Pitre v. Pennsylvania Millers Mut. Ins. Co.

• Citation: 236 So.2d 920
• Decision Date: 18 June 1970
• Docket Number: No. 3104,3104
• Parties: Alphonse PITRE, Plaintiff-Appellant, v. PENNSYLVANIA MILLERS MUTUAL INSURANCE COMPANY, Defendant-Appellee.
• Court: Court of Appeal of Louisiana (US)

Page 920

236 So.2d 920

Alphonse PITRE, Plaintiff-Appellant, v. PENNSYLVANIA MILLERS MUTUAL INSURANCE COMPANY, Defendant-Appellee.

No. 3104.

Court of Appeal of Louisiana, Third Circuit.

June 18, 1970.

Guillory, Guillory & Guillory, by Robert K . Guillory, and Donald Mayeux, Eunice, for plaintiff-appellant.

Dubuisson & Dubuisson, by James T. Guglielmo, Lewis & Lewis, by Seth Lewis Jr., Sandoz, Sandoz & Schiff, by Lawrence B. Sandoz, Jr., Opelousas, for defendant-appellee.

Before FRUGE , HOOD and MILLER, JJ.

MILLER, Judge.

Alphonse Pitre appeals the summary judgment which applied the 'business pursuits exclusion' in the Home Owner Policy written by defendant Pennsylvania Millers Mutual Insurance Company.

Pennsylvania insured Corrace Hollier who had worked 31 years as a laborer for Cotton Products Company. His co-employee Alphonse Pitre performed the same type work, but because of Hollier's seniority, Hollier's status was more of less that of a foreman. Both earned $1 .60 per hour when they worked.

In preparation to operate the company's equipment, Hollier instructed Pitre to close the 'truck chute' and open the two corn bin chutes. To do this Pitre had to climb a 65 foot ladder and work on a catwalk. Hollier then walked to the sample room with a plant official and discussed business matters with him for 20 to 25 minutes. When Hollier returned, he looked for Pitre and 'hollered' for him--to no avail. He then went to the starter buttons and first started the elevator, then the augur. Tr. 70. As soon as he pushed the augur button, he heard a scream and immediately pushed the 'off' button.

In the meantime Pitre discovered that he could not close the 'truck chute' because of a rock which caused the chute door to remain partially open. While his arm was in the augur in an attempt to remove the rock, the augur was started. Pitre lost his arm and seeks damages under the public liability section of Hollier's Home Owner's Policy.

There is a question of fact as to whether or not Pitre violated well understood and enforced rules by working in the augur without notifying co-workers. The deposition suggests that the rule was that the fuses in the electrical supply had to be removed before anyone worked around the augur. But assuming negligence on the part of Hollier and no contributory negligence on the part of Pitre, the issue is: Does Hollier's Home Owner's Policy afford liability coverage to Hollier under the facts of this case? The trial court correctly found that it does not.

The pertinent parts of the policy are:

'Coverage E--Personal Liability.

The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury. * * *'

SPECIAL EXCLUSIONS.

(This liability coverage) * * * Does Not Apply: (a)(1) to any business pursuits of an Insured, except * * * activities which are ordinarily incident to non-business pursuits, * * *.'

Hollier and Pitre were engaged in their employer's business at the time of the accident. All of Hollier's activities were deliberate and were essential to the work of Hollier and Pitre. Hollier's actions in pushing the button to start the augur were in furtherance of his business pursuits and were not an ordinary incident to non-business pursuits. Therefore, the exclusion applies.

Appellant suggests that this exclusion applies only when the insured owns the business and that it does not exclude an employee who negligently injures a fellow employee. Although no authority is cited for this argument, it is suggested that the policy is at least vague and to that extent...