97-1068 La.App. 3 Cir. 5/20/98, Gedward v. Sonnier

• Decision Date: 20 May 1998
• Citation: 713 So.2d 770
• Parties: 97-1068 La.App. 3 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 770

713 So.2d 770

97-1068 La.App. 3 Cir. 5/20/98

Pauletta GEDWARD, Individually and as Tutrix of her minor child, Kodi Sonnier, Plaintiff--Appellant, v. Ronnie SONNIER, Acceptance Insurance Company, Glenn Jolivette and Bobby Sonnier, Defendants--Appellees.

No. 97-1068.

Court of Appeal of Louisiana Third Circuit.

May 20, 1998.

Anthony F. Whitford, Lafayette, Chris Villemarette, Alexandria, Craig A. Davis, Lafayette, for Pauletta Gedward, et al.

Edwin Gustav Preis, Jr., Lafayette, Earl F. Sundmaker, New Orleans, for Ronnie Sonnier, et al.

Glenn Jolivette, pro se.

Robert Murray Mahony, Lafayette, for Acceptance Insurance Co.

Archie Paul Joseph, Breaux Bridge, for Bobby Sonnier.

Before THIBODEAUX, COOKS, SAUNDERS, GREMILLION and PICKETT, JJ.

[97-1068 La.App. 3 Cir. 1] THIBODEAUX, Judge.

Pauletta Gedward seeks review of the trial court's grant of summary judgment in favor of Acceptance Insurance Company (AIC). Gedward's minor son, Kodi Sonnier, was injured when he was thrown from a four-wheeled, all-terrain vehicle (ATV) while riding it on the property of his father, Ronnie Sonnier. Gedward [97-1068 La.App. 3 Cir. 2] sued individually and as tutrix of her minor son, for damages sustained as a result of the accident. The named defendants which are relevant to this appeal are Ronnie Sonnier and AIC, the homeowner insurer. Sonnier and AIC subsequently filed separate Motions for Summary Judgment on the issue of coverage for Gedward's claims. AIC's motion was granted, thereby dismissing all claims against it, and Gedward appealed.

We find that the trial court erred in granting AIC's Motion for Summary Judgment because AIC failed to establish the absence of factual support for one or more elements essential to Gedward's claim against it. Therefore, we reverse and, as a matter of law, find that the liability and medical provisions of the policy apply.

I. ISSUES

We must decide:

1. whether the trial court erred in finding that Kodi Sonnier was injured on a motor vehicle and was therefore excluded from liability coverage pursuant to the policy's motor vehicle exclusion; and,

2. whether the trial court erred in finding that Kodi was a resident of his father's home on the date of the accident and, therefore, excluded from medical payments coverage.

II. FACTS

Ten-year old Kodi Sonnier suffered severe head injuries as a result of being thrown from a four-wheeled, ATV on June 3, 1995. On the date of the accident, Kodi and two of his siblings were spending the weekend with their father, Ronnie Sonnier, at his home. Sonnier shared joint custody of the children with [97-1068 La.App. 3 Cir. 3] Pauletta Gedward, and was exercising his weekend visitation pursuant to the custody agreement in effect at the time. He was to return them to their mother and domiciliary parent, Gedward, on Sunday, June 4, 1995.

On the day of the accident, Glenn Jolivette, Sonnier's adult, half-brother, arrived at the house driving the ATV. The ATV did not belong to Jolivette or Sonnier, but instead belonged to their brother, Bobby Sonnier. Bobby Sonnier had taken the ATV to a friend to have maintenance work done, and was working offshore on the weekend of the accident. Jolivette took the ATV from this friend's house without his brother's permission.

Sonnier and the children were inside of the house watching TV when Jolivette arrived, but ventured outside upon hearing the ATV pull into the yard. Jolivette had been there the day before with the ATV and had given the children rides on it. Sonnier never rode the ATV and did not know how to operate it.

Apparently, shortly after arriving, Jolivette realized that it was getting late and that he needed to return home so that he could prepare for church. He lived two or three miles away and asked Sonnier to give him a ride home. He said that he was leaving the ATV there, and told Sonnier that he could give his children rides on it later if he wanted to, while quickly pointing out how to start the vehicle and place it in motion. Sonnier testified in his deposition that his response was, "Okay, I'm going to go in the house and get my keys."

Approximately five minutes later, while Sonnier was still inside looking for his keys, he heard that the ATV was "really geared or revved up." He looked out of the window and saw Kodi riding it alone on the back of his property. Sonnier knew that Kodi did not know how to drive or handle the ATV, especially at the speed he was going, so he ran outside to stop him. However, when he made it to the scene, [97-1068 La.App. 3 Cir. 4] he found Kodi lying on the ground. He picked him up, noticed that he had a laceration on his head that was bleeding, and ran to a neighbor's house and waited underneath the carport for the ambulance that had been called.

Kodi lapsed into a coma in the ambulance as he was being taken to Lafayette General Hospital. It was discovered that Kodi was leaking brain fluid and had a fractured skull. The fracture resulted in bone emerging into Kodi's head, causing his brain to swell, and he was not given a good prognosis for survival. Fortunately, he underwent a successful operation and began awakening from the coma on Monday night. Kodi remained in the hospital for five weeks and underwent extensive physical therapy. As a result of the accident, his left hand and leg have remained very weak, and he has a permanent, large scar on the back of his head.

Gedward filed suit, naming Sonnier, Jolivette, Bobby Sonnier, and AIC as defendants. She alleged that Sonnier was "at fault for failing to supervise his minor child, Kodi, while Kodi was on his premises," thus permitting Kodi unrestricted access to the ATV. She also alleged that AIC was liable in solido with the other defendants "by virtue of the terms of the policy of liability insurance it issued to Ronnie Sonnier covering his premises located at 229 Mr. Cliff Road in Lafayette."

AIC filed its Motion for Summary Judgment on June 5, 1997 and a hearing was held on July 7, 1997. The trial court granted summary judgment dismissing AIC from the suit. The court gave oral reasons for its decision, stating that it found Kodi Sonnier to have been a resident of his father's dwelling on the date of the accident, and that the ATV qualified as a "motor vehicle" under the terms of AIC's policy and, therefore, the policy did not provide coverage. Gedward perfected this appeal.

[97-1068 La.App. 3 Cir. 5] III.

LAW AND DISCUSSION

Gedward argues that the liability exclusions of the policy relied upon by the trial court to deny coverage and to grant the summary judgment in favor of AIC were not applicable. The provision relied upon states:

SECTION II EXCLUSIONS

A. COVERAGE E--PERSONAL LIABILITY AND

B. COVERAGE F--MEDICAL PAYMENTS TO OTHERS

1. Coverage does not apply to bodily injury or property damage:

....

e. arising out of the ownership, maintenance, use loading, or unloading of;

....

(2) a motor vehicle owned or operated by, or rented or loaned to YOU.

Further, the policy provides this definition of "motor vehicle" upon which the court relied to grant the summary judgment:

E. "motor vehicle" means:

....

3. a motorized golf cart, snowmobile or other motorized land vehicle owned by an insured. It must be designed for recreational use off public roads and off an insured location. A motorized golf cart while used for golfing purposes is not a motor vehicle;

(Emphasis added).

Gedward asserts that: (1) the duty of Sonnier to properly supervise his minor child arose independently of any ownership, maintenance, or use of the fourwheeled ATV; (2) the ATV did not qualify as a "motor vehicle" under the exclusionary language of the policy because it was not "owned" by the insured and was not designed for use off an insured location; and, (3) alternatively, there exists a genuine issue of material fact as to whether the ATV was, in fact, loaned to Sonnier [97-1068 La.App. 3 Cir. 6] and consequently whether it was subject to the liability exclusion. Finally, Gedward asserts that the trial court incorrectly found that Kodi was a resident of his father's home, and therefore not eligible to receive medical payments coverage.

AIC disagrees and contends that the trial court correctly granted summary judgment in its favor based on the exclusions in the homeowner's policy issued to Sonnier. AIC argues that the alleged duty of Ronnie Sonnier to supervise Kodi arose from the use of the ATV which was loaned to Sonnier by Jolivette before the accident occurred. Further, it contends that the ATV is, in fact, a motor vehicle according to the definition provided in the policy and, therefore, the motor vehicle use exclusion of the policy precludes coverage for liability.

In addition, it asserts that there was no genuine issue of material fact that Kodi was a resident of his father's home on the date of the accident and, therefore, the medical payments provision of the policy does not provide coverage for him. The applicable provision states:

SECTION II LIABILITY COVERAGES

B. COVERAGE F--PERSONAL MEDICAL PAYMENTS

We will pay ... for the necessary medical expenses incurred or medically determined within one year from the date of an accident causing bodily injury.... This coverage does not apply to YOU or a resident of YOUR dwelling.

(Emphasis added).

Appellate courts undertake a de novo review of motions for summary judgment. Potter v. First Fed. Savings & Loan Ass'n, 615 So.2d 318 (La.1993). In this case, while applying the requisite standard, we must keep in mind the mandates of La.Code Civ.P. art. 966(C)(2), which requires the granting of summary judgment if a movant, who does not bear the burden of proof at trial on the matter that is the subject of the motion, shows the absence of factual support for one or more of the [97-1068 La.App. 3 Cir. 7] elements essential to the adverse party's claim, action or defense, and the opposing party fails thereafter, to produce factual support that will establish his ability to...