Stephen Savoy VS John Harris, Reliable Amusement Company and Southern Insurance Company (2009CA0221 Consolidated With 2009CA0222)
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2009 CA 0221 STEPHEN SAVOY VERSUS JOHN HARRIS RELIABLE AMUSEMENT COMPANY AND SOUTHERN INSURANCE COMPANY CONSOLIDATED WITH NO 2009 CA 0222 RELIABLE PRODUCTION SERVICES INC RELIABLE AMUSEMENT CO UNITED PUMP EQUIPMENT LIBERTY OIL INC CO INC GAS CORP LIBERTY RESOURCES INC AND R P S ENERGY INC VERSUS BRAXTON INSURANCE BROKERS INC PAUL P COOKSEY ABC INSURANCE COMPANY SPHERE DRAKE INSURANCE PLC SOUTHERN INSURANCE CORPORATION TOM COOKSEY AND UNITED NATIONAL INSURANCE COMPANY Judgment Rendered June 12 2009 On Appeal from the 18th Judicial District Court In and for the Parish of Pointe Coupee State of Louisiana Trial Court No 31 676 Honorable J Robin Free c w 38 295 Judge Presiding Attorneys for Plaintiff2nd Appellant Stephen Savoy John N Denenea Jr Brian G Shearman New Orleans LA st Attorneys for Defendant 1 Appellant Sphere Drake Insurance PLC David R Frohn Spencer L Trahan Lake Charles LA Lewis O Attorneys for Defendant Appellee Unglesby Reliable Amusement Co Robert M Marionneaux Jr Inc Barrett D Burkart Jr Baton Rouge LA Lindsay A Larson III Attorney for Defendants Appellees Tom New Orleans LA Cooksey Southern Ins Co United National Ins Co BEFORE CARTER J C WHIPPLE AND DOWNING n 2 and CARTER C J These consolidated collision between after Stephen Savoy and job was Sphere service and to There various locations another manager one job Craig Reliable s a authorized According that is to turn s use while to did on not duty excess Sunday night as a route man machines at duty while he poker was on 193 0 to the s van cash injured was by Harris to According Harris that he was not on was on his way s service calls after 7 00 p when he to work the and was was night m Harris was not next morning to 3 was duty on keys Additionally supposed but the cash 4 general that duty and his Savoy Harris However Reliable van scheduled house ended strictly prohibited was route s and second offense DWI 1 Harris respond was running his filed suit for s was rear be drive the company Tullos Harris while and Reliable to friend investigating police officers 15 000 00 of Reliable Savoy and a operation why he had possession of claimed that Harris men Shortly the accident Tullos testified that route employed evidence that Harris determined of the end by his employer owned money for video left rear allegedly insured by Sphere was when the accident occurred drinking alcohol not and that provide to 1996 29 on Harris issued citations for careless allegedly told 2 April Drake was no when he slowed to make was a van driving home from was blood alcohol level driving was drinking immediately prior Savoy who to an drunk driver John Harris a Company Reliable Drake Insurance PLC whose He drinking Reliable Amusement was out of arose midnight and immediately before the accident Harris had been was matters and Tullos be in the van for missing personal injury damages against Harris Reliable general and automobile 3 liability insurer Sphere 1 Drake Sphere Drake denied Reliable s was never Tom premiums bound an insurance Reliable filed Cooksey and Southern insurance brokers Paul Cooksey Braxton claiming that it had coverage policy Insurance Company parties were TomCooksey Southem Drake was realigned pursuant dismissed from issued and coverage Tom Cooksey Southern and Braxton Insurance Brokers Inc Company United National Insurance received separate suit against its insurance agents a Cooksey was never never to a and s United msurer Sphere Drake Paul National Thereafter the Mary Carter agreement wherein Sphere Savoy suit s but remained in the litigation against Reliable The cases consolidated for were Eighteenth Judicial District Court favor of was employment with Reliable ruled that Drake had Sphere coverage to Reliable Reliable s Reliable s at not provided defense expenses and Sphere Drake was personally within the excess liable for automobile the in Savoy s and scope of his course further court liability insurance that Harris had permission was costs in immediately ruled Sphere Drake implicitly ruling Finally the court 2007 trial the time of the accident The trial and that therefore van retention limit acting was 20 April The trial Savoy but found that Harris damages because Harris an to operate responsible for that had exceeded the self insured trial court dismissed all of the substituted for Southern Insurance remaining claims Company as the alleged insurer for Reliable 2 Throughout although there are this OpInIOn several other simply refer companies in the we separate suit against the insurance agents Cooksey Braxton never to responded to Reliable s petition 4 Reliable Harris s employer Reliable group that joined in the broker and insurance companies Paul those including Reliable against agent Tom Cooksey Southern and its s insurer United National Contentions of the Parties from the trial court Savoy and Sphere Drake filed separate appeals Both judgment error in its argue that the trial court committed manifest appellants ruling on the course argues that the trial court insurance coverage when issued an erred in insurance failing responsible upon to Insurance appealed or s answered the court Harris negligence s 3 turn Cooksey erred in that the agent insurance cards to a excess liability premium and never Cooksey Southern to procure the was agreed Cooksey Southern Tom nor court appeal but both of those defendants maintain that They premiums Braxton Tom because it failed correctly found that Reliable the finding received never Neither Reliable was vicariously not also maintain that the trial paid all of the premiums sent Additionally Sphere Drake Drake also argues that the trial Sphere Sphere Drake insured Reliable had Drake damages coverage the trial manifestly recognize for Reliable and scope issue Sphere policy s was to correct considering the broker s for that finding the fact that Reliable who in Cooksey Southern its agent Tom to court liable for Sphere Drake Paul Further the agent issued certificates of insurance and Reliable indicating that Sphere Drake was Reliable s insurer in 1996 automobile liability Course and Scope ofEmplovment It employee 3 is well settled in Louisiana that the s tortious conduct was question of whether sufficiently employment related is Sphere Drake does not question permission to operate Reliable s van the trial court 5 s finding of Harris a s an mixed implied of fact and law question entitled great deference to manifest and the trial error So 2d 868 trier of fact to The on review Russell standard 871 court v resolution of that by the Noullet and scope of course s determine whether the of court 98 0816 question is under the appeal La 1211 98 721 employment inquiry requires employee tortious conduct s the was so closely connected in time place and causation to his employment duties to be regarded a risk of harm extraneous to entirely the the employer s vehicle is within the be rebutted can Co Ins 387 by a 291 La s 1030 trip is personal App 2 Cir La business La in any manner extremely intoxicated on Keen that his rise 4 Savoy s employment vehicle but was on his way to a job was 6 s Canal Indem Williams v where the 332 So 2d 286 1976 on rehearing clearly Harris related at driving was not when he became a very late hour in was to a presented with job location at resolved that conflict in favor of telling Neither Harris trial employer liability The trial court obviously exists that just being Inc La personal time and then s his v However vicarious 234 v Cir 1980 conclusion that testified that he overheard Harris officers that he to 2d So conflicting evidence about whether Harris 4 1 Pel State Oil Co v was night drove his employer the time of the accident Moran 1 Cir 1977 App give We agree with the trial court acting operating LeBrane employment This presumption App denied 333 cert presumption accident while 1244 company vehicle does not employee a convincing evidence So 2d 1243 1029 Quoting Further and scope of his course clear and Morgan 356 So 2d an Id interests s 1974 La who is involved in employee an employer 218 Lewis 292 So 2d 216 the to compared with conduct motivated by purely personal considerations as in attributable fairly as one nor of the any investigating police police officer testified at Reliable whose manager the accident occurred evidence that Harris at clearly testified that shortly after midnight was Where two Rosell v or cannot be is employment 844 socialize employer drink s Insurance to say a excess at the time route his work After 1989 clearly or s wrong thorough a convinced that the trial review court s and scope of his course Duvall 421 So 2d 262 v court was to 265 La App automobile liability of this accident exclusions 921 Tunstall The record to Tom excess In insurance coverage a suit based on an insurance proving the existence of the policy Stierwald Cooksey Southern Cooksey Braxton insurer through 01 1765 La showing policy 2 26 02 809 reasonably supports the conclusion that Reliable insurance for 1996 in addition broker Paul v we are wrong in its factual conclusion clearly The insurer however bears the burden of paid premiums same on careful review and evaluation of the record that the trial and coverage So 2d 916 limits of his no independent and personal decision s the insured bears the burden of or absolutely Coverage Sphere Drake limits duty when writ denied 427 So 2d 1209 La 1983 that Reliable had policy erroneous acting within the See Schaeffer Likewise after unable on and drive under the influence of alcohol while in his vehicle 4 Cir 1982 not La we are given Harris correct was geographical manifestly and evaluation of the entire record was There not views of the evidence exist the fact finder ESCO 549 So 2d 840 conclusion that Harris was that he became intoxicated while permissible choice between them within the driving the time of the accident route Harris to to renew its excess several other lines of insurance who then procured the insurance liability through through the Sphere Drake that they had previously used 7 a The record also reasonable Reliable supports the finding that Tom Cooksey Southern exercised diligence in acquiring the a for the insurance premium policy number provided by the broker Although the evidence reveals terminate Reliable evidence clearly liability coverage Paul shows that during Braxton actual renewal were policy never even was not forwarded line through Sphere quoting 5 Although Ins Co 0958 La App the less not absolutely though actually to s no its one an 97 the end of 1996 line to to the Reliable renew s process that quoting Insurance the on the future cancelled of the Drake a renew admitted that the premiums for the renewal the finding was not to for nonpayment of Cooksey Braxton written and the Sphere production part of Sphere Drake was Paul Paul coverage Cooksey Southern and Reliable evidence in the that Reliable bound for 1996 provisions indication ofvalid insurance s record coverage by the slip and costs of the possession of an insurance factor to be considered when payment of premiums by the insured La App 3 Cir 3 97 692 12 2d So 693 So 2d 802 4 Cir 10 26 95 had decided evidence in the record that Reliable Drake and coverage always at Drake agreed slip promised 96 1203 16 5 a process that outlined the terms identification card is along with Sphere Drake assured Tom reasonably and sufficiently supports existed the broker 5 insurance Reliable that the coverage or Thus premmms to Sphere Drake had customarily used for several notified of any intention the coverage that through bound and was There is policy was ever 1996 consistently that the coverage Sphere with dealing when Cooksey program for all s Braxton and Cooksey years paid for by and then issued insurance cards and certificates of insurance commission with the passed and requested coverage 663 2d So Smith 531 v determining insurance coverage See Jacobs v Louisiana Indem 1182 1184 1185 writ denied American Lloyds Ins Co 95 0235 532 writ denied 95 2826 La 2 2 96 1085 8 97 La 666 So 2d coverage limits or Sphere Drake failed to produce proof of nonrenewal cancellation exclusions from coverage establishes that Reliable received the was reasonable in assuming that it had though the actual policy was never produced by the broker It is well settled that the trier of fact testimony is Therefore based absence of the actual court factual s better a policy finding 882 883 the on issued that Car Rental 96 1270 La 1239 App defense Inc System Zurich American Ins 4 Cir costs Thus 1993 La 1993 Drake La of case we v at in the even agree with the trial insurance provided liability Cf Ledet App 3 Clr Group 549 So 2d and a and Transp Rosell operated by Harris van credibility than through Dept by Sphere Drake Sphere even 6 evaluate to unique facts of this coverage to Reliable for the 1236 for and paid actually hearing and observing position State v 617 So 2d 880 Development 844 845 in See Stobart court reviewing sufficiently type of insurance that it had previously obtained same the witnesses the evidence Additionally National v 6 4 97 694 So 2d 264 Ellison 640 So 2d 262 Sphere Drake is responsible for Reliable s and expenses in excess of the self insured retention limit Conclusion We affirm the costs judgment equally between Appellant 1 st of the trial court Appellant Sphere Stephen Savoy accordance with Uniform Rules We issue in its entirety and Drake Insurance this memorandum assess PLC and 2nd opinion In Courts of Appeal Rule 2 16 1B AFFIRMED 6 distinguish the line of cases overturning default judgments where the policy was not offered into evidence because the case currently before us involved a full trial where the trial court heard accepted and considered evidence of the existence of the insurance policy and coverage See Arias v Stolthaven New Orleans We insurance L L C 08 1111 Merrick 06 2381 Life La 5 5 09 La Cas Ins Co App 1 Cir 2d So 2009 WL 9 19 07 385 So 2d 316 317 La 9 970 So 2d 1019 App 1 Cir 1980 1457031 1021 Nelson Holland v v Aetna STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2009 CA 0221 STEPHEN SAVOY j VERSUS JOHN HARRIS RELIABLE AMUSEMENT COMPANY AND SOUTHERN INSURANCE COMPANY CONSOLIDATED WITH NO 2009 CA 0222 RELIABLE PRODUCTION SERVICES INC RELIABLE AMUSEMENT CO UNITED PUMP EQUIPMENT LIBERTY OIL INC CO INC GAS CORP LIBERTY RESOURCES INC AND R P S ENERGY INC VERSUS BRAXTON INSURANCE BROKERS INC PAUL P COOKSEY ABC INSURANCE COMPANY SPHERE DRAKE INSURANCE PLC SOUTHERN INSURANCE CORPORATION TOM COOKSEY AND UNITED NATIONAL INSURANCE COMPANY DOWNING J I dissents and respectfully dissent assigns reasons I n the absence of broker is the agent of the insured in does La not App represent the insurer 1 Cir reasonably show 12 22 94 any procuring Tassin v the policy of insurance and Golden Rule Ins 649 So 2d 1050 special special circumstances the circumstances 1054 Co 94 0362 The facts here fail to demonstrating that the broker Paul Cooksey majority s Braxton acted at issue was a Further the record contains renewal no court I I conclude Reliable s therefore costs that cannot not insurance coverage Harris defense did to err limit 2 cancellation in agree with the finding that Reliable for the Sphere and expenses in the support the conclusion that the representation of the final or Accordingly conclusion that the trial not policy requiring copy alleged policy provided liability Despite agent for Sphere Drake contention the record does alleged policy the as Drake is excess not or terms of majority Sphere van notice s Drake operated by responsible for of the self insured retention
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