Hebert v. Breaux

• Decision Date: 06 May 1981
• Docket Number: No. 8120,8120
• Citation: Hebert v. Breaux, 398 So.2d 1299 (La. App. 1981)
• Parties: Mary Alice HEBERT, Plaintiff-Appellant, v. James F. BREAUX, Jr., et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana

Page 1299

398 So.2d 1299

Mary Alice HEBERT, Plaintiff-Appellant, v.James F. BREAUX, Jr., et al., Defendants-Appellees.

No. 8120.

Court of Appeal of Louisiana, Third Circuit.

May 6, 1981.

Writ Denied June 22, 1981.

Michael Harson, Lafayette, for plaintiff-appellant.

Onebane, Donohoe, Berrand, Torian, Diaz, McNamara & Abell, Frank X. Neuner, Voorhies & Labbe, John N. Chappuis, McBride & Brewster, Norman P. Foret, Lafayette, for defendants-appellees.

Before GUIDRY, SWIFT, STOKER, DOUCET and LABORDE, JJ.

SWIFT, Judge.

In this suit plaintiff, Mary Alice Hebert, seeks recovery under the uninsured motorist provisions of a policy of insurance issued by Bellefonte Insurance Company, hereafter Bellefonte, to her father, Alfred Hebert.The trial court granted summary judgment dismissing plaintiff's claim against Bellefonte.Plaintiff appeals.

There are three issues presented on appeal:

(1) Is plaintiff afforded coverage under the uninsured motorist provisions of the automobile insurance policy issued by Bellefonte to plaintiff's father, Alfred Hebert?

(2) Assuming coverage is afforded, can plaintiff"stack" the UM coverage provided on two vehicles insured by the subject policy resulting in UM coverage of $20,000.00 for each person and $40,000.00 for each occurrence?

(3) Assuming coverage is afforded, is plaintiff entitled to recover penalties and attorney's fees under the circumstances of the present suit?

The parties stipulated to the facts pertinent to a resolution of the issues presented and submitted the matter to the trial court for its decision.The trial court, without rendition of reasons, dismissed plaintiff's claim concluding that the uninsured motorist provisions of the insurance policy issued by defendant afforded no coverage to the plaintiff.Thus, the lower court did not reach the "stacking" issue or the issue of penalties and attorney's fees.

According to the record, on September 13, 1977, James F. Breaux drove his automobile over the center line of Cameron Street in Lafayette, Louisiana, striking plaintiff's vehicle head-on.The negligence of Breaux is undisputed.The parties stipulated that plaintiff's injuries entitled her to recover damages in excess of $36,000.00.

At the time of accident, plaintiff was thirty-two years old and resided with her parents in Lafayette.Ms. Hebert owned the 1975 Chevrolet Nova which she was driving at the time of the collision.It is undisputed that plaintiff is a member of her parents' household.

Plaintiff settled her claims against Breaux and his liability insurer, Dairyland Insurance Company, for $5,000.00.In addition, plaintiff settled her claims against her own liability insurer, State Farm Mutual Automobile Insurance Company for $10,000.00 under that policy's uninsured motorists provisions.In each of the aforesaid settlements, plaintiff reserved her rights against all other remaining parties in the litigation.Subsequently, plaintiff's claims against Breaux, Dairyland, and State Farm were dismissed by the trial court.

On February 4, 1977, Bellefonte issued an automobile liability insurance policy to plaintiff's father, Alfred Hebert, which was in full force and effect on the date of plaintiff's accident.The subject policy provided coverage for two vehicles owned by Mr. Hebert, specifically, a 1974 Toyota pickup truck and a 1973 Chevrolet Impala.Further, the policy provided uninsured motorists coverage in the amount of $10,000.00 for each person and $20,000.00 for each accident.

IS PLAINTIFF AFFORDED COVERAGE UNDER THE UNINSURED MOTORIST

PROVISIONS OF THE BELLEFONTE POLICY?

The plaintiff contends on appeal that the trial court erred in its conclusion that she was not afforded coverage under the uninsured motorists provisions of the policy issued by Bellefonte.Under the pertinent terms of the policy, an "insured" for the purposes of UM coverage is defined as:

"(a) the named insured and any relative;" Further, the policy defines a "relative" as "a relative of the named insured who is a resident of the same household;".

Under the facts stipulated to by the parties, plaintiff is an insured for the purposes of UM coverage under the Bellefonte policy absent any applicable exclusions.The only exclusion pertinent to the plaintiff provides:

"Exclusions: This policy does not apply under Part IV:

(a) to bodily injury to an insured while occupying an automobile (other than an insured automobile) owned by the named insured or a relative, or through being struck by such an automobile; ..."

As we appreciate defendant's argument in support of the trial court's judgment, defendant contends that although plaintiff falls within the policy's definition of an "insured", she is precluded from coverage because she was not driving an "insured automobile" at the time of the accident.An "insured automobile" as defined by the policy means:

" 'insured automobile' means:

(a) an automobile described in the policy for which a specific premium charge indicates that coverage is afforded,

(b) a private passenger, farm or utility automobile, ownership of which is acquired by the named insured during the policy period, provided

(1) it replaces an insured automobile as defined in (a) above, or

(2) the company insures under this Coverage all private passenger, farm and utility automobiles owned by the named insured on the date of such acquisition and the named insured notifies the company during the policy period or within 30 days after the date of such acquisition of his election to make the Liability and Uninsured Motorist Coverages under this and no other policy issued by the company applicable to such automobile,

(c) a temporary substitute automobile for an insured automobile as defined in (a) or (b) above, and

(d) a non-owned automobile while being operated by the named insured; and the term 'insured automobile' includes a trailer while being used as an automobile described in (a), (b), (c) or (d) above, but shall not include:

(1) any automobile or trailer owned by a resident of the same household as the named insured,

(2) any automobile while used as a public or livery conveyance, or

(3) any automobile while being used without the permission of the owner."

In other words, Bellefonte maintains that in order to recover under the subject policy's UM provisions, the plaintiff must not only be within the policy's definition of an "insured", but also, be driving an "insured automobile" as defined in said policy.This argument has been rejected by our courts on numerous occasions.At the outset, we observe that the exclusionary provision of the subject policy as quoted above has been declared to be against public policy as expressed in LSA-R.S. 22:1406(D).SeeGuillot v. Travelers Indemnity Company, 338 So.2d 334(La.App. 3 Cir.1976), writ refused341 So.2d 408(La.1977);Bourgeois v. United States Fidelity and Guaranty Company, 385 So.2d 584(La.App. 4 Cir.1980);Griffin v. Armond, 358 So.2d 647(La.App. 1 Cir.1978);Thomas v. Nelson, 295 So.2d 847(La.App. 1 Cir.1974), writ refused299 So.2d 791(La.1974);Elledge v. Warren, 263 So.2d 912(La.App. 3 Cir.1972), writ refused, 262 La. 1096, 266 So.2d 223.The intent of the statute is to provide protection to an insured who becomes the innocent victim of the negligence of an uninsured motorist.As long as the claimant is an "insured" under the policy, he is entitled to UM coverage whether or not he is driving an automobile insured by the policy.Any exclusion providing more restricted UM coverage is in derogation of the statute.Elledge v. Warren, supra;Griffin v. Armond, supra;Bourgeois v. United States Fidelity and Guaranty Company, supra.In Bourgeois, supra, our brethren of the Fourth Circuit expressed agreement on this issue with this court and our brethren of the First Circuit stating:

"...Although neither the Supreme Court, nor this Court, have passed on the issue confronting us in the instant case, our brothers on the First and Third Circuits have concluded that an exclusion for uninsured motorist coverage of an insured as defined in the policy is against public policy.SeeGriffin v. Armond, 358 So.2d 647(La.App. 1 Cir.1978);Thomas v. Nelson, 295 So.2d 847(La.App. 1 Cir.1974), writ. denied (La.)299 So.2d 791;Elledge v. Warren, 263 So.2d 912(La.App. 3 Cir.1972), writ refused(262 La. 1096), 266 So.2d 223.

"To reach this conclusion, these cases relied on the following statement by the Supreme Court in Booth v. Fireman's Fund Insurance Company, 253 La. 521, 218 So.2d 580(1968):

'We conclude that the intent of our uninsured motorist statute and the policy endorsement issued thereunder is to afford protection to the insured when they become the innocent victims of the negligence of uninsured motorists.'218 So.2d at 583.

"In Elledge v. Warren, supra, the Third Circuit concluded:

'(t)he intent of the coverage is to protect the insured at all times against the generalized risk of damages at the hands of the uninsured motorists and not to limit coverage to certain situations or to a certain degree of risk of exposure to the uninsured motorist.* * *

"It follows that any policy provisions which narrows the coverage mandated by the statute will not be enforced.* * *

"There is no requirement in the statute that the insured have any relation, at the time of the accident, with any vehicle he owns and that is insured with the insurer.'263 So.2d at 918.

"We are in agreement with the First and Third Circuits.

"The statute requires that automobile liability policies provide UM coverage for the protection of persons insured under the policy, unless the named insured rejects the UM coverage.As long as a claimant is insured under the policy, he is entitled to UM coverage whether or not he is driving a vehicle listed or covered under the policy, unless the named insured has rejected the UM coverage.UM coverage, as required under the statute, is designed to protect the persons insured under the policy.Any exclusion...