Baudin v. Traders & General Ins. Co.

• Decision Date: 29 June 1967
• Docket Number: No. 2029,2029
• Citation: 201 So.2d 379
• Parties: Edward BAUDIN, Plaintiff and Appellant, v. TRADERS & GENERAL INSURANCE COMPANY et al., Defendants and Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 379

201 So.2d 379

Edward BAUDIN, Plaintiff and Appellant, v. TRADERS & GENERAL INSURANCE COMPANY et al., Defendants and Appellees.

No. 2029.

Court of Appeal of Louisiana, Third Circuit.

June 29, 1967.

Rehearing Denied July 27, 1967.

Simon, Trice & Mouton, by J. Minos Simon, Lafayette, for plaintiff-appellant.

Davidson, Meaux, Onebane & Donohoe, by J. J. Davidson, Jr., Lafayette, Earl H. Willis, St. Martinville, for defendants-appellees .

Before FRUGE SAVOY and CULPEPPER, Judge.

CULPEPPER, Judge.

The plaintiff, Edward Baudin, seeks damages for personal injuries to his 3 year old child, Keith A. Baudin, who ran across a street, from behind a parked automobile, and was struck by an approaching vehicle. Named as defendants are Mrs. Laurie M. Agnelle, mother of Joseph B. Angelle, the minor driver of the approaching automobile; and Traders & General Insurance Company, the liability insurer of the parked vehicle.

By strange coincidence, the parked vehicle was owned by the plaintiff himself and was being driven with his permission by Jesse Paul Theriot, an omnibus insured under the policy. Recovery is sought from Traders & General Insurance Company under two different policy coverages: (1) The Uninsured Motorist clause, since Angelle was not insured; (2) the so-called 'Omnibus Insured' clause, on the theory that the liability is one 'arising out of the * * * use' of the Baudin vehicle by the permittee, Theriot.

The defendant insurer filed an answer denying any negligence on the part of the uninsured motorist, Angelle. This portion of the case is still pending in the district court and is not before us on appeal.

As to the omnibus insured, the insurer filed an exception of no cause of action and, alternatively, a motion for summary judgment, seeking dismissal of plaintiff's suit. The district judge granted summary judgment. Plaintiff appealed.

There is no genuine issue of material fact. For purposes of its motion for summary judgment, the defendant insurer has admitted all of the facts alleged in plaintiff's original and supplemental petitions and has filed in the record a copy of the insurance policy in question. On the basis of these facts, the defendant contends it is entitled to judgment as a matter of law.¹

Plaintiff alleges that he resides on the north side of St. Charles Street, in Breaux Bridge, Louisiana, directly across the street from the dwelling of Robert Erwin. On the day in question, several small children, including plaintiff's 3 year old son, were playing in the Erwin's front yard a short distance from the street.

The omnibus insured, Jesse Theriot, drove in an easterly direction along St. Charles Street and stopped in front of the Erwin home. He saw plaintiff's son and instructed him 'to go home', but the boy did not at first obey. Kathy Erwin then came out and stood in the street at the left side of the car. Shortly thereafter, the Baudin child started toward his home. The Angelle vehicle was approaching in a westerly direction on the street, at a speed of about 30 miles per hour. The child ran behind the parked automobile directly into the path of the approaching car, where he was struck and seriously injured.

Plaintiff alleges the omnibus insured was negligent in the following respects: (1) By parking in front of the Erwin house and instructing the boy to 'go home', knowing that the boy had to pass either in front of or behind the parked vehicle and that motorists approaching from either direction might not see him. (2) Having undertaken to tell the child to 'go home', he failed to take reasonable precautions for his safety in doing so, by remaining in this parked position, knowing the parked vehicle constituted a 'perilous entrapment' for the child as to approaching motorists. (3) Continuing to remain in this parked position when he knew, or should have known, the child was running behind the car as the Angelle vehicle was approaching on a collision course.

In the following pertinent portion of the policy the insurer agrees:

'Part I--Liability

'Coverage A--Bodily Injury; * * * To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of: A. Bodily injury, * * *

arising out of the ownership, maintenance or use of the owned automobile. * * *'

Under these policy provisions, the insurer agrees to pay if: (1) the insured is 'legally obligated' to pay damages; (2) 'arising out of'; (3) the 'use' of the automobile.

As counsel for defendant has stated in his brief, we can, for purposes of this motion for summary judgment, assume the first of these three requirements is met, i.e. that the omnibus insured is legally obligated to pay damages because of actionable negligence. In this appeal, the issue is not whether the insured is liable, but whether his liability arose out of the use of the vehicle.

Furthermore, requirement number (3) is satisfied because the insured was clearly using the automobile. There is considerable authority that the term 'use' is a broad catch-all designed to include all proper uses of the vehicle not falling within the terms 'ownership' or 'maintenance'. Bolton v. North River Insurance Company, 102 So.2d 544 (La.App.1st Cir. 1958); Tucker v. State Farm Mutual Automobile Insurance Company, 154 So.2d 226 (La.App.2d Cir. 1963); Appleman's Insurance Law & Practice, Vol. 7, Section 4316(e); Annotation, 89 A.L.R.2d 150, at pages 163--172. The term 'use' involves simply employment for the purpose of the user and is broader than the term 'operation' which involves direction and control of the mechanism such as by a driver. Maryland Casualty Company v. Marshbank, 226 F.2d 637 (U.S.C.A.3d 1955); Liberty Mutual Insurance Company v. Steenberg Construction, 225 F.2d 294 (U.S.C.A.8th 1955). In the present case, it is clear that Theriot's actions in parking and remaining seated in the automobile constituted 'use'.

The principal issue in this case is whether the liability was one 'arising out of' the use of the vehicle by the omnibus insured. The Annotation in 89 A.L.R.2d 150 (1950) has as its purpose a consideration of all of the cases construing the policy provision 'arising out of the ownership, maintenance or use' of the automobile .² Summarizing the cases cited (pages 152--153) the Annotation reaches these general conclusions: (1) The courts recognize that if a policy is susceptible of more than one construction it will be construed in the manner most favorable to the insured; (2) The cases generally agree that in order for the accident to 'arise out of the * * * use' of a vehicle there must be some causal relationship between the accident and the use; (3) The issue in most cases is whether there was, under the particular facts, the necessary causal relationship; (4) Although many cases do not attempt to construe the specific clause, 'arising out of', those which do hold this clause to mean 'originating from', 'growing out of', 'flowing from', or 'having its source in'.³

We will not attempt to discuss all of the cases found in the cited annotations, but will use a few for illustrative purposes. Among those holding there was a sufficient causal relationship between the accident and the use is Merchants Company v. Hartford Accident & Indemnity Company, 187 Miss. 301, 188 So. 571, 192 So. 566 (1939) in which a truck became stuck in a highway ditch. The operator used several large poles to extricate the truck and then drove away, leaving the poles on the road, where they were struck that night by the automobile in which plaintiff was a passenger. The court noted particularly that the policy did not require the accident to be the 'proximate result' of, but only that it 'arise out of', the use of the truck. In discussing causation the court said:

'(W)here a dangerous situation causing injury is one which arose out of or had its source in, the use or operation of the automobile, the chain of responsibility must be deemed to possess the requisite articulation with the use or operation until broken by the intervention of some event which has no direct or substantial relation to the use or operation,--which is to say, that the event which breaks the chain, and which, therefore, would exclude liability under the automobile policy, must be an event which bears no direct or substantial relation to the use or operation; and until an event of the latter nature transpires the liability under the policy exists.'

In Schmidt v. Utilities Insurance Company, 353 Mo. 213, 182 S.W.2d 181, 154 A.L.R. 1088 (1944) the operator of a coal truck used wooden blocks as a ramp to drive the truck up the curb to a coalhole. After unloading, the driver left the blocks on the sidewalk where plaintiff fell over them and was injured. The court held the accident arose out of the use of the truck, declaring that the policy did not require the injury to be the proximate result, in a strict legal sense of that term, of the use of the vehicle, but only that the injury arise out of the use. The test of causation was expressed as follows:

'Whether or not plaintiff's injury, and the negligent act which caused it, arose out of the use of the trucks covered by the policy depends upon the general circumstances of the case as shown by the evidence, the nature of the use of the automobile trucks, as shown by the declarations in the policy, the connection or relationship between the negligent act, which produced the injury, and the intended use of the trucks. We must consider whether the negligent act and resulting injury was a natural and reasonable incident or consequence of the use of the trucks for the purposes shown by the declarations, though not foreseen or expected; and whether, after the negligent acts and injury were complete, it was possible to trace the negligent acts and resulting injury as reasonably incident to, and closely connected with, the use of the trucks for the purposes shown in the declarations in the policy.'

Counsel for both p...