Thomas v. Protective Life Ins. Co.

• Decision Date: 08 October 1975
• Docket Number: No. 5121,5121
• Citation: 319 So.2d 878
• Parties: Roland THOMAS, Plaintiff and Appellant, v. PROTECTIVE LIFE INSURANCE COMPANY, Defendant and Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 878

319 So.2d 878

Roland THOMAS, Plaintiff and Appellant, v.PROTECTIVE LIFE INSURANCE COMPANY, Defendant and Appellee.

No. 5121.

Court of Appeal of Louisiana, Third Circuit.

Oct. 8, 1975.

W. Glenn Soileau, Ville Platte, for plaintiff and appellant.

Dubuisson, Brinkhaus, Guglielmo & Dauzat by Edward B. Dubuisson, Opelousas, for defendant and appellee.

Before DOMENGEAUX, WATSON and MORRIS, JJ.

DOMENGEAUX, Judge.

Plaintiff-appellant, Roland Thomas, brought this action to recover benefits from a health and accident policy issued by the defendant-appellee, Protective Life Insurance Company.On September 20, 1973, plaintiff was in the employ of J. W. MacDonald Construction Company, operating a piece of heavy equipment in LeBeau, Louisiana.The machine upon which plaintiff was riding malfunctioned and began heading toward a ditch, at which time plaintiff jumped to the ground, severely injuring his wrist.These facts were undisputed by the parties.

The insurance policy in question was written by Protective Life Insurance Company through its agent, States Automobile Club, Inc., of Ville Platte, Louisiana.Plaintiff acquired the policy through his membership in States Automobile Club, Inc., on September 22, 1972.Thus, the policy was in effect at the time of plaintiff's accident.

The defendant insurance company declined to pay plaintiff's claim, basing its denial on an exclusionary clause in the contract.The trial judge agreed with the defendant's interpretation of the clause and found coverage lacking.From this adverse ruling the plaintiff has appealed.

The coverage dispute centers around Part 3 of the policy, which reads:

'The company will pay the indemnity provided in column 3 of section 1 or as provided by sections 2,3, or 4 if such injuries shall be sustained:

(a) while driving or riding in an automobile, truck, or farm tractor.'

This is the only clause under which plaintiff asserts defendant's liability.

The terms 'automobile' or 'truck' are further defined in the policy as follows:

'The term 'automobile' or 'truck' means a commonly accepted four-or-more-wheeled automotive vehicle, Specifically designed to transport passengers or merchandise on public streets or public highways, and shall include a taxicab or school bus as distinguished from a public passenger bus or trackless trolly.'(emphasis added)

The only question before this court is the determination of whether the type of vehicle which plaintiff was operating is a vehicle contemplated by the terms 'automobile' or 'truck' as defined by the policy.

The vehicle in question was a 35-ton Univac self-propelled roller, sometimes referred to as a roller compactor.The sole function of this vehicle was to compact road beds.At the trial, the foreman on the job in which plaintiff was injured, Paul Humphries, testified as follows:

'Q.This piece of equipment that you call a roller compactor--could you tell us its principal purpose?

A.Strictly for compacting.

Q.Is that its only purpose?

A.For rolling it and compacting.'

The Univac compactor roller also carries a large water tank which is filled to provide its tremendous weight for compacting road beds.The foreman further testified as follows:

'A.The water is stored in this compartment here, in fact, you can see the water line right here, where the difference is in it, there is moisture (indicating on picture), and the water is stored here and the reason we have water in it is for moving from one job to the other, you let the water out so you don't be over-weight on the highway to move it.And you can load it on a truck and move it, and that is why the water is stored in there--for means of compaction.And, depending on the compaction, as to how much water you put in the roller.'

It is clear from this testimony that this vehicle is a highly specialized piece of highway construction equipment.The sole purpose is to aid in highway construction.In fact the machine is not even designed to transport itself beyond its immediate work vicinity.As the foreman indicates in his testimony, the compactor is drained to lighten it, and then it is loaded aboard a large truck which...