Gray v. Margot Inc., 14506

• Decision Date: 22 December 1981
• Docket Number: No. 14506,14506
• Citation: 408 So.2d 436
• Parties: Jerald W. GRAY v. MARGOT INC., Robert H. Cane, Michael R. Gray, et al.
• Court: Court of Appeal of Louisiana — District of US

Page 436

408 So.2d 436

Jerald W. GRAY v. MARGOT INC., Robert H. Cane, Michael R. Gray, et al.

No. 14506.

Court of Appeal of Louisiana, First Circuit.

Dec. 22, 1981.

L. D. Sledge and Robert E. Goodwin, Baton Rouge, for plaintiff-appellant, Jerald W. Gray.

W. Arthur Abercrombie, Jr., Baton Rouge, for defendant-appellee, Travelers Ins. Co.

Felix R. Weill, Baton Rouge, for defendant-appellee, Robert H. Cane.

Arthur H. Andrews, Baton Rouge, for defendant-appellee, Aetna Cas. & Sur.

Before CHIASSON, EDWARDS and LEAR, JJ.

EDWARDS, Judge.

This case raises the issue of whether a fellow employee, who is immune from suit by virtue of the Workmen's Compensation Statute, is an uninsured motorist within the meaning of the Louisiana Uninsured Motorist Statute.

Plaintiff, Jerald W. Gray, an employee of Ambulance Service Company of Baton Rouge, Inc., was riding as a medic in an ambulance driven by Michael R. Gray, a co-employee, when it was involved in a collision with another vehicle. At the time of the accident Jerald and Michael Gray were acting within the course and scope of their employment.

Jerald Gray filed suit against a number of defendants, seeking to recover damages for injuries which he sustained in the accident. Among the named defendants was the Travelers Insurance Co., plaintiff's uninsured motorist carrier. Plaintiff's petition alleged that Michael Gray was an uninsured motorist and that Travelers was bound to pay all sums for which the uninsured motorist was liable.

Travelers filed a motion for summary judgment, contending that the uninsured motorist provision of plaintiff's insurance policy was not operative because plaintiff was not "legally entitled to recover damages" from Michael Gray. The trial court granted Travelers' motion for summary judgment and dismissed plaintiff's suit against Travelers on the basis that the Workmen's Compensation Law prohibited plaintiff from recovering damages from Michael Gray, his co-employee. Therefore, the trial court held that Michael Gray was not an uninsured motorist under plaintiff's policy since plaintiff was not legally entitled to recover damages from Michael Gray, as required by the Uninsured Motorist Statute and the insurance policy.

Plaintiff appeals. We affirm.

LSA-R.S. 22:1406 D, the Uninsured Motorist Statute, provides in pertinent part, as follows:

"D. The following provisions shall govern the issuance of uninsured motorist coverage in this state.

(1)(a) No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability provided by the policy, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom; provided, however, that the coverage required under this Subsection shall not be applicable where any insured named in the policy shall reject in writing the coverage or selects lower limits. " (Emphasis added.)

Plaintiff's insurance policy with Travelers provides, in pertinent part, as follows:

"The company will pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured highway vehicle because of bodily injury sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured highway vehicle...." (Emphasis added.)

Thus, in order for Jerald Gray to recover under the uninsured motorist provision of the policy, he must be "legally entitled to recover" damages from Michael Gray.

LSA-R.S. 23:1032 provides that the immunity from tort liability afforded an employer applies as well to the fellow employees of an injured worker:

"The rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents, or relations, against his employer, or any principal or any officer, director, stockholder, partner or employee of such employer or principal, for said...