed by the insurer. The insured shall not be bound by any statement unless made in a written application in the case of domestic industrial insurers, and in the case of other insurers, unless a copy of such application is attached to or endorsed on the policy as a part thereof. (Emphasis added.)

La.R.S. 22:618 provides, in pertinent part:

"A. No application for the issuance of any insurance policy or contract shall be admissible in evidence in any action relative to such policy or contract, unless a correct copy of the application was attached to or otherwise made a part of the policy, or contract, when issued and delivered.

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Bluebook (online)
332 So. 2d 827, Counsel Stack Legal Research, https://law.counselstack.com/opinion/spain-v-travelers-insurance-company-la-1976.