Opinion
2022 CA 0223
09-16-2022
TERREBONNE PARISH CONSOLIDATED GOVERNMENT v. JESSICA DENISE BROWN AND MISSISSIPPI FARM BUREAU CASUALTY INSURANCE COMPANY
Brian J. Marceaux Julius P. Hebert, Jr. Derick A. Bercegeay Brianna Wilson Orgeron Houma, Louisiana Counsel for Plaintiff/Appellant Terrebonne Parish Consolidated Government Nicholas C. Gristina Michelle L. Ducote New Orleans, Louisiana Counsel for Defendant/Appellee Mississippi Farm Bureau Casualty Insurance Company
NOT DESIGNATED FOR PUBLICATION
Appealed from the 32nd Judicial District Court In and for the Parish of Terrebonne Parish State of Louisiana Case No. 186744, Division E The Honorable Randall L. Bethancourt, Judge Presiding
Brian J. Marceaux
Julius P. Hebert, Jr.
Derick A. Bercegeay
Brianna Wilson Orgeron
Houma, Louisiana
Counsel for Plaintiff/Appellant Terrebonne Parish Consolidated Government
Nicholas C. Gristina
Michelle L. Ducote
New Orleans, Louisiana
Counsel for Defendant/Appellee Mississippi Farm Bureau Casualty Insurance Company
BEFORE: THERIOT, CHUTZ, AND HESTER, JJ.
THERIOT, J.
Terrebonne Parish Consolidated Government ("TPCG") appeals the summary judgment by the Thirty-Second Judicial District Court, which was granted in favor of the appellee, Mississippi Farm Bureau Casualty Insurance Company ("Mississippi Farm Bureau"), and dismissed TPCG's claims with prejudice. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
On July 4, 2019, Elizabeth Fonseca ("Fonseca") was driving a 2014 Ford Explorer owned by TPCG, and Katie Belanger ("Belanger") was a passenger in the vehicle being driven by Fonseca. At all times pertinent herein, Fonseca and Belanger were employees of TPCG and were in the course and scope of their employment. Fonseca was driving the vehicle east on Roussell Street in Houma, Louisiana, approaching the intersection with Highway 3040. At the same time, Jessica Brown ("Brown") was driving a 2007 Dodge Magnum north on Highway 3040. When the vehicle being driven by Fonseca entered the intersection at Roussell Street and Highway 3040, it was struck by the vehicle being driven by Brown.
The 2007 Dodge Magnum, driven by Brown, was owned by Shannon Stewart ("Shannon"). The vehicle was insured by a Mississippi Farm Bureau insurance policy. Shannon and his wife, Priscilla Stewart ("Priscilla"), were the named insureds on the Mississippi Farm Bureau policy. At the time of the accident, Brown was in a relationship with William Sims ("Sims"). Shannon allowed Sims to use the vehicle because Sims was interested in buying the vehicle. Brown was driving the vehicle with Sims's permission at the time of the accident. However, Sims and Brown were both expressly told before the accident that Brown was not allowed to drive or ride in the vehicle.
On August 20, 2019, TPCG filed a petition for damages against Brown and Mississippi Farm Bureau, seeking all reasonable damages, together with interest from the date of judicial demand, until paid, and for all costs of the proceedings. TPCG alleged that it paid Fonseca and Belanger indemnity and medical benefits under the Louisiana Worker's Compensation Statutes and that Mississippi Farm Bureau is liable to TPCG for all indemnity and medical benefits TPCG has paid Fonseca and Belanger as a result of the injuries suffered in the wreck. Mississippi Farm Bureau filed an answer on October 28, 2019, but Brown did not file an answer.
On August 23, 2021, Mississippi Farm Bureau filed a motion for summary judgment alleging that there was no genuine issue of material fact that Brown did not have express or implied permission to operate the vehicle, so the Mississippi Farm Bureau policy provided no coverage for the claims asserted by TPCG. The motion for summary judgment further alleged that the Mississippi Farm Bureau policy never considered or negotiated the frequent use of the vehicle by Sims or Brown. In support of its motion for summary judgment, Mississippi Farm Bureau attached (1) the affidavit of Shannon Stewart; (2) a certification of the policy by a Casualty Policy Service Manager and the Mississippi Farm Bureau Automobile Declarations Page; (3) the Mississippi Farm Bureau policy; (4) a Facebook message dated June 29 sent to Jessica Brown; (5) a Facebook message dated June 28 sent to William Sims; and (6) the deposition of Jessica Brown. The motion was set for hearing on October 1, 2021. On October 1, 2021, the trial court ordered the motion for summary judgment to be continued to November 12, 2021.
TPCG filed an opposition to Mississippi Farm Bureau's motion for summary judgment on October 29, 2021. TPCG contended that Brown's use of the vehicle was within the coverage of the Mississippi Farm Bureau policy because Sims gave Brown permission to drive the vehicle. In support of its opposition, TPCG attached (1) the deposition of Jessica Brown; (2) a certification by a Casualty Policy Service Manager and the Mississippi Farm Bureau Automobile Declarations Page; and (3) the Mississippi Farm Bureau policy.
Mississippi Farm Bureau fax filed its reply memorandum to TPCG's opposition to the motion for summary judgment on November 5, 2021, but it was not actually filed until November 15, 2021, which was several days after the hearing on the motion for summary judgment. Mississippi Farm Bureau attached the crash report to its reply memorandum.
The trial court granted summary judgment in favor of Mississippi Farm Bureau and dismissed TPCG's claims against Mississippi Farm Bureau with prejudice. The judgment was signed on December 7, 2021. It is from this judgment that TPCG appeals.
ASSIGNMENTS OF ERROR
TPCG contends that the trial court erred in granting the motion for summary judgment filed by Mississippi Farm Bureau due to the existence of genuine issues of material fact.
STANDARD OF REVIEW
A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Murphy v. Savannah, 2018-0991 (La. 5/8/19), 282 So.3d 1034, 1038 (per curiam). After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show 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). The only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions. La. C.C.P. art. 966(A)(4). However, the court shall consider any documents filed in support of or in opposition to the motion for summary judgment to which no objection is made. La. C.C.P. art. 966(D)(2).
The burden of proof on a motion for summary judgment rests with the mover. La. C.C.P. art. 966(D)(1). Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. C.C.P. art. 966(D)(1).
Appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Leet v. Hosp. Serv. Dist. No. 1 of E. Baton Rouge Par., 2018-1148 (La.App. 1st Cir. 2/28/19), 274 So.3d 583, 587. In ruling on a motion for summary judgment, the court's role is not to evaluate the weight of the evidence or to make a credibility determination, but instead to determine whether or not there is a genuine issue of material fact. Collins v. Franciscan Missionaries of Our Lady Health Sys., Inc., 2019-0577 (La.App. 1st Cir. 2/21/20), 298 So.3d 191, 194, writ denied, 2020-00480 (La. 6/22/20), 297 So.3d 773. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, summary judgment is appropriate. Collins, 298 So.3d at 194-195. A fact is "material" when its existence or nonexistence may be essential to plaintiff's cause of action under the applicable theory of recovery. Simply put, a "material" fact is one that would matter at a trial on the merits. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of a trial on the merits. Collins, 298 So.3d at 195.
DISCUSSION
When a case has contacts with another state, it must be determined if a choice-of-law analysis is necessary. See Maldonado v. Kiewit Louisiana Co., 2013-0756 (La.App. 1st Cir. 3/24/14), 146 So.3d 210, 217. In this case, we must determine whether Louisiana law or Mississippi law applies. Both TPCG and Mississippi Farm Bureau agree that Mississippi law should apply to the interpretation of the Mississippi Farm Bureau insurance contract.
Foreign insurers generally argue that the State of Louisiana has no authority to modify contracts written in other states. However, Louisiana has expressed as a public policy its intent to protect Louisiana residents and others when an accident occurs on Louisiana roads. The stated goal is to promote full recovery for innocent automobile accident victims by mandating minimum liability insurance coverage and making coverage available when the tortfeasor is uninsured or underinsured. Champagne v. Ward, 2003-3211 (La. 1/19/05), 893 So.2d 773, 777.
Unless otherwise expressly provided by the law of this state, cases having contacts with other states are governed by the law selected in accordance with the provisions of Book IV of the Civil Code. La. C.C. art. 14. The residual nature of the provisions of Book IV is established by the introductory phrase of La. C.C. art. 14 that reads, "[u]nless otherwise expressly provided by the law of this state." La. C.C. art. 14 Revision Comment (b). This phrase means that the provisions of Book IV are not intended to supersede more specific choice-of-law rules contained in other Louisiana statutes. When applicable, those rules, being more specific, will prevail over the provisions of Book IV of the Civil Code. Id.
Louisiana Civil Code article 3515 provides:
Except as otherwise provided in this Book, an issue in a case having contacts with other states is governed by the law of the state whose policies would be most seriously impaired if its law were not applied to that issue.
That state is determined by evaluating the strength and pertinence of the relevant policies of all involved states in the light of: (1) the relationship of each state to the parties and the dispute; and (2) the policies and needs of the interstate and international systems, including the policies of upholding the justified expectations of parties and of minimizing the adverse consequences that might follow from subjecting a party to the law of more than one state.
Louisiana Civil Code article 3537 provides as follows:
Except as otherwise provided in this Title, an issue of conventional obligations is governed by the law of the state whose policies would be most seriously impaired if its law were not applied to that issue.
That state is determined by evaluating the strength and pertinence of the relevant policies of the involved states in the light of: (1) the pertinent contacts of each state to the parties and the transaction, including the place of negotiation, formation, and performance of the contract, the location of the object of the contract, and the place of domicile, habitual residence, or business of the parties; (2) the nature, type, and purpose of the contract; and (3) the policies referred to in Article 3515, as well as the policies of facilitating the orderly planning of transactions, of promoting multistate commercial intercourse, and of protecting one party from undue imposition by the other.
Louisiana's Conflict of Laws provisions afford the balancing of competing interests between states. Champagne, 893 So.2d at 786. The objective of those provisions is to identify the state whose policies would be most seriously impaired if its laws were not applied to the issue at hand. See La. C.C. arts. 3515 and 3537. With respect to the instant case, the law of the state applicable to the insurance contract is determined by evaluating the strength and pertinence of the relevant policies of the involved states in light of the factors set forth in those Civil Code articles. Champagne, 893 So.2d at 786.
Louisiana has a strong interest in promoting full recovery for innocent automobile accident victims. Champagne, 893 So.2d at 788. On the other hand, Mississippi has an interest in the regulation of its insurance industry and in the contractual obligations that are inherent parts thereof. The integrity of the contract is a substantial and real interest. The fact that Congress has allowed fifty states to have their own uniform system of regulations governing insurance strongly suggests this is a legitimate public purpose. See Zuviceh v. Nationwide Ins. Co., 2000-0773 (La.App. 1st Cir. 5/11/01), 786 So.2d 340, 346, writ denied, 20012141 (La. 11/09/01), 801 So.2d 373.
Our review of the record establishes the following contacts with the State of Louisiana: the accident occurred in Houma, Louisiana; Fonseca and Belanger are Louisiana residents; and Brown is a Louisiana resident. Alternatively, our review of the record establishes the following contacts with the State of Mississippi: Shannon and Priscilla are Mississippi residents; Mississippi is the place of negotiation and formation of the insurance contract; and the 2007 Dodge Magnum is presumably registered in Mississippi. Under the facts of this case, we find that Mississippi has a more substantial interest in the uniform application of its laws governing insurance contracts than Louisiana. See Champagne, 893 So.2d at 789.
In its assignments of error, TPCG contends that the trial court erred in granting the motion for summary judgment filed by Mississippi Farm Bureau due to the existence of genuine issues of material fact. Specifically, TPCG asserts that there are genuine issues of material fact regarding whether Mississippi Farm Bureau's policy provides coverage for Brown's negligence arising out of the wreck; whether Brown was a permissive driver of the insured vehicle; and whether Sims had use and unfettered denomination over the vehicle at the time of the wreck.
Under Mississippi law, if a contract is clear and unambiguous, then it must be interpreted as written. See Noxubee County School Dist. v. United Nat. Ins. Co., 883 So.2d 1159, 1165 (Miss. 2004). A policy must be considered as a whole, with all relevant clauses interpreted together. J &W Foods Corp. v. State Farm Mut. Auto. Ins. Co., 123 So.2d 550, 552 (Miss. 1998). If a contract contains ambiguous or unclear language, then ambiguities must be resolved in favor of the non-drafting party. Crum v. Johnson, 809 So.2d 663, 666 (Miss. 2002). However, ambiguities do not exist simply because two parties disagree over the interpretation of a policy. See HeartSouth, PLLC v. Boyd, 865 So.2d 1095, 1105 (Miss. 2003). Exclusions and limitations on coverage are also construed in favor of the insured. Noxubee County School Dist., 883 So.2d at 1165. Language in exclusionary clauses must be clear and unmistakable because those clauses are strictly interpreted. Miss. Farm Bureau Mut. Ins. Co. v. Jones, 754 So.2d 1203, 1204 (Miss. 2000). Nevertheless, a court must refrain from altering a policy where terms are unambiguous, despite resulting hardship on the insured. United States Fid. &Guar. Co. of Mississippi v. Martin, 998 So.2d 956, 963 (Miss. 2008).
Mississippi Farm Bureau attached the policy to its motion for summary judgment. The named insureds are Shannon and Priscilla. The policy provides, in pertinent part:
DEFINITIONS
A. Throughout this policy, you and your refer to:
1. The named insured shown in the Declarations
. . .
B. We, us and our refer to the Company providing this insurance, as shown in the Declarations.
. . .
PART A - LIABILITY COVERAGE
. . .
INSURING AGREEMENT
. . .
B. Insured as used in Part A - Liability Coverage means:
1. You or any family member for the ownership, maintenance or use of any auto or trailer.
2. Anyone else while using with your permission any covered auto.
. . .
EXCLUSIONS
A. We do not provide Liability Coverage for any insured:
. . .
9. Using or occupying any covered auto without your permission.
The policy defines "occupying" as in; upon; or getting in, on, out or off. In this case, "you" and "your" refer to Shannon and Priscilla since they are the named insureds on the Mississippi Farm Bureau insurance policy. It is clear and unambiguous that the insurance policy provides that Mississippi Farm Bureau does not provide liability coverage to a person who is using or occupying the 2007 Dodge Magnum without Shannon or Priscilla's permission.
Prior to the accident, on June 28, Priscilla sent Sims a message via Facebook Messenger which stated that if Brown was caught driving or riding in the 2007 Dodge Magnum, Priscilla would have her arrested. On June 29, Priscilla sent another message via Facebook Messenger to Brown, which stated that if Brown was caught in the 2007 Dodge Magnum, driving or riding, Priscilla would have her arrested. During her deposition, Brown initially stated that she did not see the message that was sent to her from Priscilla before the accident occurred. However, later in the deposition, Brown indicated that she viewed the message and then "blocked" Priscilla on Facebook on June 29, which was about five days before the accident occurred. Brown was asked whether she understood that Priscilla was telling her that she was not allowed to drive the 2007 Dodge Magnum via the Facebook Messenger message, and Brown replied, "[y]es." Brown further indicated that she also read the message that Priscilla sent to Sims via Facebook Messenger on June 28, which was also before the accident occurred.
It is clear that Brown knew that she did not have permission to use or occupy the vehicle because she was expressly told by Priscilla that she did not have permission to use or occupy the 2007 Dodge Magnum. Therefore, the Mississippi Farm Bureau insurance policy does not cover Brown using or occupying the 2007 Dodge Magnum pursuant to the section titled "EXCLUSIONS" in the policy.
TPCG next contends that Brown is a permissive driver of the 2007 Dodge Magnum as a permittee's permittee due to Sims's unfettered discretion in his use of the vehicle. TPCG argues that because the Stewarts allowed Sims to use the vehicle, Sims could then permit a third party to drive the vehicle, and that third-party driver would be covered under the Mississippi Farm Bureau policy. We disagree.
The so-called omnibus clause in auto liability and uninsured motorist policies extends liability coverage to persons using an insured vehicle with the permission of the insured. Where the original permittee has unlimited discretion in using the vehicle, the permittee's permittee will generally be found to be a permissive user of the vehicle. See State Farm Mut. Auto. Ins. Co. v. Moore, 289 So.2d 909 (Miss. 1974), overruled in part on other grounds, State Farm Mut. Auto. Ins. Co. v. Mettetal, 534 So.2d 189, 193-94 (Miss. 1988). Even though an owner might initially expressly forbid use of the vehicle by others or for specific purposes, knowledge of the owner of such uses by the permittee can support a finding of implied permission for use of the vehicle by the permittee's permittee. See State Farm Mut. Auto. Ins. Co., 289 So.2d at 912.
In cases involving a permittee with unfettered discretion over the use of the vehicle, Mississippi courts generally treat the permittee's permittee as an insured under the owner's liability policy where: "(1) the original permittee is riding in the car with the second permittee at the time of the accident, or (2) the second permittee, in using the vehicle is serving some purpose of the original permittee." Federated Mut. Ins. Co. v. Davis By &Through Davis, 919 F.Supp. 1001, 100305 (S.D.Miss. 1995). However, the permittee's permittee may not be found to be an insured where the owner has expressly forbidden other drivers and where there is no evidence that the named insured was aware that the original permittee had previously allowed others to drive the vehicle. See U.S. Fidelity &Guaranty Co. v. Stafford, 253 So.2d 388, 392 (Miss. 1971).
In this case, Sims had permission to use the 2007 Dodge Magnum at the time of the accident. Sims drove the vehicle from Mississippi to Louisiana and used the vehicle while he was in Louisiana. If Shannon and Priscilla would have given Sims authority to allow others to drive the vehicle, then coverage would generally exist for those third-party drivers. See Federated Mut. Ins. Co., 919 F.Supp. at 1004. However, that is not the case. The record establishes that Sims was expressly told by Priscilla before the accident took place that he did not have permission to allow Brown, a third-party driver, to drive or ride in the vehicle.
An initial permittee may have unfettered discretion over a vehicle when the initial permittee has full authority and control over the use of the vehicle. See U.S. Fidelity & Guaranty Co., 253 So.2d at 392. Sims was allowed to use the vehicle as the initial permittee, but he did not have unfettered or unlimited discretion over the vehicle. It is clear that Sims did not have full authority and control over the use of the vehicle because Priscilla put a restriction on Sims's use of the vehicle when she told him that Brown was not permitted to drive it. Thus, because the Stewarts expressly prohibited Brown from driving the vehicle, and both Sims and Brown knew that Brown was not permitted to drive the vehicle, Brown is not covered under the permittee's permittee rule. Therefore, this assignment of error lacks merit.
DECREE
The summary judgment granted by the Thirty-Second Judicial District Court in favor of the appellee, Mississippi Farm Bureau Casualty Insurance Company, and against the appellant, Terrebonne Parish Consolidated Government, is affirmed. All costs of this appeal are assessed to Terrebonne Parish Consolidated Government.
AFFIRMED.