Jimmy CAVALIER and Elizabeth Cavalier
v.
RIVERE'S TRUCKING, INC., Brоnson J. Coupel and New Hampshire Insurance Company.
Court of Appeal of Louisiana, First Circuit.
*39 Marvin Gros, Donaldsonville, for Plaintiffs/Appellants, Jimmy and Elizabeth Cavalier.
Michael B. Alker, Covington, for Defendant/Appellee, Audubon Indemnity Company.
Before: WHIPPLE, FITZSIMMONS and DOWNING, JJ.
WHIPPLE, J.
This is an appeal from a judgment of the Twenty-third Judicial District Court in Assumption Parish. Plaintiff, Jimmy Cavalier, was involved in an automobile accident on Octobеr 13, 1999. He was a guest passenger in an automobile owned and operated by Michael Pintado when a tractor-trailer loaded with sugarcane that was owned by Riverе's Trucking, Inc. ("Rivere's Trucking") and driven by Bronson Coupel, an employee of Rivere's Trucking, pulled out onto the roadway in front of Pintado's vehicle. Pintado's vehicle then cоllided with the tractor-trailer, and Cavalier was seriously injured.
In addition to filing suit against Coupel and Rivere's Trucking, Cavalier and his wife, Elizabeth, also named as defendants Glenwood Cooperative ("Glenwood"), a sugar mill to whom Coupel was allegedly delivering sugarcane, and Audubon Insurance Company, Glenwood's commercial automobile liаbility insurer. The Cavaliers contended that because Coupel was delivering sugarcane to Glenwood's sugar mill, Glenwood was vicariously liable for Coupel's negligencе.
Glenwood filed a motion for summary judgment, contending that it was not vicariously liable for Coupel's actions, and Audubon filed a motion for summary judgment, contending that it did not provide сoverage to Rivere's Trucking or to Coupel. By judgment dated September 24, 2002, the trial court granted Glenwood's motion and dismissed the Cavaliers' claims against Glenwood with prеjudice.[1] No appeal *40 or supervisory writ was taken from this judgment.
Thereafter, Audubon filed a second motion for summary judgment, seeking full dismissal of the Cavaliers' claims against it on the basis that because Glenwood, the only named insured under the policy, had been dismissed, Audubon provided no coverage for the Cavaliers' claims. By judgment dated February 26, 2003, the trial court granted Audubon's motion for summary judgment and dismissed the Cаvaliers' claims against it with prejudice. From this judgment, the Cavaliers appeal.
On appeal, the Cavaliers contend that the trial court committed a procedural legal error in its earlier September 24, 2002 judgment dismissing Glenwood Cooperative from the suit where the dismissal allegedly occurred prior to Glenwood answering the Cavаliers' first supplemental and amending petition. Additionally, the Cavaliers contend that the trial court erred as a matter of law in granting Audubon's second motion for summary judgment and dismissing their claims against it where a genuine issue of material fact exists as to whether the policy afforded coverage under the "non-owned vehicles" portion of the policy.
Regarding the Cavaliers' challenge to the September 24, 2002 judgment granting Glenwood's motion for summary judgment and dismissing it with prejudice, as noted above, no appeal was taken from that judgment. A judgment that dismisses a party from a suit without adjudicating all of the issues in a case is a partial final judgment subject to immediate appeal pursuant tо LSA-C.C.P. art. 1915(A)(1) without the need of the trial court's certification as such. Motorola, Inc. v. Associated Indemnity Corporation, XXXX-XXXX, pp. 10-11 (La.App. 1st Cir.4/30/03),
With regard to the Cavaliers' argument that a genuine issue of material fact exists as to whether the Audubon рolicy issued to Glenwood afforded coverage under the "non-owned vehicles" portion of the policy, we likewise find no merit. The Cavaliers assert that the deposition testimony of Leo Sternfels, Audubon's insurance agent, sets forth material facts to establish coverage of the tractor-trailer, owned by Rivere's Trucking and opеrated by Coupel, through the policy issued to Glenwood.
They rely on Sternfels' statements that when the named insured (Glenwood) is *41 covered, then a non-owned vehicle used in thе scope of its business would be covered. They further contend that under the factors to be considered in determining whether an employer is vicariously liable for the nеgligent acts of its employee as set forth in Orgeron v. McDonald, 93-1353 (La.7/5/94),
At the outset, we note that the named insured in the commercial automobile liability policy at issue is Glenwood. Moreover, with regard to liability coverage, the policy specifically states, "We will pay all sums an `insured' legally must pay as damages because of `bodily injury' or `property damage' to which this insurance applies, caused by an `accident' and resulting from the ownership, maintenance or use of a covered `auto'." (Emphasis added).
By virtue of the September 24, 2002 judgment, the court dismissed the Cavaliers' claims against Glenwood (the insured under the Audubon policy) with prejudice. Thus, any claim of vicarious liability of Glenwood has already been finаlly disposed of by dismissal. And, a dismissal with prejudice has the effect of a final judgment on the merits. Dupre v. Floyd, 02-0153, p. 3 (La.App. 1st Cir.12/20/02),
In Adams, a similar factual situation was involved, wherein the plaintiff was struck by a cotton trailer and sought to recover from the business automobile insurer of the cotton gin to whom the truck driver was delivering cotton. In finding no coverage, the appellate court noted that the truck drivеr was not an employee of the cotton gin, and, consequently, the cotton gin had no vicarious liability for the truck driver's negligence. Accordingly, the court concludеd that the insurer also had no liability to the plaintiff where the policy obligated the insurer to pay only those sums which its insured was legally required to pay. Adams, 32,728 at p. 7,
Likewise, we conclude that the trial court was legally correct in its determination that Audubon had no liability to plaintiffs where its insured, Glenwood, had no legal obligation to pay any damages to the Cavaliers. Because the insured hаd no liability herein, the question of whether the tractor-trailer owned by Rivere's Trucking qualified as a "covered auto" under the "non-owned vehicle" portion of the policy is simply never reached.
Accordingly, after a thorough review of the record and the relevant jurisprudence, *42 we find that the trial court's judgment is well supported in fact and in law and that the record demonstrates that Audubon was entitled to judgment in its favor, dismissing the Cavaliers' claims against it as a matter of law. Thus, the February 26, 2003 judgment is affirmed. Costs of this appeal are assessed against plaintiffs, Jimmy and Elizabeth Cavalier.
AFFIRMED.
NOTES
Notes
[1] Although the minute entry for the date of the hearing on the motion for summary judgment indicates that the trial court grantеd both Glenwood's and Audubon's motions for summary judgment, the September 24, 2002 judgment disposes of only Glenwood's motion.
[2] We note nonetheless that the argument set forth by the Cavaliers as to the September 24, 2002 judgment is incorrect. Specifically, the Cavaliers contend that the trial court committed a procedural error in granting Glenwood's motion for summаry judgment prior to Glenwood's having filed an answer to their first supplemental and amending petition. However, a review of the record reveals that on October 6, 2000, Glenwоod filed an answer to the Cavaliers' original and first supplemental and amending petitions. Thereafter, Glenwood's motion for summary judgment was filed on December 4, 2001. Clearly, this argument has no merit. Additionally, we note that while a plaintiff's motion for summary judgment may be filed only after an answer is filed, a defendant's motion for summary judgment may be filed at any time. LSA-C.C.P. art. 966(A)(1).