Trammel v. Liberty Mutual Fire Insurance

811 So. 2d 78, 2001 La.App. 4 Cir. 0948, 2002 La. App. LEXIS 453, 2002 WL 338768
CourtLouisiana Court of Appeal
DecidedFebruary 13, 2002
DocketNo. 2001-CA-0948
StatusPublished
Cited by2 cases

This text of 811 So. 2d 78 (Trammel v. Liberty Mutual Fire Insurance) 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
Trammel v. Liberty Mutual Fire Insurance, 811 So. 2d 78, 2001 La.App. 4 Cir. 0948, 2002 La. App. LEXIS 453, 2002 WL 338768 (La. Ct. App. 2002).

Opinions

KIRBY, Judge.

Plaintiffs appeal the trial court’s denial of their motion for partial summary judgment, which dismissed their attempt to establish liability of the insured’s homeowner’s policy for the homeowner’s son’s injuries sustained while he was removing his father’s dead tree. The issue for review is whether a vehicular exclusion in the homeowner’s policy should bar plaintiffs’ 1 recovery when a cause covered under the policy existed (non-vehicular negli[79]*79gence) concurrently with the excluded cause (vehicular negligence).

UNDERLYING FACTS AND PROCEDURAL HISTORY

John and Brenda Trammel sued the insurer (Liberty Mutual Fire Insurance Company) of John’s father, Frank Trammel, for negligence, which resulted in John’s injuries, during the removal of a dead tree on Frank’s property in Orleans Parish on June 24, 1999.2 Frank had tied a rope around a tree limb and attached the rope to a trailer hitch on his van so that he could pull the limb away from the house as they were cutting it to avoid its falling on the house. John was standing |2on a ladder cutting the limb when, unknown to John, Frank moved the van causing the rope to tighten around the limb, which snapped it and knocked John off the ladder. John broke several bones in his ankle as a result.

In effect at the time of the accident were three insurance policies: (1) John’s $25,000.00 automobile policy, which paid its policy limits; (2) Frank’s $50,000.00 auto policy; and (3) Frank’s $100,000.00 homeowner policy. Both Frank’s policies were issued by Liberty Mutual, which took the position that the only coverage it provided was through Frank’s auto policy.

Plaintiffs moved for partial summary judgment against Liberty Mutual to establish its liability under both Frank’s policies: homeowner’s and auto. The insurer opposed the summary judgment for the following reason: the homeowner’s policy excludes liability coverage for injuries “[ajrising out of the ... use ... of motor vehicles ... operated by an insured.” The trial court denied the motion stating:

The damage caused by the negligence of the homeowner, the Plaintiffs father, in this instance is in the operation of the vehicle. Plaintiffs father did not orchestrate or have any control over the tying of the rope. Therefore, there were no acts of negligence by the father outside of the vehicle for the father’s homeowner’s policy to cover.

The trial court also cited Vogt v. Hotard, 144 So.2d 714 (La.App. 4th Cir.1962), as instructive in its decision. In Vogt, the court reasoned that two separate acts of negligence occurred (the first when the homeowner tied the rope and the second when the homeowner moved the car, which caused the tree to fall on plaintiff). The court allowed plaintiff to recover under both the auto and homeowner’s policy in Vogt. In relying upon the reasoning in Vogt, the trial court in the instant case explained:

laThe instant case is distinguishable from Vogt because the Plaintiff was the person in complete control of the arrangement and installation of the rope. The only negligent act that Plaintiffs father can be accountable for was the moving of the van.

ANALYSIS

The plaintiffs argued that if the accident had occurred without the use of the van, the coverage of the homeowner policy would not be at issue. Such a risk was contemplated by the insurer when the policy was issued and Frank paid premiums to cover such a loss. The automobile exclusion was intended to deny coverage for negligence arising solely from the use of a motor vehicle; it should not operate to deny coverage for a loss that has a concurrent, covered cause.

Plaintiffs acknowledge that the precise issue is res nova in Louisiana. Other [80]*80states that have considered similar policy-language involving the automobile exclusion, however, have held that where an accident has two causes, one vehicular and one non-vehieular, plaintiffs are entitled to recover against both the auto and homeowner policies. See, e.g., State Farm Mutual Automobile Ins. Co. v. Partridge, 10 Cal.3d 94, 109 Cal.Rptr. 811, 514 P.2d 123 (1973).3

The closest Louisiana case is a Second Circuit one, Edwards v. Horstman, 27,776, 27,777 (La.App.2d Cir.4/3/96), 672 So.2d 222, where the plaintiff was riding in a car that became involved in a gun battle precipitated by the insured driver. The trial court found that the driver’s negligence in placing the plaintiff “in proximity of a gunman” constituted a covered risk under the driver’s homeowner’s policy. Id. at 225. The court also concluded that the plaintiffs injuries did not arise out of the use of the vehicle, and it refused to apply the vehicular exclusion to deny coverage under the homeowner policy.

Additionally, in Kessler v. Amica Mutual Ins. Co., 573 So.2d 476 (La.1991), the court found that the gunshot injury did not arise out of the use of a car.4 If the court had utilized the “concurrent causation” doctrine explicitly, the result might have been the same, but the parties did not raise the issue, perhaps because it has no precedent in Louisiana.

Plaintiffs contended that the present case reveals concurrent vehicular and non-vehicular causes of John’s injuries. Under Louisiana rules of construction for contracts, clear and unambiguous provisions must be given effect. Because the insurer drafts the contract, any ambiguities must be construed against the insurer, i.e., the drafter. Thus, the policy exclusions must be narrowly construed and any ambiguity is resolved in favor of coverage. Ledbetter v. Concord General Corp., 95-0809 (La.1/6/96), 665 So.2d 1166; Great American Ins. Co. v. Gaspard, 92-0702 (La.11/30/92), 608 So.2d 981; Lewis v. Hayes, 94-2511, 94-2512 (La.App. 4 Cir. 7/26/95), 659 So.2d 515.

As noted, the instant accident had two causes, one of which was clearly contemplated by the homeowner’s policy and premiums were paid for that type of coverage. The coverage should not be vitiated, plaintiffs asserted, simply because the accident also had a separate and excluded cause. Plaintiffs argued that the [ ^exclusion in Frank’s policy is ambiguous because it does not necessarily and expressly exclude a risk arising from a covered cause along with an uncovered one.

Liberty Mutual argued conversely that the cases cited by plaintiffs are not pertinent because they do not constitute Louisiana jurisprudence. Defendant argued that the law in this state is settled regarding the meaning of the phrase “arising out of.” For example, in Casso v. United Cabs, Inc., 96-0982 (La.App. 4 Cir. 1/29/97), 688 So.2d 180, 183, this court stated:

In Carter v. City Parish Government of East Baton Rouge, 423 So.2d 1080 (La.1982), followed in Kessler v. Amica Mutual Insurance Co., 573 So.2d 476 (La.[81]*811991), the Louisiana Supreme Court noted that the “arising-out-of use” provision was designed to limit coverage to liability resulting from conduct of the insured which constitutes both a use of the vehicle and a legal cause of the injury.

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811 So. 2d 78, 2001 La.App. 4 Cir. 0948, 2002 La. App. LEXIS 453, 2002 WL 338768, Counsel Stack Legal Research, https://law.counselstack.com/opinion/trammel-v-liberty-mutual-fire-insurance-lactapp-2002.