Chreene v. Howard C. Prince, Jr. & Rowdy Adventures, L. L.C., 52,351-CA

• Decision Date: 26 September 2018
• Docket Number: No. 52,351-CA,52,351-CA
• Citation: 256 So.3d 501
• Parties: Amanda Kay CHREENE and Dennis M. Trombley, Plaintiffs-Appellants v. Howard C. PRINCE, Jr. and Rowdy Adventures, L.L.C., Defendants-Appellees
• Court: Court of Appeal of Louisiana — District of US

256 So.3d 501

Amanda Kay CHREENE and Dennis M. Trombley, Plaintiffs-Appellants

v.Howard C. PRINCE, Jr. and Rowdy Adventures, L.L.C., Defendants-Appellees

No. 52,351-CA

Court of Appeal of Louisiana, Second Circuit.

Judgment rendered September 26, 2018

PATRICK R. JACKSON, Counsel for Plaintiffs-1st Appellants, Amanda Kay Chreene and Dennis M. Trombley

OFFICE OF JASON P. FOOTE, L.L.C., By: Jason P. Foote, James Devin Caboni-Quinn, BODENHEIMER, JONES & SZWAK, By: David A. Szwak, Shreveport, Counsel for Defendant-2nd Appellant, Howard C. Prince, Jr., Individually

BODENHEIMER, JONES & SZWAK, By: David A. Szwak, Shreveport, Counsel for Defendants, Howard C. Prince, Jr., in his capacity as owner of Rowdy Adventures, L.L.C. and Ark-La-Tex Shop Builders, Inc.

BRIAN, REBOUL & ASSOCIATES, L.L.C., By: Brian L. Reboul, Counsel for Intervenor-Appellee, ASI Lloyds

Before MOORE, PITMAN, and STEPHENS, JJ.

STEPHENS, J.

This case involves two appeals. Plaintiffs, Amanda Kay Chreene and Dennis M. Trombley, appeal the judgment by the Twenty-Sixth Judicial District Court, Parish of Bossier, State of Louisiana, in favor of defendant ASI Lloyds, granting its motion for summary judgment. Defendant Howard C. Prince, Jr., appeals the judgment in favor of the plaintiffs, denying his motion for summary judgment. For the following reasons, we affirm both judgments.

FACTS AND PROCEDURAL HISTORY

This litigation arises from the death of the minor decedent, Austin Trombley ("Austin"), in the summer of 2014. At the time of his death, Austin was 16 years old and employed by Rowdy Adventures, LLC, which was a zipline park located in Arkansas owned by Howard C. Prince, Jr. While he was employed at Rowdy Adventures ("the park") for the summer, Austin resided at a nearby camp ("the camp") also owned by Prince. On the night of his death, Austin became intoxicated after consuming alcohol at the camp, drove a borrowed vehicle, missed a curve, left the roadway, and was killed in the single-car accident. Abigale Williams, the owner of the vehicle and only passenger, survived.

Following Austin's death, his parents, Amanda Kay Chreene and Dennis M. Trombley (collectively, "Plaintiffs"), brought suit against Prince for negligent supervision. They also named Rowdy Adventures, LLC, as a defendant and later amended their petition to include as an additional defendant the owner of the land the camp was situated on, Ark-La-Tex Shop Builders, Inc., which is also owned by Prince. ASI Lloyds ("ASI") is the homeowners insurance carrier for Prince and intervened in the litigation to seek judicial recognition that the homeowners insurance policy does not provide coverage for the liability asserted against Prince due to the motor vehicle and business pursuit exclusions contained in the policy. All defendants filed motions for summary judgment seeking dismissal from the suit.

In support of its motion for summary judgment, ASI submitted a memorandum, a copy of the homeowner's policy issued to Prince and his wife for the period of March 12, 2014, through March 12, 2015 (the "policy"), and certified copies of Plaintiffs' Original Petition for Damages, and Amended Petition for Damages. In support of his motion for summary judgment, Prince submitted a memorandum, excerpts from his deposition, copies of the motor vehicle crash report and law enforcement investigative report, excerpts from Abigale Williams' deposition, a certified copy of Plaintiffs' Original Petition for Damages, excerpts from Plaintiffs' depositions, and a copy of Austin's employment application for Rowdy Adventures, LLC. Plaintiffs, in support of their opposition memorandum, submitted excerpts from Plaintiffs' and Prince's depositions, copies of the motor vehicle crash report and law enforcement investigative report, and a letter from Prince to counsel for Plaintiffs, dated June 12, 2015. The motions of both ASI and Ark-La-Tex Shop Builders, Inc., were granted, and the motions of Prince and Rowdy Adventures, LLC, were denied. Plaintiffs now appeal the grant of ASI's motion, and Prince appeals the denial of his motion.¹

DISCUSSION

Summary Judgment Law

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). A fact is material if its existence or nonexistence may be essential to plaintiff's cause of action under the applicable theory of recovery, i.e. , material facts are those which potentially insure or preclude recovery, affect a litigant's ultimate success, or determine the outcome of the legal dispute. Wells v. Town of Delhi , 51,222 (La. App. 2 Cir. 4/5/17), 216 So.3d 1095, writ denied , 2017-0753 (La. 9/22/17), 227 So.3d 821.

Appellate courts review summary judgment de novo under the same criteria governing the trial court's consideration of whether summary judgment is appropriate. Larson v. XYZ Ins. Co., 2016-0745 (La. 5/3/17), 226 So.3d 412 ; Schelmety v. Yamaha Motor Corp., USA , 50,586 (La. App. 2 Cir. 4/13/16), 193 So.3d 194, writ denied , 2016-0903 (La. 9/6/16), 205 So.3d 919.

Plaintiffs' Appeal of ASI's Summary Judgment

In its motion for summary judgment, ASI argued that the motor vehicle exclusions provisions of the policy prohibit coverage for any liability Prince may have for Austin's death because the language of the provision is clear and unambiguous and the undisputed facts show that Austin's death arose out of his use of a motor vehicle. ASI also argued that coverage was barred due to the business pursuits exclusion contained in the policy because the alleged lack of supervision arises out of or in connection with the business, Rowdy Adventures, LLC. The trial court agreed and granted ASI's motion for summary judgment on these issues.

The interpretation of an insurance contract is usually a legal question that can be properly resolved by means of a motion for summary judgment. Bernard v. Ellis , 2011-2377 (La. 7/2/12), 111 So.3d 995 ; Schelmety , supra . An insurance policy is a contract between the parties and should be construed using the general rules of interpretation of contracts set forth in the Louisiana Civil Code. Green ex rel. Peterson v. Johnson , 2014-0292 (La. 10/15/14), 149 So.3d 766 ; Schelmety , supra . An insurance contract must be "construed according to the entirety of its terms and conditions as set forth in the policy, and as amplified, extended, or modified by any rider, endorsement, or application attached to or made a part of the policy." La. R.S. 22:881 ; Schelmety , 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. Schelmety , supra. However, exclusionary provisions in insurance contracts are strictly construed against the insurer, and any ambiguity is construed in favor of the insured. Id. The burden is on the insurer to prove that a loss comes within a policy exclusion. Rodgers v. State Farm Mut. Auto. Ins. , 2015-0868 (La. 6/30/15), 168 So.3d 375 ; Schelmety , supra .

The pertinent portions of the policy pertaining to the motor vehicle exclusion reads as follows:

HOMEOWNERS 3 – SPECIAL FORM

DEFINITIONS

B. In addition, certain words and phrases are defined as follows:

1. ... Motor Vehicle Liability" ... mean[s] the following:

a. Liability for "bodily injury" or "property damage" arising out of the:

(1) Ownership of such vehicle or craft by an "insured";

(2) Maintenance, occupancy, operation, use, loading or unloading of such vehicle or craft by any person;

(3) Entrustment of such vehicle or craft by an "insured" to any person:

(4) Failure to supervise or negligent supervision of any person involving such vehicle or craft by an "insured"; or

(5) Vicarious liability, whether or not imposed by law, for the actions of a child or minor involving such a vehicle or craft.

...

7. "Motor vehicle" means:

a. A self-propelled land or amphibious vehicle; or

b. Any trailer or semitrailer ...

...

SECTION II – EXCLUSIONS

D. "Motor Vehicle Liability"

1. Coverages E and F do not apply to any "motor vehicle liability" if, at the time and place of an "occurrence", the involved "motor vehicle":

a. Is registered for use on public roads or property;

In their first assignment of error, Plaintiffs assert the trial court erred in granting ASI's motion for summary judgment and finding that the motor vehicle exclusion excludes coverage when the asserted theory of liability is negligent supervision and the duty to supervise did not involve the use of a motor vehicle. We disagree.

Specifically, Plaintiffs argue the motor vehicle exclusion under the policy does not apply because, while the use of the motor vehicle was essential to the accident, it is not essential to their asserted theory of liability against Prince, i.e. , negligent supervision, which they notably distinguish from negligent entrustment or use of a motor vehicle. In support of their argument for the distinction between theory of liability and nature of the accident, Plaintiffs rely on Frazier v. State Farm Mut. Auto. Ins. Co. , 347 So.2d 1275 (La. App. 1 Cir. 1977), writ denied , 1977-60406 (La. 10/14/1977), 351 So.2d 165. In Frazier , the defendants were babysitting a child who was injured when run over by an automobile driven by their daughter. The petition filed by the child's mother alleged two distinct causes of actions—one for the negligence of the defendants for not properly supervising the injured child, and another for the negligent operation of the motor vehicle by the defendants' daughter. The defendants' homeowner policy, like the...