Wanda Landry, Ellery Paul Landry, Jr., Jamie R. Landry, Wanda Landry on Behalf of Jamie Renee Landry and The Deceased Ellery Paul Landry, Sr. VS Allstate Insurance Company and Carmen M. Letourneau
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2010 CA 0220 WANDA LANDRY ELLERY PAUL LANDRY JR JAMIE RENEE LANDRY AND WANDA LANDRY ON BEHALF OF JAMIE RENEE LANDRY AND THE DECEASED ELLERY PAUL LANDRY SR VERSUS ALLSTATE INSURANCE COMPANY AND CARMEN M LETOURNEAU Judgment Rendered September 10 2010 Appealed from the 21st Judicial District Court In and for the Parish of Livingston State of Louisiana Case No 119 341 The Honorable Jerome M Winsberg Judge Pro Tempore Ted M Mitchell Covington Louisiana Carey J Guglielmo Brad M Boudreaux Counsel for PlaintiffsAppellants Wanda Landry Ellery Landry Jr and Jamie Landry Counsel for DefendantAppellee Lafayette Insurance Company Baton Rouge Louisiana BEFORE CARTER C GAIDRY AND WELCH JJ J GAIDRY J MEMORANDUM OPINION This is a wrongful death action brought by Wanda Landry the widow of Ellery P Landry Sr and the mother of Jamie Renee Landry a minor and Ellery P Landry Jr the decedent adult son Ellery P Landry Sr an s employee of Traffic Solutions LLC was killed after being struck by an automobile while walking in a highway median to retrieve and return a traffic warning sign to his employer truck One of the named defendants s was Lafayette Insurance Company Lafayette which had issued a policy of commercial automobile insurance providing unininsured underinsured motorists UMUIM coverage to the employer The plaintiffs have appealed a summary judgment of the 21st Judicial District Court for the Parish of Livingston in favor of Lafayette holding that the decedent was not covered under its UM coverage and dismissing the plaintiffs causes of UIM action against it For the following reasons we affirm It is undisputed that Mr Landry the decedent was not a named insured under the Lafayette policy and that to otherwise qualify as an insured for purposes of the UM coverage he had to have been UIM occupying a covered vehicle Lafayette policy defined occupying as s in upon getting in on out or off A passing motorist testified by deposition that Mr Landry was still walking toward the warning sign in the median a few seconds before he was struck The depositions of two co workers filed in the record unequivocally placed the employer trucks s including the particular truck at issue no closer than 300 feet from the point where Mr Landry was struck or where his body came to rest and the Mrs Landry asserted claims for herself and for her minor daughter Although Jamie has now attained the age of majority the trial court judgment was rendered prior to that s time and Jamie has not since been substituted as plaintiff for her own claims 2 testimony of one of the coworkers Mr Landry nephew placed the truck s at issue almost a quartermile from where Mr Landry was struck Interpretation of an insurance policy is usually a legal question that can be properly resolved by summary judgment Doe v Breedlove 040006 p 7 La App 1st Cir 2 906 So 565 570 However the question 05 11 2d of whether a person is occupying a vehicle is a mixed question of fact and law Minor v Cas Reciprocal Exch 962096 p 3 La App 1st Cir 97 19 9 700 So 951 953 writ denied 972585 La 12 706 2d 97 19 2d So 463 The plaintiffs contend that the policy language is ambiguous and that the particular facts support an interpretation that Mr Landry may have been upon in physical contact with an integral appurtenance or component of the work truck the warning sign or in the course of getting in the truck to leave the worksite while engaged in the mission of retrieving the sign In support of their contentions the plaintiffs rely upon the case of Westerfield v LaFleur 493 So 600 603 La 1986 which enunciated the 2d principle that a person physical relationship to a vehicle in terms of time s and distance rather than actual physical contact was determinative of whether a person was entering into and therefore occupying the vehicle under the policy language In Westerfield the supreme court found the phrase entering into part of the policy definition of occupying to be ambiguous Id at 605 06 The definition of occupying in Lafayette policy however differs s from that of the policy in Westerfield In Valentine v Bonneville Ins Co 961382 La 3 691 So 665 the supreme court held that the same 97 17 2d policy language as that of the Lafayette policy was clear and unambiguous and that the alleged insured a deputy sheriff directing traffic outside his 3 vehicle after a traffic stop was not an insured According to Valentine the application of the physical relationship test enunciated in Westerfield and its progeny is ultimately predicated upon ambiguity of policy language defining the alleged insured physical relationship to the insured vehicle If s the policy language unambiguously excludes the alleged insured as a person occupying the insured vehicle then the Westerfield rationale does not come into play Valentine 961382 at p 8 691 So at 671 2d We have carefully considered the logical and well articulated argument of plaintiffs counsel but we must conclude that under the general ordinary plain and popular meaning of the policy language Mr Landry was neither in upon getting in getting on getting out or getting off the insured truck at the time of his tragic death and that summary judgment was appropriate See Valentine 961382 at pp 8 9 691 2d So at 671 An insurance policy should not be interpreted in an unreasonable or strained manner so as to enlarge or restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion Magnon v Collins 982822 p 7 La 7 739 So 99 2d 191 196 Here Mr Landry physical and intentional relationship to the s vehicle had become attenuated and he clearly was no longer within the zone of risk attendant to getting out or off or in or on the vehicle See Minor 962096 at pp 1011 700 So at 957 2d The judgment of the trial court is affirmed and all costs of this appeal are assessed to the plaintiffsappellants Wanda Landry and Ellery P Landry Jr This memorandum opinion is issued pursuant to Rule 2 16 B 1 of the Uniform Rules of Louisiana Courts of Appeal AFFIRMED 4
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