Opinion
2013 CA 0103
2013-09-13
ASHANTI GREEN, AS TUTRIX OF THE MINORS, DAVE PETERSON III AND DAVID PETERSON v. MICHAEL JOHNSON, STATE FARM INSURANCE AGENCY, ALLSTATE INSURANCE COMPANY, AND AMERICAN SOUTHERN HOME INSURANCE
Counsel for Plaintiff-Appellant Ashanti Green, as Tutrix of the Minors Dave Peterson, III and David Peterson Counsel for Defendant-Appellee Allstate Insurance Company Counsel for Defend ants-Appellees State Farm Fire and Casualty Company and Michael Johnson
NOT DESIGNATED FOR PUBLICATION
ON APPEAL FROM THE NINETEETH JUDICIAL DISTRICT COURT
NUMBER 568,067, SECTION 27, PARISH OF EAST BATON ROUGE
STATE OF LOUISIANA
HONORABLE TODD W. HERNANDEZ, JUDGE
Namisha D. Patel
Roy H. Maughan, Jr.
Baton Rouge, Louisiana
Counsel for Plaintiff-Appellant
Ashanti Green, as Tutrix of the
Minors Dave Peterson, III and
David Peterson
Daniel R. Atkinson, Jr.
Gregory K. Moroux, Jr.
Baton Rouge, Louisiana
Counsel for Defendant-Appellee
Allstate Insurance Company
Harold J. Adkins
Baton Rouge, Louisiana
Counsel for Defend ants-Appellees
State Farm Fire and Casualty Company
and Michael Johnson
BEFORE: KUHN, HIGGINBOTHAM, AND THERIOT, JJ.
Disposition: AFFIRMED.
KUHN, J.,
Plaintiff-appellant, Ashanti Green (Green), as tutrix of the minors, Dave Peterson, III and David Peterson, appeals a summary judgment dismissing with prejudice her survival and wrongful death suit against defendant-appellee, Allstate Insurance Company (Allstate), on the basis that its policy with Benjamin Gibson (Gibson) did not provide uninsured/underinsured (UM) coverage to decedent, Dave Peterson (Peterson). We affirm.
FACTUAL AND PROCEDURAL HISTORY
On July 16, 2007, Michael Johnson backed a SUV into a roadway in Baton Rouge, Louisiana, at which point it collided with a motorcycle being operated by Peterson. Peterson died shortly thereafter from the injuries he sustained. The motorcycle involved in the accident was owned, at least in part, by Gibson.
At the time of the accident, Peterson and Green were living together. She subsequently filed a damages suit seeking survival and wrongful death damages on behalf of Peterson's minor children. Allstate was named as a defendant in its capacity as the UM insurer of Green and her resident relatives. This claim was dismissed on summary judgment on the basis that decedent was not a resident relative of Green within the meaning of the policy, since he was not married to her.
Thereafter, Green filed a supplemental petition naming Allstate as defendant in its capacity as the UM insurer of Gibson, an owner of the motorcycle. Allstate filed a motion for summary judgment, alleging that the after-acquired vehicle provision in the UM portion of the policy, which was the basis of Green's coverage claim, did not provide coverage herein. Under certain circumstances, this provision afforded coverage for sixty days after a vehicle is acquired by a named policyholder insured during the term of the policy. The district court denied Allstate's motion for summary judgment.
Two months later, Allstate filed a second motion for summary judgment, alleging that no UM coverage existed because Peterson did not qualify as an insured under the liability portion of the policy and, furthermore, the language of the liability portion excluded the motorcycle from coverage. In making this argument, Allstate relied on jurisprudence holding that a person must qualify as an insured under the liability portion of an insurance policy in order to qualify for UM coverage. Green opposed the motion and also filed a peremptory exception raising the objection of res judicata, contending the district court had already ruled on the coverage issue.
Following a hearing, the district court overruled the exception of res judicata and took the motion for summary judgment under advisement. It later rendered judgment granting the motion and dismissing all claims against Allstate with prejudice, concluding that Peterson "was not an insured and the after [-]acquired provisions of the liability policy [did] not include motorcycles." Green has now appealed, complaining that the district court erred in concluding: 1) Peterson was not an insured under the UM portion of Gibson's policy; 2) the motorcycle was not a covered vehicle under the UM portion of Gibson's policy; 3) the policy was not ambiguous; 4) there were no genuine issues of material fact; 5) Allstate was entitled to judgment as a matter of law; and 6) her exception of res judicata lacked merit.
LAW
On appeal, summary judgments are reviewed de novo under the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. Jackson v. Suazo-Vasquez, 12-1377 (La. App. 1st Cir. 4/26/13), 116 So.3d 773, 775. The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, 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(B)(2); Jackson, 116 So.3d at 775.
The burden of proof is on the movant. However, if the movant will not bear the burden of proof at the trial of the matter, the movant is not required to negate all essential elements of the adverse party's claim, but rather to point out an absence of factual support for one or more essential elements. Thereafter, if the adverse party fails to provide factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact, and summary judgment is properly granted. La. C.C.P. art. 966(C)(2); Jackson, 116 So.3d at 775.
In ruling on a motion for summary judgment, the trial court's role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Jackson, 116 So.3d at 775.
SUMMARY JUDGMENT
The basis of Green's claim against Allstate is her contention that Peterson was an "insured person" under the UM portion of Gibson's Allstate policy, specifically the after-acquired vehicle provision.
The UM portion of the policy states, in pertinent part:
Insured Persons
*****
(2) Any person while in, on, getting into or out of an insured auto with your express or implied permission.
*****
An insured auto is a motor vehicle:
*****
(2) you become the owner of during the premium period. This additional motor vehicle will be covered if we insure all other private passenger motor vehicles you own. You must, however, tell us within 60 days after you acquire the motor vehicle. ...
Further, a "motor vehicle" is defined in the UM portion of the policy as follows:
Motor Vehicle—means a land motor vehicle or trailer other than:
a) a vehicle or other equipment designed for use off public roads, while not on public roads,(Italics added.)
b) a vehicle operated on rails or crawler-treads, or
c) a vehicle when used as a residence or premises.
Since it is undisputed that Peterson was operating the motorcycle with Gibson's permission at the time of the accident, Green contends the crucial issue is whether the motorcycle qualified as an "insured auto" within the meaning of the policy, in which case she argues he must be considered an "insured person" under the policy's UM portion. Although the motorcycle was not listed in the policy declarations, Green maintains it nevertheless was an "insured auto" under the after-acquired vehicle provision located in the UM portion of the policy. She argues the requirements of this provision were met because the other two vehicles owned by Gibson were insured by Allstate, the accident occurred within sixty days of his acquisition of the motorcycle, and the motorcycle met the definition of a "motor vehicle" since it was a "land motor vehicle" that did not fall into any of the exclusions provided. Thus, Green asserts Peterson was an "insured person" because he was operating an "insured auto" with the policyholder's permission when he was fatally injured.
In response, Allstate argues that, irrespective of whether the motorcycle meets the definition of an "insured auto" under the UM portion of the policy, no coverage existed because Peterson did not qualify for liability coverage under the policy, which is a requirement for UM coverage. Other than the policyholder (Gibson) and his resident relatives, the policy at issue extended liability coverage only to persons using an "insured auto" with Gibson's permission. Thus, Allstate maintains Peterson was not an insured for liability purposes, even if he was operating the motorcycle with Gibson's permission, because the motorcycle did not meet the definition of an "insured auto" under the terms of the policy's liability portion.
The district court agreed with Allstate that Peterson was not entitled to UM coverage since he did not qualify for liability coverage under the undisputed facts. Based on our de novo review, we conclude the district court was correct.
Although Louisiana's public policy favors UM coverage and a liberal construction of the UM statute, it is well-settled that a person who does not qualify as a liability insured under a policy of insurance is not entitled to UM coverage under the policy. Stated otherwise, a person must be an "insured" for liability purposes in order to be entitled to UM coverage. Magnon v. Collins, 98-2822 (La.7/7/99), 739 So.2d 191, 195-196; Lambert v. Lavigne, 04-1961 (La. App. 1st Cir. 9/23/05), 923 So.2d 704, 706, writ denied, 05-2283 (La. 3/10/06), 925 So.2d 515. In Howell v. Balboa Insurance Company, 564 So.2d 298, 301-02 (La. 1990), the Supreme Court further explained that because UM Insurance follows the person rather than the vehicle, a court must first determine whether a plaintiff is an insured for liability purposes in order to determine whether he is entitled to UM coverage. After reviewing the applicable jurisprudence on this issue in Filipski v. Imperial Fire & Casualty Insurance Company, 09-1013 (La, 12/1/09), 25 So.3d 742, 745, the Supreme Court concluded it led "to the inescapable conclusion that a person who is not insured for liability purposes cannot be considered an insured for UM purposes"
The liability portion of the policy states, in pertinent part:
Insured Persons
(1) While using your insured auto:
a) you,
b) any resident, and
c) any other person vising it with your express or implied permission
*****
Insured Autos
*****
(2) An additional four wheel private passenger auto or utility auto you become the owner of during the premium period. This auto will be covered if we insure all other private passenger autos or utility autos you own You must, however, tell us within 60 days of acquiring the auto. ...
In this case, Peterson was entitled to liability coverage only if he qualified as an insured under the portion of the policy extending coverage to a permissive user of an "insured auto" under the liability section. The only possibility for the motorcycle to qualify as an "insured auto" was as an after-acquired vehicle. However, the after-acquired vehicle provision contained in the liability portion states that an "insured auto" includes "[a]n additional four wheel private passenger auto or utility auto you become the owner of during the premium period." (Italics added.) Due to the "four wheel vehicle" requirement, motorcycles do not qualify. Accordingly, since motorcycles were clearly excluded from coverage as insured autos for liability purposes, Peterson was not entitled to liability coverage under the Allstate policy as an insured person. As a consequence, he also was not entitled to UM coverage. See Filipski, 25 So.3d at 745; Magnon, 739 So.2d at 196. Allstate was clearly entitled to summary judgment in its favor as a matter of law.
We reject Green's alternate argument that the fact that the Allstate policy defines an "insured auto" differently for purposes of liability and UM coverage creates an ambiguity. Our review reveals no ambiguity in the terms of the policy. Moreover, since it is well-established that it must first be determined whether a person is an insured for liability purposes before he is entitled to UM coverage, we do not believe it is reasonable to interpret the policy as suggested by Green, i.e., to ignore the determination of whether liability coverage exists.
EXCEPTION OF RES JUDICATA
Green contends the district court's ruling denying Allstate's initial motion for summary judgment constituted either res judicata or law of the case and should have barred Allstate from rearguing the same issue in its second motion for summary judgment. This argument lacks merit.
The denial of an initial motion for summary judgment does not bar a second summary judgment motion under the doctrine of res judicata. The denial of a summary judgment is an interlocutory judgment, which the district court may change at any time up to final judgment. The jurisprudence specifically allows a district court to consider a second motion for summary judgment after a first motion for summary judgment on the same issue has been denied. Bozarth v. State LSU Medical Center/Chabert Medical Center, 09-1393 (La. App. 1st Cir. 2/12/10), 35 So.3d 316, 323.
Nor did the denial of Allstate's initial summary judgment constitute law of the case. Under this doctrine, courts of appeal generally refuse to reconsider their own rulings of law on a subsequent appeal in the same case. However, the law of the case doctrine does not apply in the context of an interlocutory district court ruling. Land v. Vidrine, 10-1342 (La. 3/15/11), 62 So.3d 36, 42.
CONCLUSION
For the above reasons, the judgments of the district court overruling Green's exception of res judicata and granting summary judgment dismissing her claims against Allstate with prejudice are affirmed. All costs of this appeal are to be paid by Green.
AFFIRMED.