28,357 La.App. 2 Cir. 5/8/96, Mobley v. State Farm Mut. Auto. Ins. Co.

• Decision Date: 08 May 1996
• Citation: 674 So.2d 1117
• Parties: 28,357 La.App. 2 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 1117

674 So.2d 1117

28,357 La.App. 2 Cir. 5/8/96

Peggy MOBLEY, Individually and as the Natural Tutrix of

Courtney Mobley, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee.

No. 28357-CA.

Court of Appeal of Louisiana, Second Circuit.

May 8, 1996.

Writ Denied Sept. 19, 1996.

M. Daniel LaGrone, Jr., Kent Gill, Shreveport, for Appellant.

Hicks & Hubley by Michael S. Hubley, Shreveport, for Appellee.

Before SEXTON, WILLIAMS and GASKINS, JJ.

[28329 La.App. 2 Cir. 2] SEXTON, Judge.

This appeal arises from a judgment dismissing the plaintiff's claim for uninsured/underinsured motorist coverage ("UM") and umbrella coverage against the defendants, State Farm Mutual Automobile Insurance Company and State Farm Fire and Casualty Company (hereinafter collectively "State Farm"). The question presented is whether, at the time of the accident, the plaintiff's daughter, Courtney Mobley, was "living with" her father, Mr. Charles Mobley, who was legally separated from the child's mother, but still owned his share of the community property home with the mother, Peggy Mobley.

Courtney Mobley was injured on February 11, 1991 on the DeSoto High School parking lot. On that day, Courtney rode to school with her friend, Kim Baker, in a vehicle driven by Pansey Baker, Kim's mother. After Courtney alighted from the vehicle, she reached back into the vehicle to get her books and belongings when the vehicle started moving. Courtney was knocked down, and the vehicle rolled over her heel, causing injuries. She was 13 years old at the time.

The Bakers were underinsured. Peggy Mobley, individually and as tutrix for Courtney, sought recovery under her own UM policy issued by State Farm and under a separate UM policy held by her husband, Charles Mobley, also issued by State Farm, but through a different agent. The latter Mobley also had a one million dollar umbrella policy issued by State Farm Fire and Casualty in effect at the time of the accident.

The UM policies in question provide coverage for relatives of the named insured, which, in this instance, is Charles Mobley. The policy defines a "relative," in pertinent part, as a "person related to you" ... "by blood or adoption" ... "who lives with you." State Farm denied coverage and moved for [28329 La.App. 2 Cir. 3] summary judgment dismissing the plaintiff's claim under Mr. Mobley's policy on grounds that Courtney was not an insured under the policy because she lived with her mother as a result of a legal separation between Charles and Peggy Mobley some nine years earlier. The plaintiff also filed a motion for summary judgment seeking a ruling that the policy issued to Charles Mobley by State Farm provided UM coverage to Courtney. The district court denied both motions.

A bifurcated trial on the issue of coverage was held on April 7, 1995, wherein testimony was heard from Courtney Mobley, Charles Mobley, Peggy Mobley, Dr. Saxon Bear, a clinical psychologist who interviewed both Courtney and her mother in conjunction with a pain management program, and Tommy Seabaugh, a resident claims superintendent for State Farm. Various other documents, including the policies in question, were submitted into evidence. The court issued an opinion on June 30, 1995, finding that Courtney did not live with her father, and therefore, it denied coverage under the UM policy issued to Charles Mobley. A judgment dismissing the defendants was signed on August 3, 1995.

Plaintiff appeals, alleging three assignments of error:

1. The trial court erred in failing to find that Courtney Mobley was covered under the uninsured motorist provisions of the primary and umbrella policies issued to her father, Charles D. Mobley.

2. The trial court erred in its ruling of March 16, 1995 denying plaintiff's motion to compel discovery of information and documentation relative to the defendant's intent and purpose for changing language in [the] automobile policy.

3. The trial court erred in its ruling of July 18, 1994 denying plaintiffs' motion for summary judgment declaring coverage under the uninsured motorist provisions of the primary and umbrella policies issued to her father, Charles D. Mobley.

Considering appellant's final assignment of error first, we note at the [28329 La.App. 2 Cir. 4] outset that no appeal lies from the denial of a motion for summary judgment. LSA-C.C.P. art. 968. Comment (d) to LSA-C.C.P. art. 968 states that because a trial court's overruling a motion for summary judgment is an interlocutory judgment causing no irreparable injury, it can only be appealed with the final judgment in the case. Leonard v. Stephens, 588 So.2d 1300 (La.App. 2d Cir.1991). (Citations omitted.) For the reasons stated herein, we hold that the trial court correctly determined that the question of whether Courtney Mobley lived with her father is an issue of fact precluding summary judgment. LSA-C.C.P. art. 966.

Turning now to the central question in this appeal, plaintiff contends that the trial court erred in failing to find that Courtney Mobley was covered under the uninsured motorist provisions of the primary and umbrella policies issued to her father. The key inquiry is the interpretation to be given to the policy definition of a "relative" as an insured under the UM coverage provisions. The policy defines a relative (and spouse) as follows:

Relative--means a person related to you or your spouse by blood, marriage or adoption who lives with you. It includes your unmarried and unemancipated child away at school.

Spouse--means your husband or wife while living with you.

The policy language quoted above reflects a change in the definition of a "relative," which has generally been defined in prior policies as a "resident of the same household." Plaintiff contends that there is no difference between the quoted policy definition of a "relative" above and the earlier policy definitions. Thus, plaintiff argues, prior jurisprudence interpreting the latter definition should apply. The linchpin to plaintiff's argument is the case of Bearden v. Rucker, 437 So.2d 1116 (La.1983).

In Bearden, a married woman legally separated from her husband for nine [28329 La.App. 2 Cir. 5] months was injured in an automobile accident as a guest passenger of a non-owned auto. The question presented was whether a "Family Combination Automobile Policy" issued in the name of Mrs. Bearden's husband on a community owned vehicle in Mrs. Bearden's exclusive custody for her use provided her with UM coverage. Under the terms of the policy, coverage would be afforded if it was determined that Mrs. Bearden was, at the time of the accident, "a resident of the same household" as her husband. We also note that the policy in question was a single policy covering both the husband's and wife's vehicle originally obtained prior to their separation and renewed before legal separation occurred.

The trial and appellate court judgments denied coverage, finding that Mrs. Bearden did not reside with her husband. The supreme court reversed, however, after finding that the phrase, "resident of the same household," was ambiguous because the word "resident" had no fixed meaning. Construing the ambiguity in the policy in favor of coverage, the court noted that the emphasis is upon "whether there remains 'membership in a group rather than attachment to a building' and it is 'a matter of intention and choice' rather than one of location." Bearden, supra at 1121, citing Southern Farm Bureau Casualty Insurance Co. v. Kimball, 552 S.W.2d 207 (Tex.Civ.App.1977).

As of the time of this opinion, the only published Louisiana case interpreting the phrase "who lives with you" found in this policy is Strickland v. State Farm Insurance Companies, 607 So.2d 769 (La.App. 1st Cir.1992). In Strickland, the appellate court affirmed a jury verdict that found that the plaintiff was not living with his parents at the time of the accident, thereby dismissing his claim for coverage under his father's UM policy. In reviewing the lower court's judgment, the first circuit held that, "as a matter of law," [ ] the phrase 'who [28329 La.App. 2 Cir. 6] lives with you' is not ambiguous and should be given its generally prevailing meaning. La.C.C. art. 2047." Strickland, supra at 772.

The instant case thus hinges on an interpretation of the phrase, "who lives with you," in the State Farm policy. In our task, we are guided by the recent statement of Louisiana Supreme Court in Louisiana Insurance Guar. Assoc. v. Interstate Fire & Casualty Co., 93-C-0911 (La. 1/14/94) 630 So.2d 759, wherein the Court enunciated several elementary principles regarding construction of insurance policies:

An insurance policy is a contract between the parties and should be construed by using the general rules of interpretation of contracts set forth in the Civil Code. Smith v. Matthews, 611 So.2d 1377, 1379 (La.1993); Central Louisiana Electric Co. v. Westinghouse Elec. Corp., 579 So.2d 981, 985 (La.1991). The judicial responsibility in interpreting insurance contracts is to determine the parties' common intent. LSA-C.C. Art. 2045 (defining contractual interpretation as "the determination of the common intent of the parties"); Garcia v. St. Bernard Parish School Bd., 576 So.2d 975, 976 (La.1991) (citing W. McKenzie &amp H. Johnson, 15 Civil Law Treatise, Insurance Law and Practice § 4 (1986) ("Civil Law Treatise ")).

The parties' intent as reflected by the words in the policy determine the extent of coverage. Trinity Industries, Inc. v. Ins. Co. of North America, 916 F.2d 267, 269 (5th Cir.1990) (citing Pareti v. Sentry Indemnity Co., 536 So.2d 417 (La.1988)). Such intent is to be determined in accordance with the general, ordinary, plain and popular meaning of the words used in the policy, unless the words have acquired a technical meaning. LSA-C.C. Art. 2047; ⁷ Breland v. Schilling, 550 So.2d 609, 610 (La.1989); Capital Bank & Trust Co. v. Equitable Life Assur. Society of...