Opinion
2012 CA 0795
02-13-2013
CHARLES R. TAYLOR, SR. AND CYNTHIA R. TAYLOR v. GRAMERCY INSURANCE COMPANY
Dorsey C. Martin, III Baton Rouge, Louisiana Attorney for Plaintiff/Appellant Charles R. Taylor, Sr., and Cynthia R. Taylor James R. Swanson Loretta G. Mince Alysson L. Mills New Orleans, Louisiana Attorneys for Defendant/ Appellee Gramercy Insurance Company
NOT DESIGNATED FOR PUBLICATION
APPEALED FROM THE TWENTIETH JUDICIAL DISTRICT COURT
PARISH OF EAST FELICIANCA
STATE OF LOUISIANA
DOCKET NUMBER 41296, DIVISION B
HONORABLE WILLIAM G. CARMICHAEL, JUDGE
Dorsey C. Martin, III
Baton Rouge, Louisiana
Attorney for Plaintiff/Appellant
Charles R. Taylor, Sr., and
Cynthia R. Taylor
James R. Swanson
Loretta G. Mince
Alysson L. Mills
New Orleans, Louisiana
Attorneys for
Defendant/ Appellee
Gramercy Insurance Company
BEFORE: KUHN, PETTIGREW, AND McDONALD, JJ.
McDONALD, J.
This is an appeal from a district court judgment that granted a motion for summary judgment filed by the defendant, Gramercy Insurance Company (GIC), denied a motion for summary judgment filed by the plaintiffs, Charles R. Taylor, Sr., and Cynthia R. Taylor (the Taylors), and dismissed the Taylors' suit. For the following reasons, we affirm the district court judgment.
On February 13, 2012, the district court signed a judgment granting the motion for summary judgment filed by GIC and denying the motion for summary judgment filed by the Taylors. On June 4, 2012, this court issued a rule to show cause order, noting that the February 13, 2012 judgment appeared to lack appropriate decretal language disposing of or dismissing the claim, On June 13, 2012, the district court signed an amended judgment dismissing the Taylors' claims with prejudice. On August 24, 2012, this court issued an order maintaining the appeal.
On May 14, 2011, the Taylors' daughter, Charrion Taylor (Ms. Taylor), was driving Mrs. Taylor's 2006 Cadillac CTS in Ethel, Louisiana, when she lost control of the vehicle and hit a culvert. Ms. Taylor was an excluded driver on Mrs. Taylor's insurance policy for the Cadillac.
On July 7, 2011, the Taylors filed suit against GIC, asserting that GIC had issued an automobile policy to the Taylors insuring the Cadillac for property damages, and that they were entitled to the appraisal value for the loss of their vehicle from GIC. GIC answered the petition, asserting that Ms. Taylor had the express or implied permission of the Taylors to drive the Cadillac and was an excluded driver under the policy issued to GIC; thus, GIC was not liable for the damages to the Cadillac.
Thereafter, GIC filed a motion for summary judgment, asserting that because Ms. Taylor was an excluded driver under the GIC policy, there was no genuine issue of material fact that GIC did not provide coverage for the damages demanded by the Taylors. GIC asked that the suit be dismissed. The Taylors filed a motion for summary judgment asserting that there was no genuine issue of material fact that GIC was liable as a matter of law.
The district court granted the motion for summary judgment filed by GIC, denied the motion for summary judgment filed by the Taylors, and dismissed the suit. The Taylors are appealing that judgment.
THE STANDARD OF REVIEW
An appellate court's review of a summary judgment is a de novo review based upon the evidence presented at the trial court level and using the same criteria used by the trial court in deciding whether a summary judgment should be granted. Simmons v. Berry, 98-0660 (La. App. 1 Cir. 12/22/00), 779 So.2d 910, 913-14. A motion for summary judgment is properly granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).
FACTS
On December 23, 2010, Mrs. Taylor submitted an application to purchase an automobile insurance policy from GIC to insure her 2004 Chrysler Sebring. On that same day GIC issued policy number 40291 to Mrs. Taylor, effective December 23, 2010 to June 24, 2011. Mrs. Taylor also executed a "NAMED DRIVER EXCLUSION ENDORSEMENT" on that same date, which provides in pertinent part:
PLEASE READ THIS ENDORSEMENT CAREFULLY.
THIS ENDORSEMENT CHANGES THE TERMS OF YOUR
POLICY.
This endorsement is attached to and forms a part of the policy to be issued as of the date this endorsement is prepared. This endorsement will apply to this policy and any amended, renewal, reinstatement or substitute policy issued to the same Named Insured by the Company.
This endorsement supersedes and excludes from the policy any contrary provision(s).
In consideration of the premium charged, the Named Insured agrees that no coverage provided by the Company is afforded while any vehicle listed on this policy is being used, driven, operated or manipulated by, or under the care of:
Carlton Taylor, Charrion Taylor
On May 2, 2011, Mrs. Taylor added her Cadillac to the policy, which had a new policy period of May 2, 2011 to June 24, 2011. The policy included comprehensive and collision coverage for the Cadillac. The policy lists two excluded operators, Carlton Taylor and Charrion Taylor, and provides the following endorsements: "GIC 1.11 LA (07-09) Uninsured/Underinsured Motorist Bodily Injury Coverage Form; GIC 1.12 LA (07-09) Named Driver Exclusion Endorsement".
The policy also provides:
YOUR POLICY CONSISTS OF THIS DECLARATIONS, [SIC] YOUR PERSONAL AUTO POLICY, YOUR APPLICATION FOR INSURANCE AND ANY ENDORSEMENTS THAT APPLY INCLUDING THOSE ISSUED TO YOU AT ANY SUBSEQUENT RENEWAL BY US.
Thereafter, on May 14, 2011, Charrion Taylor drove the Cadillac and crashed it into a ditch. The Cadillac was a total loss.
THE APPEAL
On appeal the Taylors assert that the trial court erred in failing to grant their motion for summary judgment because the depositions of the parties established that Ms. Taylor was using the vehicle without their permission, knowledge, or consent; and further, that the trial court erred in granting GIC's motion for summary judgment by failing to recognize that an undisputed material fact precluded the entry of summary judgment, that is, whether Ms. Taylor was driving the vehicle without the Taylors' knowledge, permission, or consent.
The Taylors rely upon the case of Bryant v. United Services Auto. Ass'n, 03-3491 (La. 9/9/04), 881 So.2d 1214, arguing that Bryant establishes that an excluded driver driving the vehicle without the permission of the insured should be covered under the insurance policy.
We find that the Taylors' reliance upon the Bryant case is misplaced. In Bryant, the Louisiana Supreme Court granted certiorari and consolidated two cases to resolve a split among the circuit courts of appeal on the "narrow issue" of whether La. R.S. 32:866 applied to bar a specified portion of a named insured's recovery when an excluded driver is involved in an accident while driving the named insured's vehicle.
In the Bryant cases, each plaintiff sought recovery from the defendant and defendant's insurer after the defendant negligently collided with the plaintiff's vehicle. In each case, the plaintiff's vehicle was driven by a named excluded driver, although in neither case was the excluded driver at fault. In those cases, the defendant insurers argued that La. R.S. 32:866, the "no pay, no play" law, barred the plaintiff's recovery, reasoning that the plaintiff should be penalized for her failure to have provided insurance coverage under the circumstances.
The court in Bryant determined that in light of the policies served by La. R.S. 32:866, it would be absurd to apply the "no pay, no play" law to partially reduce an owner's recovery for damages arising out of the operation of his or her vehicle by an excluded driver who is involved in an accident, when the owner did not give the excluded driver permission to operate the vehicle. Bryant, 881 So.2d 1224.
The case herein differs significantly from Bryant. This case concerns a single car accident caused by the excluded driver. The Taylors are asking their insurer to pay for losses that were specifically excluded by their own policy. We find that the reasoning in Bryant does not apply to this case. The Bryant case specifically noted that had Ms. Bryant's excluded driver been at fault in causing the accident, any property damage claim that Ms. Bryant would have been otherwise able to make against her own coverage would not have been available to her. Bryant, 881 So.2d at 1222.
The Taylors also rely upon Khaliq v. Progressive Sec. Ins. Co., 06-1207 (La. App. 3 Cir. 2/7/07), 950 So.2d 933, writ denied, 07-0471 (La. 4/27/07), 955 So.2d 688, in which case the court found that the insurance company had to pay the collision damages sustained to the plaintiff's vehicle even though the driver of plaintiff's vehicle was an excluded driver under the policy. In Khaliq, the plaintiff's son was a named excluded driver on the plaintiff's insurance policy, and was driving the plaintiff's vehicle when he was involved in a two-car accident that apparently was not his fault. See Khaliq, 950 So.2d at 934 (noting that the owner of the other vehicle involved in the accident settled with the excluded driver's father for $10,000 less than the father's total damages); see also William Shelby McKenzie and H. Alston Johnson, III, 15 La. Civ. L. Treatise, Insurance Law & Practice § 3:43 n. 15 (4th ed. 2012).
When the plaintiff later filed a first-party claim for full payment of his loss, his insurer refused to pay, citing the named driver exclusion. After a trial, the trial court ruled in favor of the insured, finding that the vehicle was covered. On appeal, the third circuit affirmed, finding that because the plaintiff's son had taken the plaintiff's vehicle without the plaintiff's permission, the insurance policy covered the plaintiff's loss, concluding that such result was implied by the Louisiana Supreme Court in Bryant. We find that Kahliq is factually distinguishable from the present case.
Thus, after a de novo review, we find that the plaintiffs failed to produce factual support sufficient to establish that they would be able to satisfy their burden of proof at trial, and there is no genuine issue of material fact.
Therefore, for the foregoing reasons, the district court judgment, which denied the motion for summary judgment filed by the Taylors, granted the motion for summary judgment filed by GIC, and dismissed the Taylors' suit, is affirmed. Costs are assessed against the Taylors.
AFFIRMED.