ASHANTI GREEN AS TUTRIX OF THE MINORS, DAVE PETERSON, III & DAVID PETERSON
MICHAEL JOHNSON, STATE FARM INSURANCE AGENCY, ALLSTATE INSURANCE COMPANY, & AMERICAN SOUTHERN HOME INSURANCE COMPANY
from the 19th Judicial District Court In and for
the Parish of East Baton Rouge State of Louisiana Docket
Number 568067, Honorable Todd Hernandez, Presiding.
D. Roy, Roy H. Maughn, Jr., Namisha D. Patel, Baton Rouge,
LA, Counsel for Plaintiff/Appellant, Ashanti Green as tutrix
of the minors, Dave Peterson, III & David Peterson.
J. Haydel, Jr., Kelly R. Englert, Baton Rouge, LA, Counsel
for Defendant/Appellee, Allstate Insurance Company.
J. Adkins, Baton Rouge, LA, Counsel for Defendant/Appellee,
Michael Johnson & State Farm Mutual Insurance Company.
BEFORE: WHIPPLE, C.J., GUIDRY, AND McCLENDON, JJ.
Ashanti Green, as tutrix of the minors, Dave Peterson, III
and David Peterson, appeals from a judgment of the trial
court granting summary judgment in favor of Allstate
Insurance Company ("Allstate") and dismissing her
claims against Allstate with prejudice. For the following
reasons, we affirm.
AND PROCEDURAL HISTORY
16, 2007, Dave Peterson, while driving a motorcycle he had
jointly purchased with Benjamin Gibson sixteen days earlier,
was struck by an SUV being driven by Michael Johnson. The
accident, which occurred as Johnson backed his SUV into a
roadway in Baton Rouge, Louisiana, resulted in Peterson's
time of his death, Peterson resided with his girlfriend,
Ashanti Green. The motorcycle was insured by American
Southern Home Insurance Company ("American
Southern") under a liability policy with
uninsured/underinsured motorist ("UM") coverage
issued to Green, with Peterson listed as a rated driver.
Also, Gibson, the co-owner of the motorcycle, was insured by
an automobile liability insurance policy issued by Allstate,
which included UM coverage.
instituted this suit as tutrix of her two minor sons with
Peterson, asserting survival and WTongful death claims on
their behalf. Through original and supplemental petitions,
Green named as defendants, among others, American Southern as
the insurer of the motorcycle and Allstate in its capacity as
the automobile insurer of Gibson, alleging that UM coverage
was provided to Peterson under those policies. Pursuant to a
motion to dismiss filed jointly by Green and American
Southern, the claims against American Southern under the
policy it issued to Green were dismissed with prejudice, with
Green reserving all rights to proceed against all other
the course of this litigation, Allstate filed several motions
for summary judgment alleging various defenses to UM coverage
under the policy it issued to Gibson. At issue in this appeal is
Allstate's third motion for summary judgment with regard
to the policy issued to Gibson, filed on March 4, 2015,
wherein it asserted an additional coverage defense based on a
specific contractual exclusion in the policy, stating that UM
coverage is excluded for bodily injuries incurred in a motor
vehicle owned by the insured if the motor vehicle is insured
for UM coverage under another policy. According to Allstate,
because the motorcycle was insured under the UM provisions of
the American Southern policy issued to Green, UM coverage
under co-owner Gibson's policy with Allstate was
a hearing on the motion, the trial court agreed and rendered
judgment on September 3, 2015, granting Allstate's motion
for summary judgment and dismissing plaintiffs claims against
Allstate with prejudice. Green now appeals from the trial
court's judgment, asserting that the trial court erred in
granting summary judgment and dismissing her claims against
Allstate, because a reading of the policy shows that it
extends UM coverage to the motorcycle Peterson was driving.
Green further contends that the exclusion that Allstate
attempts to invoke violates public policy as a
"back-door" method for rejection of UM coverage,
which does not comport with the exclusive method of rejecting
UM coverage set forth in LSA-R.S. 22:1295(1)(a)(ii),
as an attempt to usurp the insured's right to select the
UM policy under which the insured would prefer to recover
determining whether summary judgment is appropriate,
appellate courts review evidence de novo under the
same criteria that govern the trial court's determination
of whether summary judgment is appropriate. Lieux v.
Mitchell, 06-0382, p. 9 (La.App. 1st Cir. 12/28/06), 951
So.2d 307, 314, writ denied, 07-0905 (La. 6/15/07),
958 So.2d 1199. A motion for summary judgment is properly
granted if the pleadings, depositions, answers to
interrogatories, and admissions, together with affidavits, if
any, admitted for purposes of the motion for summary
judgment, show that there is no genuine issue of material
fact, and that the mover is entitled to judgment as a matter
of law. La. C.C.P. art. 966(B)(2).
the issue before the court on the motion for summary judgment
is one on which the party bringing the motion will bear the
burden of proof at trial, the burden of showing there is no
genuine issue of material fact remains with the party
bringing the motion. Fouquet v. Daiquiris & Cream of
Mandeville, L.L.C., 10-0233, p. 3 (La.App. 1st Cir.
9/13/10), 49 So.3d 44, 46. An insurer seeking to avoid
coverage through summary judgment bears the burden of proving
some exclusion applies to preclude coverage.
Fouquet, 10-0233 at p. 3, 49 So.3d at 46.
of an insurance policy ordinarily involves a legal question
that can be properly resolved by a motion for summary
judgment. Miller v. Superior Shipyard and Fabrication,
Inc., 01-2683, p. 4 (La.App. 1st Cir. 11/8/02), 836
So.2d 200, 203. An insurance policy is a contract between the
parties and should be construed by using the general rules of
interpretation of contracts set forth in the Civil Code.
Bernard v. Ellis, 11-2377, p. 9 (La. 7/2/12), 111
So.3d 995, 1002. The role of the judiciary in interpreting
insurance contracts is to ascertain the common intent of the
parties as reflected by the words in the policy. La. C.C.
art. 2045; Peterson v. Schimek, 98-1712, p. 4 (La.
3/2/99), 729 So.2d 1024, 1029. When the words of an insurance
contract are clear and explicit and lead to no absurd
consequences, no further interpretation may be made in search
of the parties' intent, and the agreement must be
enforced as written. La. C.C. art. 2046; Fouquet,
10-0233 at p. 4, 49 So.2d at 47.
insurance contract shall be construed according to the
entirety of its terms and conditions as set forth in the
policy, and as amplified, extended, or modified by any rider,
endorsement, or application attached to or made a part of the
policy. La. R.S. 22:881. Each provision in the policy must be
interpreted in light of the other provisions so that each is
given meaning; one provision of the insurance contract should
not be construed separately at the expense of disregarding
other provisions. La. C.C. art. 2050; Peterson,
98-1712 at p. 5, 729 So.2d at 1029. An insurance contract,
however, should not be interpreted in an unreasonable or
strained manner under the guise of contractual interpretation
to enlarge or to restrict its provisions beyond what is
reasonably contemplated by unambiguous terms or achieve an
absurd conclusion. Peterson, 98-1712 at p. 5, 729
So.2d at 1029. That is, the rules of construction do not
authorize a perversion of the words or the exercise of
inventive powers to create an ambiguity where none exists or
the making of a new contract when the terms express with
sufficient clearness the parties' intent.
Peterson, 98-1712 at p. 5, 729 So.2d at 1029.
a conflict with statutory provisions or public policy,
insurers, like other individuals, are entitled to limit their
liability and to impose and to enforce reasonable conditions
upon the policy obligations they contractually assume.
Bernard, 11-2377 at pp. 9-10, 111 So.3d at 1002. If
the policy wording at issue is clear and unambiguously
expresses the parties' intent, the insurance contract
must be enforced as written. Bernard, 11-2377 at p. 10, 111
So.3d at 1002
motorist coverage embodies a strong public policy, which is
to provide full recovery for innocent automobile accident
victims who suffer damages caused by a tortfeasor who has no
coverage or is not adequately covered by liability insurance.
Cutsineer v. Redfern, 08-2607, p. 5 (La. 5/22/09),
12 So.3d 945, 949. The underlying purpose of uninsured
motorist coverage is "to promote and effectuate complete
reparation, no more or no less." Cutsinger,
08-2607 at p. 5, 12 So.3d at 949 (quoting Hoeflv v.
Government Employees Ins. Co., 418 So.2d 575, 579 (La.
1982)). As such, any exclusion from UM coverage in an
insurance policy must be clear and unmistakable. Duncan
v. U.S.A.A. Insurance Company, 06-363 (La. 11/29/06),
950 So.2d 544, 547.
the existence of UM coverage under a policy of automobile
insurance is at issue, a two-step analysis is utilized: (1)
the automobile insurance policy is first examined to
determine whether UM coverage is contractually provided under
the express provisions of the policy; and (2) if no UM
coverage is found under the policy provisions, then the UM
statute is applied to determine whether statutory coverage is
mandated. Green ex rel. Peterson v. Johnson, 14-0292
(La. 10/15/14), 149 So.3d 766, 773-774.
seeking summary judgment, Allstate asserts that UM coverage
for Peterson is excluded because the motorcycle he was riding
at the time of the accident, which was co-owned by Gibson, is
insured for UM coverage under another policy, Le_., the
American Southern policy issued to Green. The portion of
Allstate's insurance policy upon which it relies,
entitled "Part V Uninsured Motorist Insurance Coverage
SS" of its policy, provides, in pertinent part:
Exclusions-What is not covered
We will not pay for damages an insured person is legally
entitled to recover because of:
(1) bodily injury to an insured person while
in, on, getting into or out of a motor
vehicle owned by you or the injured
insured person, if the motor vehicle is not
insured for this coverage under this policy.
(2) bodily injury to anyone while in, on,
getting into or out of, or when struck by a motor
vehicle you own which is insured for this ...