Raymond Lee Hartzo and Debra Elaine Hartzo VS American National Property and Casualty Insurance Company and Allstate Insurance Company
Annotate this Case
Download PDF
NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2010 CA 0247 RAYMON LEE HARTZO AND DEBRA ELAINE HARTZO VERSUS i AMERICAN NATIONAL PROPERTY AND CASUALTY INSURANCE COMPANY AND ALLSTATE INSURANCE COMPANY Judgment Rendered OCT 2 2 2010 APPEALED FROM THE NINETEENTH JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF EAST BATON ROUGE STATE OF LOUISIANA DOCKET NUMBER 523 DIVISION A SECTION 27 390 THE HONORABLE TODD W HERNANDEZ JUDGE Ralph L Fletcher Baton Rouge Louisiana Attorneys for PlaintiffAppellee Raymon Lee Hartzo and Debra Elaine Hartzo Furniss Quinn Hood Jr Bossier City Louisiana Donald R Smith Attorney for Defendant Appellee Baton Rouge Louisiana Allstate Insurance Company Randall L Kleinman Attorneys for DefendantAppellant Roger D Marlow New Orleans Louisiana ANPAC Louisiana Insurance and Robert Claude Funderburk Jr Baton Rouge Lousiana BEFORE WHIPPLE McDONALD AND McCLENDON JJ b k 1 c r t oirr Wbd N4 lipr X n rpread U WDONALD J This matter is before us on appeal from a judgment from the Nineteenth Judicial District Court in favor of the plaintiffs Raymon L and Debra E Hartzo based on a finding that the driver of the vehicle involved in a fatal automobile accident had the pernission of the owner to drive the car For the following reasons the judgment is affinned In the early morning hours of April 15 2004 Charles Larmon was operating his sister Nicole Ford Taurus when it collided headon with a Toyota Tacoma s driven by Laura Chustz Both Charles Larmon and Chandra E Hartzo a passenger in the Chustz vehicle were killed in the collision The 1996 Taurus was insured by an American National Property and Casualty Insurance Company ANPAC policy s Charles automobile a Mercury Sable that was in the shop undergoing repairs at the time of the accident was also insured by ANPAC A petition for damages was filed by the Hartzos in August 2004 naming as defendants ANPAC and Allstate Insurance Company which provided insurance to the Hartzo family under a policy that included uninsured motorist coverage In December 2004 ANPAC filed a motion for summary judgment seeking a declaratory judgment that the policies issued by ANPAC did not provide coverage for the accident It argued that Charles Larmon did not have either explicit or implicit permission to drive the Taurus as required by both ANPAC policies for coverage to apply On November 18 2004 Allstate tendered its uninsured motorist policy limit of 100 to Raymon and Debra Hartzo In December 2004 Allstate filed a 00 000 crossclaim against ANPAC and a third party demand against the estate of Charles Larmon praying for an award for reimbursement to Allstate for all sums paid to Raymon and Debra Hartzo under the uninsured motorist and medical payments coverages of their policy On June 16 2004 Allstate issued a check for 2 00 000 2 to Mr and Mrs Hartzo representing the medical payments coverage available under its policy In April 2005 after hearing the motion for summary judgment the district court found in favor of ANPAC and the matter was dismissed The Hartzos and Allstate appealed See Hartzo v American Nat Property and Cas Ins Co 05 1943 La App l Cir 12 951 So 1120 writ denied 07 0184 La 06 28 2d 07 16 3952 So 702 2d A fivejudge panel of this court found that Charles did not have express permission to drive the vehicle However it was noted that the issue of implied permission involves a balancing of legal and public policy decisions and must be inferred from the totality of facts and the relationships involved Based on the record on the motion for summary judgment it was determined that ANPAC was not entitled to judgment as a matter of law Therefore the judgment was reversed and the matter remanded for a trial on the merits The matter came before the district court as a bench trial on July 21 2009 The parties stipulated that Charles Larmon was 100 at fault for the accident and that the owner of the vehicle was Nicole Lannon The parties further stipulated to the introduction of documents supporting Allstate claims of subrogation for s amounts paid under its uninsured motorist and medical payment coverages After recognition of the stipulations by the court Allstate did not participate further in the trial The district court heard the testimony of Raymon Hartzo Debra Hartzo Nicole Larmon Frank Larmon Neida Larmon and Kirby McKenzie a director of underwriting working for ANPAC Neida Larmon is the mother of Charles and 1 The insurance policy covering the vehicle was issued to Amy Letard and listed Amy Letard Marilyn Larmon Amy mother who at the time of the accident was married to Frank Larmon s s Charles and Nicole father and Nicole Larmon as PR and Charles Larmon as REL s According to the testimony of Kirby McKenzie PR and REL refers to the rating status of the driver PR meaning principal operator status REL meaning related policy status in other words that driver is rated on a related policy under the account 3 Nicole with whom they were both living at the time of the accident At the conclusion of the trial ANPAC made a motion for involuntary dismissal which was denied by the court and the matter was taken under advisement On August 4 2009 the court issued a ruling finding that the policies at issue on the Ford Taurus and on the Mercury Sable were ambiguous as to coverage for Charles as a named insured or permissive operator Considering the totality of the evidence the court found that Charles had the express and implied permission of Nicole to operate the 1996 Ford Taurus The court also noted that Charles s understanding or state of mind at the time he used Nicole car could not be s determined but the evidence established by a clear preponderance that he had permission Finding that Charles had both the express and implied consent to use the Ford Taurus the court found that Charles was afforded coverage under both policies General damages in the amount of 475 were awarded to both 00 000 Raymon and Debra Hartzo as well as special damages in the amount of 8 02 832 for funeral expenses Judgment so ordering was signed on August 19 2009 This appeal by ANPAC timely followed ANPAC alleges six assignments of error It contends that the trial court was manifestly erroneous in finding that Charles Larmon had the permission of Nicole Lannon to operate the vehicle involved in the accident Legal error was alleged on three bases 1 By finding express permission because the law of the case was that there was no express permission under Hartzo v American National Property and Casualty Ins Co 05 1493 La App I Cir 12 951 So 1120 06 28 2d 2 By finding coverage under the ANPAC policy issued to Charles Larmon because his use of his sister vehicle was without her permission thereby precluding s coverage under the temporary substitute car provision of his policy and 3 By 4 ignoring supreme court precedent Malmay v Sizemore 493 So 620 La 1986 2d ANPAC also alleged that the damages were excessive An appellate court should not set aside the factual findings of a trial court absent manifest error or unless clearly wrong 04 6 2 869 So 71 76 2d Oubre v Eslaih 03 1133 La The manifest error standard of review applies to all factual findings including a finding relating to the factual as opposed to legal sufficiency of evidence to warrant application of a legal theory or doctrine Barnett v Saizon 08 0336 La App l Cir 9 994 So 668 672 This 08 23 2d standard of review also applies to mixed questions of law and fact Id On review an appellate court must be cautious not to re weigh the evidence or to substitute its own factual findings just because it would have decided the case differently Bonin v Ferrellgas Inc 03 3024 La 7 877 So 89 95 04 2 2d Appellate review of a question of law is simply a decision as to whether the trial court s decision is legally correct or incorrect Harris v Metropolitan Life Ins Co 09 0034 La App I Cir 235 So 266 273 10 5 3d Initially we find that Malmay v Sizemore 493 So 620 La 1986 is 2d factually distinguishable from the present case We also note that the issue of whether a person operated an automobile with the express or implied permission of the named insured is to be determined according to the circumstances of the particular case Malmay 493 So at 623 In Malmay the person who had given 2d permission for the car to be driven was not the owner and had been expressly told by the owner not to allow anyone else to drive In this case Nicole clearly had the right to give permission Further because the issue of express permission is not dispositive in this case we pretermit discussion of possible legal error in not following the law of the 2 ANPAC also asserts that Charles Larmon was not a relative afforded coverage under the policy owned by Nicole Larmon however as the trial court made no finding relative to that issue we do not consider it as an assignment of error 5 case doctrine and requiring a finding that there was no express permission Even assuming that a finding that there was no express permission was mandated it is still necessary that the issue of implied permission be decided The applicable law has been thoroughly and carefully reviewed as has the entire record We confine analysis in this opinion however primarily to the issue of the trial court factual finding that Charles had the implied permission of s Nicole to operate the vehicle and thus was afforded coverage under the policy insuring the Ford Taurus and as a pennissive driver of a temporary substitute vehicle under the coverage on Charles Mercury Sable as well s We note that Charles was a member of Nicole household her brother and had driven her car s earlier that evening and on other occasions We do not find that the trial court s decision that the totality of the evidence supported a finding that Charles had the implied permission of Nicole to operate the vehicle is manifestly erroneous Although the limited facts in this case could be interpreted to reach a contrary result we do not find the decision of the trial court to be clearly wrong The trial court damage award is challenged by ANCO as being excessive s The trial court determination of the amount of an award of damages is a finding s of fact Ryan v Zurich American Ins Co 07 2312 La 7 988 So 214 08 1 2d 219 The initial inquiry must always be directed at whether the trial court award s for the particular injuries and their effects upon this particular injured person is a clear abuse of the trier of fact great discretion Rando v Anco Insulations Inc s 08 1 163 08 1169 La 5 16 So 1065 1094 It is only after articulated 09 22 3d analysis of the facts discloses an abuse of discretion that the award may on appellate review for articulated reasons be considered either excessive or insufficient Id We do not find that the award of 475 to each of 00 000 sparents in this case is a clear abuse of the trial court great discretion Chandra s 0 Accordingly the judgment is affirmed Costs are assessed to appellant American National Property and Casualty Insurance Company AFFIRMED 7 STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT r 2010 CA 0247 RAYMON LEE HARTZO AND DEBRA ELAINE HARTZO VERSUS AMERICAN NATIONAL PROPERTY AND CASUALTY INSURANCE COMPANY AND ALLSTATE INSURANCE COMPANY McCLENDON J dissents and assigns reasons I respectfully disagree with the majority to the extent that it finds that Charles Larmon had the implied permission of Nicole Larmon to operate the vehicle and thus was afforded coverage under the respective insurance policies Implied permission arises from a course of conduct by the named insured involving acquiescence in or lack of objection to the use of the vehicle Lee v Taylor 00 1361 p 5 La 1 Cir App 00 15 12 808 So 407 410 per curiam The plaintiffs had the burden of proving 2d the implied permission of the insured under the insurance policies Id 00 1361 at p 4 808 So at 410 I do not agree that plaintiffs have met their burden of proof 2d During trial Nicole testified that she had allowed Charles to operate her vehicle on one or two prior occasions However Nicole also testified that such use had been permitted under very limited circumstances and that she had reservations about Charles using her car Normally Nicole would either tell Charles he did not have permission or she would take him on whatever errands he needed to run s Charles mother and father both testified that there was a family policy against using one another svehicle without the express permission of the owner None of this testimony was contradicted Nicole expected Charles to ask her for permission to use her car and to Nicole s knowledge Charles had never used said car without her permission Nicole leaving her purse on the kitchen table simply cannot be construed as a tacit invitation for Charles to go through her purse take her keys and drive her car After careful review of the entire record the totality of the evidence clearly does not support a finding of implied permission permission Nor does the record establish express Hartzo v American Nat Property and Cas Ins Co 05 1493 App La 1 Cir 12 951 So 1120 1125 writ denied 07 0184 La 3 06 28 2d 07 16 952 So 702 Thus there was no reasonable factual basis from which the trial court 2d could have inferred consent Accordingly I respectfully dissent
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
