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Nielson v. Shelter Mut. Ins. Co.

Court of Appeal of Louisiana, First Circuit

November 7, 2014

MONA NIELSON
v.
SHELTER MUTUAL INSURANCE COMPANY

Page 698

On Appeal from the 21st Judicial District Court In and for the Parish of Livingston State of Louisiana. Trial Court No. 141178. Honorable Elizabeth P. Wolfe, Judge Presiding.

Ralph L. Fletcher, Ryan J. Chenevert, Baton Rouge, LA, Attorneys for Plaintiff-Appellant, Mona Nielson.

Gregg A. Wilkes, Shreveport, LA, Attorney for Defendant-Appellee, Shelter Mutual Insurance.

BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ. Whipple, C.J. concurs & assihns reasons. McClendon J. Agrees And Assings Additional Reasons.

OPINION

Page 699

[2014-0614 La.App. 1 Cir 1] HIGGINBOTHAM, J.

This appeal concerns a summary judgment in favor of an insurance company, holding that the insurance company's policy did not provide uninsured/underinsured motorist (UM) coverage for an injured guest passenger, who did not fit the insurance policy's definition of an insured since she was not " using" the vehicle that was involved in the traffic accident. Agreeing with the trial court that UM coverage is not available under the facts of this case, we affirm.

FACTS

On July 30, 2012, Mona Nielson was riding as a guest passenger in a car driven by Thelma Nolan (a/k/a Mickey Ford) in Denham Springs, Louisiana. Nielson was injured when Nolan's car was involved in an accident caused by an underinsured driver. After settling with and recovering the liability policy limits from the other driver's liability insurer, Nielson filed the instant suit against Nolan's liability insurer, Shelter Mutual Insurance Company (Shelter), seeking damages under the UM provisions of Shelter's policy. Shelter filed a motion for summary judgment requesting dismissal of Nielson's UM claim, because Nielson was not an " insured" as defined by Shelter's policy for purposes of UM coverage. After a hearing, the trial court granted Shelter's motion, and signed a judgment dismissing Nielson's claims against Shelter. Nielson now appeals.

LAW AND ANALYSIS

Appellate courts review summary judgments de novo under the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. Shelton v. Standard/700 Associates, 2001-0587 (La. 10/16/01), 798 So.2d 60, 64-65; Miller v. Superior Shipyard and Fabrication, Inc., 2001-2683 (La.App. 1st Cir. 11/8/02), 836 So.2d 200, 203. An insurer seeking to avoid coverage through summary judgment must prove that some exclusion applies to [2014-0614 La.App. 1 Cir 2] preclude coverage. Gaylord Chemical Corp. v. ProPump, Inc., 98-2367 (La.App. 1st Cir. 2/18/00), 753 So.2d 349, 352.

Interpretation of an insurance policy usually involves a legal question that can be resolved properly in the framework of a motion for summary judgment. Robinson v. Heard, 2001-1697 (La. 2/26/02), 809 So.2d 943, 945. An insurance policy is a contract between the parties and should be construed using the general rules of interpretation of contracts set forth in the Louisiana Civil Code. Cadwallader v. Allstate Ins. Co., 2002-1637 (La. 6/27/03), 848 So.2d 577, 580. If the language in an insurance policy is clear and unambiguous, it must be enforced as written. See La. Civ. Code art. 2046; Gaylord, 753 So.2d at 352. Courts should not strain to find ambiguity where none exists. Id. However, if there is any doubt or ambiguity as to the meaning of a provision in an insurance policy, it must be construed in favor of the insured and against the insurer. See La. Civ. Code art. 2056. Words and phrases used in an insurance policy are to be construed using their plain, ordinary and generally prevailing meaning, unless the words have acquired a technical meaning. See La. Civ. Code art. 2047; Cadwallader, 848 So.2d at 580. Whether a policy is ambiguous is a question of law. Gaylord, 753 So.2d at 353. Unless an insurance policy conflicts with statutory provisions or public policy, it may limit an insurer's liability and impose and enforce reasonable conditions upon the policy obligations the insurer contractually assumes. Bonin v. Westport Ins. Corp., 2005-0886 (La. 5/17/06), 930 So.2d 906, 911.

Most insurance policies expressly define words or phrases which may be

Page 700

understood in different senses. Where a policy of insurance contains a definition of any word or phrase, then that definition is controlling. Kottenbrook v. Shelter Mutual Ins. Co., 46,312 (La.App.2d Cir. 5/18/11), 69 So.3d 561, 564, writ denied, 2011-1293 (La. 9/23/11), 69 So.3d 1166. The Shelter policy defines and [2014-0614 La.App. 1 Cir 3] limits both liability and UM coverage to categories of individuals who have permission to " use" the covered vehicle. The pertinent provisions of the Shelter policy are as follows:

PART I -- AUTO LIABILITY COVERAGES COVERAGE A -- BODILY INJURY ...

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