Mistich v. Weeks
| Decision Date | 04 November 2009 |
| Docket Number | Nos. 09-517, 09-518.,s. 09-517, 09-518. |
| Citation | 24 So.3d 300 |
| Parties | Elliott A. MISTICH, Jr., et al. v. Diedra R. WEEKS, et al. Judith Langlinais Mistich v. Louisiana Farm Bureau and State Farm Insurance. |
| Court | Court of Appeal of Louisiana — District of US |
George Pivach, II, Mark A. Pivach, Gregory P. Nolan, Ellen Pivach Dunbar, Belle Chasse, LA, for Plaintiffs/Appellants, Elliott Mistich, Jr., Jamie Mistich Bergeron, Estate of Elliott Mistich, Sr.
Charles R. Sonnier, Abbeville, LA, for Plaintiffs/Appellants, Judith L. Mistich, Marie M. Langlinais, Stephen and Monique Broussard.
Edward O. Taulbee, IV, Max Michael Menard, Taulbee & Associates, L.L.C., Lafayette, LA, for Defendants/Appellees, Farm Bureau Casualty Ins. Co. and Farm Bureau Mutual Ins. Co.
Court composed of ULYSSES G. THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and JOHN D. SAUNDERS, Judges.
Plaintiffs appeal the judgment of the trial court granting the Defendants' Motion for Summary Judgment on the limited issue of coverage. For the reasons that follow, we find summary judgment was inappropriate, and we reverse and remand.
On May 2, 2004, Elliott Mistich, Sr. was driving a 2002 BMW 530 west on Louisiana Highway 92 in Youngsville. His mother-in-law, Marie Langlinais, was seated in the front passenger seat. Directly behind Ms. Langlinais was Judith Mistich, Elliott's wife. Judith Mistich's two grandchildren, Timothy and Haley Broussard, were also in the rear passenger seats.
At that time, Diedra Weeks, was driving her 1999 Honda Accord east on Hwy. 92, which at that location was a two-lane roadway with one lane running east and one lane running west. Ms. Weeks' vehicle crossed the center line, entered the westbound lane, and collided head-on with the BMW driven by Mistich.
As a result of the accident, Elliott Mistich suffered fatal injuries. The other passengers also suffered varying degrees of injury. The following lawsuits were instituted after the accident:
1. Judith Mistich filed suit for her own injuries and the wrongful death of her husband.
2. Marie Langlinais filed suit for her personal injuries.
3. Steven and Monique Broussard, the parents of the two minor children, Haley and Timothy, filed suit on be-half of their children for their injuries.
4. Elliott Mistich, Jr. and Jamie Bergeron Mistich filed suit for the wrongful death of their father.
Named as defendants in the lawsuits were Diedra Weeks and her insurer, U.S. Agencies Casualty Insurance Company; Louisiana Farm Bureau Casualty Insurance Company and Louisiana Farm Bureau Mutual Insurance Company, who issued two policies of insurance to the Mistichs; Gemini Insurance Company, who issued a policy of insurance on the BMW 530 to the owner of the vehicle, Tobias, Inc.; and State Farm Mutual Automobile Insurance Company, who issued a policy of insurance covering a 1963 Cadillac antique vehicle owned by Elliott Mistich. The petition was later amended to add several agents who represented Farm Bureau in the procurement of the two Farm Bureau policies. The amended petition added the following paragraph:
In the event that said policy of insurance is determined not to provide coverage, Plaintiffs make the following additional allegations: At all times material and relevant hereto, Eric Robichaux, Christine Laporte, Fran Fullerton, and R.J. Stoutes acted as agent(s) for Louisiana Farm Bureau, and as agent(s) failed to: (1) properly advise and direct the insureds, (2) properly follow the instructions/requests given by the insureds, (3) obtain the appropriate insurances for or on behalf of the insureds, Judith and/or Elliot Mistich, as intended.
The record revealed the following facts concerning the ownership of the BMW 530 and insurance coverage for the parties in question. The BMW 530 was owned by Tobias, Inc., a business that was owned by Judith Mistich. Tobias, Inc. obtained and made the payments on a policy of insurance for that vehicle from Gemini Insurance Company. Tobias rejected UM coverage on the Gemini policy. Judith Mistich testified the BMW was provided to her by Tobias as a "company car" for her use at any time and without any restrictions. Judith owned no other vehicles at this time.
Farm Bureau issued a comprehensive automobile liability policy, No. C707387, to Elliott and Judith Mistich. This policy did provide for UM coverage with limits of 300,000.00/500,000.00. The Mistichs also purchased from Farm Bureau a Commercial Umbrella Policy, No. UM806930, which provided additional coverage to them in the amount of $1,000,000.00.
At the time the two Farm Bureau polices were issued, the Mistichs had three vehicles available to them for use: The 2002 BMW 530, owned by Tobias, Inc.; a Ford 250 truck, owned by Elliott Mistich's company, Jade Marine, and an antique 1963 Cadillac owned by Elliott Mistich. The 1963 Cadillac was covered by a policy of insurance issued by State Farm.
After discovery, Farm Bureau filed a Motion for Summary Judgment alleging neither policy issued by it provided coverage under the facts of this case. Specifically, Farm Bureau asserted there was no coverage under its comprehensive policy because the BMW was provided for the "regular use" of Judith Mistich by her employer, Tobias, Inc. In support of this argument, Farm Bureau referenced what it termed a "clear and unambiguous exclusion" contained in the policy pertaining to UM coverage, which read:
....
(b) Under any of the coverages for automobiles owned or furnished for regular use of any member of the insured's household, unless shown on the declaration;
Because the BMW was not specifically listed on the policy as an insured vehicle, Farm Bureau contended it was not a covered vehicle under the policy. Farm Bureau argued the purpose of this type of exclusionary clause is to exclude from coverage non-owned automobiles over which the insured has general authority of use. Secondly, Farm Bureau asserted there could be no coverage under its umbrella liability policy since coverage under the umbrella policy presupposed coverage under the primary policy.
Plaintiffs opposed summary judgment, arguing the Farm Bureau comprehensive policy was vague and ambiguous. Specifically they argued the phrase in the exclusionary clause "unless shown on the declaration" could just as likely refer to "members of the insured's household" as to "automobiles." Therefore, Plaintiffs contended the policy was ambiguous. Plaintiffs also argued Farm Bureau's contention that an automobile must be specifically listed on the declarations page was "non-sensical and ambiguous" given the fact there was no space on the declarations page to list any automobiles. Plaintiffs further noted the declarations page on the comprehensive policy specifically referenced "UM hired/non-owned," which indicated that the policy covered all hired and non-owned vehicles. Additionally, Plaintiffs maintain Farm Bureau and its agents were guilty of negligent representation when the policies were procured.
At the hearing on the motion for summary judgment, the trial court found Farm Bureau's policy was clear, unambiguous, and had the standard "regular use" exclusion. The court determined there was no coverage under either Farm Bureau policy. In addressing Plaintiffs' arguments as to what these polices actually covered, since there was no listed vehicle on the declarations page, the trial court stated people with company cars such as Judith Mistich often buy a comprehensive policy that does not have a listed vehicle to protect them if they are driving another party's vehicle. The trial court concluded the Mistichs purchased the Farm Bureau policy to fill a hole in the Mistichs' coverage if they were driving a rented or borrowed vehicle.
During the hearing on the motion for summary judgment, when it became clear the trial court was prepared to rule in Farm Bureau's favor, counsel for Plaintiffs noted they had yet to take depositions concerning representations that might have been made to the Mistichs concerning what the comprehensive policy issued by Farm Bureau actually was intended to cover. The trial court noted that after discovery it could be possible "there are facts in there to establish that the agents and/or Farm Bureau should have had information to cause a different policy to be written." When pressed by Plaintiffs to pretermit a decision until final discovery, the trial court stated as follows:
...
So, to that extent, I'm going to grant the partial summary judgment. But again, that does not dismiss Farm Bureau
Despite clearly setting forth that its conclusion on the limited issue of whether the language in the policy provided coverage did not make for a final, appealable judgment, the trial court then issued a judgment certifying the grant of partial summary judgment as a final, appealable judgment. Reasons for judgment provided, in pertinent part, as follows:
... there is no just reason for delaying the certification and appeal of this Court's October 29, 2007 ruling against Farm Bureau's Motion for Summary Judgment as Plaintiff's remaining claims against Farm Bureau and the other defendants involve different theories of liability, causes of action, and operative facts that will not affect this Court's October 29, 2007 ruling. Plaintiffs' claims against the other insurers involve determination of coverage under entirely different insurance policies and language from the policies at issue in Farm...
To continue reading
Request your trial