Goodwin v. Western Heritage Ins. Co.Goodwin v. Western Heritage Ins. Co.
Shirley GOODWIN and Roddy Goodwin, Plaintiff-Appellant
v.
WESTERN HERITAGE INSURANCE COMPANY and Lois Gibson, Defendant-Appellee.
Court of Appeal of Louisiana, Second Circuit.
D. Randolph Street, for Appellant.
H. Lee Leonard, Melvin A. Eiden, Lafayette, Charles K. Middleton, Ruston, for Appellee Western Heritage Insuranсe Company.
Before WILLIAMS, CARAWAY and MOORE, JJ.
WILLIAMS, J.
The plaintiffs, Shirley and Roddy Goodwin, appeal from a summary judgment dismissing the defendant/insurer, Western Heritage Insurance Company ("Western Heritage"), from this lawsuit. The district court concluded that the defendant's garage liability insurance policy, issued by Western Heritage, excluded cоverage for the automobile accident. We affirm.
*986 FACTS
The facts in this case are not in dispute. On March 16, 2002, the plaintiff, Shirley Goodwin, was driving her vehicle in Morehouse Parish when she was struck by a vehicle that was being driven by the defendant, Lois Gibson. Shirley Goodwin sustained bodily injuries from this collision. Gibson was driving a vehicle owned by Performance Cars and Trucks ("Performance"), a used car dealership in Monroe. Performance had loaned the vehicle to one of its customers, Jarina Davis, while it was repairing her vehicle. Gibson was driving the loaned vehicle with Davis' permission.
Performance hаd been issued a garage liability insurance policy by Western Heritage. The plaintiffs filed suit against Gibson and Performance's insurer, Western Heritage. Thereafter, Western Heritage filed a motion for summary judgment. It argued that Gibson was not an insured under its policy based on the following provisions:
SECTION II. LIABILITY COVERAGE
A. Coverage
1. "Garage Operations" Other Than Covered "Autos"
a. We will рay all sums an "insured" legally must pay as damages because of "bodily injury" or "property damage" to which this insurance applies caused by аn "accident" and resulting from "garage operations" other than the ownership, maintenance or use of covered "autos." ...
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3. Who Is An Insured
a. The following are "insureds" for covered "autos."
(1) You for any covered "auto."
(2) Anyone еlse while using with your permission a covered "auto" you own, hire, or borrow, except:
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(d) Your customers, if your business is shown in the Declarations as an "auto" dealership. However, if a customer of yours:
(i) Has no other available insurance (whether primary, excess or contingent), they are an "insured" but only up to the compulsory or financial responsibility law limits where the covered "auto" is principally garaged.
(ii) Has other available insurance (whether primary, excess or contingent) less than the compulsory or financial responsibility law limits where the covered "auto" is principally garaged, they are an "insured" only for the amount by which the compulsory or financial responsibility law limits exceed the limit of thеir other insurance.
Attached to the defendants' motion for summary judgment was a copy of an insurance policy captioned, "GARAGE COVERAGE FORM" that cоntains the language cited above. Plaintiffs opposed the motion, urging the absence of a declarations page and that the insuranсe policy submitted into evidence by the defendants was neither certified nor authenticated by an affidavit of a person with knowledge of its сontents. Plaintiffs also argued that the insurance contract was in conflict with Louisiana law.
Without issuing reasons, the district court granted the motion for summary judgment and dismissed the plaintiffs' claims against the insurer. Plaintiffs appeal.
*987 DISCUSSION
Appellate courts review summary judgments de novo under the same criteria that govern the district court's consideration of whеther summary judgment is appropriate. Kennedy v. Holder, 33,346 (La.App.2d Cir.05/10/00),
The issue of coverage accorded by an insurance contract can be resolved appropriately on summary judgment when the evidence supporting the motion does not offer any other reasonable interpretation of the policy. Bernard v. Chrysler Insurance Company, XXXX-XXXX (La.App. 3d Cir.3/24/99),
The insurer shоwed with its motion for summary judgment that its policy excludes from the definition of "insureds" any customer of the dealership, except to the extent that thе customer is uninsured or underinsured by law. In Louisiana, LSA-R.S. 32:861, et seq, the Compulsory Motor Vehicle Liability Security Law, are the applicable statutes. In order to dеfeat summary judgment, LSA-C.C.P. art. 966(C)(2) required the plaintiffs to show that the customer did not have automobile liability insurance and thus was in violation of LSA-R.S. 32:861 and/or LSA-R.S. 32:900.[1] Since nо such proof was offered, the customer (and by extension, the customer's permittee) was not an insured within the definition of the policy. Therefore, summary judgment was appropriate.
The remaining question is whether the law permits the insurer to limit its coverage in this way. We agree with the first circuit's decision and reasoning in Savana v. Certain Interested Underwriters at Lloyd's London, 2001-2450 (La.App. 1st Cir.7/2/02),
Further, the legislature contemplated that the driver's policy, not that of the repair shop, provide the primary сoverage. LSA-R.S. 22:671 provides, in part:
A. Notwithstanding any provision of the policy, the primary liability, physical damage, or collision coverage for a loaner vehicle shall be the policy of the driver, not the policy of the vehicle sales or service dealer who prоvided the loaner vehicle.
As the first circuit, we too disagree with the rationale of Stanfield v. Hartford Acc. and Indem. Co.,
CONCLUSION
Accordingly, the district court judgment in fаvor of the defendant, Western Heritage Insurance Company, is affirmed. Costs of this appeal are assessed to the plaintiffs, Shirley Goodwin аnd Roddy Goodwin.
AFFIRMED.
NOTES
Notes
[1] In the insurer's "Memorandum in Support of Motion for Summary Judgment," it states that Davis maintained an automobile liability insurance policy through U.S. Agenсies, effective January 6, 2002 through January 6, 2003. The record does not contain a copy of this policy or any other evidence to corroborate its existence. However, plaintiffs did not contest defendant's allegation. Thus, based on the pleadings in the record, we will assume that Davis' automobile liability policy existed and met the legal requirements. There is no evidence in this record with regard to whether Gibson also owned an automobile liability insurance policy.