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Green v. Johnson

Court of Appeals of Louisiana, First Circuit

January 10, 2018


         Appealed 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.

          Joshua 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.

          Bryan J. Haydel, Jr., Kelly R. Englert, Baton Rouge, LA, Counsel for Defendant/Appellee, Allstate Insurance Company.

          Harold J. Adkins, Baton Rouge, LA, Counsel for Defendant/Appellee, Michael Johnson & State Farm Mutual Insurance Company.


          GUIDRY, J.

         Plaintiff, 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.


         On July 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 death.

         At the 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.

         Green 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.[1] 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 defendants.

         Over 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.[2] 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 excluded.

         Following 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), [3] and as an attempt to usurp the insured's right to select the UM policy under which the insured would prefer to recover insurance benefits.


         In 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).[4]

         When 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.

         Interpretation 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.

         Every 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.

         Absent 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

         Uninsured 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.

         When 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.

         In 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 ...

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