Schelmety v. Yamaha Motor Corp., USA, 041316 LACA2, 50, 586-CA

Docket Nº50, 586-CA
Opinion JudgeBROWN, CHIEF JUDGE.
Party NameDANIELLE SCHELMETY Plaintiff-Appellant v. YAMAHA MOTOR CORPORATION, USA; YAMAHA MOTOR MANUFACTURING CORPORATION OF AMERICA; YAMAHA MOTOR COMPANY, LTD. LOUISIANA; JAMES JOHNSON; WILLIAM SMITH; MICHAEL SMITH; and SAFECO INS. CO. Defendants-Appellees
AttorneyBREITHAUPT, DUNN, DUBOS, SHAFTO & WOLLESON, LLC By: Patrick S. Wolleson Michael L. DuBos Russell A. Woodard, Jr. Counsel for Plaintiff-Appellant, Danielle Schelmety BOLEN, PARKER, BRENNER, LEE & ENGELSMAN, LTD. By: Daniel G. Brenner Christina S. Slay R. Preston Mansour, Jr. Counsel for Defendant-...
Judge PanelBefore BROWN, CARAWAY, and BLEICH (Ad Hoc), JJ. BLEICH (Ad Hoc), J., concurring.
Case DateApril 13, 2016
CourtCourt of Appeals of Louisiana

DANIELLE SCHELMETY Plaintiff-Appellant

v.

YAMAHA MOTOR CORPORATION, USA; YAMAHA MOTOR MANUFACTURING CORPORATION OF AMERICA; YAMAHA MOTOR COMPANY, LTD. LOUISIANA; JAMES JOHNSON; WILLIAM SMITH; MICHAEL SMITH; and SAFECO INS. CO. Defendants-Appellees

No. 50, 586-CA

Court of Appeals of Louisiana, Second Circuit

April 13, 2016

Appealed from the Third Judicial District Court for the Parish of Lincoln, Louisiana Trial Court No. 56, 929 Honorable Jay Bowen McCallum, Judge.

BREITHAUPT, DUNN, DUBOS, SHAFTO & WOLLESON, LLC By: Patrick S. Wolleson Michael L. DuBos Russell A. Woodard, Jr. Counsel for Plaintiff-Appellant, Danielle Schelmety

BOLEN, PARKER, BRENNER, LEE & ENGELSMAN, LTD. By: Daniel G. Brenner Christina S. Slay R. Preston Mansour, Jr. Counsel for Defendant-Appellant, James Johnson

BARRASSO, USDIN, KUPPERMAN, FREEMAN & SARVER, LLC By: H. Minor Pipes, III Susan M. Rogge Counsel for Defendants-Appellees, Safeco Ins. Co. of Oregon & Safeco Ins. Co. of America

RAYMOND PAUL AUGUSTIN, JR. MICKEY STEPHENS deLAUP VALERIE E. FONTENOT Counsel for Defendants-Appellees, William Smith and Michael Smith

TOMMY J. ADKINS Counsel for Third Party Appellees, Michael Smith #2 and William C. Smith

C. MICHAEL PFISTER, JR. PHILIP GEORGE WATSON AMENAH ABDELFATTAH Counsel for Third Party Appellees, David Viguerie and Baton Rouge Ins. Agency

Before BROWN, CARAWAY, and BLEICH (Ad Hoc), JJ.

BROWN, CHIEF JUDGE.

This is a tort case seeking damages for injuries sustained by plaintiff, Danielle Schelmety, while riding in a Rhino "side by side" four-wheel off-road vehicle driven by defendant, James Johnson. The instant appeal by both Danielle and James is from a summary judgment dismissing with prejudice Danielle's claim against defendants, Safeco Insurance of America and Safeco Insurance Company of Oregon ("Safeco"), the homeowners' and umbrella insurers of the Rhino owner, Dr. William Smith, and his son, Michael.1 Finding no error, however, we affirm.

Facts and Procedural Background

Michael Smith, Danielle and James were law students at Mississippi College School of Law at the time of this accident. Danielle and Michael were dating, and Michael and James were roommates. On the night before the accident, the trio rode together to Ruston, Louisiana, to attend a crawfish boil in celebration of Michael's birthday. They stayed at the home of Michael's parents, Dr. William and Kelly Smith, which is located at 1024 Wedgewood Drive in Ruston. This was the first time that the Smiths met both Danielle and James. The next day, March 29, 2013, before the crawfish boil and with permission from Michael and Dr. Smith, James and Danielle took a ride on the Rhino, leaving from the driveway of the Smiths' home, with James driving and Danielle as his passenger. James drove the Rhino down Wedgewood Drive, made a loop on Pennington Lane, and turned onto Cooktown Road, a two-lane highway also identified as State Highway 544, before taking a right onto Bittersweet Avenue. He then took a left on Dixie Street and turned right on Mimosa Drive. In the cul-de-sac on Mimosa Drive, as James was in the middle of the turn, the Rhino flipped onto its passenger side, pinning Danielle's left arm between the vehicle and the pavement. She was rushed to the hospital where emergency surgery was performed on her shattered and crushed forearm, wrist and hand. Since the accident, Danielle has had multiple surgeries and extensive physical therapy. She is permanently disfigured and partially disabled.

On August 13, 2013, Safeco denied a claim filed by the Smiths, contending that there was no coverage for Danielle's injuries because "the loss did not occur at an insured location." Thereafter, on March 20, 2014, Danielle filed the instant action, asserting products liability claims against Yamaha, the Rhino's manufacturer; a claim against James Johnson for his negligence in attempting to turn too sharply and/or too quickly; and negligent entrustment claims against William and Michael Smith. She also named Safeco as a defendant, urging, inter alia, Safeco's liability for the Smiths' negligent entrustment of the Rhino to James Johnson and James' general operational negligence. Safeco filed an answer, as did other named defendants, and a third-party demand was filed by the Smiths against their insurance agency.

On September 2, 2014, Safeco filed their motion for summary judgment, urging the trial court to grant summary judgment in their favor and dismiss plaintiff's claims against them because:

Based on the undisputed facts, there is no possibility of coverage for plaintiff's claims for injuries arising out of the use of a recreational vehicle on a public street under either the Homeowners Policy or Personal Umbrella Policy issued to William and Kelly Smith. First, plaintiff's claims against the driver, James Johnson, are not covered because Johnson does not qualify as an insured under either policy since he is not a relative of the Smiths nor is he a resident of their home. Even if Mr. Johnson was somehow deemed an insured, plaintiff's claims against Johnson, along with her claim against William and Michael Smith, are all unambiguously barred from coverage under both policies' motorized land vehicle/recreational vehicle use exclusions because plaintiff's injuries undisputedly arose out of use of a motorized land vehicle/recreational vehicle on a public street approximately 1/2 mile away from the Smith residence.

Both Danielle and James filed oppositions to the motion for summary judgment. The trial court granted Safeco's motion, finding that neither the Smiths' homeowners' policy nor their umbrella policy provided coverage for James or the accident and the injuries sustained by Danielle. It is from this judgment that both Danielle and James have appealed, urging that the trial court erred in finding no coverage under the Smiths' homeowners' policy.

Discussion

Summary judgment is favored and is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by law. La. C.C.P. art. 966(A)(2). After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3). Appellate courts review summary judgment de novo under the same criteria governing the trial court's consideration of whether summary judgment is appropriate. Costello v. Hardy, 03-1146 (La. 01/21/04), 864 So.2d 129; Walters v. City of West Monroe, 49, 502 (La.App. 2d Cir. 02/04/15), 162 So.3d 419, writ denied, 15-0440 (La. 05/15/15), 170 So.3d 161; In re Succession of Crowson, 48, 985 (La.App. 2d Cir. 05/14/14), 139 So.3d 43.

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