Mayfield v. Casualty Reciprocal Exchange

• Decision Date: 14 December 1983
• Docket Number: No. 83-332,83-332
• Parties: Bernadine T. MAYFIELD, Plaintiff-Appellant, v. CASUALTY RECIPROCAL EXCHANGE, et al., Defendant-Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 894

442 So.2d 894

Bernadine T. MAYFIELD, Plaintiff-Appellant, v. CASUALTY RECIPROCAL EXCHANGE, et al., Defendant-Appellee.

No. 83-332.

Court of Appeal of Louisiana,

Third Circuit.

Dec. 14, 1983.

Writ Denied Feb. 27, 1984.

Guillory, McGee, Mayeux & Fontenot, Robert K. Guillory, Eunice, for plaintiff-appellant.

Woodley, Barnett, Cox, Williams & Fenet, Edmund E. Woodley, Lake Charles, for defendant-appellee.

Before CUTRER, DOUCET and LABORDE, JJ.

LABORDE, Judge.

Bernadine T. Mayfield, plaintiff-appellant, filed suit against a number of defendants, seeking to recover damages for injuries which she sustained in an accident. Among the named defendants was the Casualty Reciprocal Exchange, appellee, Mayfield's uninsured motorist carrier. Casualty filed a motion for summary judgment contending that the uninsured motorist provision of Mayfield's policy failed to furnish uninsured motorist protection to her because the operator was a fellow employee and immune from tort liability. The trial court granted Casualty's motion for summary judgment and dismissed Mayfield's suit against Casualty. Mayfield appeals. We affirm.

The issues on appeal are as follows:

1. Whether or not Mayfield's uninsured motorist coverage furnishes her insurance if the negligent party was an uninsured co-employee.

2. Whether or not a state vehicle exclusion in Mayfield's policy violates the Louisiana uninsured motorist statute requiring uninsured motorist coverage.

Mayfield was injured in an automobile accident on February 19, 1981, while riding as a guest passenger in a state-owned automobile being driven by her fellow state employee, Yvonne S. Celestine. At the time of the accident, both Mayfield and Celestine were employees of the State of Louisiana, Office of Family Security, and were in the course and scope of their employment. Mayfield sued her own uninsured motorist carrier, Casualty. Mayfield's petition alleged that Celestine, a co-employee, was an uninsured motorist and that Casualty was bound to pay all sums for which the uninsured motorist was liable. Casualty filed a motion for summary judgment contending that the uninsured motorist provision of Mayfield's policy failed to furnish uninsured motorist protection to her because Celestine was a co-employee and immune from tort liability under the Worker's Compensation Act and that the uninsured coverage of Mayfield's policy contained an exclusion for state-owned vehicles. The trial court granted Casualty's motion for summary judgment and dismissed Mayfield's suit against Casualty on the basis that the Worker's Compensation Act prohibited Mayfield from recovering damages from Celestine, her co-employee.

Mayfield contends that the trial court erred in sustaining Casualty's motion for summary judgment.

Louisiana Statutes Annotated 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."

Mayfield's insurance policy with Casualty provides, in pertinent part, as follows:

"Coverage J--Uninsured Motorists (Damages for Bodily Injury): To 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 automobile because of bodily injury, sickness or disease, including death resulting therefrom, hereinafter called 'bodily injury' sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile; provided, for the purposes of this coverage, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so the amount thereof, shall be made by agreement between the insured or such representative and the company or, if they fail to agree, by arbitration.

No judgment against any person or organization alleged to be legally responsible for the bodily injury shall be conclusive, as between the insured and the company, of the issues of liability of such person or organization or of the amount of damages to which the insured is legally entitled unless such judgment is entered pursuant to an action prosecuted by the insured with the written consent of the company."

Thus, in order for Mayfield to recover under the uninsured motorist provision of the policy, she must be "legally entitled to recover" damages from Celestine.

Louisiana Statutes Annotated 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...