Labruzza v. Boston Ins. Co.

• Decision Date: 01 May 1967
• Docket Number: No. 2603,2603
• Citation: 198 So.2d 436
• Court: Court of Appeal of Louisiana — District of US
• Parties: Mr. and Mrs. Anthony LABRUZZA v. BOSTON INSURANCE COMPANY and Fireman's Fund Insurance Company.

Page 436

198 So.2d 436

Mr. and Mrs. Anthony LABRUZZA v. BOSTON INSURANCE COMPANY and Fireman's Fund Insurance Company.

No. 2603.

Court of Appeal of Louisiana, Fourth Circuit.

May 1, 1967.

Hattier, Schroeder & Kuntz, Michael O. Miranne, New Orleans, for plaintiff-appellant.

Curtis, Foster & Dillon, Gerard M. Dillon, New Orleans, for defendants-appellees.

Before YARRUT, CHASEZ, and BARNETTE, JJ.

YARRUT, Judge.

Plaintiffs, husband and wife, brought this suit for damages for injuries sustained by the wife as a result of an accident which occurred on September 25, 1964, when she stepped into a drain cleanout, with a broken cover, located in front of the premises of Joseph Morvant in Marrero, Jefferson Parish, while she was alighting from an automobile operated by Mrs. Morvant. The original petition, filed on September 23, 1965, named as Defendants the Boston Insurance Company, liability insurer of Mr. Morvant, and Fireman's Fund Insurance Company, liability insurer of Jefferson Parish.

On February 8, 1966, sixteen months after the accident, Plaintiffs supplemented and amended their petition to join Jefferson Parish as an additional Defendant. Prior to the joinder of the Parish, Boston Insurance and Fireman's Fund both moved for summary judgments. The motion of Boston Insurance was granted, and it was dismissed from the suit, from which no appeal was taken. The motion of Fireman's Fund for a similar judgment was denied. However, a second motion for summary judgment was filed by Fireman's Fund, and an exception of prescription was urged by the Parish.

In a judgment rendered on October 13, 1966, the trial court granted the Fireman's Fund motion for a summary judgment, maintained the Parish's exception of prescription, and dismissed Plaintiffs' suit. From this judgment Plaintiffs have appealed.

First, we will consider the summary judgment dismissing Fireman's Fund which is based on an exclusion contained in its policy providing:

'STREETS AND SIDEWALKS'

'Such insurance as is afforded under Division 1 of the Definition of Hazard does not apply to the existence of streets and sidewalks of the named insured, and the definition of premises does not include such streets and Sidewalks.' (Emphasis added.)

The accident occurred in a grassy section between the paved portion of the sidewalk and the street curbing, which Fireman's Fund contends is a sidewalk within the meaning of the exclusion provision of its policy. The affidavit and survey of Errol E. Kelly, Civil Engineer and Surveyor, show that the drain cleanout was located in an area dedicated for public purposes. It has been held that, when used by pedestrians, such an area between the paved walkway and the curb of the roadway is a sidewalk. Long v. American Ry. Express Co., Inc., 150 La. 184, 90 So. 563, 22 A.L.R. 1493; Haindel v. Sewerage & Water Board, La.App., 115 So.2d 871. In the Haindel case, this court noted that it was proper to look to the Code of the City of New Orleans which provided that the word 'sidewalk' included the area extending from the property line to the gutter curbing. Therefore we must consider the Jefferson Parish Code of Ordinances in which the terms 'streets' and 'sidewalks' are defined as follows:

'SIDEWALK. The word 'sidewalk' shall mean any portion of a street between the curb line and the adjacent property line, intended for the use of pedestrians, excluding parkways.

'STREET. The word 'street' shall be construed to embrace streets, avenues, boulevards, roads, alleys, lanes, viaducts, public servitudes and all other public ways.'

Plaintiffs contend that the word 'parkways' should be interpreted to mean grassy areas between paved walkways and streets. However, in Webster's New International Dictionary (2d ed. 1961) a parkway is defined as 'a broad thoroughfare beautified with trees and turf.' A photograph of the area in...