Credeur v. Luke
| Decision Date | 05 March 1979 |
| Docket Number | No. 63056,63430,63056 |
| Citation | 368 So.2d 1030 |
| Parties | Alton CREDEUR v. Norbert R. LUKE et al. |
| Court | Louisiana Supreme Court |
Richard R. Kennedy, Lafayette, for plaintiff-applicant.
Edward C. Abell, Jr., Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Lafayette, for Continental Ins. Co. and Keith A. Steeles.
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We granted writs upon application of plaintiff, Alton Credeur and one of the defendants, Norbert Luke in this lawsuit which involves injuries sustained by plaintiff while cleaning the inside of a tank truck belonging to his employer Chemical Processing, Inc. d/b/a Pollution Disposal Service. Each applicant contends that the trial court erred in granting summary judgment to the insurer Continental Insurance Company and that the Court of Appeal erred in affirming that judgment. Whether Norbert Luke is covered by a comprehensive automobile liability policy issued by Continental Insurance Company is the only question in this case in its present posture.
Norbert Luke is a chemical engineer who is the president and owner of Luke Engineering Corporation and of Chemical Processing, Inc., d/b/a Pollution Disposal Service, both Louisiana corporations. Plaintiff Alton Credeur was employed by Chemical Processing, Inc. and at the time of the accident was working in the course and scope of his employment. There was in effect at the time of the accident a single policy of liability insurance incorporating provisions for comprehensive general liability and comprehensive automobile liability insurance issued by defendant, Continental Insurance Company. The named insureds on that policy were Chemical Processing, Inc., Luke Engineering Corporation, and Norbert Luke.
The courts below determined that neither the comprehensive general liability nor the comprehensive automobile liability provisions of the policy extended coverage to Norbert Luke, the former because of an exclusion applicable to bodily injury arising out of the ownership, maintenance, operation, use, loading, or unloading of any automobile, the latter because of a policy provision known as a "cross-employee exclusion." It is the latter exclusion to which our attention is directed in this case.
The comprehensive automobile liability feature of the policy provides that the insurer "will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of C. bodily injury or D. property damage to which this insurance applies, caused by an Occurrence and arising out of the ownership, maintenance or use, including loading or unloading, of any Automobile. . . ." For present purposes in this litigation there is no contention being made that the comprehensive automobile feature of the liability policy is generally inapplicable to the tank truck related injury sustained by plaintiff. 1 Rather the insurer has urged, successfully in the lower courts, that even though Norbert Luke is a named insured in the policy he is not an insured with respect to bodily injury to plaintiff, a fellow employee injured in the course and scope of employment. Part II, "Persons Insured" is the provision at issue. It provides:
"II. PERSONS INSURED
Each of the following is an insured under this insurance to the extent set forth below:
(a) the named insured;
None of the following is an insured:
(i) any person while engaged in the business of his employer with respect to bodily injury to any fellow employee of such person injured in the course of his employment;"
Continental has argued, and the courts below have accepted the argument, that the foregoing, known as the cross-employee exclusion, and the intent thereof, is to deny liability coverage as regards claims by employees who have a remedy under the workmen's compensation act. Manuel v. Liberty Mutual Insurance Company, 256 La. 480, 236 So.2d 807 (1970) and Myers v. Fidelity & Casualty Co. of New York, 152 So.2d 96 (La.App. 3rd Cir. 1963). Continental further contends and not without some support, that Norbert Luke, notwithstanding that he is president of plaintiff's employer, Chemical Processing, Inc., is a co-employee, a fellow employee of the...
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