Gary D. McGehee, Christopher Michael McGehee and Sheldon Duane McGehee VS Kevin Clerk Benton, Dr. Tracy Benton, State Farm Mutual Automobile Insurance Company and GEICO Casualty Insurance Company

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2006 CA 2335 doJ cI GARY D MCGEHEE CHRISTOPHER MICHAEL MCGEHEE SHELDON DUANE MCGEHEE VERSUS KEVIN CLARK BENTON DR TRACY BENTON STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY GEICO CASUALTY INSURANCE COMPANY Judgment Rendered September Appealed from 14 2007 the Nineteenth Judicial District Court in and for the Parish of East Baton Rouge State of Louisiana Docket Number 520 062 Honorable R Michael Caldwell Robert E Jay Counsel for Plaintiff Appellee Kleinpeter G McManis Baton Gary Nealy Counsel for Defendant II Richard S Thomas Rouge Andrew W GEICO Counsel for Defendant Eversberg Stephen Rouge Baton Kevin Benton LA Auto Insurance Dr LA BEFORE I I I Tracy Appellee State Farm Mutual Company Counsel for Defendant Bret T Walsh Rouge Casualty Appellant Company Insurance LA Dale Cronin Baton McGehee Rouge LA William L Baton Judge Presiding Appellee Benton WHIPPLE GUIDRY AND HUGHES JJ p C tHl J I 0 H 1fJ if 4 LL WVfI1 WIDPPLE J This is GEICO from appeal by an coverage for the insured under GEICO a a judgment of the trial policy For the court following fmding reasons we affinu FACTS AND PROCEDURAL mSTORY The facts of this matter follows Betty years lane On Sunday May 25 were traveling alleged in plaintiffs petition as for Gary McGehee and his wife of twenty 2003 to their County Mississippi returning Magnolia Mississippi when they were shuck from the rear by by twenty vehicle in a As a was struck ambulance to the was home in Ford F 150 truck times and boundary came line of I 55 ejected from the vehicle sustained in the collision right to rest After and died at transported by Center At the Emergency scene of the Gary was infonued by authorities that his wife had been killed River with his girlfriend was from returning and another Kevin was apprehended a tubing trip couple did not stop continued southward exited the interstate in Baton at the next Dr Tracy and girlfriend at C Benton vehicle under a State Farm policy was Bogue Chitto scene Instead he Rouge two days to Baton later Rouge with his father s long time employee The Ford F 150 tluck that Kevin Drive the time of the accident the exit and returned and Ms Louise Walker his father at 1660 Rosemont on at the At the time of the accident Kevin resided in Baton driving seven impact the McGehee Mississippi Regional Medical injuries Kevin Benton who Rouge west a extracted from the vehicle and was Southwest Room for treatment of accident Betty McGehee Gary McGehee scene result of the over one or more pasture approximately 103 feet from the their vehicle the year old Kevin Benton forced off of the road rolled was are as in their restored 1972 Datsun in the southbound of Interstate 55 in Pike driven damages owned by Walker who had insured and when Kevin 2 was began using the vehicle the to drive work had added Kevin to named insured which on his father provided Kevin UM Kevin had been listed under the GEICO which were coverage garaged s at Dr Benton attached Will Pay policy based a on a as policy s 25 driven auto policy a was by Kevin household from the time he not s a listed vehicle becomes 2003 GEICO denied coverage under Dr exclusion provide non as owned In support GEICO entitled Losses We owned auto auto follows 1 2 will pay damages which to pay because of we legally obligated an insured bodily injury sustained by a person and damage to ownership destluction of property ansmg out of the maintenance or use of the owned auto or a non or We will defend any suit for damages payable under the tenus of this policy We may investigate and settle any claim or suit owned auto SECTION I DEFINITIONS 5 Non owned auto by or other than 6 a automobile means an fUlnished for the regular use temporary substitute Owned auto or trailer not owned of either you or a b means a a relative auto vehicle described in this policy for which charge is shown for these coverages a trailer owned by brother neither of LOSSES WE WILL PAY FOR YOU UNDER SECTION I Under Section I a 2 97 1997 Mountaineer driven policy and cited to Section I which s also residence and the policy definitions of temporary substitute listed was A 30LA as resident of his father a purported regular use copy of the A 30LA For policy Kevin policy identified Explorer By letter dated August Benton the The Ford F 150 however 1999 Ford a on insured under the GEICO Rather the policy sister and s an listed driver GEICO s at age fifteen began driving Kevin as as a by you 3 a premium and private passenger farm or utility auto which you obtain ownership of during the policy period or for which you enter into a lease for a term of six months or more during the policy period if i it replaces an owned auto as defmed in a above or ii we insure all private passenger farm and utility autos owned or leased by you on the date of the acquisition and you ask us to add it to the policy no more than 30 days later c d 9 a a temporary substitute auto Temporary substitute auto means an automobile or trailer not owned by you temporarily used with the pennission of the This vehicle owner owned auto be used its breakdown substitute for the as a trailer when withdrawn or of because must repair from normal use loss servicing or destruction GEICO contended that in order to be entitled to coverage for any losses the policy required that Kevin be driving owned an GEICO contended that the vehicle Kevin was not listed on the policy 5 2005 the trial 2005 GEICO filed court a a petition had interpose like that sustained contended that 0 nce exclusion was on 12 2005 the obtaining affidavits regarding Kevin owned auto May 11 alleging regular alleged regular added as defined in use On was on policy August denied October 17 exclusion i n the parties Benton 4 McGehees into s was truth and in exclusion for parties by that in GEICO use that The the auto Thus use 2004 Thereafter that the cleverly diverted relevant regular bodily by petitioners but only interposes Emphasis GEICO owned at the time of the accident judgment which The McGehees property damage claims use damages misrepresented form A30LA does not injury damage non First Amended Petition a in effect and baned the claim regular for by judgment dated October GEICO a non coverage for any losses under the motion for summary the McGehees filed denial letter fact qualify as policy Accordingly GEICO denied The McGehees filed driving or a and had been furnished for his GEICO claimed the vehicle did not the was auto it for filliher believing the then wasted almost two years s use supplemented with a number of depositions and documentary discovery GEICO policy motion for summary judgment had s and an endorsement fonn CC 1149 apply the regular use exclusion CC 1149 had not been As noted attached Policy Amendment CC 1149 revised the to include now bodily injury The amendment at issue reads Under Section I becomes 1 damage arising auto to misrepresentation 2006 owned auto property damage which damages an insured As by a person or or use of the owned owned auto suit or in the originally summary which had a never result of the and then misrepresented attempted to its policy backfill judgment proceeding by including been disclosed misrepresentation or on an delivered before the behalf of GEICO fees its over the and above any that may be due Trial of the matter 12 as non follows sought statutory damages and attorneys policy limits was well as the McGehees claimed that GEICO endorsement form there seemingly apply the ownership maintenance denied the claim McGehees LOSSES WE WILL We will defend any suit for damages under the terms of this policy We may investigate and or a non Essentially arose under GEICO S Auto destIuction of property or settle any claim claim policy amendment which a language will pay sustained of the out payable when it as to However endorsement Specifically claims the A 30LA legally obligated to pay because of bodily injury 2 we policy to on footnoted in the denial letter or had issued PAY FOR YOU UNDER SECTION I limitation to alleged that policy which purported bodily injury claims of coverage under the terms that to in quoted relied improperly to by the McGehees GEICO revised the claims The McGehees was bifurcated for coverage under the GEICO hearing the trial court an policy rendered oral 5 initial detennination of whether At the conclusion of reasons for a September judgment fmding that the GErCO judgment was As set Ford F 150 that Kevin as a non coverage for the claims asserted herein policy provided signed September 21 on forth in its oral was furnished for Kevin seemingly owned would not contained in the definition of trial court arose from the qualification under the alone use or owned an auto in the auto policy under s damage or non court found driving the Ford F 150 regular owned exclusion use Nonetheless the policy Losses We Will coverage to that For Pay damage but made auto bodily injury there was The court further concluded that the which no such coverage afforded provision at issue standing ambiguous Noting that ambiguities which interpreted against the insurer and concluded that GEICO apparently issued endorsement CC 1149 to make it clear personal injury that the and in however that based on non GEICO could not to the the rely to defeat the coverage to restrict coverage in in favor of coverage of the in the clarify the ambiguity apparent s CC 1149 endorsement owned auto ambiguity 1149 was ever properly set made a Thus after ambiguous the trial 6 fashioned to applies forth in LSA R S owed under the policy was was policy The in both part of Dr Benton language contained policy language in the had and the lack of proof that the the exclusionary on are The trial court concluded policy delivery requirements policy policy itself coverage exclusion of the a the trial court further ambiguity property damages claims clarifying endorsement CC policy pursuant attempt aware trial court determined that GEICO A 30LA owned limited property of the policy given limitation to claims for policy was non found that the court Thus the trial use have been covered while concluded because GErCO You Under Section I the trial judgment regular s under the auto 2006 for reasons A written court s 22 628 in the endorsement finding that the original concluded that there was coverage under the GEICO arising from Kevin GEICO Benton writ denied GEICO did finding that the that the 2005 2435 not meet the La to more exclusionary language s court 3 24 06 by the McGehees than is committed manifest App 5th Cir 925 So delivery requirements policy was subject policy that the trial Mumford 2005 204 La v asserted negligence in causing the accident s appeals contending 1 in applying Ware 2d 467 policy for the claims 7 26 05 2d 1227 reasonable 910 So to find that of LSA R S 22 628 one error and 2 in interpretation and ambiguous and therefore must be construed in favor of the insured DISCUSSION Delivery of the Policy Amendment Assignment of Error No 1 In GEICO in finding was ever s first of error GEICO contends the trial court erred assignment that GErCO failed to prove that the properly made set forth in LSA R S lPmsuant part of Dr Benton a endorsement CC 1149 policy pursuant to the requirements 1 22 628 to the Louisiana Insmance Code Must contain entire contract with s clarifying exceptions set forth in LSA R S as provides as 22 628 entitled follows No agreement in conflict with modifying or extending the coverage of any contract of insmance shall be valid unless it is in writing and physically made pali of the policy a incorporated in the policy reference to another shall not policy apply to contracts The or or provisions or as other written evidence of insmance other written evidence of insmance written evidence of insmance provided or it is by specific This Section Chapter of this Section shall apply where a policy or other coupled by specific reference with another written evidence of insmance is policy in Part XV ofthis or written evidence of insmance in existence as of the effective date hereof or issued thereafter Any written agreement in conflict with modifying extending or the coverage of any contract of insmance shall be deemed to be physically made a part of a policy or other written evidence of insmance within the meaning of this section whenever such written or agreement makes reference to such evidence of inSmallCe and is sent to the holder of such policy insmance address by as United States mail shown on such postage prepaid policy or at such holder evidence of insmance delivered to such holder 7 or or policy evidence of s last known is personally Pursuant to LSA R S LSA R S Further delivered a the insured to or policy s 12 22 00 2d 1277 774 So every The law exclusions are not Fortson v 1279 with the statutory exclusions La 1993 did not meet the we find no reasonable 15t Cir App exclusionary provisions 7 26 05 2d 1227 and in the desired coverage exists the insured to at Lloyd to him Ware Ware policy finding cannot it its policy rely on applying Ware v Mumford writ denied 2005 2435 La that GEICO S Endorsement CC 1149 RS 22 628 After careful review arguments purchased along 2d vehicle because its vehicles with UM coverage excluded coverage to Ware when at 468 policy in 1996 she made Ware sure s for his that the not changes in change a an equal Parish did not not to the provide such ever duties purchased coverage to his recall auto vehicle fulnished regular employment policy provided She further testified that she did policy premiums did driving wife testified that when she they knew that Jefferson notice of the 1988 exclusion the in 1996 by his employer Jefferson Parish 910 So of comply In Ware Farm Bureau contended that certain 1998 amendments to limits of the s to 910 So 2d 467 delivery requirements ofLSA merit to these liability policy is 774 So 2d at 1279 App 5th Cir 925 So a If an insurer fails GEICO contends that the trial court erred in 3 24 06 La Certain Underwriters v writing insured be informed clearly communicated Inc 1252 1253 an 1999 2984 assume requirement of delivery Naquin 2005 204 La that Notice of any valid unless Louisiana Maintenance Services London 616 So 2d 1250 be in of insurance shall be policy requires essential because the insured will otherwise Thus contracts must the person entitled thereto within Naquin contents insurance provides that of time after its issuance period of to 22 634A 22 628 the parish coverage on having received the UM coverage and noted that because at the time the 8 alleged amendment went into effect she had no reason Ware 910 So 2d at 469 Farm Bureau offered the manager who testified that showing that by the sent the new Wares in the notices of the policy had been regular change Ware 910 So affinning the trial court It is were the test here issue Ware actually received policy holders would have been at 468 The trial court found that comply with the notice damages accordingly award of damages the court of appeal reasoned s While this not sent Rather probable than court might have was more finding had it been sitting a evidence apparent that the trier of fact credited the testimony of the papers whether documentary was 22 628 and awarded Mrs Ware and concluded that it different no the Wares and 2d coverage testimony of its policy services Fann Bureau had failed to mandated in LSA R S requirements sent to of business all course changes in the Bureau had although Fann under those circumstances In think there had been any to as not made the trier of fact that is under the manifest that a not standard the test is error reasonable trier of fact could have made the considering s testimony the entire record of the finding at Clearly if Mrs case is believed then it is reasonable to conclude that the papers were not sent to her constitute manifest error we are Because this finding does not precluded from setting it aside As a consequence the amendments to the policy were ineffective and the trial judge properly awarded damages as to the Wares under the UM provisions of the original policy Ware 910 So 2d at 469 In the instant were case confident that Kevin both Dr Benton and Ms Walker testified that covered under the GEICO was testified that Ms Walker handled his insurance matters He had regarding his and he policy communications Ms personal authorized her was GEICO and showed him all written policies when they arrived representative permission policy and would then to talk to Ms witness to communicate with GEICO the of all written and verbal notes of her correspondence in the mail Dr communications with with GEICO Benton would Walker on the phone conversation 9 Dr Benton and business financial affairs and always informed Walker often took policy they give including the GEICO phone regarding In fact prior his to the accident in May of 2003 they had contacted GElCO in Kevin removed the as a named insured under the GElCO policy premiums and because Kevin GEl CO policy Kevin as a household they had however Dr Benton endorsement nor coverage underwriter determining whether properly policy a made a the CC 1149 amendment endorsement mailed dated clarifying to Dr they were to 1 from where to was in effect was whether the approved delivered to to part of her duties an to same of the CC 1149 aware at Ms Mercer was on on a given day were s policy June 21 2002 In her they were the Bentons in the renewal worked Ms was at the print mail mailed from the packet policies were Fredericksburg policy facility facility holder and did not or if it was Mercer further testified that she had was ever mailed to the Bentons Rather the forms would have been entirely different division in facility then mailed to the GEICO never whether the form mail the opinion would have been coverage of business print CC 1149 Ms Mercer testified that She stated that the GElCO contracts and the national employed for the claims clarifying endorsement course know when the CC 1149 amendment as made policy and restricting However she admitted she had knowledge remove She stated that her duties included part of Dr Benton the 2002 generated and printed ever ever testify by GElCO Benton in the normal September Virginia to because he lived in the policy by GElCO department With reference was ever unable were policy Vicki Mercer was called a they amending the policy language until after the instant claims asserted under the as reduce Moreover Dr Benton and Ms Walker testified that received never to also covered under the State Farm informed them that named insured under the as was policy in order have to attempt an of GElCO it was not generated and mailed limn Thus the evidence offered show that the restrictive endorsement had been 10 as no sent to Dr by GElCO Benton consisted of Ms Mercer solely to do it was GEICO general s business practice so As fact testimony that s appellees correctly sought to facie prima Insurance be established which case Company 2001 1034 whether the evidence any pmiicular So Evidence of may 2000 1514 1 6 01 La such evidence is note be a routine rebutted sufficiently conclusive Permanent v 783 So 2d 467 Further the trial compliance with proves to prove the practice establishes only Brown La 3 14 01 793 So 2d 196 not findings s routine instance cannot be disturbed absent manifest General 470 writ denied comi a a practice on in Brown 783 2d at 470 On review evidence we offered endorsement had accept GErCO a prima trial no no facie court error from a showing of delivery receipt of a or no s a As the trial court Moreover testimony we even was do not find if we were conclusion given Ms we Mercer that the endorsement copy of the endorsement policy no agree with the s was Thus we testimony actually that would have been of GEICO s inconsistencies in complete copies of its purported policies 11 or Fredericksburg Virginia hard evidence of what it did such an that should have been mailed division of GErCO in sent to find sent as a copy copy of a somewhere in the agent or a policy with a cover letter in a paper file underwriting department Instead GErCO can only state what it usually does or what it should have done GEICO s reliance on its procedures is undermined by the evidence brought out by the plaintiffs to sufficient to make correctly reasoned GEICO has a show that the CC 1149 copy of the CC 1149 endorsement knowledge Dr Benton which s to detennination that the s Benton and Ms Walker shows that they had testimony of Dr printing plant in another of insufficient been sent to Dr Benton in the trial comi by was in the trial court argument that Ms Mercer s although she had received no error by GEICO ever that the knowledge find error reproducing in this case proper and The of LSA R S language mandate that endorsements policy holder 22 628 effecting a we ultimate determination that the GEICO court after these claims under Dr Benton s Thus the trial arose policy Accordingly we find s effOlis more find than merit no to this reasonable one exclusionary language is ambiguous An insurance policy is interpreted by using ordinary 2d 1377 1379 contracts is to La 1993 93 0911 La an 14 1 The explicit the LSA C C intent ambiguity where 2See none was coverage exists that the fmding and interpretation principles Smith judicial responsibility common 2d 759 no Two that policy may the be policy s agreement between the patiies and should be patiies 630 So contract is clear and parties the assignment of error Guaranty Association 94 Instead s and is to be construed in favor of the insured contract determine the Louisiana Insurance court 2 GEICO next asserts the trial court erred in its to its to restrict coverage found there court properly Assignment of Error Number Ambiguity of the Policy subject in the trial no error in to the sent policy applied herein of GEICO rejection s unambiguous in coverage be change Given the record herein record supports the is clear and further art interpreting intent If the interpretation LSA C C language Gas in an insurance art 2045 Company insurance may be made in search of The court should not strain to find Andrews also Brown 783 So 2d at 470 471 Matthews 611 So Interstate Fire v 763 2046 in v v where Columbia despite Casualty Insurance the fact that the insureds had requested that their automobile insurance policy limits be amended to reduce coverage and had paid a reduced premium given their testin10ny that they had not received a copy of the policy endorsement evidence of an automobile liability insurer s routine business practices was not conclusive to show that an endorsement lowering liability limits on the insureds vehicles met the delivery requirements of LSA R S 22 628 12 Company and Progressive Security 1 st Cir 3 23 07 960 So ambiguity in by construing the policy as C C mi whole policy purchaser an one resolved insurance other policy it v contractual how by asceliaining a Schilling 550 So 2d 609 610 611 provision is be constIued to obligation strict construction to are apply the policy Corporation The determination of whether McMath Construction So must be interpretations 2005 0886 La contract is clear a Company Inc v 630 So 2d to to two susceptible must be reasonable 17 5 or 06 art at 764 narrow or more Bonin 930 So 2d 906 ambiguous Dupuy the For the rule of insurer is 2003 1413 2d 677 681 writ denied 2004 3085 La 897 So If after La 1989 equivocal provisions seeking strictly constlued against the and the alteluative Insurance Cir 11 17 04 2d at 763 See LSA C C Guaranty Association Under this rule of strict construction law See LSA against the insurer who also Louisiana Insurance Westport be construed ambiguity remains an 2056 interpretations not to reasonable insurance policy and in favor of coverage for the insured insurer s App be resolved 630 So Guaranty Association issued the an must policy provisions applying the other general rules of construction see La would construe the clause at the time the insurance contract entered Breland ambiguous 2006 0896 policy provision is disregarding Louisiana Insurance Ambiguity will also be was a at the expense of 2050 Company 2d 134 139 However if there is separately Insurance a v 911 question of La App 1st 18 2 05 896 2d 40 Here the trial comi determined that Kevin fi om work five permission policy constituted exclusion policy the to six days The trial limitation of the Ford F 150 week and after work and a regular s use use court on of the vehicle within the then concluded that under the Losses We Will language in the 13 Pay to and weekends with meaning original of the A 30LA For You Under Section I section of the arising from that the such policy i use policy applied property damage claims for losses to the use of an owned e contained such limitation no and auto or exclusion non owned that coverage was review of the policy After for bodily court found to coverage injury claims Thus interpreting the language of the policy the trial seemingly provided therein for bodily injury claims we discussing and auto Upon agree the ambiguities in GEICO s A 30LA the trial court policy concluded GEICO basic s to GEICO policy identified A 30LA as 2 97 and denial of coverage letter which is Exhibit McGehee One appears in the Losses We Will Pay Section attached initial s bring the issue of a nonowned auto into play only in propeliy damage situations and not where there is a claim for bodily injury And that provision standing alone is indeed ambiguous Of course ambiguities in the policy which attempt to restrict coverage are interpreted against the insurer and in favor of coverage Apparently aware of that possible ambiguity GEICO issued endorsement 1149 to clarify that situation And in that endorsement which is CC to attached to issue auto Exhibit GEICO One makes it clear that the nonowned applies in both personal injury and in property damages claims A plain reading of the reasonably be claims which interpreted an to A 30LA mean insured becomes policy convinces by or non obligated to owned auto GEICO appears to Further we apply agree that the s A 30LA to claims for policy standing alone bodily injury and propeliy damage non from the or destruction of read to apply the affords coverage both claims for or arising auto use of an urged property coverage We agree While GEICO ambiguous interpreting this provision owned and injury bodily injury damages policy is auto or damages argues that the owned bodily injury pay because of bodily policy could reasonably be not policy could As the trial court found the limitation because the McGehees have asserted claims for that GEICO that the that coverage is afforded for that coverage is not limited to those claims sustained owned auto us must arise from to mean the use that of an the endorsement CC 1149 relied upon 14 by GEICO constitutes policy an attempt by GEICO this Considering court that the endorsement had trial court that the interpretation not original in that the detennination that the trial s been A 30 policy clarify this apparent ambiguity to s properly policy is delivered herein subject to more exclusionary language is to be construed in favor of the insured court is than court ambiguous confected in making its an See Bonin 930 So 2d determination that GEICO This s CC 1149 attempt albeit unsuccessful herein it clear that the personal injury agree with the and in non to reasonable one cure coverage at 911 we find ultimate determination that the GEICO A 30LA s or correctly found ambiguous Accordingly after thorough review of the record herein the trial we in the no error policy endorsement the owned auto limitation upon coverage in was was ambiguity by applies to both 21 2006 assessed against property damage claims assigmnent also lacks merit CONCLUSION Based on the above and judgment of the trial court foregoing is affinned reasons Costs of this the appellant GEICO AFFIRMED 15 the September appeal are STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2006 CA 2335 GARY MCGEHEE ET AL @ VERSUS KEVIN BENTON ET AL HUGHES J I dissenting whether the CC 1149 as regular the normal business The trial court to was ever clarify an paid a ambiguity found rebuttal The trial neither Dr Benton nor subject vehicle was that there and that Geico issued CC 1149 was no evidence original policy language Ms Walker of testimony is then stated comi mailed to the insureds use this of endorsements mailing issue is only use The trial comi fmiher noted that practice was facts that the as regular premium for in the the herrings of the insurer correctly s endorsement use practice furnished for Kevin Benton Geico several red respectfully dissent Despite prima facie a normal business evidence I do not recall either to subject one of them had not seen or respectfully submit specifically saying they received endorsement CC 1149 Having accurately determined these that the trial comi erred in its LRS 22 628 Cir 2000 in light of the application case of facts I would of the law to them Naquin v insurer to prove insured To the that an endorsement contrary the Naquin proof lst is shifted to the actually communicated was case interpreting 774 So 2d 1277 Fortson the trial comi holds that the burden of In held that notice to an to the association rather than individual members thereof sufficed The regular instant statute does not mail in the normal case was require personal service Dr Benton he responded that I believe you s the case registered mail only of business Testimony In fact when the question course not rebutted or I couldn t tell you trial to this effect in the was put squarely and then admitted transcript page 57 to if you say

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