Whitham v. Louisiana Farm Bureau Casualty Insurance Co.

34 So. 3d 1104, 2010 La. App. LEXIS 1002
CourtLouisiana Court of Appeal
DecidedApril 14, 2010
DocketNo. 45,199-CA
StatusPublished
Cited by8 cases

This text of 34 So. 3d 1104 (Whitham v. Louisiana Farm Bureau Casualty Insurance 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
Whitham v. Louisiana Farm Bureau Casualty Insurance Co., 34 So. 3d 1104, 2010 La. App. LEXIS 1002 (La. Ct. App. 2010).

Opinion

CARAWAY, J.

| plaintiffs filed suit seeking to recover damages for injuries sustained in a vehicular accident when they were hit by a truck. The truck was owned and insured by a limited liability company. The trial court granted judgment in favor of the truck driver’s auto insurer based upon a policy exclusion for coverage pertaining to the use of any auto, other than an insured auto, which is made available for the regular use of the insured. Finding no manifest error, we affirm.

Facts

On April 4, 2004, Greg Whitham and his wife, Mary Hammontree-Whitham, were [1106]*1106driving on U.S. Highway 171 in DeSoto Parish, when B.F. O’Neal, Jr., pulled out from a stop sign onto the highway, colliding with the Whithams’ vehicle. Mr. O’Neal was driving a 1997 Ford F-150 pickup truck at the time, with his wife as a guest passenger. The accident resulted in the death of Mr. O’Neal and in serious injuries to both of the Whithams. The Whithams instituted this suit, seeking to recover damages for injuries sustained as a result of the accident.

The petition named as defendants the unopened succession of B.F. O’Neal; Forest Home Farm, LLC (“F.H.F”), as the employer of B.F. O’Neal; State Farm Mutual Automobile Insurance Company (“State Farm”), as the Whithams’ own automobile liability insurer; and Louisiana Farm Bureau Casualty Insurance Company (“La. Farm Bureau”), as the automobile liability insurer of B.F. O’Neal and F.H.F. On January 31, 2006, F.H.F. was dismissed summarily, after a finding that B.F. O’Neal was 12not in the course and scope of employment with F.H.F. at the time of the motor vehicle accident. Subsequently, on June 26, 2006, all claims against State Farm, F.H.F., and the succession of B.F. O’Neal were dismissed with prejudice, after settlement and compromise. The action against La. Farm Bureau for claims under policy number C707173, issued to F.H.F., was also dismissed, while plaintiffs specifically reserved any and all rights or claims against La. Farm Bureau under policy number C707172, issued to B.F. O’Neal. Therefore, La. Farm Bureau remains as the sole defendant.

The Ford F-150 truck which Mr. O’Neal was driving was owned by F.H.F. F.H.F. was the family farm inherited by B.F. O’Neal’s wife, Nancy O’Neal. The limited liability company, formed in August of 1993, was composed of five members, including Nancy O’Neal and her four children. Although B.F. O’Neal was not a member and received no interest in the limited liability company, he was the registered agent and manager of F.H.F. As manager, Mr. O’Neal arranged for the purchase of the truck and thereafter procured insurance on the vehicle which was insured under La. Farm Bureau policy number C707173.

At the time of the accident, the policy numbered C707172 was B.F. O’Neal’s personal policy of liability insurance with La. Farm Bureau. The “insured” under the policy included Mr. O’Neal and any relative of his household. The policy listed the following vehicles under its coverage: a 1982 Chevrolet van, a 1997 Lincoln Town Car, a 1991 Lincoln Town Car, and a 1984 Cadillac Fleetwood. This policy insured Mr. O’Neal for any property and bodily injury damages he became legally liable for while ^operating a motor vehicle. Specifically, the policy stated that La. Farm Bureau agreed:

To pay on behalf of the insured all sums, except punitive damages, which the insured shall become legally obligated to pay as damages:
Coverage A — because of bodily injury sustained by any person, and
Coverage B — because of injury to or destruction of property, caused by accident and arising out of ownership, maintenance or use of any automobile, including loading and unloading thereof;

However, the policy contained the following disputed exclusion:

THIS POLICY DOES NOT APPLY:
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(b) under any of the coverages for automobiles owned or furnished for the regular use of any member of the insured [1107]*1107household, unless shown on the declaration .... (emphasis supplied)

La. Fai’m Bureau denies coverage based upon this policy exclusion. It claims that Mr. O’Neal used the 1997 Ford F-150, undeclared in the above policy and owned by F.H.F., for his regular use and thus coverage under the policy was excluded. Conversely, the Whithams contended that the policy exclusion was inoperable because on the day of the accident, Mr. O’Neal was driving the truck to a Sunday gathering, which they argued did not constitute a regular use of the truck.

Both Nancy O’Neal and Dr. Barron O’Neal, the O’Neals’ son, testified by deposition regarding the use of the truck. Both stated that the truck was available for use by any member of the family, including B.F. O’Neal, unless it was already being used by another member. Permission to use the truck was implicit. No single family member possessed a personal set of keys to the vehicle; rather, whoever possessed the truck at the time also maintained the keys. Maintenance of the truck was charged to the |4person who possessed the vehicle at the time of a needed repair. The costs of such repairs would then be assessed to F.H.F. The truck was used for a variety of purposes and was often, but not exclusively, utilized for farm work, including the hauling of feed and supplies to the farm. Mrs. O’Neal testified that on the day of the accident, her husband obtained the truck in order to carry a large ice chest to the weekly Sunday gathering at the farm.

On June 1, 2009, a bench trial was held on the sole issue of coverage, based on the deposition testimony of witnesses, documentary evidence, and arguments of counsel. The trial court rendered judgment in favor of La. Farm Bureau. The court made the following observation:

This is a very unusual case because of the very loose way that the O’Neal family allowed the vehicle to be used but I think that does fall within the term. Regular use does not have to be strict rules laid down. It is the way they did business according to the depositions.

On June 15, 2009, a judgment was signed dismissing La. Farm Bureau from this suit. Plaintiffs now appeal this judgment.

Discussion

In an action under an insurance contract, the insured bears the burden of proving the existence of policy and coverage. The insurer, however, bears the burden of showing policy limits or exclusions. Tunstall v. Stierwald, 01-1765 (La.2/26/02), 809 So.2d 916.

An insurance policy is a contract between the parties and should be construed using ordinary contract principles. McFarland v. Southern Farm Bureau Cas. Ins. Co., 39,612 (La.App.2d Cir.5/11/05), 902 So.2d 1207, writ denied, 05-1564 (La.1/9/06), 918 So.2d 1045. The parties’ intent, as reflected by the words of the policy, determines the extent of coverage. Id. An insurance policy should not be interpreted in an unreasonable or a strained manner so as to enlarge or to restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion. Id. However, if after applying the other rules of construction an ambiguity remains, the ambiguous provision is to be construed against the drafter and in favor of the insured. Id.

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Whitham v. LOUISIANA FARM BUREAU CAS. INS.
34 So. 3d 1104 (Louisiana Court of Appeal, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
34 So. 3d 1104, 2010 La. App. LEXIS 1002, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whitham-v-louisiana-farm-bureau-casualty-insurance-co-lactapp-2010.