92 So. 3d 544
La. Ct. App.2012Background
- Plaintiff Fartima Hawkins sued for injuries from a February 5, 2008 automobile collision in Baton Rouge where her vehicle was struck by a government vehicle driven by Army recruiter Sgt. Sean Fowler.
- Allstate Insurance Company (Allstate) insured Fowler and moved for summary judgment on grounds of policy exclusions: lack of permission or regular use of the GOV.
- Army policy prohibits domicile-to-duty use of government vehicles without written permission; Fowler claimed verbal permission from his supervisor to use the GOV home-to-work every day.
- Sergeant Putnam testified recruiters may drive GOVs home; evidence included unsecured keys and uncertain compliance with protocol.
- The trial court granted summary judgment for Allstate, reasoning either lack of permission or regular use excluded coverage; Hawkins sought reconsideration.
- The appellate court affirmed, holding no genuine issue of material fact precluded summary judgment; majority opinion by McClendon; concurrence by Pettigrew.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does lack of permission preclude coverage? | Hawkins asserts lack of permission defeats coverage only if no permission exists. | Allstate argues lack of permission excludes coverage under the policy. | Yes, lack of permission excludes coverage. |
| Does regular use exclusion apply due to daily home-to-work use? | Hawkins contends there was permission and daily use constitutes regular use, not exclusion. | Allstate contends regular use applies if GOV was provided for Fowler's regular use. | Yes, regular use exclusion applies. |
| Is there a triable issue regarding implied permission creating non-regular or limited use? | Hawkins argues implied permission from supervisor’s conduct could create a jury issue. | Allstate argues mere conjecture cannot defeat summary judgment; no evidence of limited use. | No genuine issue; summary judgment affirmed. |
Key Cases Cited
- Schultz v. Guoth, 57 So.3d 1002 (La. 2011) (summary judgment standard and burden on movant)
- Costello v. Hardy, 864 So.2d 129 (La. 2004) (criteria for reviewing summary judgments)
- Hines v. Garrett, 876 So.2d 764 (La. 2004) (materiality and genuine issue definition)
- O’Neal v. Blackwell, 818 So.2d 118 (La. App. 1 Cir. 2001) (regular use concept in vehicle exclusion)
- Blanchard v. Hanover Ins. Co., 250 So.2d 484 (La. App. 1 Cir. 1971) (regular use exclusion when employer furnishes vehicles for regular use)
- Reynolds v. Select Properties, Ltd., 634 So.2d 1180 (La. 1994) (interpretation of coverage and exclusions in insurance policy)
- Gaylord Chem. Corp. v. ProPump, Inc., 753 So.2d 349 (La. App. 1 Cir. 2000) (burden and standard for proving lack of factual support)
- Kelly v. West Cash & Carry Bldg. Materials Store, 745 So.2d 743 (La. App. 4 Cir. 1999) (mere possibility insufficient to create material fact)
- Wilson v. Davis, 991 So.2d 1052 (La. App. 1 Cir. 2008) (evidence required to defeat summary judgment)
- Pugh v. St. Tammany Parish School Bd., 994 So.2d 95 (La. App. 1 Cir. 2008) (when movant bears burden, non-movant must present factual dispute)