Massey v. Century Ready Mix Corp.

• Decision Date: 01 November 1989
• Docket Number: 21248-CA,Nos. 20879-C,s. 20879-C
• Citation: 552 So.2d 565
• Parties: Ricky Wayne MASSEY, et al, Plaintiffs-Appellants, v. CENTURY READY MIX CORPORATION, et al, Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 565

552 So.2d 565

Ricky Wayne MASSEY, et al, Plaintiffs-Appellants, v. CENTURY READY MIX CORPORATION, et al, Defendants-Appellees.

Nos. 20879-CA, 21248-CA.

Court of Appeal of Louisiana, Second Circuit.

Nov. 1, 1989.

Writ Denied Jan. 5, 1990.

Leger & Mestayer by Franklin G. Shaw, Walter J. Leger, Jr., New Orleans, for plaintiffs-appellants.

Luffey, Deal & Norris by Philip T. Deal, Monroe, Cotton, Bolton, Hoychick & Doughty by John Hoychick, Jr., Rayville, Blackwell, Chambliss, Hobbs & Henry by Larry Arbour, Monroe, for defendants-appellees.

Before HALL, MARVIN and SEXTON, JJ.

SEXTON, Judge.

This is an action brought by plaintiffs, Ricky Wayne Massey and Donna Lively Massey, individually and on behalf of their minor children, Richard Zachary Massey and Jacob Deshea Massey, against defendants, Century Ready Mix Corporation (Century), Commercial Union Insurance Company (Commercial Union), Ohio General Insurance Company (Ohio General), Lincoln Builders of Ruston, Inc. (Lincoln), United States Fidelity & Guaranty Company (USF & G), and Tifton Aluminum Co., Inc. (Tifton), for damages due to Mr. Massey's personal injuries suffered on July 14, 1987, at the Tifton Aluminum Plant in Delhi, Louisiana.

At the time of the accident, plaintiff was employed as an iron worker and steel erector by Ranger Erectors, Inc. (Ranger). Ranger was engaged in erecting a steel building at a plant in Delhi, Louisiana. Tifton, the owner of the plant, had contracted with Lincoln to install an addition to its remelt facility. Lincoln had then arranged to have Ranger provide the necessary iron work.

The accident in question occurred when an 18-wheel tractor trailer truck, owned by Century and driven by one of its employees, backed onto an access road on the construction site and into a column of the partially erected building, knocking the plaintiff and another iron worker off the structure some 40 feet to the ground below. Plaintiff suffered severe skull fractures, a broken clavicle, fractured ribs, and a fractured pelvis. Plaintiff remained hospitalized from July 14, 1987, to September 12, 1987, initially in a comatose state, and has undergone intensive neurologic rehabilitation since that time.

The case was set for a jury trial to begin on March 20, 1989. On September 15, 1988, however, Ohio General, the comprehensive general liability insurer of Century, filed a motion for summary judgment, contending that it did not provide coverage for the liabilities asserted against its insured because of an automobile exclusion in its policy. This motion for summary judgment was subsequently granted, and judgment was entered on October 6, 1988.

After the granting of the motion for summary judgment, plaintiff's claims against Century and Commercial Union, with whom Century had obtained a business auto policy, were settled for the policy limit of $600,000 per accident plus legal interest, reserving all rights against Ohio General.

On November 15, 1988, Lincoln and its liability insurer, USF & G, filed a motion for summary judgment, alleging tort immunity as the plaintiff's statutory employer. Additionally, on January 10, 1989, Tifton filed a motion for summary judgment, alleging that it had no duty as owner of the premises to plan and supervise construction or to oversee safety, which it argued was the legal obligation of the general contractor, Lincoln. On January 26, 1989, these motions were also granted.

Plaintiffs now appeal the three adverse summary judgments.

I.

JUDGMENT IN FAVOR OF OHIO GENERAL

(General Liability Insurer of Century--Employer of Truck

Driver causing accident)

Plaintiffs' claims against Ohio General revolve around the automobile exclusion in its policy, which reads in part as follows:

This insurance does not apply:

....

(b) to bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of

(1) Any automobile or aircraft owned or operated by or rented or loaned to any insured, or

(2) Any other automobile or aircraft operated by any person in the course of his employment by any insured....

Plaintiffs have conceded that the driver of the Century truck who backed into the column from which the plaintiff fell would be excluded from coverage under Ohio General's automobile exclusion, if such exclusion is found applicable, because his actions involved the use of an automobile. ¹ However, plaintiffs allege that the accident was caused in part by the independent negligence of another Century driver who had previously made a delivery to the soon-to-be accident site and who failed to warn the driver of the vehicle which struck the column of the dangerous situation or assist him by acting as a flagman. Plaintiffs claim that this first driver's negligence did not involve the use of an automobile and would therefore not fall under the Ohio General automobile exclusion. We disagree.

Even if we were to assume that this first driver was negligent in not warning or assisting the second driver, this negligence would not be covered under the Ohio General policy. Louisiana jurisprudence has consistently held that liability insurers such as Ohio General avoid coverage due to automobile exclusions which are the same or similar to the one quoted above in circumstances similar to the instant case. The leading Louisiana case is Picou v. Ferrara, 412 So.2d 1297 (La.1982). In Picou, plaintiff was injured when his motorcycle was struck by an automobile being operated by Ferrara, while Ferrara was on an errand for his employer. Plaintiff, in addition to allegations of negligence in the operation of the vehicle by Ferrara, also alleged that the employer had negligently entrusted the vehicle to his employee. On the basis of this later allegation, the employer sued Lumbermans Mutual Casualty Company (Lumbermans), its general liability insurer. Lumbermans filed a motion for summary judgment seeking dismissal based upon the policy's exclusion of liability for damages arising out of the use of a motor vehicle. The exclusionary language in Lumbermans' policy was identical to the exclusionary language in Ohio General's policy.

The trial court and the court of appeal had denied Lumbermans' motion for summary judgment, reasoning that the employer had sent an employee on an errand when it knew or should have known of physical infirmities that affected the employee's ability to safely operate a vehicle. However, the Louisiana Supreme Court reversed, finding that the damages the plaintiff incurred clearly arose out of the use of an automobile. The court held:

Liability for all injuries arising out of the use of automobiles is excluded (except for parking or nonowned cars on the premises). Liability for injuries arising out of automobile deliveries are therefore excluded, even though one cause of the injury might have been the negligent choice of the deliveryman who drove the car, and another might have been the employer's responsibility for the employee's acts. The use of the automobile, a risk excluded from the policy, is a common and essential element in each theory of liability.

Picou v. Ferrara, supra, at 1300.

In its inquiry as to whether the harm arose out of the use of an automobile, the court focused on a single question: Was the use of the automobile an essential element in the theory of liability? It found that, whether the theory of liability was the negligence of the driving employee, the negligence of the employer in choosing the driver, or the employer's vicarious liability for the employee's acts, each theory revolved around the use of the automobile. Likewise, the use of the truck in causing the accident in this case was a common and essential element in all of the plaintiffs' theories of liability, whether the theory is based on the negligence of the driver of the truck who hit the column, or the negligence of the first driver in failing to warn or assist the driver of the second truck.

Shortly after Picou, in Carter v. City Parish Government of East Baton Rouge, 423 So.2d 1080 (La.1982), the Louisiana Supreme Court provided a two-prong test to be used in analyzing whether conduct arises out of the use of an automobile under an automobile liability policy. The court stated that the proper analysis was to consider two separate questions:

(1) Was the conduct of the insured of which the plaintiff complains a legal cause of the injury?

(2) Was it a use of the automobile?

The court held that coverage would exist under an automobile liability policy if both of these questions were answered affirmatively.

Plaintiffs quote the following language from Carter v. City Parish Government of East Baton Rouge, supra, in an effort to support their contention that the first driver's conduct did not involve the use of the truck in this case.

On the other hand, if the insured's conduct of which the plaintiff complains, is not the actual operation of the vehicle, whether it constitutes use of the vehicle may be a much more difficult question than whether it was a legal cause of the plaintiff's injury.

Although this language does state that it may be more difficult to find the use of a vehicle when the insured is not operating the vehicle, it certainly does not preclude such a finding. For example, in Jones v. Louisiana Timber Company, Inc., 519 So.2d 333 (La.App. 2d Cir.1988), an independent contractor sued a timber company, its president, and the company's general liability insurer, arising out of an accident in which the cable on the trailer owned or leased by the timber company snapped and threw the contractor to the ground. The court held that the timber company's conduct in negligently maintaining the trailer with an unsafe cable attachment for the contractor's use was within the general liability policy's exclusion for damages arising from the "use" or "maintenance" of an automobile, despite the fact that no timber company personnel were operating the trailer. ² Relying on Carter, s...