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Geovera Specialty Insurance Co. v. Hernandez

Court of Appeals of Louisiana, Fifth Circuit

December 19, 2018

GEOVERA SPECIALTY INSURANCE COMPANY, AS SUBROGEE OF JUSTIN AND COURTNEY JOHNSON
v.
ROSA HERNANDEZ

          ON APPEAL FROM THE FORTIETH JUDICIAL DISTRICT COURT PARISH OF ST. JOHN THE BAPTIST, STATE OF LOUISIANA NO. 67, 565, DIVISION "C" HONORABLE J. STERLING SNOWDY, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLANT, GEOVERA SPECIALTY INSURANCE COMPANY Franklin G. Shaw Walter J. Leger, Jr. Walter J. Leger, III

          COUNSEL FOR DEFENDANT/APPELLEE, ALLSTATE PROPERTY & CASUALTY INSURANCE COMPANY (REGARDI NG POLICY ISSUED TO ROSA HERNANDEZ) Charles V. Giordano Michael E. Escudier Jennifer Stieman Edwards Jairo F. Sanchez Dianna Duffy Willem

          Panel composed of Judges Jude G. Gravois, Stephen J. Windhorst, and Hans J. Liljeberg

          G. GRAVOIS JUDGE

         In this subrogation action, plaintiff/appellant, Geovera Specialty Insurance Company ("Geovera"), appeals a trial court judgment granting summary judgment in favor of defendant/appellee, Allstate Property and Casualty Insurance Company ("Allstate").[1] For the reasons that follow, we affirm.

         FACTS AND PROCEDURAL HISTORY

         On August 2, 2014, David Hernandez, the minor son of Jose Servando Hernandez and Rosa Hernandez, was driving a 2012 Toyota Sienna van on Moss Drive in Laplace, St. John the Baptist Parish, Louisiana, when he crashed into and damaged the home of Justin and Courtney Johnson. Prior to the accident, David Hernandez was at the home of his aunt, Maritza Hernandez, and her husband, Mauricio Bendeck, who owned the van. At the time of the accident, David Hernandez did not have permission to operate the van.

         On January 27, 2015, Geovera filed a petition for damages as subrogee of the Johnsons against Rosa Hernandez, [2] seeking reimbursement for the amounts paid under Geovera's homeowner's policy issued to the Johnsons. The petition alleged a claim of negligent entrustment. On August 6, 2015, Geovera filed an amended petition adding David Hernandez as a party to the suit. On October 15, 2015, a second amended petition was filed by Geovera adding Allstate as a defendant. The second amended petition alleged that Allstate is liable to Geovera pursuant to the following policies of insurance issued by Allstate: an automobile insurance policy providing coverage to Rosa Hernandez, a homeowner's insurance policy issued to Rosa Hernandez, and an automobile insurance policy for the vehicle driven by David Hernandez.[3]

         On December 9, 2016, Allstate, as the homeowner's insurer for Jose S. and Rosa Hernandez, [4] filed a motion for summary judgment on the grounds that the homeowner's policy in question excludes coverage for property damage arising out of "the ownership, maintenance, use, occupancy, renting, loaning, entrusting, loading or unloading of any motor vehicle or trailer." (Emphasis added.) Allstate argued that the property damages Geovera alleges it paid under its policy of homeowner's insurance arose from David Hernandez's unauthorized use of a motor vehicle, and thus the Allstate homeowner's policy expressly excludes Geovera's claims for damages.[5]

         In opposition, Geovera argued that Allstate wrote and issued both automobile and homeowners policies to Jose S. and Rosa Hernandez. Geovera showed that the automobile policy covers permissive use and excludes "use" without permission. Geovera reasoned that because of this, it would be reasonable that the automobile exclusion in the homeowner's policy only included permissive "use" otherwise covered under the auto policy. If it didn't, Geovera argued, then there would be a gap in coverage, i.e., there would be no coverage at all under either policy for non-permissive use of the vehicle. Geovera contended that the term "use" in the homeowner's policy could be construed as providing coverage for use with permission, use without permission, or both. Geovera argued that this renders the term "use" ambiguous, and thus, the policy should be construed in favor of the insured so as to provide coverage.

         Following a hearing on March 8, 2017, the trial court issued a judgment on April 21, 2017 granting Allstate's motion for summary judgment and dismissing the claims against it regarding the homeowner's policy in question with prejudice. In its written reasons for judgment, the trial court found that the term "use" in the homeowner's policy was not ambiguous. The trial court found that the word "use" in the homeowner's policy is "reasonably understood as the operation of a vehicle and no differentiation between use with and without permission is warranted given the plain meaning of the policy." Having found the insurance policy unambiguous, the trial court noted that it did not consider the wording of the automobile policy, as such is extrinsic evidence not contained within the body of the homeowner's policy.

         This timely appeal followed.

         LAW AND ANALYSIS

         A motion for summary judgment is a procedural device used to avoid a full scale trial when there is no genuine issue of material fact. Pouncy v. Winn-Dixie La., Inc., 15-189 (La.App. 5 Cir. 10/28/15), 178 So.3d 603, 605. The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966(A)(2). It shall be construed to accomplish these ends. Id. After an opportunity for adequate discovery, summary judgment shall be granted if the motion, memorandum, and supporting documents, including the pleadings, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations and admissions, 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. C.C.P. art. 966(A)(3) and (4).

         The initial burden is on the mover to show that no genuine issue of material fact exists. If the moving party will not bear the burden of proof at trial, the moving party must only point out that there is an absence of factual support for one or more elements essential to the adverse party's claim, action or defense. The non-moving party must then produce factual support to establish that he will be able to satisfy his evidentiary burden at trial. La. C.C.P. art. 966(D). If the nonmoving party fails to do so, there is no genuine issue of material fact, and summary judgment should be granted. Pouncy, supra.

         Appellate courts review a judgment granting or denying a motion for summary judgment de novo, using the same criteria that governs the trial court's determination of whether a summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to ...


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