Opinion
2012 CA 1674
2013-09-13
LYNN KNOCKUM, INDIVIDUALLY AND AS NATURAL TUTRIX OF THE MINOR HOUSTON KNOCKUM v. JAMES ROSS, LINCOLN GENERAL INSURANCE COMPANY, ELOOP TRAVEL, INC. AND BATON ROUGE BUS MAINTENANCE, INC.
Gail N. McKay Baton Rouge, LA Attorney for Appellant Plaintiff- Lynn Knockum, Ind. And As Natural Tutrix of the Minor Houston Knockum Michael J. Remondet, Jr. Lafayette, LA Attorney for Appellees Defendants - Lincoln General Ins. Company and Eloop Travel, Inc.
NOT DESIGNATED FOR PUBLICATION
Appealed from the
19th Judicial District Court
In and for the Parish of East Baton Rouge, Louisiana
Trial Court Number 586,246
Honorable R. Michael Caldwell, Judge
Gail N. McKay
Baton Rouge, LA
Attorney for Appellant
Plaintiff- Lynn Knockum, Ind. And
As Natural Tutrix of the Minor
Houston Knockum
Michael J. Remondet, Jr.
Lafayette, LA
Attorney for Appellees
Defendants - Lincoln General Ins.
Company and Eloop Travel, Inc.
WELCH, J.
In this personal injury action, plaintiff, Lynn Knockum, individually and as the natural tutrix of the minor Houston Knockum, appeals a summary judgment rendered in favor of Eloop Travel, Inc. (Eloop) and a partial summary judgment rendered in favor of Lincoln General Insurance Company (Lincoln), limiting Lincoln's liability to the minimum amount of liability insurance required by Louisiana law based on the weight of the insured vehicle. We affirm the partial summary judgment rendered in favor of Eloop and dismiss the appeal of the judgment rendered in favor of Lincoln.
BACKGROUND
On January 8, 2010, Ms. Knockum filed this lawsuit seeking personal injury damages against James Ross, Baton Rouge Bus Maintenance, Inc. (Baton Rouge Bus), Eloop, and Lincoln. She alleged that on February 11, 2009, she was driving an Acura Legend vehicle on North Foster Drive in Baton Rouge, Louisiana, when her vehicle was rear-ended by a vehicle driven by Mr. Ross. At the time of the accident, Mr. Ross, an employee of Baton Rouge Bus, was driving a commercial passenger bus owned by Eloop and insured by Lincoln. Ms. Knockum alleged that Mr. Ross, whom she acknowledged was a Baton Rouge Bus's employee, was on a mission for Eloop and Baton Rouge Bus, making both defendants liable under the theory of "respondeat superior" for Mr. Ross's negligence in causing the accident. Ms. Knockum later amended her petition to seek property damages and penalties and attorney's fees for the defendant's alleged arbitrary and capricious failure to pay her claims.
Eloop and Lincoln filed a motion for summary judgment in which they asserted that there was no basis to establish liability on Eloop's part under the theory of "respondent superior" or any other legal theory. They asserted that the evidence established that Mr. Ross was not Eloop's employee and that at no time did Eloop exercise any control over Mr. Ross. Lincoln admitted that it had issued a policy of liability insurance on Eloop's behalf and that such policy was in full effect and force at the time of the incident, but urged that such policy did not extend coverage for the claims asserted against Eloop.
In support of the motion, Lincoln and Eloop attached the affidavit of Fred Poole, Eloop's president. He attested that on February 11, 2009, Eloop requested that Baton Rouge Bus repair and perform maintenance on one of its buses. He also attested that at no time did he or anyone from Eloop direct Baton Rouge Bus or its employees on how to repair the bus or give express permission to Baton Rouge Bus to test drive the bus. He also stated that no employee of Eloop ever drove the bus while it was being repaired by Baton Rouge Bus and that the bus was under the care and control of Baton Rouge Bus on the date of the accident and remained so until all repairs were complete and the bus was returned to Eloop.
In opposition to the motion, Ms. Knockum urged that Eloop could be held liable to her on the theory that Mr. Ross and Baton Rouge Bus were mandatories of Eloop. She further asserted that Mr. Ross and Baton Rouge Bus were covered under the Lincoln policy as omnibus insureds and that Mr. Ross was an insured under the policy because he was a permissive driver. In response, Eloop and Lincoln argued that as a matter of law, no mandatory-principal relationship existed between Eloop and Baton Rouge Bus because Eloop did not confer authority on Baton Rouge Bus to contract to have the bus repaired. Rather, Eloop contracted with Baton Rouge Bus to repair the bus and the two companies entered into a simple service contract, not a contract of mandate.
The memorandum filed in the trial court in which Ms. Knockum made these arguments does not appear in the record. However, the parties do not dispute that these arguments were advanced in the trial court.
Regarding the issue of coverage, Lincoln pointed out that the definition of "insureds" in the policy insuring Eloop's vehicles excluded from the definition of "insureds" anyone who is using a covered "auto" while working in the business of repairing "autos" unless that business was Eloop's. However, Lincoln acknowledged that the policy contained an endorsement entitled "Louisiana Changes" which changed that coverage definition. Specifically, the endorsement changed the policy definition of "insureds" to include someone using a covered "auto" while working in a repair business up to the financial responsibility limits required by the Louisiana Motor Vehicle Safety Responsibility Law. Lincoln contended that since Baton Rouge Bus and Mr. Ross were repairing the bus for Eloop, they were covered by its policy up to the minimum requirements as established by Louisiana law: $15,000 per person, $30,000 per accident, and $25,000 for property damage. La. R.S. 32:900B(2)(a)(b)&(c).
Lincoln requested and obtained an order authorizing it to deposit the sum of $17,636.97 into the registry of the court, representing the $15,000 minimum policy limits, court costs and interest.
On March 5, 2012, the trial court signed a judgment granting Eloop's motion for summary judgment and dismissing Ms. Knockum's claims against Eloop with prejudice at her costs. The judgment further granted Lincoln's motion for partial summary judgment limiting its policy to $15,000 per person and $30,000 per accident. Lincoln's motion for summary judgment was granted as to any claims in excess of those minimum required liability limits, but denied as to any claims up to those minimum liability limits.
Thereafter, Ms. Knockum filed a motion for a new trial and for reconsideration of judgments. With respect to Eloop's liability, Ms. Knockum argued that there was evidence in the record showing that Mr. Poole expected the bus to be test-driven in connection with its repair by Baton Rouge Bus and its employees. She insisted that Mr. Ross, the repair shop's employee who was test driving the bus after repairs, was on a mission for the benefit of the owner, Eloop, and therefore, Eloop could be held liable for the injuries caused during this mission. Regarding Lincoln's liability, Ms. Knockum argued that the trial court's decision limiting Lincoln's coverage to the amounts required by La. R.S. 32:900B(2) is contrary to the terms of the Lincoln policy and federal law requiring mandatory coverage of commercial passenger buses, such as Eloop's, in the amount of $5,000,000 for every accident involving the bus.
A hearing on the motion for new trial and reconsideration of the judgments was held on April 23, 2012. The trial court concluded that Mr. Ross was not on a mission for Eloop at the time of the accident, finding instead that he was on a mission for Baton Rouge Bus. The court noted that Mr. Ross was either driving the bus to see what repairs needed to be done or was testing the repairs he had done. The court also rejected Ms. Knockum's claim that federal law mandated coverage in the amount of $5,000,000 for the accident. Lastly, the court stated although there had been no evidence presented concerning the weight of the bus in question, as a matter of law, it had committed a legal error in setting the liability limits at 15/30 because the minimum liability law sets varying liability limits based on the gross weight of the involved vehicle. The court stated that the weight of the bus would have to be proven at a later time and that it would amend its earlier ruling to provide that Lincoln is liable for whatever minimum limits are applicable to the bus depending on its weight.
On May 17, 2012, Lincoln filed a motion to deposit additional funds into the registry of the court based upon the trial court's modification of its earlier judgment. Lincoln averred that "upon information and belief, the gross vehicle weight is less than fifty thousand pounds, thus raising the statutory minimum up to twenty-five thousand dollars ($25,000.00)," and requested to deposit an additional $11,119.39 into the registry of the court. The trial court granted Lincoln's motion.
On June 11, 2012, the trial court signed another judgment in which it denied Ms. Knockum's motion for a new trial and reconsideration of the summary judgment rendered in favor of Eloop. The judgment further denied Ms. Knockum's motion for a new trial and reconsideration of summary judgment in favor of Lincoln with the following exception: the court modified the judgment in favor of Lincoln to provide that the insurance coverage under the Lincoln policy covering the accident "is limited to the minimum amount of liability insurance required by Louisiana law based upon the weight of the bus insured by the policy."
Ms. Knockum filed a motion asking the trial court to designate the judgment as a final judgment for the purpose of an appeal in accordance with La. C.C.P. art. 1915. On June 12, 2012, the trial court granted the motion and stated in its order that "the referenced judgment will so be designated." However, the trial court did not sign a new judgment designating the judgment appealed from as a final judgment.
On August 10, 2012, Ms. Knockum filed a motion for an appeal of the June 11, 2012 judgment and the June 12, 2012 judgment she claims designated the judgment as final and appealable. On August 14, 2012, the trial court signed the appeal order.
After the appeal was lodged, this court issued a rule to show cause order on January 14, 2013, observing that the trial court's March 5, 2012 partial summary judgment did not appear to have the required designation of finality required by La. C.C.P. art. 1915. This court ordered the parties to show cause by briefs why this appeal should or should not be dismissed for that reason.
This court also remanded the matter for the limited purpose of inviting the trial court to designate in writing that the judgment does not warrant a 1915B designation or to sign a judgment with said designation by February 13, 2013. The record has not been supplemented by the parties with any further action by the trial court.
APPELLATE JURISDICTION
In this appeal, Ms. Knockum asserts that the trial court erred: (1) in finding that Mr. Ross was not on a mission for Eloop and granting summary judgment on that basis dismissing her claims against Eloop; (2) in finding that the federally mandated $5,000,000 minimum coverage provisions of Lincoln's policy did not apply in this case; and (3) in granting partial summary judgment limiting Lincoln's liability to the minimum amount required by Louisiana law based on the weight of the bus.
We first address a procedural concern with respect to the appeal of the judgment rendered in favor of Eloop. On March 5, 2012, the trial court granted summary judgment in favor of Eloop and dismissed all of Ms. Knockum's claims against Eloop with prejudice. On June 11, 2012, the trial court entered judgment denying Ms. Knockum's motion for a new trial and reconsideration of the summary judgment rendered in favor of Eloop. Ms. Knockum's motion for appeal references the June 11, 2012 judgment. Although her motion for appeal does not reference the March 5, 2012 judgment, it is apparent from reviewing her brief that she intended to appeal that initial judgment as well. When a motion for appeal refers by date to the judgment denying a motion for a new trial, but the circumstances indicate that the appellant actually intended to appeal from the final judgment on the merits, the appeal should be maintained as being from the judgment on the merits. Great West Casualty Co. v. State, Department of Transportation and Development, 2006-1776, n.2 (La. App. 1st Cir. 3/28/07), 960 So.2d 973, 975, writ denied, 2007-1227 (La. 9/14/07), 963 So.2d 1005.
The parties argue that the judgment rendered in favor of Eloop is a valid final judgment immediately appealable pursuant to La. C.C.P. art. 1915A without the need for a designation of finality by the parties. As to Eloop, we agree. Article 1915A permits an immediate appeal of judgment that dismisses a suit as to less than all of the parties or grants a motion for summary judgment provided for in Articles 966 through 969. La. C.C.P. art. 1915A(1)&(3). The March 5, 2012 summary judgment dismissed all of Ms. Knockum's claims against Eloop with prejudice; as such, it is a final judgment that is immediately appealable pursuant to Article 1915A.
The parties argue that the June 11, 2012 judgment rendered in favor of Lincoln is also a final judgment under Article 1915A because all of the claims, demands, issues, and theories against Lincoln have been addressed. However, the judgment rendered in favor of Lincoln did not dismiss Ms. Knockum's claims against Lincoln, did not cast Lincoln in judgment, and clearly does not fall under Article 1915A because there are issues regarding the extent of coverage provided under the Lincoln policy that must be adjudicated. Thus, the judgment rendered in favor of Lincoln is clearly a partial judgment falling under Article 1915B, for which a designation of finality by the trial court is required in order for the judgment to be immediately appealable. It is not clear in this case whether the trial court actually designated the June 11, 2012 judgment as final for the purpose of an immediate appeal. However, we conclude that even if the trial court did in fact designate the judgment as a final one in its June 12, 2012 order, the June 11, 2012 judgment is not a valid final judgment over which this court has appellate jurisdiction.
Even when a trial court has designated a partial judgment as being a final judgment under Article 1915B, that designation is not determinative of this court's jurisdiction; this court must still ascertain whether it has appellate jurisdiction to review the partial judgment from which the appeal was taken. Rush v. Rush, 2012-1502 (La. App. 1st Cir. 3/25/13), 115 So.3d 508, 510-11, writ denied, 2013-0911 (La. 5/31/13), ___So.3d ___.
A judgment is the determination of the rights of the parties in an action. La C.C.P. art. 1841. Final judgments are appealable in all causes in which appeals are given by law. La. C.C.P. art. 2083. A final judgment shall be identified as such by appropriate language. La. C.C.P. art. 1918. Although the form and wording of judgments are not sacramental, a judgment must be "precise, definite, and certain." Laird v. St. Tammany Parish Safe Harbor, 2002-0045 (La. App. 1st Cir. 12/20/02), 836 So.2d 364, 365. A judgment must be definitive. Clark v. Diamond B. Construction, 2000-2146 (La. App. 1st Cir. 12/28/01), 803 So.2d 1113, 1117. Furthermore, the specific relief granted should be determinable from the judgment without reference to an extrinsic source such as pleadings or reasons for judgment. Vanderbrook v. Coachmen Industries, Inc., 2001-0809 (La. App. 1st Cir. 5/10/02), 818 So.3d 906, 913.
The partial judgment rendered in favor of Lincoln is not definitive or certain and it lacks specificity. The judgment limits Lincoln's liability to the minimum amount of liability insurance required by Louisiana based upon the weight of the bus. The trial court acknowledged that there was no proof in the record regarding the actual weight of the bus and that the parties would have to present evidence on that issue at a later date. As to Lincoln, the judgment appealed from is not final because it does not determine the amount of coverage provided by the Lincoln policy; rather, it makes that determination contingent upon the introduction of additional evidence. As it is impossible to determine the extent of Lincoln's exposure under the policy from the language of the judgment, we conclude that the judgment purporting to determine the extent of Lincoln's liability is not a valid final judgment; therefore, this court lacks jurisdiction to review that judgment on appeal, and we dismiss the appeal.
SUMMARY JUDGMENT
We now review the propriety of the summary judgment entered in favor of Eloop. An appellate court reviews a trial court's decision to grant a summary judgment de novo, using the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La. 7/5/94), 639 So.2d 730, 750. A summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966B.
Ms. Knockum alleged in her petition that Eloop is liable for the negligence of a third party, Mr. Ross, acknowledging that at the time of the accident, Mr. Ross was an employee of Baton Rouge Bus Eloop pointed out in its motion for summary judgment that Ms. Knockum could not prove that it was liable for the alleged negligence of Mr. Ross under any legal theory. In support of its motion, Eloop offered the affidavit of its president, Mr. Poole, who stated that the bus was in the care and control of Baton Rouge Bus at the time of the accident for repairs, at no time did Eloop direct Baton Rouge Bus on how to repair the bus, and that at no time did he or anyone from Eloop give express permission to Baton Rouge Bus to test drive the bus. Ms. Knockum claims that Mr. Ross was on a mission for Eloop and relies on Mr. Poole's deposition testimony in which he stated that he had no objections to mechanics testing the bus during repairs and that he expected that mechanics would have to test drive the bus.
Ms. Knockum's memorandum in opposition to the motion for summary judgment and exhibits attached to that memorandum do not appear in the record. However, in her motion for a new trial, she referred to Mr. Poole's deposition as having been attached to her memorandum in opposition to the motion for summary judgment. The deposition appears in the record as Exhibit 1 in support of the motion for new trial. Even if we consider this deposition as evidence offered in opposition to the motion for summary judgment, we do not find that an owner's mere knowledge that a vehicle could be test driven by a repairman constitutes a sufficient legal basis upon which to impose vicarious liability on Eloop for the negligence of the repairman.
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In Louisiana, owners of motor vehicles are not generally personally liable for damages that occur while another is operating the vehicle. Recognized exceptions to this rule occur only when the driver is on a mission for the owner of the vehicle, when the driver is an agent or employee of the owner, or when the owner is negligent for entrusting the vehicle to an incompetent driver. Sterling v. Allstate Insurance Company, 2009-1191 (La. App. 1st Cir. 2/12/10), 35 So.3d 355, 358. The only exception urged by Ms. Knockum in this appeal is that Mr. Ross was on a mission for Eloop; however, we find that Ms. Knockum failed to offer adequate factual support for this theory of liability. Because there is an absence of factual support for imposing liability on Eloop for the negligence of Mr. Ross under any legal theory, we conclude that summary judgment was properly entered in favor of Eloop.
CONCLUSION
For the foregoing reasons, the summary judgment rendered in favor of Eloop Travel, Inc. is hereby affirmed. The appeal of the partial judgment rendered in favor of Lincoln General Insurance Company is dismissed. Costs of this appeal are assessed one-half to plaintiff, Lynn Knockum and one-half to Lincoln General Insurance Company.
APPEAL DISMISSED IN PART; AFFIRMED IN PART.