Opinion
NO. 2023-C-0095
04-26-2023
Miguel SOLANO v. ORLEANS PARISH SHERIFF’S OFFICE, et al.
Frances McGinnis, George P. Hebbler, Jr., HEBBLER & GIORDANO, LLC, 3501 N. Causeway Blvd., Suite 400, Metairie, LA 70002, COUNSEL FOR INTERVENOR/RELATOR Isaka R. Williams, Tracey R. Comeaux, ORLEANS PARISH SHERIFF’S OFFICE, 2800 Perdido Street, New Orleans, LA 70119, COUNSEL FOR DEFENDANT/RESPONDENT
APPLICATION FOR WRITS DIRECTED TO CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2019-09445, DIVISION "C", Honorable Sidney H. Cates, Judge
Frances McGinnis, George P. Hebbler, Jr., HEBBLER & GIORDANO, LLC, 3501 N. Causeway Blvd., Suite 400, Metairie, LA 70002, COUNSEL FOR INTERVENOR/RELATOR
Isaka R. Williams, Tracey R. Comeaux, ORLEANS PARISH SHERIFF’S OFFICE, 2800 Perdido Street, New Orleans, LA 70119, COUNSEL FOR DEFENDANT/RESPONDENT
(Court composed of Chief Judge Terri F. Love, Judge Daniel L. Dysart, Judge Sandra Cabrina Jenkins, Judge Dale N. Atkins, Judge Karen K. Herman)
Judge Daniel L. Dysart
1In this writ application, the intervenor, Automobile Club Inter-International Exchange (ACIE) seeks review of the trial court’s January 31, 2023 judgment, denying its motion for summary judgment. For the following reasons, we grant this writ, reverse the trial court’s judgment, and enter summary judgment in favor of ACIE.
FACTS AND PROCEDURAL HISTORY
On April 22, 2019, Miguel Solano was riding his bicycle on Lakeshore Drive when he was allegedly struck and injured by a 2007 Mercury Grand Marquis, driven by Phil Barre and owned by the Orleans Parish Sheriff’s Office (OPSO). Mr. Solano later filed a petition for damages, naming Mr. Barre, the OPSO, and ABC Insurance Company, the insurer of Mr. Barre, as defendants. Mr. Solano averred that Mr. Barre was in the course and scope of his employment with the OPSO at the time of the accident.
ACIE filed an ex parte petition to intervene, asserting it issued a. policy of insurance to Mr. Barre and his wife, covering a Chevrolet truck and Mercedes 2sedan. The petition indicated that ACIE sent a reservation of rights letter to Mr. Barre on June 17, 2021, providing a defense for Mr. Barre while reserving its right to deny coverage for the claims asserted by Mr. Solano. The petition also indicated the policy excluded coverage for any vehicle furnished or made available for Mr. Barre’s regular use.
ACIE filed a motion for summary judgment, contending that following discovery, it determined that the OPSO furnished the 2007 Mercury Grand Marquis to Mr. Barre for his regular use. ACIE contended that its policy excluded coverage for any vehicle provided to Mr. Barre for his regular use that was not named in the policy. ACIE noted that the 2007 Mercury Grand Marquis was not listed in the policy. Therefore, ACIE contended that it was entitled to judgment as a matter of law that the policy did not provide coverage for the injuries asserted by Mr. Solano. In support of its motion for summary judgment, ACIE attached a copy of the insurance policy issued to Mr. Barre, requests for admission from both Mr. Barre and the OPSO and their respective responses thereto, and excerpts of Mr. Barre’s deposition testimony (Mr. Barre testified that he was on his way to the grocery store at the time of the incident and this was an allowed use of the vehicle; the purpose was to create greater visibility for the OPSO throughout Orleans Parish.). A copy of the OPSO take-home vehicle policy was also attached. Mr. Barre and the OPSO opposed the motion for summary judgment, contending that there was a genuine issue of material fact concerning whether the 2007 Mercury Grand Marquis was furnished to Mr. Barre for his regular use.
3The trial court denied ACIE’s motion for summary judgment and ACIE filed an application for supervisory writs with this Court seeking review of the trial court’s judgment. Pursuant to La. C.C.P. art. 966(H), the parties were afforded an opportunity to request oral argument, which took place before a five-judge panel of this Court on April 11, 2023.
DISCUSSION
Appellate courts review the grant or denial of a motion for summary judgment do novo using the same criteria district courts consider when determining if summary judgment is proper. Robert v. State, 2020-0524, p.11 (La. App. 4 Cir. 8/12/21), 327 So.3d 546, 556. "After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." La. C.C.P. art. 966(A)(3). When the mover will not bear the burden of proof at trial, the mover’s burden will not require him to negate all essential elements of the adverse party’s claim or defense but rather to point out the absence of factual support for one or more element’s essential to the adverse party’s claim or defense. La. C.C.P. art. 966(D)(1). This Court further explained the de novo standard:
[t]his [de novo] standard of review requires the appellate court to look at the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, to determine if they show that no genuine issue as to a material fact exists, and that the mover is entitled to judgment as a matter of law. A fact is material when its existence or nonexistence may be essential to the plaintiff’s cause of action under the applicable theory of recovery; a fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal 4dispute. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, no need for trial on that issue exists and summary judgment is appropriate. To affirm a summary judgment, we must find reasonable minds would inevitably conclude that the mover is entitled to judgment as a matter of the applicable law on the facts before the court.
Robert, 2020-0524, p.12, 327 So.3d at 556 (quoting Chanthasalo v. Deshotel, 2017-0521, p.5 (La. App. 4 Cir. 12/27/17), 234 So.3d 1103, 1107).
[1–3] The interpretation of an insurance policy generally presents a question of law that may be resolved on a motion for summary judgment. Choice Foundation v. Law Indus., LLC, 2021-0431, p.4 (La. App. 4 Cir. 3/2/22), 336 So.3d 501, 504. As an insurance policy is a contract, the policy is construed utilizing the general rules of contract interpretation set forth in the Civil Code. Choice Foundation, 2021-0431, p.4, 336 So.3d at 505. According to the rules of construction, the responsibility of the judiciary in interpreting insurance contracts is to determine the parties’ common intent. See La. C.C. art. 2045; Edwards v. Daugherty, 2003-2103, p.11 (La. 10/1/04), 883 So.2d 932, 940. Analysis of the parties’ common intent begins with an examination of the words of the insurance contract itself. See La. C.C. art. 2046; Sims v. Mulhearn Funeral Home, Inc., 2007-0054, p.7 (La. 5/22/07), 956 So.2d 583, 589. In ascertaining the common intent of the parties, words and phrases in an insurance policy are to be construed using their plain, ordinary and generally prevailing meaning, unless the words have acquired a technical meaning, in which case the words must be ascribed their technical meaning. See La. C.C. art. 2047; Edwards, 2003-2103, p. 11, 883 So.2d at 940-41.
When the words of an insurance contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the 5parties’ intent and courts must enforce the contract as written. La. C.C. art. 2046. If an ambiguity exists after applying the general rules of contractual interpretation, the ambiguous contractual provision is generally construed against the insurer and in favor of coverage. See La. C.C. art. 2056; Sims, 2007-0054, p.9, 956 So.2d at 589-90.
[4] In the instant case, the parties do not dispute that the OPSO’s policy excludes coverage for an automobile furnished or made available for Mr. Barre’s regular use. ACIE contends the 2007 Mercury Grand Marquis was furnished and made available for Mr. Barre’s regular use, a take-home vehicle. In support of the argument, ACIE notes Mr. Barre testified at his deposition that the OPSO furnished the 2007 Mercury Grand Marquis available for his regular use. Mr. Barre stated he was allowed to use the vehicle for personal use in Orleans Parish. Mr. Barre indicated the 2007 Mercury -Grand Marquis was available for his regular use from the time of his assignment until the time of his retirement. ACIE indicated at the time of his accident, Mr. Barre was headed to the grocery store on his way home from work. ACIE noted this use was specifically allowed by the OPSO’s take-home vehicle policy.
Our de novo review of the record reveals that there are no genuine issues of material fact and that ACIE is entitled to judgment as a matter of law. ACIE submitted evidence that the OPSO furnished the 2007 Mercury Grand Marquis to Mr. Barre for a period of time in excess of five years. Mr. Barre utilized the car on a consistent and regular basis during this period of time. Mr. Barre engaged in regular use of the vehicle. ACIE also submitted a copy of the insurance policy it issued to Mr. Barre; the policy contained an exclusion for a vehicle one regularly 6uses and that is not listed on the policy. Therefore, the trial court erred in denying ACIE’s motion for summary judgment.
CONCLUSION
Accordingly, for the above and foregoing reasons, this application for supervisory writs is granted, the trial court’s judgment is reversed, and summary judgment is entered in favor of ACIE and against Mr. Barre and the OPSO.
WRIT GRANTED; JUDGMENT REVERSED