96-15 La.App. 3 Cir. 12/11/96, Armand v. Rhodes

• Citation: 685 So.2d 546
• Parties: 96-15 La.App. 3 Cir
• Decision Date: 11 December 1996
• Court: Court of Appeal of Louisiana (US)

Page 546

685 So.2d 546

96-15 La.App. 3 Cir. 12/11/96

Jennifer L. ARMAND, Plaintiff-Respondent, v. Christopher B. RHODES, et al. [Prudential Property & Life Casualty Insurance Company], Defendant-Applicant.

No. 96-15.

Court of Appeal of Louisiana Third Circuit.

Dec. 11, 1996.

Writ Denied March 21, 1997.

Jerold Edward Knoll, Marksville, for Jennifer L. Armand.

Christopher B. Rhodes, for Christopher B. Rhodes et al.

Steven W. Cook and Samuel Newman Poole, Jr., Alexandria, for Shelter Mutual Insurance Co.

Russell L. Potter, Alexandria, for Prudential Property (Liability Claims).

Charles M. Jarrell, Opelousas, for Prudential Property & Casualty Insurance Company.

George Arthur Flournoy, for Kenneth Doggett.

Chris J. Roy Jr., for Debbie Doggett.

Before YELVERTON, THIBODEAUX, COOKS, SAUNDERS and AMY, JJ.

[96-15 La.App. 3 Cir. 1] AMY, Judge.

This writ application concerns the uninsured/underinsured motorist [UM] provisions in a policy of automobile insurance that Prudential Property & Life Casualty Insurance Company [Prudential] issued to Kenneth A. Doggett, Sr. [Doggett]. The issue is whether the trial court properly denied Prudential's motion for summary judgment. For the reasons which follow, we reverse the trial court's judgment and render summary judgment in favor of Prudential.

DISCUSSION OF THE RECORD

On April 17, 1994, plaintiff, Jennifer L. Armand [Armand], was a passenger in her 1991 Mitsubishi automobile being driven by Doggett, who was proceeding north on Highway 114 in Avoyelles Parish, Louisiana. At the same time, Christopher B. Rhodes [Rhodes] was also traveling north on Highway 114 in a 1979 Dodge truck registered in the name of Ellis Laviege. Rhodes stopped the truck and attempted to make a left turn onto Humphries Loop. An accident happened when Doggett [96-15 La.App. 3 Cir. 2] attempted to pass the Dodge truck as Rhodes was beginning his left turn. The impact of the accident caused the 1991 Mitsubishi automobile to flip over into a ditch along the north side of Highway 114.

On April 13, 1995, Armand filed suit against Christopher B. Rhodes, Kenneth A. Doggett, Sr., his insurer, Prudential, and Shelter Mutual Insurance Company. ¹ Armand alleged that Rhodes and Doggett were both at fault for the accident. Armand sought recovery from Prudential, in its capacity as general liability insurer of Doggett. ² Also, relevant to this writ application, Armand requested recovery of UM benefits pursuant to the terms and provisions of the policy issued by Prudential. Prudential answered Armand's suit and denied liability, asserting that there was not UM coverage in its policy for the particular claims advanced by Armand.

Subsequently, Prudential filed a motion for summary judgment alleging that Armand was not an insured under the terms and provisions of the policy it issued to Doggett. Further, Prudential argued that since Armand was in her own automobile at the time of the accident, she was precluded from seeking benefits pursuant to La.R.S. 22:1406 D(1)(e). ³ Armand did not file any written opposition to Prudential's [96-15 La.App. 3 Cir. 3] motion. However, at the hearing on the motion for summary judgment on December 12, 1995, Armand's attorney argued that, under Prudential's UM policy, if Doggett was in a nonowned automobile being used with the permission of the owner for the purpose intended by the owner, then Doggett would have the same coverage on the non-owned vehicle as he would have on one of his vehicles specifically listed in his policy. Therefore, according to Armand's attorney, she was covered by Doggett's UM policy. On December 22, 1995, the trial court denied Prudential's motion for summary judgment.

Prudential then filed a writ application with this Court. However, in writ 96-15 (La.App. 3 Cir. 12/27/96), we denied Prudential's writ application. In response, Prudential filed a writ application to the Louisiana Supreme Court. On May 3, 1996, the supreme court granted Prudential's writ application and stated that the writ was: "Granted and remanded to the court of appeal for briefing, docketing and opinion." Armand v. Rhodes, 96-0777 (La.5/3/96); 672 So.2d 697, 698.

On remand, Prudential asserts that the trial court erred in denying its motion for summary judgment because Jennifer Armand was not an "insured" under its policy since she was not listed as a named insured under its policy, nor was she a relative or resident of the named insured's household, nor was she occupying a vehicle listed under the policy. Prudential also argues that the trial court erred in denying its motion for summary judgment because Armand was precluded from seeking UM benefits pursuant to La.R.S. 22:1406 D(1)(e) since she was in her own [96-15 La.App. 3 Cir. 4] vehicle at the time of the accident and the vehicle was not listed in Doggett's insurance policy.

LAW

SUMMARY JUDGMENT

An appellate court reviews a summary judgment de novo using the same criteria that governs the trial court's consideration of whether summary judgment is appropriate. Potter v. First Fed. Sav. and Loan Ass'n of Scotlandville, 615 So.2d 318 (La.1993). Summary judgment may be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966. ⁴ The summary judgment procedure should be used cautiously and sparingly, and any reasonable doubt should be resolved against the mover in favor of a full trial on the merits. Dauzat v. Hartford Ins. Co. of The Midwest, 95-50 (La.App. 3 Cir. 5/3/95); 657 So.2d 188. However, summary judgment is designed to bring a matter to a head prior to an expensive and protracted trial, and to put an end to litigation in which a party has no chance of prevailing. Burris v. Vinet, 95-668 (La.App. 1 Cir. 11/9/95); 664 So.2d 1225; Whatley v. Caddo Parish Sheriff's Dep't, 27,321 (La.App. 2 Cir. 9/27/95); 661 So.2d 557, writ denied, 95-2842 (La.2/2/96); 666 So.2d 1097. A dispute as to whether, as a matter of law, language in an insurance policy provides coverage may be resolved [96-15 La.App. 3 Cir. 5] on a motion for summary judgment. Natchitoches Parish Hosp. Serv. Dist. v. Rachal, 94-995 (La.App. 3 Cir. 2/1/95); 649 So.2d 1152, writ denied, 95-528 (La.4/7/95); 652 So.2d 1349; Domingue v. Reliance Ins. Co., 619 So.2d 1220 (La.App. 3 Cir.1993).

In Smith v. Our Lady Of The Lake Hosp., Inc., 93-2512 (La.7/5/94); 639 So.2d 730, 752, the Louisiana Supreme Court discussed the burden of proof in a motion for summary judgment:

Procedurally, the court's first task on a motion for summary judgment is determining whether the moving party's supporting documents--pleadings, depositions, answers to interrogatories, admissions and affidavits--are sufficient to resolve all material factual issues. LSA-C.C.P. Art. 966(B); Sanders v. Hercules Sheet Metal, Inc., 385 So.2d 772, 775 (La.1980). "To satisfy this burden, the mover must meet a strict standard of showing that it is quite clear as to what is the truth and that there has been excluded any real doubt as to the existence of a genuine issue of material fact." Industrial Sand and Abrasives, Inc. v. Louisville and Nashville Railroad Co., 427 So.2d 1152, 1154 (La.1983). In making this determination, the mover's supporting documents must be closely scrutinized and the non-mover's indulgently treated. Vermilion Corp. v. Vaughn, 397 So.2d 490, 493 (La.1981). Since the moving party bears the burden of proving the lack of a material issue of fact, inferences to be drawn from the underlying facts before the court must be viewed in light most favorable to the non-moving party. Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342, 345 (La.1991); Vermilion, 397 So.2d at 493; Pace [v. Zilka ], 484 So.2d , 773 [ (La.App. 1 Cir.), writ denied, 488 So.2d 691 (La.1986) ].

If the court determines that the moving party has met this onerous burden, the burden shifts to the non-moving party to present evidence demonstrating that material factual issues remain. Sanders, supra. LSA-C.C.P. Art. 967 outlines the non-moving party's burden of production as follows:

When a motion for summary judgment is made and supported ... an adverse party may not rest on the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.

[96-15 LA.APP. 3 CIR. 6] UM COVERAGE

In Louisiana, the issuance of UM insurance is governed by La.R.S. 22:1406, which provides in part:

No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle designed for use on public highways and required to be registered in this state or as provided in this Subsection unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability provided by the policy, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover nonpunitive damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness, or disease, including death resulting therefrom; however, the coverage required under this Subsection shall not be applicable where any insured named in the policy shall reject in writing, as provided herein, the coverage or selects lower limits. In no event shall the policy limits of an uninsured motorist policy be less than the minimum liability limits required under R.S. 32:900. Such coverage need not be provided in or supplemental to a renewal,...