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Washington v. Guillotte

Court of Appeals of Louisiana, First Circuit

December 21, 2018


          Appealed from the Twenty-Third Judicial District Court In and for the Parish of Ascension State of Louisiana Docket Number 115712 Honorable Katherine Tess Stromberg, Judge Presiding

          Daniel Frazier, Jr., Baton Rouge, LA Stacey Moak Christopher W. Stidham Breann Crane Baton Rouge, LA R. Heath Savant Mark T. Assad Andrew L. Plauche, Jr. Attie B. Carvill Baton Rouge, LA

          Counsel for Plaintiffs/Appellants, Curtis Washington and Almallica Allen Counsel for Defendant/Appellee, Chris W. Guillotte Counsel for Defendant/Appellee, Louisiana Farm Bureau Casualty Insurance Company

          WHIPPLE, C.J.

         Plaintiffs, Curtis Washington, Jr. and Almallica Allen, appeal a judgment of the trial court granting summary judgment in favor of defendant, Louisiana Farm Bureau Mutual Insurance Company ("Farm Bureau") and dismissing with prejudice plaintiffs' claims against this defendant. For the following reasons, we reverse and remand.


         This matter arises from an accident, which occurred on I-10 westbound on December 13, 2015, when the car the plaintiffs were traveling in struck a cow allegedly owned by defendant, Chris W. Guillotte ("Mr. Guillotte"). The plaintiffs filed the instant suit, seeking to recover from Mr. Guillotte and the homeowner's insurance policy issued to him and his wife, Amy Guillotte, by Farm Bureau.[1]

         Farm Bureau denied coverage for the accident based upon a policy provision, which provides, in pertinent part, as follows: "Coverage E - Personal Liability and Coverage F - Medical Payments to Others do not apply to bodily injury or property damage . . . b. arising out of business pursuits of an insured or the rental or holding for rental of any part of any premises by an insured."[2] However, the policy also provides that coverage applies "to a person off the insured location, if the bodily injury ... is caused by an animal owned by or in the care of an insured." Subsequent to denying coverage, on August 2, 2017, Farm Bureau filed a motion for summary judgment, seeking dismissal of plaintiffs' claims and contending no coverage was provided under the homeowner's policy at issue. On October 20, 2017, a hearing was held on the motion for summary judgment. In support of the motion, Mr. Guillotte's deposition testimony was submitted, which set forth, in pertinent part, the following facts.

         Mr. Guillotte has had various animals on his property since approximately 2007. Over the years, he has owned goats, turkeys, ducks, and chickens, but did not own cattle until approximately 2010. Although Mr. Guillotte owned various animals, he generally only sold the cows.[3]

         Mr. Guillotte initially decided to begin raising cattle because the upkeep of the farm was expensive. Accordingly, based on the suggestion of a co-worker, Mr. Guillotte purchased a few cattle and began claiming his farm expenses as a deduction on his federal taxes. Mr. Guillotte believed that "if you go and claim the - the animals [as a deduction on your federal taxes] as a farm, you have to show some kind of income." Thus, he used cattle sales to show this income. From the time Mr. Guillotte began keeping cows, until the accident in 2015, he estimated he had bought and sold a maximum of 25 cows. Mr. Guillotte only kept a few cows at a time because he "didn't want to have to maintain so many cows. [He] just wanted them for - for the farm as a write-off, so [he] was just keeping them for -keeping the numbers down."

         The cows and donkeys owned by Mr. Guillotte were kept on property neighboring his property.[4] This property is pastureland of approximately 20 to 22 acres that is not owned by Mr. Guillotte, but the owner of the pastureland allowed him to keep his animals on the land as long as he cut the grass and maintained the fencing. Mr. Guillotte only maintained approximately six to seven acres of the pastureland for the cattle to graze upon. Mr. Guillotte did not consistently have cows on the pastureland, but he eventually opted to keep cows on the pastureland so that the upkeep of the land would be more manageable.

         Mr. Guillotte testified that his family's traditional farm animals were like pets to them.[5] Further, Mr. Guillotte has no knowledge regarding breeds of cattle, the method by which profit is made from cattle, or how the price for cattle is set.[6] Mr. Guillotte also does not know how to successfully breed cattle.[7] Additionally, Mr. Guillotte did not number his cows or register them with the state; he only recognized them by their physical markings. When Mr. Guillotte first began keeping cattle, he admittedly did not know how to properly feed them.

         At the time of the accident, Mr. Guillotte had five cows, which he had purchased at auction in June 2015. Mr. Guillotte testified that one of these cows, a pregnant heifer, escaped confinement shortly after he placed it in the pasture. A man with pastureland in the area, Mr. Culotta, subsequently advised Mr. Guillotte that he believed the missing cow was in his pasture with his herd. The cow remained on Mr. Culotta's property until December 2015. At that time, Mr. Culotta told Mr. Guillotte that he returned the cow to Mr. Guillotte's pasture. However, Mr. Guillotte did not personally see the cow returned to his pasture. In fact, he did not see the cow again after the day of the action. The plaintiffs contend this is the cow involved in their accident.

         In his answers to interrogatories and in his deposition testimony, Mr. Guillotte affirmatively stated that on December 13, 2015, the date of the accident, he was not raising livestock for profit. Further, he never intended to actually make a profit from his farming activities, and he has never "broken even" with the farming operation. Instead, the "farming activities" he described always resulted in a loss. However, Mr. Guillotte conceded that he had represented to the federal government on his taxes that he was conducting a farming business for purposes of obtaining the tax deduction. Every year from 2010 through 2016, Mr. Guillotte claimed only losses, never a profit, associated with his "Beef Cattle Ranching and Farming" activities on his federal taxes.[8]

         By contrast, Mr. Guillotte testified that his primary source of income has been his employment as an operator at the Valero Refinery, where he has been employed since April 1, 2001. Mr. Guillotte works at least 40 hours per week at the refinery and, by comparison, only spends approximately five to ten hours per year maintaining his cattle.

         Other evidence presented to the trial court was the affidavit of Dr. Timothy Page, [9] who was retained by Mr. Guillotte and opined regarding whether Mr. Guillotte's farming operations could be considered "profit making activity" based upon the number of cows Mr. Guillotte kept and the amount of pastureland he had. Dr. Page opined that, at best, a cattle operation such as Mr. Guillotte's would be classified as a part-time hobby, family entertainment, or a 4-H project. He further opined that a farmer with herd of less than 20 to 50 cattle and 40 to 100 acres of pasture "would be unable to conduct any type of profit making beef production activity."

         In granting summary judgment, the trial court relied upon the fact that Mr. Guillotte had claimed losses on his federal taxes as a farmer for "Beef Cattle Ranching and Farming" for years 2010 through 2016 and thus, concluded Mr. Guillotte was per se "raising cattle for business purposes." Accordingly, the trial court rendered judgment in favor of Farm Bureau in open court, and on November 7, 2017, the trial court signed a judgment granting Farm Bureau's motion for summary judgment. On June 1, 2018, the trial court signed an amended judgment, which again granted Farm Bureau's motion for summary judgment, but specifically dismissed plaintiffs' claims against Farm Bureau with prejudice and certified the judgment as final under Louisiana Code of Civil Procedure article 1915.[10]

          Plaintiffs now appeal, contending the trial court erred in granting summary judgment by failing to recognize that genuine issues of material fact exist for the trier of fact to determine regarding whether Mr. Guillotte's conduct constituted "business pursuits" under the policy, so as to trigger the exclusionary provision of the policy, and by failing to require that Farm Bureau demonstrate that ...

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