Opinion
NUMBER 2014 CA 0632
11-07-2014
MARLENE CABRERA, LUIS COELLO, ANABEL GODOY & LUIS TURCIOS v. VICTORIA INSURANCE COMPANY & USAGENCIES CASUALTY INSURANCE COMPANY, INC.
Ivan A. Orihuela Ryan A. Creel Kenner, LA Counsel for Plaintiffs/Appellants Marlene Cabrera, Luis Coello, Anabel Godoy & Luis Turcios Aimee C. Lacoste Nahum D. Laventhal Metairie, LA Counsel for Defendant/Appellee Victoria Insurance Company
NOT DESIGNATED FOR PUBLICATION Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge, Louisiana
Docket Number C582285
Honorable Kay Bates, Judge Presiding
Ivan A. Orihuela
Ryan A. Creel
Kenner, LA
Counsel for Plaintiffs/Appellants
Marlene Cabrera, Luis Coello, Anabel
Godoy & Luis Turcios
Aimee C. Lacoste
Nahum D. Laventhal
Metairie, LA
Counsel for Defendant/Appellee
Victoria Insurance Company
BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.
WHIPPLE, C.J.
This matter is before us on appeal by plaintiffs in a lawsuit arising out of a motor-vehicle accident. The plaintiffs appeal a partial summary judgment granted in favor of the defendant, Victoria Insurance Company, dismissing the plaintiffs' uninsured/underinsured motorist ("UM") claims against Victoria Insurance. For the following reasons, we reverse the judgment of the trial court and remand for further proceedings.
FACTUAL AND PROCEDURAL HISTORY
On or about September 7, 2007, plaintiff, Marlene Cabrera, was operating a 2005 Dodge Caravan when she was rear-ended by a vehicle operated by Mary Bourque at the intersection of South Foster Drive and Government Street in Baton Rouge, Louisiana. The vehicle Cabrera was driving at the time of the accident was owned by Luis Turcios, and was occupied by Turcios, Anabel Godoy, and Luis Coello.
On September 8, 2009, Cabrera, Turcios, Godoy, and Coello filed a petition for damages, alleging that the at-fault driver, Mary Bourque, was underinsured for their damages sustained in the accident, and naming Victoria as the UM insurer of Cabrera, and USAgencies Casualty Insurance Company, as the UM insurer of Turcios, as defendants.
Pursuant to a joint motion, all claims against USAgencies were dismissed by a judgment of the trial court.
On December 20, 2011, Victoria filed a motion for partial summary judgment, seeking a dismissal of all UM claims made against it by Turcios, Godoy, and Coello (hereinafter collectively referred to as "the plaintiff passengers"). Victoria contended that summary judgment and a dismissal of the plaintiff passengers' claims was appropriate because the plaintiff passengers could not prove that they were "insureds" entitled to coverage under the clear and unambiguous terms of the UM policy issued to Cabrera. In support of its motion for summary judgment, Victoria attached plaintiffs' discovery responses, a certified copy of the insurance policy, and the accident report.
In opposition to the motion for summary judgment, the plaintiff passengers submitted the affidavit of Cabrera, wherein she attested that she was operating Turcios's vehicle at the time of the accident because her vehicle was inoperable and needed repairs. Accordingly, the plaintiff passengers contended, at a minimum, issues of fact existed as to whether they were entitled to coverage under the UM policy provision, which states:
We [Victoria] will also pay compensatory damages, including derivative claims, which are due by law to other persons who suffer bodily injury while occupying:(Hereinafter referred to as the "temporary substitute vehicle provision.")
[...]
2. A motor vehicle you do not own, while it is used in place of your auto for a short time. Your auto must be out of use because of:
a) breakdown;
b) repair;
c) servicing; or
d) loss.
Following a hearing, the trial court granted Victoria's motion for partial summary judgment, finding that there were no genuine issues of material fact remaining regarding the issue of UM coverage for the plaintiff passengers. Thus, a written judgment granting Victoria's motion for partial summary judgment and dismissing with prejudice the claims of the plaintiff passengers was signed on December 27, 2013.
The plaintiff passengers now appeal, contending that summary judgment was inappropriate because genuine issues of material fact remain as to whether they are entitled to coverage under the temporary substitute vehicle provision of Victoria's UM policy. After careful review of the record before us, we agree.
LAW AND ANALYSIS
In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that governs the trial court's determination of whether summary judgment is appropriate. Green v. State Farm Mut. Auto Ins. Co., 2007-0094 (La. App. 1st Cir. 11/2/07), 978 So. 2d 912, 914, writ denied, 2008-0074 (La. 3/7/08). 977 So. 2d 917. Summary judgment shall be rendered in favor of the mover if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to a material fact, and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B)(1). An issue is "genuine" if reasonable persons could disagree. In determining whether an issue is genuine, courts cannot consider the merits, make credibility determinations, evaluate testimony, or weigh evidence. A fact is "material" when its existence or nonexistence may be essential to the plaintiff's cause of action under the applicable substantive theory of recovery. 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. Haydel v. State Farm Ins. Co., 2005-0701 (La. App. 1st Cir. 3/24/06), 934 So. 2d 726, 728.
The issue of whether an insurance policy, as a matter of law, provides or precludes coverage is a dispute that can be resolved properly within the framework of a motion for summary judgment. However, summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion, under which coverage could be afforded. Green, 978 So. 2d at 914.
Applying these legal precepts, the crucial issue herein is whether the undisputed facts demonstrate that the plaintiff passengers were not entitled to coverage under the temporary substitute vehicle provision of the UM policy. Specifically, the issue for determination is whether the undisputed facts demonstrate that Cabrera was not using Turcios's vehicle at the time of the accident due to the temporary breakdown, repair, servicing, or loss of her vehicle.
In support of the motion for partial summary judgment, Victoria introduced interrogatories propounded on the plaintiffs and the plaintiffs' answers to the same. The interrogatories included a question as to why Turcios was not driving his vehicle at the time of the accident, to which Turcios responded:
[He] was not driving the vehicle that was registered in his name because he and his co-workers took turns driving to and from work due to the distance and at the time of the automobile collision at issue, it was Marlene Cabrera's turn to drive.Moreover, Cabrera responded:
[She] was driving the relevant vehicle that was registered in Luis Turcios'[s] name because she and her co-workers took turns driving to and from work due to the distance and at the time of the automobile collision at issue, it was her turn to drive.
Relying on these discovery responses, Victoria argues that "[t]he facts learned unquestionably evidence that these plaintiffs were using Luis Turcois'[s] vehicle in a carpool-type arrangement to and from work[, and] Marlene Cabrera was, at no time, using Turcios'[s] vehicle as a temporary replacement vehicle because hers was 'out of service for a short time' as is provided in her policy of insurance."
Contrary to Victoria's contentions, we disagree that the discovery responses "unquestionably evidence" that Cabrera was not using Turcios's vehicle at the time of the accident because her vehicle was out of service. Notably, the discovery that Victoria relies upon did not specifically ask whether Cabrera was using Turcios's vehicle at the time of the accident due to the "breakdown, repair, servicing, or loss" of her vehicle. Moreover, while the discovery responses state that Cabrera was using Turcios's vehicle as part of a carpool arrangement, these responses do not address or exclude the possibility that she would have been driving her vehicle as part of the carpool arrangement, but for its need of repairs, as she attests to in her affidavit.
Specifically, Cabrera's affidavit, submitted by the plaintiff passengers in opposition to the motion for summary judgment, states in pertinent part:
(1) That on the date of the automobile collision at issue, she owned a 1999 Nissan Quest.
(2) That on September 7, 2007, her vehicle was parked and was inoperable and broken down because the CV joints and brakes on the vehicle needed to be repaired and serviced.
(3) That she was using and driving the 2005 Dodge Caravan owned by Luis Turcios on September 7, 2007 for a short while in place of her 1999 Nissan Quest because of the breakdown of her 1999 Nissan Quest as a result of being inoperable and needing repairs and servicing due to the mechanical problems outlined above.
(4) That her 1999 Nissan Quest had been inoperable and broken down, and needed repairs and servicing, for approximately two weeks prior to September 7, 2007.
Victoria argues that although the plaintiff passengers introduced Cabrera's affidavit in opposition to the motion for summary judgment, the plaintiff passengers did not satisfy their requisite burden of proof of demonstrating that genuine issues of material fact remain. Specifically, Victoria contends that Cabrera's affidavit is merely self-serving and the plaintiff passengers should have offered further evidence that Cabrera was using Turcios's vehicle as a replacement vehicle due to her vehicle being in need of repairs. Victoria further argues that the veracity of Cabrera's statements in the affidavit is "suspect" because her statements are not supported by Turcios's discovery responses.
We first disagree with Victoria's characterization of Cabrera's affidavit as self-serving. Notably, Cabrera's affidavit was submitted in opposition to Victoria's motion for partial summary judgment, which sought to dismiss the claims of the plaintiff passengers, not Cabrera. Victoria's motion for partial summary judgment specifically states:
The UM claims asserted on behalf of [p]laintiff Marlene Cabrera are not the subject of the instant [m]otion for [p]artial [s]ummary [j]udgment. Victoria does not contend within the instant motion that [p]laintiff Marlene Cabrera is not entitled to UM coverage under policy no. 3763659 for her alleged injuries and damages arising out of the September 7, 2007 motor vehicle accident made the subject of this litigation.Accordingly, to the extent that Victoria's motion for partial summary judgment does not affect Cabrera's claims against Victoria, Cabrera's affidavit offered in opposition to the motion for summary judgment is not self-serving, as Victoria contends.
Moreover, we are not persuaded by Victoria's argument that Cabrera's statements in the affidavit lack veracity because her statements conflict with Turcios's discovery responses. As explained above, the discovery responses do not directly address whether or not Cabrera was using Turcios's vehicle due to the temporary breakdown of her vehicle. Moreover, to the extent that there is a conflict between the discovery responses and Cabrera's affidavit, as Victoria contends, it is well established that the court should not consider the merits, make credibility determinations, evaluate testimony, or weigh evidence when determining whether an issue is genuine for purposes of summary judgment. Suire v. Lafayette City-Parish Consol. Government, 2004-1459 (La. 4/12/05), 907 So. 2d 37, 48.
Last, we note that when a motion for summary judgment is made and supported by competent evidence, an adverse party may not rest on the mere allegation or denials of this pleadings, but his response, by affidavit or as otherwise, must set forth specifics facts showing that there is genuine issue for trial. LSA-C.C.P. art. 967(B). Here, Cabrera's affidavit does not merely state that she was driving Turcios's vehicle at the time of the accident due to the temporary breakdown of her vehicle. Rather, Cabrera's affidavit sets forth specific facts as to the exact mechanical problems that she was having with her personal vehicle at the time of the accident and how long she had experienced these mechanical problems. Accordingly, we find that Cabrera's affidavit satisfies the statutory requirements of LSA-C.C.P. art. 967(B).
In sum, we find that Victoria failed to establish that no genuine issues of material fact remain on the threshold issue of whether Cabrera was using Turcios's vehicle at the time of the accident due to the temporary "breakdown, repair, servicing, or loss" of her vehicle. To the extent that the trial court relied on Victoria's interpretation of the discovery responses, and apparently rejected Cabrera's affidavit and statements, the trial court erred. Even if we were to presume that Victoria met its initial burden on summary judgment, the affidavit of Cabrera, submitted by the plaintiff passengers in opposition to the motion for summary judgment, sets forth specific facts showing that there is a genuine issue for trial as to whether the plaintiff passengers are entitled to coverage under the temporary substitute vehicle provision of the insurance policy. Accordingly, we find that summary judgment was improperly granted herein.
Although Victoria also submitted the insurance policy and accident report in support of its motion for partial summary judgment, this evidence is neither relevant nor determinative of the facts surrounding Cabrera's use of Turcios's vehicle at the time of the accident.
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CONCLUSION
For the above reasons, the December 27, 2013 judgment of the trial court, granting Victoria's motion for partial summary judgment and dismissing the claims of plaintiffs, Luis Coello, Anabel Godoy, and Luis Turcios, is hereby reversed. The case is remanded to the trial court for further proceedings. Costs of this appeal are assessed to the defendant, Victoria Insurance Company.
REVERSED AND REMANDED.
McCLENDON, J., concurs.
I am constrained to concur with the result reached by the majority having found that Marlene Cabrera's affidavit creates genuine issues of material fact. While I note that Luis Turcios's answers to interrogatories appear to be in conflict with Ms. Cabrera's affidavit, credibility issues are not appropriate for summary judgment.