Avery v. Commercial Union Ins. Co.

• Decision Date: 30 June 1993
• Docket Number: 92-838,Nos. 91-538,s. 91-538
• Citation: 621 So.2d 184
• Parties: Laura AVERY and Paul Avery, Plaintiffs-Appellees, v. COMMERCIAL UNION INSURANCE COMPANY and Bel-Aire Insurance Company, Defendants-Appellants. Laura AVERY and Paul Avery, Plaintiffs-Appellees, v. COMMERCIAL UNION INSURANCE COMPANY, et al., Defendants-Appellants.
• Court: Court of Appeal of Louisiana — District of US

Page 184

621 So.2d 184

Laura AVERY and Paul Avery, Plaintiffs-Appellees, v. COMMERCIAL UNION INSURANCE COMPANY and Bel-Aire Insurance

Company, Defendants-Appellants.

Laura AVERY and Paul Avery, Plaintiffs-Appellees, v. COMMERCIAL UNION INSURANCE COMPANY, et al., Defendants-Appellants.

Nos. 91-538, 92-838.

Court of Appeal of Louisiana Third Circuit.

June 30, 1993.

Robert Samuel Dampf, Henry Alan McCall, Lake Charles, for Laura and Paul Avery.

A.R. Johnson IV, Lake Charles, for Commercial Union Ins. Co., et al.

William T. McCall, Gregory Joseph Spicer, Lake Charles, for Bel-Aire Ins.

David Andrew Fraser, Lake Charles, for Buzzy's Wild Water Slide.

John E. Bergstedt, Lake Charles, for Cameron Police Jury and CUI Co., etc.

Before STOKER and DECUIR, JJ., and CULPEPPER, ^* J. Pro Tem.

STOKER, Judge.

This case involves issues of insurance coverage and liability for damages sustained in a rear end collision. On May 18, 1988, a vehicle owned by the Cameron Parish Police Jury and operated by August LeDoux struck the rear of the vehicle operated by Laura Avery. It appears that she was the sole occupant of the vehicle. The accident occurred inside of a cloud of black smoke which had originated from a grass fire on property adjacent to Louisiana State Highways 82 and 27 (Highway 82/27) in Cameron Parish. Buzzy's Wildwater Slide, Inc. held the property upon which the grass fire originated under lease.

Paul and Laura Avery filed suit for damages arising out of the collision. They named several defendants, including Cameron Parish Police Jury, Commercial Union Insurance Company (the alleged insurer of the Police Jury), Buzzy's Wildwater Slide, Inc., and Bel-Aire Insurance Company (the insurer of Buzzy's). Various cross-claims were filed in connection with the suit, including a cross-claim by Buzzy's against Bel-Aire; Buzzy's asserted in the cross claim that Bel-Aire provided coverage to Buzzy's for claims asserted against Buzzy's. Buzzy's filed a motion for partial summary judgment against Bel-Aire on the coverage issue. The trial court granted the motion, declaring that the Bel-Aire policy provides coverage for the claims asserted against Buzzy's. Bel-Aire appealed the summary judgment, and that appeal bears our Docket No. 91-538. We ordered that the coverage question involved in appeal Number 91-538 be consolidated with the appeal on the liability issue which is numbered 92-838 on the docket of this court.

Prior to trial on the merits, plaintiffs settled with and dismissed, among other defendants, August LeDoux, the Cameron Parish Police Jury, and Commercial Union. The loss of consortium claim of Paul Avery was dismissed on the day of trial.

TRIAL COURT ACTION

After trial on the merits, the trial court rendered judgment in favor of Laura Avery and against Buzzy's and Bel-Aire for $77,407.09. The court found no contributory negligence on Avery's part and no concurrent negligence on the part of the Police Jury, its employees, or agents. From this judgment, Bel-Aire also appeals, our Docket No. 92-838.

SUMMARY OF RULING IN THIS APPEAL

In these consolidated cases, we affirm the trial court's finding of insurance coverage, reverse the court's finding of no concurrent liability on LeDoux's part, affirm the finding of no comparative negligence on Avery's part, and affirm the award of damages.

FACTS

Buzzy Adams was the owner of Buzzy's Wildwater Slide at the time of the accident. Buzzy Adams was working for Zapata Haynie at the time so that he was not on the property at the time of the accident. Buzzy Adams had asked his brother, Clay Adams, to help him clean up the property, evidently in preparation for opening the waterslide for summer business. Alton Norton, a friend of Clay and Buzzy, was assisting Clay in cleaning up the grounds.

On May 18, 1988, Clay was burning trash in a fifty-five gallon barrel on property leased by Buzzy's Wildwater Slide. Apparently, either burning trash or sparks flew out of the barrel, starting a grass fire. Clay Adams stated that when the fire reached the "mangroves," it got out of control. He stated that about midway through the mangroves, the fire was pouring the smoke across the highway heavily.

On May 18, 1988, Laura Avery was travelling in an easterly direction on La. Hwy. 82. She testified that as she was coming around "the corner," she saw smoke. Before entering the smoke, Avery was driving at a speed of approximately forty-five miles per hour, the speed limit. She reduced her speed and travelled through the smoke at approximately ten miles per hour. Two or three dump trucks entered the smoke ahead of her. Avery stated that when she entered the smoke she could see "a little bit" but that when she got in the middle of the smoke, she could not see anything.

August LeDoux was also travelling east on Hwy. 82, behind Avery. LeDoux testified that when he turned onto Hwy. 82/27, he saw two vehicles enter the smoke ahead of him; once both vehicles entered the smoke he could not see any traffic inside the smoke. LeDoux testified that he was travelling approximately fifty-five miles per hour. LeDoux testified that he proceeded until he got to the smoke and started slowing down. He stated that he did not know how fast he was driving when he entered the smoke. He also did not have any estimate as to how fast he was going just before seeing Avery's car, but he stated that he had his foot on the brake. Norton and Clay Adams testified in deposition that LeDoux never slowed down just prior to entering the smoke.

LeDoux testified that when he entered the smoke he did not think it was that bad but when he got into it he could not see but maybe ten to fifteen feet ahead of him. He saw Avery's vehicle when it was approximately fifteen feet in front of him. LeDoux was unable to stop his vehicle and struck Avery.

APPEAL NO. 91-538--INSURANCE COVERAGE

Bel-Aire contends that the trial court erred by finding in the context of a motion for summary judgment: (1) that an employer-employee relationship existed between Buzzy's and Clay Adams and Alton Norton in order to make Buzzy's vicariously liable for the alleged negligence of Adams and Norton and thus making Adams and Norton insureds under the policy; (2) that the Bel-Aire policy provided general liability coverage to Buzzy's as opposed to liability coverage for only specific scheduled amusement hazards and operations; and (3) that the "pollution" exclusion of the Bel-Aire policy did not exclude coverage for the smoke in question.

Insureds

In order for the Bel-Aire policy to provide coverage for the actions of Alton Norton or Clay Adams, there must be a finding that Buzzy's Wildwater Slide, Inc., the named insured, was responsible for the actions of Alton Norton or Clay Adams or that Norton or Adams are otherwise "insureds" under the policy.

Concerning Buzzy's responsibility, LSA-C.C. art. 2320 provides in part that "[m]asters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed."

"Our jurisprudence holds that in determining whether such a relationship exists the most important factor is the right of the alleged employer to control the work of the individual. Roberts v. State, Through Louisiana Health & Human Resources Administration, 404 So.2d 1221 (La.1981). Factors to assess the right to control include: 1) the selection and engagement of the worker; 2) the payment of wages; and 3) the power of control and dismissal. Savoie v. Fireman's Fund Ins. Co., 347 So.2d 188 (La.1977). Nevertheless, the jurisprudence is well settled that whether the employer actually exercises control or supervision over the worker is not as significant as whether, from the nature of the relationship, the employer had the right to do so. Amyx v. Henry & Hall, 227 La. 364, 79 So.2d 483 (1955)."

Sparks v. Progressive American Ins. Co., 517 So.2d 1036, 1038 (La.App. 3d Cir.), writ denied, 519 So.2d 106 (La.1987).

In Rowell v. Carter Mobile Homes, Inc., 500 So.2d 748, 751 (La.1987), the court stated:

"A master or employer is liable for the tortious conduct of a servant or employee which is within the scope of authority or employment, but a principal is not liable for the physical torts of a non-servant agent. Blanchard v. Ogima, 253 La. 34, 215 So.2d 902 (1968). Liability for the negligent and tortious acts of another does not flow simply because of a principal-agent or principal-mandatary relationship. Civil Code article 2985 et seq., titled 'Of Mandate', define the nature of the contractual relationship and the obligation of the parties under a mandate, but do not attempt to fix liability for the tortious acts of a mandatary. Id. Only when the relationship of the parties includes the principal's right to control physical details of the actor as to the manner of his performance which is characteristic of the relation of master and servant does the person in whose service the act is done become subject to liability for the physical tortious conduct of the actor. Id. citing Civil Code articles 176, 2315, 2317, 2320; Cf. Restatement (Second), Agency, Sec. 250 (1957); W.A. Seavey, Law of Agency Sec. 91 (1964)."

(emphasis added).

From our review of the record, we find that Alton Norton's role in the escape of the fire and any activity involved in the creation of the smoke hazard is not clear. However, for Buzzy's Wildwater Slide, Inc. to be vicariously liable for any damages asserted in this case, it is not necessary for both parties present on the premises to have been responsible for the fire and the smoke generated by the grass fire. It is enough if one of the parties was at fault in such a manner as to render Buzzy's vicariously liable. As we find that Clay Adams was clearly negligent and his act or acts contributed to the accident in which Laura Avery was injured, we need only determine whether Clay Adams bore such a relationship to Buzzy's as to impose vicarious...