Gedward v. Sonnier, 98-C-1688.

• Decision Date: 02 March 1999
• Docket Number: No. 98-C-1688.,98-C-1688.
• Citation: 728 So.2d 1265
• Parties: Pauletta GEDWARD, Individually and as Tutrix of her minor child, Kodi Sonnier v. Ronnie SONNIER, Acceptance Insurance Company, Glenn Jolivette and Bobby Sonnier.
• Court: Louisiana Supreme Court

728 So.2d 1265

Pauletta GEDWARD, Individually and as Tutrix of her minor child, Kodi Sonnier v. Ronnie SONNIER, Acceptance Insurance Company, Glenn Jolivette and Bobby Sonnier.

No. 98-C-1688.

Supreme Court of Louisiana.

March 2, 1999.

Rehearing Denied April 1, 1999.

Robert M. Mahony, Gregory R. Mier, Onebane, Bernard, Torian, Diaz, McNamara & Abell, Lafayette, Counsel for Applicant.

Chris P. Villemarette, Alexandria, J. Minos Simon, Lafayette, Earl F. Sundmaker, III, New Orleans, Archie P. Joseph, Breaux Bridge, Glen Jolivette, Counsel for Respondent.

KIMBALL, Justice.¹

We granted the writ of defendant, Acceptance Insurance Company (AIC), because it appeared the decision of the court of appeal was in conflict with decisions from other circuits dealing with the exclusion for bodily injuries arising out of the use of a motor vehicle which is commonly found in home-owner's insurance policies. After further review, however, we find we need not address this issue because the motor vehicle exclusion in the policy at issue, when read in conjunction with the definition of the term "motor vehicle," is ambiguous. Therefore, we affirm that portion of the court of appeal's opinion which reverses the trial court's granting of summary judgment in favor of defendant, AIC, only insofar as it pertains to the ambiguity contained in the exclusion and remand this case to the trial court for further proceedings.

Additionally, the court of appeal incorrectly concluded that the son of the insured was not a resident of the insured's dwelling and, thus, the medical payments portion of the insurance policy was applicable. Finding that the insured's son was, in fact, a resident of the insured's dwelling, we reverse the court of appeal's contrary conclusion and reinstate the trial court's granting of summary judgment in favor of AIC on the issue of medical payments coverage.

Facts and Procedural History

Kodi Sonnier, the ten-year-old son of Pauletta Gedward and Ronnie Sonnier, was injured in a four-wheeled, all-terrain vehicle (ATV) accident on Saturday, June 3, 1995. On the date of the accident, Kodi was with his father at his father's house pursuant to a consent judgment which granted joint custody to Gedward and Sonnier and named Gedward as the domiciliary parent.² That afternoon Kodi and two of his siblings were inside Sonnier's house watching TV when they heard Glenn Jolivette, Sonnier's adult half-brother, arrive on the ATV. Jolivette had ridden the ATV to Sonnier's house the day before and had given the children rides on it without incident.

The ATV did not belong to either Jolivette or Sonnier, but belonged to their brother, Bobby Sonnier, who was working offshore that weekend. Sometime prior to leaving for work offshore, Bobby Sonnier had taken the ATV to a friend's house to have maintenance work performed on the ATV. Jolivette took the ATV from this friend's house without Bobby Sonnier's permission.

Upon hearing Jolivette's arrival, the children went outside to meet Jolivette. Shortly after his arrival, Jolivette, who lived approximately two to three miles from Sonnier's house, realized he needed to return home so he could go to church. He asked Sonnier to give him a ride home and said he would leave the ATV at Sonnier's house. He told Sonnier he could ride his children on it and showed Sonnier, who had never driven or ridden on the ATV, how to start it and put it in motion. Sonnier then left the children and Jolivette near the ATV and returned to the house to get his keys. Then, according to Sonnier, the following occurred:

And I was in the house, and I heard the thing in the backyard, you know, going to the—the property that was adjacent to mine. And I could hear it was—it was moving. It was really geared—revved up. And I looked in—out the window, and it was my son, Kodi, on it. And knowing that he did not know how to ride that thing, drive it or handle it and what not, and at the speed that he was going, something was going to happen, and so I ran outside and, by the time that I turned around the house to get to the back, he was off of it. The accident had occurred then.

(Sonnier deposition, p. 51).

When Sonnier reached the scene of the accident, he found Kodi lying on the ground in a fetal position and bleeding from a laceration on his head. Sonnier carried Kodi to a neighbor's house and waited for the ambulance that had been called. Kodi remained in the hospital for several weeks and underwent extensive physical therapy. As a result of the accident, Kodi's left side is weak and he has a large scar on the back of his head.

Gedward filed suit against Sonnier, Sonnier's homeowners' insurer, AIC, Jolivette and Bobby Sonnier. Gedward alleged that Sonnier was "at fault for failing to supervise his minor child, Kodi, while Kodi was on his premises and thus permitting Kodi unrestricted access to the four-wheeled vehicle." She further alleged that AIC was liable in solido with the other defendants by virtue of the terms of the policy of liability insurance it issued to Sonnier which provides coverage for Sonnier's premises. Sonnier filed a cross-claim against AIC, alleging AIC was responsible to him for the cost of his defense and for all damages for which he may be cast.

On April 9, 1997, Ronnie Sonnier filed a motion for summary judgment, asserting that there was no genuine issue of material fact as to AIC's duty to defend and indemnify him against the claims asserted by Gedward and that he was entitled to judgment as a matter of law.

On June 6, 1997, AIC filed a motion for summary judgment, alleging that it was entitled to judgment as a matter of law as certain provisions in Sonnier's policy applied to exclude coverage in the instant case. Specifically, AIC claimed the medical payments provision did not apply because Kodi was a resident of Sonnier's dwelling and, as such, was excluded from coverage. That provision provides:

Coverage F—Personal Medical Payments WE will pay up to OUR Limits of Liability shown on the Declaration Page for the necessary medical expenses incurred or medically determined within one year from the date of an accident causing bodily injury. The accident must occur between the "From" and "To" dates shown on the Declaration Page. Medical expenses means reasonable charges for medical, surgical, X-Ray, dental, ambulance, hospital, professional nursing, recognized religious method of healing, prosthetic devices and funeral services. This coverage does not apply to YOU or a resident of YOUR dwelling other than residence employees.

(Emphasis added.) Additionally, AIC claimed, coverage for bodily injury was excluded when it arose out of the use of a motor vehicle loaned to the insured. That provision provides in pertinent part:

Section II Exclusions

A. Coverage E—Personal Liability and Coverage F—Medical Payments to Others

1. Coverage does not apply to bodily injury or property damage:

* * *

e. arising out of the ownership, maintenance, use, loading or unloading of:

(2) a motor vehicle owned or operated by, or rented or loaned to YOU;

The term "motor vehicle" is further defined in the policy as:

E. "motor vehicle" means:

* * *

3. a motorized golf cart, snowmobile or other motorized land vehicle owned by any insured. It must be designed for recreational use off public roads and off an insured location. A motorized golf cart while used for golfing purposes is not a motor vehicle;

These provisions, AIC concluded, entitled it to be dismissed from the suit.

Finally, on July 2, 1997, plaintiff filed a motion for summary judgment on the issue of AIC's liability, contending that coverage was provided under Sonnier's policy as Kodi was not a resident of Sonnier's dwelling and that her cause of action arose from Sonnier's failure to properly supervise the child and not from the use of a motor vehicle.

A hearing on these motions for summary judgment was held on July 7, 1997. Subsequent to the hearing, the trial court denied the motions for summary judgment filed by Gedward and Sonnier and granted the motion for summary judgment filed on behalf of AIC, thereby dismissing AIC from the suit. In its oral reasons for judgment, the trial court stated that Kodi was a resident of Sonnier's dwelling on the day of the accident pursuant to the joint custody agreement in effect between the parties. Further, the trial court found that the ATV qualified as a "motor vehicle" under the terms of AIC's policy.

Gedward appealed the granting of summary judgment in favor of AIC, arguing to the third circuit that the exclusions relied upon by the trial court to deny coverage were not applicable. The court of appeal, with one judge dissenting, reversed, finding that the trial court erred in granting AIC's motion for summary judgment because AIC failed to establish the absence of factual support for one or more elements essential to plaintiffs claim against the company. Gedward v. Sonnier, 97-1068 (La.App. 3 Cir. 5/20/98), 713 So.2d 770. The appellate court found Kodi was not a resident of Sonnier's household on the date of the accident because he spent the majority of his time with his mother, kept his clothing and other personal belongings at his mother's house, had his own bedroom at his mother's and not at his father's, and received all his mail at his mother's home. The court of appeal also relied on the fact that Sonnier, Gedward and Kodi agreed that Kodi resided with his mother and that it was never mutually intended by Gedward and Sonnier that Kodi would remain at his father's home for any extended length of time in making its determination that Kodi was not a resident of his father's dwelling. Additionally, the court of appeal reversed the granting of summary judgment in favor of AIC because it found that Sonnier's alleged failure to supervise Kodi arose independently of the use of the vehicle and that the occurrence of Kodi's injuries while using the ATV was merely incidental to Sonnier's alleged breach of...