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Arceneaux v. Turner

Court of Appeals of Louisiana, Third Circuit

April 25, 2018

GERALD ARCENEAUX
v.
MARK JOSEPH TURNER, ET AL.

          APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. C-20155875 HONORABLE MARILYN CASTLE, DISTRICT JUDGE

          Michael R. Sistrunk Kyle P. Kirsch E. Madison Walker McCranie, Sistrunk, Anzelmo, Hardy, McDaniel & Welch, LLC COUNSEL FOR DEFENDANT/APPELLEE: Axis Surplus Insurance Company

          Dana G. Hall Law Offices of Harold G. Toscano COUNSEL FOR DEFENDANTS/APPELLEES: Allstate Insurance Company Mark Joseph Turner

          Richard P. Voorhies, III James F. Flinn The Voorhies Law Firm COUNSEL FOR PLAINTIFF/APPELLANT: Gerald Arceneaux

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and Van H. Kyzar, Judges.

          JOHN D. SAUNDERS JUDGE.

         This appeal involves a granted motion for summary judgment on the lack of coverage provided by an uninsured/underinsured Motorist (UM) policy. The plaintiff contends that the policy provides coverage to him because he fits the definition of an insured under the policy. The insurance provider argues that La.R.S. 22:1295(1)(e) dictates that the policy provides no coverage to the plaintiff. The trial court granted the insurance provider's motion for summary judgment.

         The plaintiff raises three assignments of error. We find merit in the argument that the vehicle in the accident is a temporary substitute vehicle, and, as such, the plaintiff is an insured for the purposes of adjudicating this summary judgment motion. This finding pretermits the remaining assignment of error. Thus, we reverse the trial court's judgment and remand the case for further proceedings.

         FACTS AND PROCEDURAL HISTORY:

         Gerald Arceneaux (Arceneaux) owns Gerald's Towing and Used Cars, Inc. (Gerald's Towing). Axis Plus Insurance Company sold Gerald's Towing a "Garage Coverage" policy that included UM coverage. The policy was in effect on November 26, 2014. On that date, Arceneaux was involved in a motor vehicle accident while driving his 2012 Ford F250 home from work at Gerald's Towing. Arceneaux's affidavit states that he was "on call" at the time of the accident and the Ford F250 was equipped with roadservice tools and equipment for any road side service request made to Gerald's Towing. It further stated that his Ford F250 was being used at the time of the accident because the Ford F450 Wrecker owned by Gerald's Towing was in need of repairs. Otherwise, the Ford F450 would be the truck used for any roadside service request made to Gerald's Towing.

         Arceneaux filed an amended petition adding Axis as a defendant and alleging UM coverage. Thereafter, Axis filed a motion for summary judgment on the basis that its policy does not provide UM coverage for Arceneaux's claims.

         After a hearing on the motion, the trial court granted Axis' motion for summary judgment and dismissed Arceneaux's claim against Axis. Arceneaux appeals and asserts four assignments of error.

         ASSIGNMENTS OF ERROR:

1. The Trial Court Erred in Ruling that the Ford F250 Was Being "Regularly" and/or Permanently Used by Gerald's Towing and Used Cars, Inc.; and Therefore Was Not a Temporary Substitute ...

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