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Myers v. Welch

Court of Appeals of Louisiana, First Circuit

October 25, 2017

JAMIE MYERS AND ERICKA MYERS, INDIVIDUALLY AND ON BEHALF OF THEIR MINOR DECEASED CHILD, TYLER MYERS, AND PEYTON MYERS (THEIR MINOR SON)
v.
BRAD M. WELCH, VALENTINE & LEBLANC, LLC; SECURITY NATIONAL INSURANCE COMPANY AND SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY

         On Appeal from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Trial Court No. C619732, Sec. 24 The Honorable R. Michael Caldwell, Judge Presiding

          Sean D. Fagan Locke Meredith Baton Rouge, Louisiana, Counsel for Plaintiffs/ Appellants, Jamie Myers and Ericka Myers Individually and on Behalf of Their Minor Deceased Child, Tyler Myers and Peyton Myers (Their Minor Son)

          Robert I. Siegel Jonathan S. Ord New Orleans, Louisiana Counsel for Defendant/ Appellee, AIG Specialty Insurance Company

          BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.

          PENZATO, J.

         Plaintiffs, Jamie and Ericka Myers, individually and on behalf of their son Peyton Myers, and the estate of their minor deceased child, Tyler Myers ("The Myers Family"), appeal a summary judgment in favor of the defendant, AIG Specialty Insurance Company ("ASIC"), dismissing all claims and causes of action against ASIC with prejudice. For the reasons that follow, we affirm.

         FACTS AND PROCEDURAL HISTORY

         On September 24, 2012, as Brad Welch was turning into the driveway of his house, he struck six-year-old Tyler Myers, resulting in Tyler's death. Tyler's parents, Jamie and Ericka Myers, filed a petition for damages, individually, and on behalf of their twelve-year-old son Peyton and their deceased child Tyler, seeking wrongful death, survival, and bystander damages, as well as punitive damages. Named as defendants were Brad Welch ("Welch") and his employer, Valentine & Leblanc, LLC ("Valentine & Leblanc"). Security National Insurance Company ("Security National") was also named as a defendant because the vehicle driven by Welch was expressly identified and listed as a "covered auto" under a policy issued by Security National to Valentine & Leblanc.[1]

         Valentine & Leblanc and Security National filed a motion for summary judgment asserting that Valentine & Leblanc had no liability because at the time of the accident, Welch was not acting in the course and scope of his employment, and that the Security National policy did not cover Welch because at the time of the accident, Welch was not an insured person under the policy. While the motion for summary judgment was pending, the parties participated in a successful mediation.

         The Myers Family then added Chartis Specialty Insurance Company, which later became known as AIG Specialty Insurance Company ("ASIC"), as a defendant pursuant to a commercial umbrella liability policy issued to Valentine & Leblanc. The Myers Family's claims against Welch, Valentine & Leblanc and Security National were dismissed with prejudice, with Welch and Valentine & Leblanc remaining as nominal defendants only for purposes of pursuing the reserved and assigned rights of The Myers Family against ASIC.

         Motions for Summary Judgment - Action of the Trial Court

         On November 19, 2014, ASIC filed a motion for summary judgment alleging that the ASIC policy of insurance issued to Valentine & Leblanc did not provide coverage. ASIC argued that Welch was not acting in the scope of his employment at the time of the accident, and that he was not included as an additional insured under the Security National policy, and therefore was not provided coverage by the ASIC umbrella policy. The trial court granted the motion for summary judgment in favor of ASIC, finding that while Welch may have qualified as an omnibus insured under the Security National policy, that did not mean that he was an "additional insured" under the ASIC policy. A judgment granting the motion for summary judgment and dismissing with prejudice all of The Myers Family's claims against ASIC was signed December 7, 2015.

         The Myers Family filed a motion for new trial on the summary judgment, asserting that Welch was an "additional insured" under the Security National policy by operation of the omnibus clause, and therefore was an insured under the ASIC policy. The motion for new trial came for hearing on Feb 29, 2016. At that time, the trial court indicated that it had some "misgivings" following its previous ruling, and concluded that if Welch did qualify as an omnibus insured under the Security National policy, "he would be in the general understanding of the term an 'additional insured'." The trial court granted the motion for new trial and denied the motion for summary judgment previously rendered in favor of ASIC. A judgment reflecting same was signed on March 17, 2016.

         Thereafter, The Myers Family filed a motion for summary judgment on coverage, asserting that Welch was an additional insured under the Security National policy, and as such qualified as an insured under the ASIC policy. Central to The Myers Family's argument was that Welch was driving a vehicle identified in the policy as being owned by Valentine & Leblanc.

         ASIC also filed a motion for summary judgment as to coverage, asserting that Welch did not qualify as an insured under the Security National policy for his personal use of a vehicle that he owned, and was thus not afforded coverage by the ASIC policy. In support of its motion, ASIC introduced several exhibits, including Welch's admissions that at the time of the accident he was not within the scope of his employment with Valentine & Leblanc and that he was driving a vehicle that he personally owned; and the affidavit of John Valentine, the president and owner of Valentine & Leblanc, stating that at the time of the accident Valentine & Leblanc did not own or pay for the vehicle that Welch was driving. Valentine further attested that the vehicle was listed as a covered vehicle on Valentine & Leblanc's automobile insurance policy because the vehicle was used in part for work.

         The Myers Family objected to the introduction into evidence of the exhibits, arguing that the inclusion of Welch's vehicle on the Security National policy's "Schedule of Covered Autos You Own" precluded further inquiry into ownership of the vehicle. The Myers Family argued that the terms of the Security National policy unequivocally established that, for purposes of the policy, Valentine & LeBlanc owned the vehicle involved in the accident and that the Louisiana Civil Code prohibited the use of extrinsic evidence to reform the policy's declaration of ownership.

         The motions for summary judgment were heard in open court on August 1, 2016. The trial court allowed into. evidence the Welch admissions and the Valentine affidavit, and considering such evidence, found that at the time of the accident, Welch was driving a vehicle that he and, his wife owned, and under that factual situation the exception in the Security National policy for an employee driving his own auto applied, Additionally, the trial court held that since Welch was not an insured pursuant to the exception in the Security National policy, he was not an additional insured under the ASIC policy. In a judgment signed September 8, 2016, the trial court denied The Myers Family's motion for partial summary judgment, granted ASIC's motion for summary judgment, and dismissed all claims and causes of action against ASIC. The Myers Family appealed.

         ASSIGNMENT OF ERRORS

         The Myers Family asserts the following assignments of error:

         1. The trial court erred by denying The Myers Family's motion for summary judgment;

         2. The trial court erred by admitting extrinsic evidence concerning ownership of the accident vehicle;

         3. The trial court erred by overruling The Myers Family's objections; and

         4. The trial court, erred by granting ASIC's motion for summary judgment.

         LAW AND DISCUSSION

         On appeal, summary judgments are reviewed de novo, using the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. Rider v. Ambeau, 2011-0532 (La.App. 1 Cir. 2/1/12), 100 So.3d 849, 854. A motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. Code Civ. Pro. art. 966 A(3).

         A summary judgment may be rendered on the issue of insurance coverage alone, although there is a genuine issue as to liability or damages. See La. Code Civ. Pro. art. 966 E; Rider, 100 So...3d at 854. Summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion, under which coverage could be afforded. Reynolds v. Select Properties, Ltd., 93-1480 (La. 1994), 634 So.2d 1180, 1183.

         Relevant Provisions Under Umbrella and Automobile Policies The ...


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