Howard v. Ponthieux
| Decision Date | 20 February 1976 |
| Docket Number | No. 5340,5340 |
| Citation | 326 So.2d 911 |
| Parties | Albert HOWARD et al., Plaintiffs-Appellants, v. Jessie PONTHIEUX et al., Defendants-Appellees. |
| Court | Court of Appeal of Louisiana — District of US |
Dorsey C. Martin, III and Roy Maughan, Baton Rouge, for plaintiffs-appellants.
Gist, Methvin & Trimble by James T. Trimble, Jr., Kramer & Kennedy by Ralph Kennedy, Provosty & Sadler by William H. deLaunay, Alexandria, for defendants-appellees.
Before MILLER, WATSON and CUTRER, JJ.
Plaintiffs, Johnny C. Harris and Albert Howard, respectively a driver and his guest passenger, were injured when a GMC pickup truck under tow by a wrecker broke loose and collided with their vehicle. Named defendants were: Jessie Ponthieux (also known as Joseph Ponthieux), d/b/a Jessie's Auto Salvage, the owner and operator of the wrecker; Edward Earl Johnson, who had been driving the pickup prior to the towing; Hartford Accident and Indemnity Company, the insurer of the pickup; and Allstate Insurance Company, the liability insurer of Albert Howard. Allstate filed a third party demand against Ponthieux and Harris. Allstate was subsequently dismissed as a defendant after it settled Howard's claim as his uninsured motorist carrier for $4,000. The trial court concluded that there was no coverage under Hartford's policy because the insured pickup was being used in connection with an automobile business at the time of the accident and thus was within a policy exclusion. The trial court rendered judgment dismissing plaintiffs' claims against Johnson and Hartford and Allstate's claim against Harris. The judgment recognizes a bankruptcy decree discharging Ponthieux from any liability. Although no defendants were cast in judgment, there was an award to Howard of $10,463.68; an award to Harris of $6,697.40; and an award to Allstate of $4,000 to be paid out of the award to Howard. Plaintiffs, Harris and Howard, were cast for all costs.
Plaintiffs have appealed, contending that the trial court erred in finding that Hartford's policy excludes coverage. We affirm.
The primary issue is whether Hartford's policy excludes coverage for this accident.
The Harris vehicle was proceeding west on Willow Glen Road in or near Alexandria, Louisiana, when a GMC pickup being towed in the opposite direction by Ponthieux broke loose from the tow and hit the Harris vehicle head-on in the westbound lane of traffic. The Johnson vehicle had previously sustained damage to the right front-end, and Ponthieux had picked it up on MacArthur Drive. The tow chain broke on the right side when he hit a bump in the road . Ponthieux did not realize the chain had broken until the accident occurred. The chain was two or three weeks old and had performed satisfactorily prior to this occasion. After the second accident, Ponthieux stored the Johnson pickup overnight and took it to Russell Carmouche's Pineville Garage the next morning. Ponthieux is in the towing and salvage business and sells used parts from junked and wrecked cars. He owns five wreckers. Ponthieux said he stores cars for brief intervals, the longest period being about three weeks.
The named insured in Hartford's policy is Eddie P. Johnson & Sons Asphalt Paving Co., Inc. Edward Earl Johnson is one of the 'Sons' and was driving the GMC pickup owned by the corporation when the first accident occurred.
Hartford's policy provides in Part I under coverage that the insurance covers damages:
'. . . caused by an occurrence and arising out of the ownership, maintenance or use, including loading and unloading, of any automobile . . .'
Under is included:
'(c) any . . . person while using an owned automobile . . . with the permission of the named insured, provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission, . . .'
But the policy says:
'None of the following is an insured:
'(v) any person while employed in or otherwise engaged in duties in connection with an automobile business, . . .'
Automobile business is defined as:
'. . . the business or occupation of selling, repairing, servicing, storing or parking automobiles . . .'
The trial court concluded that the pickup was in use at the time of the accident on the basis of American Fire & Casualty Co. v. Allstate Ins. Co., 214 F.2d 523 (U.S.App. 4 Cir. 1954), which involved a jeep under tow, and contains the following language:
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...262 Ill.Dec. 338, 765 N.E.2d 475, 487 (2002) (Quinn, J., specially concurring in part and dissenting in part). In Howard v. Ponthieux, 326 So.2d 911, 912 (La.App.1976), the victims were injured when a truck broke loose from the tow truck, entered oncoming traffic, and collided with their ve......
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