Bumgardner v. Terra Nova Ins. Co. Ltd.

• Decision Date: 23 January 2002
• Docket Number: No. 35,615-CA.,35,615-CA.
• Citation: 806 So.2d 945
• Parties: George W. BUMGARDNER, Plaintiff-Appellant, v. TERRA NOVA INSURANCE COMPANY LIMITED, and David L. Bumgardner, Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

806 So.2d 945

George W. BUMGARDNER, Plaintiff-Appellant, v. TERRA NOVA INSURANCE COMPANY LIMITED, and David L. Bumgardner, Defendants-Appellees.

No. 35,615-CA.

Court of Appeal of Louisiana, Second Circuit.

January 23, 2002.

Rehearing Denied February 21, 2002.

COPYRIGHT MATERIAL OMITTED

Lynn E. Estes, Jr., Shreveport, Counsel for Appellant.

Walter C. Dunn, Jr., Monroe, Counsel for Defendant Appellant, David L. Bumgardner.

Diana L. Tonagel, Metairie, Counsel for Defendant Appellee, Terra Nova Ins. Co. Ltd.

Before WILLIAMS, STEWART and CARAWAY, JJ.

STEWART, Judge.

The trial court granted summary judgment in favor of the defendant, Terra Nova Insurance Company, Ltd., ("Terra Nova"), upon finding that the claims of George F. Bumgardner, the plaintiff, were excluded from coverage by the terms and conditions of the homeowners insurance policy in favor of David Bumgardner, who is also defendant herein. Both the plaintiff and the insured, David Bumgardner, appeal the grant of summary judgment. We find that the policy excludes coverage for the plaintiff's claims and affirm.

FACTS

George Bumgardner filed suit for damages naming his uncle David Bumgardner and David's insurer, Terra Nova, as defendants. The suit was filed after George was injured while helping David plant beans on March 28, 1999. According to George's petition, David was driving a "thirty-two (32) horsepower Kubota Farming Tractor with a Sidewinder Tiller attachment." David asked George to stand on top of the tiller. George did so, and within seconds of David engaging the tiller, a sheer pin on the tiller caught George's sock causing severe injury to his foot and ankle. The garden where the accident took place was located on property owned by David's neighbor.

After answering the petition, Terra Nova filed a motion for summary judgment asserting that the homeowners policy insuring David did not provide coverage for the claims presented. Terra Nova presented two grounds for its motion. First, it relied on a coverage exclusion for bodily injury arising out of the ownership, use, and maintenance of motor vehicles and motorized land conveyances. Second, it alleged material misrepresentations made by David when obtaining the insurance as a basis for denying coverage under the policy. Terra Nova's motion was opposed by both David and George. They argued that, under the terms of the policy, the exclusion relied upon by Terra Nova did not apply to vehicles and conveyances which are not subject to motor vehicle registration and which are used to service the insured's residence. The trial court denied the motion for summary judgment as it pertained to alleged material misrepresentations by David when obtaining the insurance, but granted the motion on the basis of the exclusion asserted by Terra Nova. Judgment was rendered dismissing all claims by the plaintiff against Terra Nova. This appeal by George and David followed.

DISCUSSION

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by law; the procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966(A)(2); Crocker v. Roach, 33,507 (La. App.2d Cir.8/23/00), 766 So.2d 672, review denied, 00-2684 (La.11/17/00), 774 So.2d 983. The burden of proof is on the mover. La. C.C.P. art. 966(C)(2); Ebarb v. Guinn Brothers, Inc., 31,426 (La.App.2d Cir.1/20/99), 728 So.2d 487. Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, if any, 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(B). Appellate review of a summary judgment is de novo, utilizing the same criteria that guide the trial court's grant of summary judgment. Magnon v. Collins, 98-2822 (La.7/7/99), 739 So.2d 191; Crocker v. Roach, supra.

The interpretation of an insurance contract is usually a legal question which can be properly resolved by means of a motion for summary judgment. Davis v. American Heritage Life Insurance Company, 35,153 (La.App. 2d Cir.10/31/01), 799 So.2d 705; Crocker v. Roach, supra. However, summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion, under which coverage could be afforded. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180; Davis v. American Heritage Life Ins. Co., supra; Crocker v. Roach, supra.

An insurance policy is a contract between the parties and should be interpreted by using ordinary contract principles. Blackburn v. National Union Fire Insurance Co. of Pittsburgh, 00-2668 (La.4/03/01), 784 So.2d 637; Smith v. Matthews, 611 So.2d 1377 (La.1993); Crocker v. Roach, supra. The parties' intent, as reflected by the words of the policy, determines the extent of coverage. Reynolds v. Select Properties, Ltd., supra. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent. La. C.C. art. 2046. In such cases, the insurance contract must be enforced as written. Peterson v. Schimek, 98-1712 (La.3/02/99) 729 So.2d 1024. Words and phrases used in a policy are to be construed using their plain, ordinary, and generally prevailing meaning, unless the words have acquired a technical meaning. La. C.C. art. 2047; Reynolds v. Select Properties, Ltd., supra.

Insurance companies may limit coverage in any manner they desire, so long as the limitations do not conflict with statutory provisions or public policy. Reynolds v. Select Properties, Ltd., supra; Crocker v. Roach, supra. However, exclusionary provisions in insurance contracts are strictly construed against the insurer, and any ambiguity is construed in favor of the insured. Ledbetter v. Concord General Corp., 95-0809 (La.1/6/96), 665 So.2d 1166, modified on other grounds, 95-0809 (La.4/18/96), 671 So.2d 915; Crocker v. Roach, supra. The burden is on the insurer to prove that a loss comes within a policy exclusion. Louisiana Maintenance Services, Inc. v. Certain Underwriters at Lloyd's of London, 616 So.2d 1250 (La. 1993).

The policy language at issue is included in a homeowners policy issued by Terra Nova to David and is found in "SECTION II—EXCLUSIONS" in the liability coverages portion of the policy. The portions of the exclusion pertinent to the matter before us provide as follows:

1. Coverage E—Personal Liability and Coverage F—Medical Payments to Others do not apply to bodily injury or property damage:

* * *

e. arising out of:

(1) the ownership, maintenance, use, loading, or unloading of motor vehicles or all other motorized land conveyances, including trailers, owned or operated by or rented or loaned to an insured;

* * *

This exclusion does not apply to:

* * *

(4) a vehicle or conveyance not subject to motor vehicle registration which is:

(a) used to service an insured's residence;

(b) designed for assisting the handicapped; or

(c) in dead storage on an insured location.

Terra Nova's argument in its motion for...