VILMA RAGER VS BARTLEY PAUL BOURGEIOS, GLOBAL MOTORSPORTS,CANAL INDEMNITY COMPANY AND ALLSTATE INSURANCE COMPANY
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STATE OF LOillSIANA COURT OF APPEAL FIRST CIRCillT 2006 CA 0322 VILMA RAGER VERSUS BARTLEY PAUL BOURGEOIS GLOBAL MOTORSPORTS CANAL INDEMNITY COMPANY AND ALLSTATE INSURANCE COMPANY Judgment On Rendered December 28 2006 from the Nineteenth Judicial District Court In and For the Parish of East Baton Rouge Appeal State of Louisiana Docket No 519 540 Honorable Donald Johnson Philip Bohrer Baton Rouge Judge Presiding Counsel for Plaintiff Appellee LA Vilma Rager New Orleans LA Appellants Canal Indemnity Company Bartley Paul Bourgeois Global Motorsports Donald R Smith Counsel for Defendant Baton Allstate Insurance Alan J Yacoubian Rene S Paysse Rouge Christopher Counsel for Defendants Jr LA E Lozes Mandeville LA BEFORE Appellant Company Counsel for Defendant Allstate Insurance Appellant Company PARRO GillDRY AND McCLENDON JJ McCLENDON J appellant Canal Indemnity Company Canal Defendant district court summary s denial of Canal motion for summary judgment and grant of in favor of Allstate Insurance judgment issue of coverage s Finding appeals the in the error Company Allstate on grant of the summary judgment the we that judgment and remand reverse FACTS AND PROCEDURAL BACKGROUND Plaintiff Ms Vilma a vehicle driven vehicle and caused s 2003 the vehicle driven LLC b d a Mr by defendant Rager Global Mr accident that he had by liability coverage under the Mr Bartley Paul Bourgeois Bourgeois was owned coverage covered on issued Global to you coverge in the Canal hire own as Pace Brothers was at the insured or an autos your pernnssIOn a borrow except auto i primary Has excess or no if your business is shown in dealership other contingent 2 was The policy provided as follows However if a customer of yours whether by time of the auto Your customers the Declarations June 23 Motorsports by Canal Anyone else while using with d who on the motions for summary judgment You for any covered auto by ended Ms only following are insureds for covered 2 rear coverage with Allstate Allstate claimed that his court policy challenged exclusion from 1 by Allstate alleged that Bourgeois apparently believed The issue before the The insured damage At the time of the accident policy afforded comprehensive a was Motorsports Global Motorsports Although Canal Rager who available they are an insurance insured but up to the only compulsory limits where the covered auto financial responsibility is principally garaged or whether Has other available insurance ii law contingent less than the compulsory or financial responsibility law limits where the covered auto is principally garaged they are an insured only for the amount by which the compulsory or financial responsibility law limits primary excess or exceed the limit of their other insurance The motion for summary judgment filed that the Canal insurance policy issued coverage to the dealership provided compulsory limits required by LSA Mr of Global Motorsports 10 000 00 per person prayed that extent any of the us to in the record as to covered Marcus 6 4 99 the argued Canal Thus was a Hanover Insurance v customer policy provision Inc Comp any 740 So 2d 603 609 10 Canal invalid s only alternatively be reformed only to the compulsory limit motion for summary judgment policy and the deposition of Mr in the record The Bourgeois complete version of the Canal policy were also filed plaintiff s reserved the right to 10 000 00 for property Canal a more car 20 000 00 per accident and minimum is the Canal deposition and 32 900B 2 used only customers dealership R S a finding statutory minimum of applicable same Attached before La 8 10 Motorsports a to the was damage Citing as support 98 2040 pp Global acknowledged in his deposition that he who Bourgeois to for by Canal asked exhibits one and two In its memorandum Canal resolve the issue of the type of coverage afforded to Mr Bourgeois by Allstate The motion Rager s by Allstate was filed in its uninsuredunderinsured motorist memorandum in capacity UM as the carrier of Ms coverage In Allstate support of its motion it argued that Canal s attempt its coverage to uninsured or underinsured minimum UM coverage mandated by 3 law customers and only to s limit for the violated Louisiana law and was against public policy Allstate further argued in the driver who was Canal also for In the his filed As Motorsports entitled to 1 a a permissive cars which permissive driver the full liability policy coverage on of the entitled STATEMENT OF Allstate covered Mr again denied that liability Bourgeois specifically testified that he had sold Mr deposition previous vehicle almost four months before the June 2003 accident and of Global was what buy he drove various to customer a brother in law and an Louisiana cars and two from No responded that particular car which was a a owned car he two or was three from Woodville from by Mr a borrowed Further Mr Global Pace s from his brother in law test Motorsports located brother Mr After judgment driving Bourgeois stated that he Bourgeois in another also testified that he believed the Allstate insurance he carried at the time in covered him Pace his When asked if he day of the accident he had been days Tip deciding Motorsports in St Francisville in guy cars for about five eventually purchased state of Global of the On the Motorsports While he including cars owner paid anything for the use 1 from his At the time Allstate filed its pleading a that he he but rather customer statements the exclusion contained in the Canal was UNCONTESTED FACTS Bourgeois to subject other question and other Bourgeois deposition and it a on support of its position Allstate primarily relied In policy motion of Global and thus customers 100 000 00 not not was the vehicle in an owner Bourgeois for Bourgeois borrowed brother in law Mr Mr deposition that based question regardless of what vehicle he drove a hearing the district and granted Allstate In its briefs to this court s court motion Canal refers to affidavit does not appear in the record denied Canal on an appeal 4 In its affidavit s motion for summary judgment the district by Frank Pace court However the Canal specifically found that Canal Bartley Bourgeois 100 000 00 affords appealed coverage for liability the district court interlocutory s granted in favor of Allstate denial of its motion and the summary judgment LEGAL PRECEPTS depositions Summary judgment is appropriate only if pleadings to answers affidavits show that there is is entitled judgment to burden remains is not is an on s initial burden to However establish that insurer an must prove some Corporation v insurers are at constitute a Department 3 seeking Absent to a to one or more summary determination is not there the to 966C 2 The a party will prevail summary witness is an judgments appropriate La on 5 public policy 98 2040 at p 4 the Inerits does on App 97 or 753 Smith v 740 not State 1 Cir 5 9 97 694 703 So 2d 1288 important question of fact Thus are a 14 11 judgment 1 Cir 2 18 00 judgment La 734 Gaylord Chemical App Marcus liability on Insurance 907 So 2d 733 conflict with statutory provisions of Administration 96 0432 p 7 though court that Mutual to exclude coverage basis for rendition of summary a art through 98 2367 p 4 La Inc The likelihood the matter on elements essential LSA C C P avoid coverage limit their credibility of the out to 1 Cir 2 1105 App La to point Farm Bureau 1184 1188 writ denied 97 1493 The even The art claim falls within the policy coverage is a provision applies entitled 606 966B LSA C C P of law Louisiana v ProPump So 2d 349 352 mover defense or with any together issue of material fact and that required only claim action 2004 0282 p Company 2d So matter a file on the movant However if the initial burden Evins plaintiff So 2d genuine no absence of factual support for adverse party the as the movant he is on admissions and interrogatories now favored a motion for summary credibility judgment Hutchinson La Knights v of Columbus 234 866 So 2d 228 2 20 04 as motive intent presented on a interpretations summary LSA C C P reasonable judgment is improper material facts before the granted Jackson 407 So 2d 416 So 2d 1277 are reviewed La 418 La de App novo 1 Cir 1 Cir App its to conflicting significance to judgment on must the undisputed the motion for summary judgment should be Teachers State v 1281 court to if reasonable minds However inevitably conclude that the mover is entitled as facts If the evidence judgment is subject might differ men 8 p Summary subjective on good faith knowledge and malice motion for summary or 966A 2 art for determinations based judgment is seldom appropriate such Council No 5747 2003 1533 using Retirement Johnson 1981 appeal On 1980 the System criteria same of Louisiana summary as 383 Edmonston v the judgments court below cross motions Hutchinson 2003 1533 at p 5n 2 866 So 2d at 232n 2 ANALYSIS Logically the threshold issue was whether Mr Bourgeois was in Canal customer a coverage limitation contained in the Canal the customer coverage for public policy trial court court would then need would was a not need to policy permissive to s to the possibly subject If he was found to be a detennine if the exclusion from violated Louisiana statutory customers If he and Allstate s driver at requirements or the time of the accident the address Louisiana statutory or public policy requirements It appears from the district court grant of summary judgment violated Louisiana M s was the oral court s reasons that the basis for the finding that the Canal policy See LSA R S 32 861 omnibus clause compulsory extension of s coverage to 6 permissive drivers 900B 2 The court however then reformed the Canal policy policy Thus maximum coverage under the not make that he not a clear was a ruling on Mr have needed to it vehicle a Bourgeois the although the district status Bourgeois driving customer test afford Mr to have must court did initially found Otherwise the court would address whether the exclusion violated Louisiana law or public policy In Savana La 2001 2450 Certain Interested Underwriters v App 1 Cir this record that would basis for exclusion did exclusion or our law or regardless of the circumstances It coverage Canal merely limited Louisiana law or we its grant of summary As a supporting cases policy Savana 2001 2450 at pp Marcus wherein the Louisiana provide Despite this alternative basis for 3 6 to we underinsured violate not 98 2040 to the at 8 10 pp a 740 possible basis for upholding the district 7 court legal provision and 2d So different at more could be statutory minimum determine whether the record upholding the grant of or 825 So 2d at 1243 45 Supreme Court found equal only must or the provide the maximum be invalid but held that the coverage error uninsured finding of statutory on a See reformed to lacked insurance matter of law the district court erred in coverage to customer or customers policy provisions do and in its reformation of the exclusionary provision for provide invalidity 609 10 or serve as a to to an nothing in the allowable statutory minimum judgment based cited therein found The Canal limitation coverage whether the find that the public policy We find London to required was Thus customers or s court from Savana public policy impermissibly eliminate not coverage case Lloyd this be valid to distinguish the instant violation of a 825 So 2d 1242 7 2 02 identical coverage limitation at summary s provides an judgment Another decision would be a finding that at the time of the accident Mr but a driver who permissive family member borrowed from our in the deposition de could have differed Without rejection of Global customer on Jackson a was a could court or the of Mr at 418 a was test the trier of fact a Thus Bourgeois status as permissive driver at a Mr by statements 383 So 2d 1281 at testimony that he a was vehicle from Global driving a from related was car a Regardless of whether the district Id to meet claim that Mr s its burden Bourgeois at was trial a rebut to permissive present its evidence and argue its interpretation genuine issue of material fact remained customer this men the a juncture or a permissive driver would motion for summary a a dealership customer and Allstate to on from period inevitably concluded that Mr Bourgeois have not Johnson direct Bourgeois Motorsports driver Canal is entitled decision customer find that the evidence we significance of various the believed that Canal would be able plaintiffs extended a We also find that reasonable intent 407 So 2d not permissive driver court an clearly not conflicting interpretations including open to Motorsports and eventually bought district for a car reVIew novo subjective questions of motive Bourgeois was dealership s However presented Bourgeois require an to Mr as finding of a inappropriate credibility and judgment A to cannot as serve an alternative basis for the grant of summary judgment Under denying Canal for summary significance the use of Bourgeois similar a s we find that the district court was correct motion for summary judgment A grant of Canal judgment would have required on a analysis certain statements family member s disregard dealership subjective claim that at motion the district court to the cars s place frequency and duration and accept as of credible Mr the time of the accident his intent 8 in or motive an was that of a inquiry is inappropriate disagree with Canal denying Canal s summary remand on a conducting routine one reasons half drive Again such judgment Thus we interlocutory judgment s was correct we find that the district We to the appellee Canal REVERSED AND REMANDED 9 Allstate court reverse the district court for further proceedings assessed test motion for summary judgment in favor of Allstate to a and find that the district court motion For these are customer erred in that granting judgment and The costs of the and one half to appeal appellant
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