Bacon v. Diamond Motors, Inc.Bacon v. Diamond Motors, Inc.
Carey T. Jones, Baton Rouge, for third party defendant-аppellee Continental Ins. Co.
Ben Louis Day, Baton Rouge, for defendant-appellant Diamond Motors, Inc.
Before LOTTINGER, COLE and CARTER, JJ.
COLE, Judge.
This is an appeаl from a summary judgment which dismissed a third-party demand of defendant Diamond Motors, Inc. against its insurer, Continental Insurance Company. At issue is the question of whether or not there is a genuine issue of fact which, as a matter of law, would preclude dismissal of Diamond Motor‘s third party demand on the grounds of lack of coverage under the policy.
Plaintiff alleged she delivered her 1979 Datsun one-half ton pickup truck tо Diamond
Summary judgment is an extremely useful device for putting an end to unnecessary litigation, but it is available only when “the pleadings, depositions, аnswers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and thаt mover is entitled to judgment as a matter of law.”
Diamond Motors contends an issue of fact must be resolved before coverage under the policy can be determined. Diamond argues the pleadings contain a factual dispute as to whether the damage to plaintiff‘s truck was cаused by the fault of the plaintiff or some third party. Because of this factual dispute, Diamond contends no summary judgment can be granted on the issue of insurance coverage.
The trial judge rejected this contention, since the allegation of possible third-party fault, even if true, would have no bearing upon the alleged liability of Continental as Diamond‘s insurer. We agree. Under third party practicе in Louisiana, the third party defendant‘s liability is derivative so that the third party plaintiff, Diamond Motors, can only recover that for which it is liable.
The coverage afforded Diamond by Continental is contained in Part IV(A)(1) of the policy which provides:
“PART IV—LIABILITY INSURANCE.
A. WE WILL PAY.
1. We will pay all sums the insured legally must pay as damages because of bodily injury or property damage to which this insurance applies, caused by an accident and rеsulting from garage operations.”
Continental contends there was no “accident” as defined in Part 1(C) of the policy as:
“PART I—WORDS AND PHRASES WITH SPECIAL MEANING....
* * * * * *
C. ‘Accident’ includes continuous or repeated exposure to the same conditions resulting in bodily injury or property damage the insured neither expected nor intended.”
Alternatively, Continental maintains that should the incident sued upon be considered an accident, coverage is nevertheless excluded pursuant to Part IV(C) (11 and 12) of the policy which states:
“PART IV—LIABILITY INSURANCE.
* * * * * *
C. WE WILL NOT COVER—EXCLUSIONS.
11. Property damage to any of your products ... if caused by a defect existing at the time it was sold or transferred to another.
12. Property damage to work you performed if the property damage results from any part of the work itself or from the parts, materials or equipment used in connection with the work.”
The trial judge found that there was no “accident” within the meaning of the policy and that the exclusionary provisions listed above also exclude coverage. We are in substantial agreement with the following reasons of the trial court.
“Our jurisprudence seems well established to the effect that faulty repair work does not fall within the definition of accident and therefore is not within the purview of coverage under the liability provisions of a policy insuring one against accident.
“It was recently so held in Vitenas v. Centanni, 381 So.2d 531 (La.App. 4th Cir. 1980), an action which involved a claim against а building contractor for alleged faulty workmanship in constructing a building. Vitenas, above, involved a policy which defined ‘occurrence’ as ‘an accident including exposure to conditions which result during the policy period, in bodily injury or property damage neithеr expected nor intended from the standpoint of the insured.’
“In the instant case, the definition of ‘accident’ is virtually identical with that of ‘оccurrence’ in Vitenas, above, and both cases involve alleged faulty workmanship.
“The Court finds also that Continental‘s policy excludes coverage under the hereinabove quoted exclusionary provision.
“The identical exclusion contained in Continеntal‘s policy has been construed to exclude coverage in construction contract policies. Vobil (sic) Homes, Inc. v. Hartford Accident & Indemnity Company, 179 So.2d 496 (La.App. 3d Cir.1965).
“See also Vitenas, above, in which a substantially similar provision was held to exclude coverage for defective workmanship on a structure.
“Plаintiff [Diamond] seeks to avoid the effect of the exclusionary clause by arguing that damage to the engine of her [plaintiff‘s] car amounts to damage to property other than that being worked upon and which according to Vobil (sic), above, does not fall within thе ambit of the exclusion relied upon by Continental.
“This argument is without merit. Close examination of Vobil (sic), above, reveals that that kind of ‘damages to other property’ contemplated therein is damage to property other than that upon which the work was performed. To the same effect see Kendrick v. Mason, [234 La. 271] 99 So.2d 108 [(La.1958)]; Poynter v. Fidelity & Casualty Company of New York, 140 So.2d 42 [(La.App. 3d Cir.1962)].”
See also Franks v. Guillotte, 248 So.2d 626 (La.App. 3d Cir.1971) (repairer overhauling automobile engine negligently installed filterhead and “o” rings, cаusing damage to entire engine; “injury to work” exception held to exclude all coverage).
For the above reasons, the judgment of the trial court is affirmed. All costs are to be paid by appellants.
AFFIRMED.