Opinion
NO. 2012 CW 1506
07-01-2013
RANDALL G. ENGELS, JR. v. SHELTER GENERAL INSURANCE COMPANY
In Re: Shelter General Insurance Company, applying for supervisory writs, 19th Judicial District Court, Parish of East Baton Rouge, No. 603137.
BEFORE: PARRO, KUHN, GUIDRY, PETTI GREW AND McCLENDON, JJ.
WRIT GRANTED. Although any ambiguity will be construed against the insurer, where the language of an insurance contract is clear the agreement will be enforced as written. Romero v. State Farm Mut. Auto. Ins. Co., 595 So.2d 402, 404 (La. App. 3 Cir. 1992). Part V of the automotive insurance policy at issue herein, together with the Louisiana Amendatory Endorsement, provide that comprehensive and collision coverage does not apply to damage resulting from the "conversion, embezzlement or concealment of the auto by any person who has possession of it because of a . . . sales agreement." Furthermore, the Offroad Vehicle Endorsement to the policy provides that coverage does not apply to damage sustained while the described auto is "consigned to, or is in the care, custody, or control of any person other than you [the insured], for purposes of . . . selling it." Herein, it is undisputed that the plaintiff delivered his 2008 Kawasaki four-wheeler to a purported buyer with the intent to sell the vehicle for a negotiated purchase price. At the time of the exchange, there was a meeting of the minds between the parties as to the sale of the vehicle, including agreement as to the thing and price. See La. Civ. Code art. .2456. The parties' initial consent and the perfection of the sale is not changed by the fact that the payment was later determined to be fraudulent. Accordingly, the policy provisions excluding loss resulting from a sales agreement apply to exclude coverage in this instance. See Dupre v. Western Assurance Co., 112 So.2d 165 (La. App. 1 Cir. 1959). The judgments of the Baton Rouge City Court dated April 21, 2011, and of the 19th Judicial District Court dated May 31, 2012, are reversed. Judgment is hereby rendered in favor of the defendant, Shelter Mutual Insurance Company, dismissing the plaintiff's suit with prejudice. Costs in the trial and appellate courts are assessed against the plaintiff.
RHP
JMG
PMc
Pettigrew, J. concurs. Kuhn, J. dissents. The circumstances leading to the loss of the plaintiff's four-wheeler in this case constituted criminal theft. A stolen and forged cashier's check is not payment, and there was never intent by the purported buyer, whose real identity is unknown, to submit valid payment. The person who took the vehicle never intended for it to be an object of "sale". Consequently it was never "consigned or placed in the custody of" the thief for the purpose of a sale. Moreover, the claim being made here is for theft NOT a claim for damage to the vehicle while a legitimate sale may have been pending. The policy's provisions on the subject of damage to the vehicle while a sale is in the process of being completed is obviously meant to foreclose a damage claim to the object which has been transferred in furtherance of a sale. Such a provision is inapplicable as there has been no damage claim but rather a theft claim. Therefore, no sales agreement was entered in accordance with La. Civ. Code. Art.2456 as there was no meeting of the minds on payment. An object of theft cannot at the same time be an object of a valid sale. If there was a valid sale, the unknown culprit in this case could not be prosecuted for theft. The policy language simply does not support the conclusions of the majority and the unusual consequences of the ruling. Interestingly, an unintended consequence of the majority ruling in this case could lead to the extension of coverage to the thief. Had the thief in this case been involved in an accident involving the stolen four-wheeler, the insurer would be obligated to provide coverage as the thief would presumably be a permissive user of the vehicle. The prospective consequences of the majority's ruling are far-reaching. Accordingly, it is my belief that the policy exclusions are inapplicable. I would deny the writ application. COURT OF APPEAL, FIRST CIRCUIT _______________
DEPUTY CLERK OF COURT
FOR THE COURT