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Allan v. Automobile Club Inter-Insurance Exchange

Court of Appeals of Louisiana, Fourth Circuit

November 16, 2017

KENNETH M. ALLAN
v.
AUTOMOBILE CLUB INTER-INSURANCE EXCHANGE, HUDSON SPECIALTY INSURANCE COMPANY, STATE FARM FIRE AND CASUALTY COMPANY AND SELISSA A. JAMES KENNETH M. ALLAN, ET AL
v.
BANKERS INSURANCE COMPANY, ET AL

         APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2015-04732, DIVISION "A" Honorable Tiffany G. Chase, Judge

          Paul E. Mayeaux COUNSEL FOR PLAINTIFF/APPELLEE.

          Marjorie B. Breaux David O. Way Kenny L. Oliver OLIVER & WAY, LLC COUNSEL FOR DEFENDANT/APPELLANT.

          Court composed of Chief Judge James F. McKay, III, Judge Edwin A. Lombard, Judge Roland L. Belsome

          EDWIN A. LOMBARD, JUDGE

         Before the court in this consolidated matter is (1) the appeal filed by Bankers Insurance Company (Bankers) from the trial court judgment signed on December 21, 2016, granting the plaintiffs partial motion for summary judgment regarding coverage on the defendant's excess general liability and property coverage policy issued to Chalmette Pet Wellness Clinic and Hospital, LLC; and (2) the writ application filed by Bankers seeking supervisory review of the trial court judgment signed on December 21, 2016, denying Bankers motion for summary judgment. After de novo review, we affirm the trial court judgments.

         Relevant Facts and Procedural History

         Dr. Kenneth Allan, a veterinarian, is the sole member of Chalmette Pet Wellness Clinic and Hospital, LLC (hereinafter Chalmette Pet Clinic). On September 4, 2014, while transporting a dog to his clinic, Chalmette Pet Clinic, Dr. Allan was rear-ended by a vehicle owned and operated by Selissa A. James. Dr. Allan, who was driving a vehicle titled in his wife's name, sustained injuries.

         On May 19, 2015, Dr. Allan filed suit alleging that his injuries were severe and disabling. The following were named as defendants in the lawsuit: (1) Ms. James; (2) Ms. James' insurer, State Farm Fire and Casualty Company; (3) Dr. Allan's personal automobile liability insurer, Automobile Club Inter-Insurance Exchange; and (4) Dr. Allan's personal umbrella policy insurer, Hudson Specialty Insurance Company. By supplemental and amending petition filed on August 12, 2015, Christa B. Allan (the plaintiffs wife) was added as plaintiff. In a second supplemental and amending petition filed on December 15, 2015, Bankers was named as a defendant, based on the insurance policy issued to Chalmette Pet Clinic providing uninsured/underinsured (UM/UIM) motorist insurance coverage for vehicles not owned by Chalmette Pet Clinic.

         Bankers answered the petition, denying that its policy provided UM/UIM coverage to Dr. Allan in this accident. Shortly thereafter, Bankers filed a motion for summary judgment seeking dismissal of the plaintiffs' claims, arguing that Dr. Allan as owner of the vehicle he was operating at the time of the accident was not a UM/UIM insured under the terms of the policy.

         In response, the plaintiffs filed a motion for partial summary judgment on whether the policy issued by Bankers to Chalmette Pet Clinic provided UM/UIM coverage for the accident at issue in this matter. In their statement of uncontested material facts, the plaintiffs pointed out that at the time of the accident: (1) Dr. Allan was the sole owner of Chalmette Pet Clinic and was transporting a canine to the clinic for treatment in his wife's personal vehicle; (2) Dr. Allan, as sole owner and employee of the LLC (Chalmette Pet Clinic), paid the premiums for the Bankers' excess liability coverage; (3) Dr. Allan specifically purchased the Bankers policy for its non-owned auto coverage to provide coverage to Dr. Allan as an employee of Chalmette Pet Clinic when he operated a vehicle not owned by Chalmette Pet Clinic; and (4) Bankers issued a policy to Chalmette Pet Clinic which provides non-owned liability coverage.

         After a hearing on December 16, 2017, the trial court issued judgments on December 21, 2016, denying Bankers' motion for summary judgment and granting the plaintiffs motion for partial summary judgment as to coverage on the Bankers policy issued to Chalmette Pet Clinic. Bankers filed the instant consolidated appeal and writ application.

         Standard of Review

         Appellate courts review a judgment granting or denying a motion for summary judgment de novo using the same criteria governing the trial court's determination of whether summary judgment is appropriate; i.e. whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of ...


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