FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF
LAFAYETTE, NO. 2017-2737 HONORABLE DAVID M. SMITH, DISTRICT
W. Burge Fishman Haygood LLP Attorney for Appellant/Defendant
GoAuto Insurance Company
Alan Lilley Goforth & Lilley, PLC Attorney for
Appellee/Plaintiff Shantanya Thibeaux
composed of Sylvia R. Cooks, Elizabeth A. Pickett, John E.
Conery, D. Kent Savoie, and Candyce G. Perret, Judges.
E. CONERY JUDGE
defendant, GoAuto Insurance Company (GoAuto), appeals the
trial court's partial summary judgment in favor of its
insured, Shantanya Thibeaux (Mrs. Thibeaux), in which the
trial court found that GoAuto was liable under its
policy's collision coverage for damages to Mrs.
Thibeaux's 2008 Ford Mustang (Mustang). The vehicle at
issue was involved in a one car accident while being driven
by Jairi Thibeaux, an excluded driver under the terms of
policy number 88797-20 issued to Mrs. Thibeaux by GoAuto. For
the following reasons, we reverse the judgment of the trial
court and remand for further proceedings.
AND PROCEDURAL HISTORY
11, 2016, while Ms. Thibeaux was not at home, Jairi Thibeaux,
her seventeen-year-old son, took her Mustang without
permission and was in a single vehicle collision a few
hundred yards from their home causing extensive damage to the
vehicle. The accident did not involve third party fault. The
GoAuto Policy denied coverage for the accident based on the
"Named Driver Exclusion Endorsement" which
specifically excluded Jairi as a driver of the Mustang under
the terms of the policy.
GoAuto denied Mrs. Thibeaux's claim for damages to the
Mustang, she filed suit and moved for partial summary
judgment on the issue of collision coverage. The deposition
testimony of Mrs. Thibeaux and Jairi Thibeaux, as well as
Mrs. Thibeaux's affidavit filed in support of the motion
for partial summary judgment, are clear that Jairi did not
have permission to drive his mother's Mustang on the day
of the accident or any other day.
trial court, "after considering the law, memoranda and
argument of counsel and the insurance policy, affidavits and
deposition testimony[, ]" found as follows in its
December 29, 2017 judgment:
IT IS ORDERED, ADJUDGED AND DECREED that
Summary Judgment is granted in favor of Shantanya Thibeaux,
the Court finding that there is no genuine issue of material
fact that Jairi Thibeaux did not have permission to operate
the 2008 Mustang owned by Shantanya Thibeaux on the day of
the collision, May 11, 2016, and there is property damage
collision coverage afforded to Shantanya Thibeaux for the
2008 Mustang arising out of the collision of May 11, 2016[, ]
under the GoAuto Policy of Insurance policy no. 88797-20.
now timely appeals the trial court's December 29, 2017
judgment on the basis that the insurance policy at issue
excludes collision coverage when the vehicle is being
operated by Jairi Thibeaux, a named excluded driver.
appeals the trial court's ruling asserting one assignment
of error as follows: "The district court's granting
of summary judgment on coverage in favor of Ms. Thibeaux was
contrary to the terms of the Named Driver Exclusion
Endorsement, was contrary to Louisiana statutes providing
that such exclusion is enforceable, and was error."
appellate court reviews a trial court's granting of a
motion for summary judgment de novo. Duncan v.
U.S.A.A. Ins. Co., 06-363 (La. 11/29/06), 950 So.2d 544.
This standard of review requires the appellate court to use
the same criteria as the trial court in determining if
summary judgment is appropriate, which is whether there is a
genuine issue of material fact and whether the mover is
entitled to judgment as a matter of law. Id.
de novo review simply asks whether the trial court
was legally correct or legally incorrect. Domingue v.
Bodin, 08-62 (La.App. 3 Cir. 11/5/08), 996 So.2d 654.
"[T]he appellate court assigns no special weight to the
trial court[.]" Id. at 657. Instead, the
appellate court reviews the record in its entirety and
determines "whether the trial court's decision was
legally correct in light of the evidence." Id.
of Error One - Exclusion of Coverage And Statutory
argues that the trial court erred by not applying the terms
of the GoAuto policy issued to Mrs. Thibeaux, more
particularly the "Named Driver
Exclusion Endorsement" "Policy
Number: 88797-16, which states:
PLEASE READ THIS ENDORSEMENT CAREFULLY. THIS
ENDORSEMENT CHANGES THE TERMS OF YOUR POLICY.
This endorsement is attached to and, forms a part of the
policy to be issued as of the date this endorsement is
prepared. This endorsement will apply to this policy and any
amended, renewal, reinstatement or substitute policy issued
to the same Named Insured by the Company.
This endorsement supersedes and excludes from the policy any
In consideration of the premium charged, the Named
Insured agrees that no coverage provided by the
Company is afforded while any vehicle listed on this policy
is being used, driven, operated or manipulated by, or under
the care of:
Robyn Thibeaux, Jairi D. Thibeaux.
(Emphasis in original).
undisputed that Mrs. Thibeaux signed the Named Driver
Exclusion Endorsement on April 12, 2014, and the endorsement
was in effect on May 11, 2016, the date of the accident at
the "Named excluded operator" is also clearly and
specifically defined in the GoAuto policy as:
"Named excluded operator" means
any person who by written agreement,
contained in the application or by endorsement to this
Policy, signed by any applicant for this Policy, or the
applicant's legal representative, is listed as a
person who shall be excluded from coverage
under this Policy, whether or not that listed excluded
person is you, the
named insured, the spouse of the
named insured, a family
member of the named insured, or any
other person who but for being named as an
excluded operator would have been a person
insured under the terms of this Policy or by operation of
(Emphasis in original).
the portion of the policy entitled, "Exclusions
for Parts D, E, F, AND G[, ]" the "named
excluded operator" provision in Section 1 also provides:
is no Coverage For Damage To Your Auto for:
1. Arising out of the operation or use of any
auto insured under Parts D, E, [Collision
Coverage] F, and/or G by a na ...