Opinion
No. 98-C-2791.
September 1, 1999.
SUPERVISORY WRIT DIRECTED TO CIVIL DISTRICT COURT, PARISH OF ORLEANS, NO. 97-12301, DIVISION "H", STATE OF LOUISIANA, HONORABLE MICHAEL J. BAGNERIS, J.
(ON REMAND FROM THE SUPREME COURT OF LOUISIANA)
CRAIG S. SOSSAMAN, JOSEPH B. HARVIN, HARVIN SOSSAMAN, PLC, METAIRIE, LOUISIANA 70002-7408, Attorneys for Plaintiff/Respondent .
SCOTT G. JONES, HULSE WANEK, NEW ORLEANS, LOUISIANA 70113, Attorney for Defendants/Relator.
(Court composed of Judge Joan Bernard Armstrong, Judge Charles R. Jones, and Judge Miriam G. Waltzer).
This is a remand from the Louisiana Supreme Court involving the issue of proper venue for a Direct Action lawsuit by an employee against his employer's uninsured motorist carrier. Following oral arguments and a review of the record, we find no error in the trial court's judgment overruling the defendant's Exception of Improper Venue.
FACTS
On July 16, 1996, the plaintiff, Tracy Tardiff, was involved in an automobile accident in Jefferson Parish while in the course and scope of his employment with Year Round Heating and Air Conditioning Company (Year Round). Year Round's principal place of business is located in Orleans Parish. The alleged tortfeasor, Jennifer Thomas, was allegedly under-insured at the time of the collision. Therefore, Mr. Tardiff filed suit in Orleans Parish against his employer's foreign uninsured/underinsured motorist (UM) carriers, Valley Forge Insurance Company (Valley Forge) and CNA Insurance Company (CNA). Mr. Tardiff is a Jefferson Parish domiciliary.
the petition classifies Jennifer Thomas as the tortfeasor, she was not named as a defendant in the lawsuit. Additionally, CNA Insurance Company was improperly named in this suit; therefore, for purposes of this opinion, our reference to "defendant" shall pertain to Valley Forge only.
After the petition was served, Valley Forge filed an Exception of Improper Venue on July 21, 1998, claiming that venue was only proper in East Baton Rouge Parish or in the parish where the accident or injury occurred (i.e., Jefferson Parish). Following a hearing on the exception, the trial court granted the defendant's exception. Thereafter, the trial court scheduled a rehearing on its original ruling for October 30, 1998. At the rehearing, the trial court reversed its original ruling, and concluded that Mr. Tardiff could assume the domicile of Year Round because Mr. Tardiff, by the language of the insurance policy, is an insured under Year Round's insurance policy. Thus, the trial court found that venue in Orleans Parish was proper because an insured can sue his UM carrier in his own domicile.
On November 19, 1998, Valley Forge filed a Writ of Certiorari to this Court, and on January 28, 1999, this Court granted relator's writ application, but denied relief adopting our holding in Gaspard v. Louisiana Farm Bureau Insurance Company, 96-2148 (La.App. 4 Cir. 11/6/96), 684 So.2d 55. In our ruling, we stated that Mr. Tardiff was an "insured," and that he "may sue his insurer in either the place of his domicile or in the place where the accident occurred."
On January 29, 1999, we issued a revised ruling whereby we rephrased the above referred sentence by naming Mr. Tardiff as an "additional insured under Year Round's policy." We also stated that "Mr. Tardiff has the option to sue in either his employer's domicile or in the place where the accident occurred." The revision to our first ruling was only a clarification, and not a reversal.
Valley Forge then applied for Supervisory and/or Remedial Writs to the Louisiana Supreme Court, and on April 9, 1999, the Supreme Court remanded this matter to this Court for briefing, oral arguments and a full opinion. Upon remand, we reinstate our ruling of January 29, 1999.
WHO IS AN "INSURED" UNDER YEAR ROUND'S POLICY
The central issue in this case is whether Orleans Parish is the parish of proper venue for this type of Direct Action lawsuit. However, before we can ascertain whether Orleans Parish is statutorily appropriate for this suit, we must decide whether Mr. Tardiff is an "insured" under the policy.
According to the language of the policy, an insured is defined as:
1. WHO IS AN INSURED
The following are "insureds":
a. You for any covered "auto."
b. Anyone else while using with your permission a covered "auto" you own, hire or borrow. . . . (Emphasis added).
It is well settled that the plaintiff has to be an "insured" under the insurance policy in order for him to recover. Armand v. Rhodes, 96-15 (La.App. 3 Cir. 12/11/96), 685 So.2d 546, writ denied, 97-0006 (La. 3/21/97), 691 So.2d 81. (Emphasis added). The parties' intent, as reflected in the words of the insurance policy, determines the extent of coverage. See Valentine v. Bonneville Ins. Co., 96-1382 (La. 3/17/97), 691 So.2d 665. Accordingly, the words and phrases used in an insurance policy are to be construed using their plain, ordinary and generally prevailing meaning unless the words have acquired a technical meaning. La.C.C. art. 2047; Reynolds v. Select Properties, Ltd., 93-1480 (La. 4/11/94), 634 So.2d 1180; see also Keathley v. State Farm Fire Casualty Ins. Co., 594 So.2d 963 (La.App. 3 Cir. 1992). Furthermore, if the language in the insurance contract is clear and unambiguous, the court must enforce the contract as written. La.C.C. art. 2046.
In the case sub judice, there was no dispute in the record that Mr. Tardiff was operating a Year Round vehicle while in the course and scope of his employment with Year Round. The omnibus clause in this commercial liability policy allows permitted drivers, like Mr. Tardiff to sue Valley Forge as if he was the named insured. See Mercadel v. Tran, 635 So.2d 438, 440 (La.App. 4 Cir. 1994). 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 absurd conclusions. See Valentine, 691 So.2d at 668. Therefore, we find that there was no error by the trial court in identifying Mr. Tardiff as an insured under his employer's policy.
VENUE UNDER THE DIRECT ACTION STATUTE
In this assignment of error, Valley Forge argues that venue in this lawsuit was proper in either Jefferson or East Baton Rouge Parish under La.R.S. 22:655(B) and La.C.C.P. art. 42. Further, it argues that Year Round's domicile is irrelevant in this matter because Year Round was not a party to this lawsuit. Therefore, Valley Forge argues that Mr. Tardiff could not use Year Round's domicile as a basis for bringing suit in Orleans Parish.
Mr. Tardiff argues, in rebuttal, that Orleans Parish is appropriate in this case because the Direct Action Statute allows the injured party to file suit in the parish where the accident or injury occurred, or in the parish where the accident could be brought against either the insured or the insurer under La.C.C.P. art. 42. Thus, Orleans Parish was the parish of proper venue because Year Round's was the named insured under the policy, and its domicile is in Orleans Parish. We agree.
The pertinent portion of the Direct Action statute that forms the basis of this controversy states:
B. (1) The injured person or his or her survivors or heirs mentioned in Subsection A, at their option, shall have a right of direct action against the insurer within the terms and limits of the policy; and, such action may be brought against the insurer alone, or against both the insured and insurer jointly and in solido, in the parish in which the accident or injury occurred or in the parish in which an action could be brought against either the insured or the insurer under the general rules of venue prescribed by Code of Civil Procedure Art. 42 only. (Emphasis added).
Once again, the plain reading of the statute reflects that the injured person has the option of filing his personal injury claim against either the insured or the insurer or both. Further, we note that the statute specifies that the suit must be brought under the "home base" venue provisions of Article 42 for the insured or the insurer. Hence, venue in the case sub judice is not limited to just where the accident occurred. In fact, the statute authorizes the Direct Action plaintiff to prosecute his claim against the insurer in the parish where the insured is domiciled.
In our ruling on Valley Forge's application for writ of certiorari, we resolved the venue question using our decision in Gaspard v. Louisiana Farm Bureau Insurance Co., 96-2148 (La.App. 4 Cir. 11/6/96), 684 So.2d 55. We continue to hold that Gaspard is controlling in the instant matter.
In Gaspard, the plaintiff, an Orleans Parish domiciliary, sustained injuries from an automobile accident, which occurred in Jefferson Parish. Nevertheless, suit was filed against the tortfeasor, the tortfeasor's liability insurer, and the plaintiffs UM carrier in Orleans Parish. The defendant/tortfeasor objected to venue using this Court's ruling in Boatwright v. Metropolitan Life, 95-2525 (La.App. 4 Cir. 3/27/96), 671 So.2d 553, writ denied, 96-1327 (La. 6/28/96), 675 So.2d 1130. We distinguished our holding in Boatwright from the facts in Gaspard by concluding that La.R.S. 22:655 (B)(1)(e) allows an injured party to bring an action against the insurer alone when the insurer is the UM carrier. Notwithstanding the identity of the named defendants, we decided that venue was still predicated on the "home base" venue provisions of CCP art. 42.
We also found that it was both unnecessary and absurd for the plaintiff in Gaspard to file suit against herself in order to file the lawsuit in her own domicile. Therefore, we concluded that the lawsuit against an UM carrier could be brought in the insured's domicile although the named insured was not listed as a defendant in the original lawsuit.
We also noted that the petition against the insurers in Boatwright was brought in the pariah where neither of the insureds was domiciled — unlike this case where suit was brought in the parish where the named insured was domiciled.
Likewise, in the case sub judice, Mr. Tardiff did not need to name Year Round as a defendant in this personal injury lawsuit in order to bring this action in Year Round's domicile. "[ La.R.S. 22:655 (B)] thus protects an insured party's right to file suit against his own uninsured motorist [carrier] in the parish where he or she is domiciled." See Gaspard, 684 So.2d at 58.
Allowing an employee to file suit against his employer's UM carrier in that employee's domicile only would create an enormous amount of litigation for those employers who hire individuals who live in various parishes across this State — not to mention those individuals who are not even Louisiana residents. Nevertheless, because we have identified Mr. Tardiff as an insured under the policy issued by Valley Forge, we find that venue was proper in either Orleans Parish or Jefferson Parish when La.C.C.P. art. 42 is read in conjunction with the Louisiana Direct Action Statute. See Gaspard, supra.
Accordingly, the trial court's judgment denying the Exception of Improper Venue is hereby affirmed. The case is also remanded to the trial court for further proceedings consistent with this opinion.
WRIT APPLICATION GRANTED; RELIEF DENIED
ARMSTRONG. J., CONCURS.
WALTZER, J., DISSENTS WITH REASONS.
I concur in Judge Jones' opinion based upon Gavin v. USAA Casualty Ins., 98-0614 (La.App. 4. Cir. 6/30/99), ___ So.2d ___, 1999.
This case is on remand from the Louisiana Supreme Court from this Court's denial of relator's request that we reverse the trial court's denial of relator's exception of improper venue. Because I believe that the venue exception is meritorious, I must respectfully dissent from the majority's opinion.
The incident giving rise to plaintiffs suit occurred in Jefferson Parish, Louisiana on 15 July 1996. Plaintiff was a Jefferson Parish domiciliary; defendants are foreign insurers. According to the petition, plaintiff was acting in the course and scope of his employment with Year Round Heating and air-conditioning Company, an Orleans Parish domiciliary, at the time of the accident. Relator, Valley Forge Insurance Company, allegedly issued an insurance policy providing underinsured motorist coverage to Year Round. Plaintiff alleges the accident was caused by the negligence of underinsured motorist Jennifer Thomas, driver of a second vehicle.
The trial court on rehearing held that because Orleans Parish was the domicile of the named insured, Year Round, venue was proper pursuant to La.C.C.P. art. 42 and La.C.C.P. art. 76.
La.C.C.P. art. 42 provides that an action against a foreign insurer shall be brought in the parish of East Baton Rouge. La.C.C.P. art. 76 provides that an action on an insurance policy may be brought in the parish where the loss occurred or where the insured is domiciled.
The relator, Valley Forge, is a foreign insurer doing business in this State and is being sued under Louisiana's Direct Action Statute. The Direct Action Statute provides its own special venue, governed by La.R.S. 22:655 (B)(1):
B. (1) The injured person or his or her survivors or heirs mentioned in Subsection A, at their option, shall have a right of direct action against the insurer within the terms and limits of the policy; and, such action may be brought against the insurer alone, or against both the insured and insurer jointly and in solido, in the parish in which the accident or injury occurred or in the parish in which an action could be brought against either the insured or the insurer under the general rules of venue prescribed by Code of Civil Procedure Art. 42 only. (Emphasis added)
Pursuant to the above cited statute venue would be proper in the parish in which an action could be brought against either the insured or the insurer under the general venue provisions of La.C.C.P. art. 42. The issue, then, is who is "the insured" for purposes of venue in the instant case.
The relator suggests that the only person who can be considered the insured is the person seeking to recover under the policy, i.e., the plaintiff. Thus, relator argues that Jefferson Parish, the domicile of the insured plaintiff, is the proper venue for the bringing of the case, not Orleans Parish. Clearly, venue is not proper in Orleans Parish, the domicile of the insured employer, because the plaintiff has no right to sue his own employer, except in worker's compensation; thus, it is not possible to make the employer a party to the action. Accordingly, for purposes of this litigation, the "insured" being referred to in La.R.S. 22:665 is the plaintiff, the party who is actually bringing the action
The insurance policy defines an insured as follows:
I. WHO IS AN INSURED
The following are "insureds"
a. You.
b. Anyone else "occupying" a covered "auto" or a temporary substitute for a covered "auto"
Certainly both Year Round and the plaintiff are insureds under the express terms of the policy.
The majority relies on this Court's opinion in Gaspard v. Louisiana Farm Bureau Insurance Company, 96-2148 (La.App. 4th Cir. 11/6/96), 684 So.2d 55, where we held that an insured may sue his uninsured motorist carrier under the Direct Action Statute in the parish of his own domicile. In reaching that conclusion, this court stated,
The fact that a plaintiff cannot sue him or herself is irrelevant . . . because the Direct Action Statute does not require that the plaintiff actually sue the insured party in order to bring the suit in the parish of proper venue of the insured party. The provision thus protects an insured party's right to file suit against his own uninsured motorist in the parish where he or she is domiciled.
Based on this language, the fact that a party cannot be sued in an action is irrelevant to the issue of venue under the Direct Action Statute, at least insofar as cases where an insured party wishes to sue in the place of his or her own domicile. However, whether this same rationale applies where an insured is seeking to sue in the parish of another insured is a significantly different issue.
The considerations in Gaspard were totally different from the considerations in this case. In Gaspard the plaintiff filing the action was attempting to sue his UM carrier in the Parish wherein he was domiciled. In the instant case, the plaintiff is attempting to prosecute his action in the Parish wherein his employer, apparently the named insurer on the policy, has his principal place of business. However, the employer is not and cannot be a party to the action. I find no compelling reason to extend the Gaspard rationale to these facts.
None of the parties have cited authority interpreting "the insured" within the context of La.C.C.P. art. 76 or La.R.S. 22:655 (B)(1). However, I would find direction in the Supreme Court's opinion in Osbon v. National Union Fire Ins. Co. 93-1975 (La. 2/28/94), 632 So.2d 1158. There, the Louisiana Supreme Court gave a very restrictive meaning to the term, "the insure." The Supreme Court considered the meaning of the phrase "the insured" in the context of a fire loss insurance policy. The issue was whether an innocent insured was barred from recovering under a policy when a fire home destroyed her intentionally set by her husband. The policy had limitations for losses caused by "the insured." In interpreting the meaning of the words, "the insured", the court stated:
The phrase "the insured" is not defined in the Insurance Code. We find that the phrase "the insured" is ambiguous because it could refer to the named insured, any insured as defined in the policy, or the particular insured seeking coverage who commits an act triggering the exclusion or condition.
The article "the" is singular and is used to particularize the subject spoken of. "The" is a word of limitation. Black's Law Dictionary (6th ed.). Hence, "the" insured means only one insured. We find that the phrase "the insured" refers to a specific insured, namely, the insured who (1) is responsible for causing the loss and (2) is seeking to recover under the policy. Accordingly, under La.R.S. 22:691F(2), a loss by fire is not covered if the insured seeking coverage is responsible for causing the loss by neglecting to "use all reasonable means to save and preserve the property at and after a loss."
Osbon, 632 So.2d at 1159-1160.
I believe the better course is to apply the Louisiana Supreme Court's reasoning in Osbon, rather than to extend Gaspard to a dissimilar fact situation. In the instant case where the plaintiff is domiciled in Jefferson Parish and the accident occurred in Jefferson Parish, I find no equitable policy considerations would be served by allowing the action to be brought in Orleans Parish.
I would grant relator's writ application, reverse the judgment of the trial court denying relator's venue exception, and remand the case to the trial court for a determination of whether the case should be transferred to Jefferson Parish or East Baton Rouge Parish.