Bonnie M. RAMBO
v.
Steve W. WALKER, Herman J. Walker, Ruth P. Walker, et al.
Court of Appeal of Louisiana, First Circuit.
*87 Craig S. Watson, Jerry F. Pepper, Baton Rouge, for Appellant Bonnie M. Rambo.
Shannon Howard-Duhon, New Orleans, for Appellee Universal Trinity Insurance Company.
Before SHORTESS, C.J., and CARTER and WHIPPLE, JJ.
CARTER, J.
This is an appeal from a trial court judgment granting a motion for summary judgment.
FACTS AND PROCEDURAL HISTORY
On August 27, 1994, plaintiff, Bonnie M. Rambo, a guest passenger in a vehicle driven by Steve W. Walker, was involved in an automobile accident, resulting in injury to plaintiff. On August 28, 1995, plaintiff[1] filed a personal injury action against: Steve W. Walker; his parents, Herman J. Walker, Sr. and Ruth Parker Walker; Mr. and Mrs. Walker's homeowners liability insurer, DEF Insurance Company;[2] the Steve W. Walker Trust; the State of Louisiana, through the Department of Public Safety, Office of Motor Vehicles, Driver Management Bureau; International Indemnity Company; and the Parish of Livingston.[3]
On April 26, 1996, Trinity Universal Insurance Company ("Trinity")[4] filed a petition for declaratory judgment, alleging that: it issued Herman J. Walker, Jr. a homeowners policy in effect from March 10,1994 to March 10, 1995; its policy provides no coverage for the acts, omissions, and/or negligence of Steve W. Walker and/or the 1988 Grand Am involved in the accident; its policy provides no coverage for the claims asserted against Herman J. and Ruth Parks Walker as contained in plaintiff's petition; and, the policy contains exclusions which clearly and unambiguously exclude coverage for the claims alleged against Herman J. and Ruth Parks Walker and/or Steve W. Walker. Thereafter, Trinity filed a motion for summary judgment seeking judgment in its favor on the coverage issues.
The trial court rendered judgment on March 14, 1997, dismissing plaintiff's demand, with prejudice, against Trinity and declaring that there is no coverage under Trinity's policy issued to Herman Walker for the claims of plaintiff, Bonnie M. Rambo, against Steve Walker, Ruth Parks Walker, The Steve W. Walker Trust or Herman Walker, contained in plaintiff's petition. From this judgment, plaintiff appeals and assigns as error the granting of Trinity's motion for summary judgment and the trial court holding that the homeowners policy provides no coverage for the personal liability of Mr. and Mrs. Walker with regard to plaintiff's personal injuries.
*88 MOTION FOR SUMMARY JUDGMENT
A motion for summary judgment is a procedural device used to avoid a full scale trial when there is no genuine factual dispute. Sanders v. Ashland Oil, Inc., 96-1751, p. 5 (La.App. 1st Cir.6/20/97);
The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B); Potter v. First Federal Savings and Loan Association of Scotlandville,
INSURANCE POLICY INTERPRETATION
An insurance policy is a contract between the insured and the insurer and has the effect of law between the parties. Dunn v. Potomac Insurance Company of Illinois, 94-2202, p. 5 (La.App. 1st Cir.6/23/95);
The parties' intent, as reflected by the words of the policy, determines the extent of coverage. Such intent is to be determined in accordance with the plain, ordinary, and popular sense of the language used in the policy, unless the words have acquired a technical meaning. LSA-C.C. art.2047; Ledbetter v. Concord General Corp., 95-0809, pp. 3-4 (La.1/6/96);
On the Declarations page of the Trinity policy, Herman J. Walker is listed as the named insured, and the policy lists the premises covered by the policy as 30837 Burgess Road, Denham Springs, Louisiana, 70726. The policy further states:
In this policy, "you" and "your" refer to the "named insured" shown in the Declarations and the spouse if a resident of the same household. "We," "us" and "our" refer to the Company providing this insurance. In addition, certain words and phrases are defined as follows:
....
3. "Insured" means you and residents of your household who are:
a. Your relatives; or
b. Other persons under the age of 21 and in the care of any person named above....
In the section of the policy entitled "Exclusions," it is stated:
1. Coverage EPersonal Liability and Coverage FMedical Payments to Others do not apply to "bodily injury" or "property damage":
....
f. Arising out of:
(1) The ownership, maintenance, use, loading or unloading of motor vehicles or all other motorized land conveyances, including trailers, owned or operated by or rented or loaned to an "insured";
(2) The entrustment by an "insured" of a motor vehicle or any other motorized land conveyance to any person; or
(3) Vicarious liability, whether or not statutorily imposed, for the actions of a child or minor using a conveyance excluded in paragraph (1) or (2) above.
In response to plaintiff's first interrogatories to defendant, Steve W. Walker named as his residence 30837 Burgess Road, Denham Springs, Louisiana, 70726, the premises insured by Trinity. No contradictory evidence appears in the record.[6] Although this fact makes Steve W. Walker an insured as defined in the Trinity policy, coverage for his liability arising from the motor vehicle accident with which we are concerned herein, is unambiguously excluded pursuant to exclusion (1)(f)(1), quoted above. However, plaintiff raises another issue.
Plaintiff argues that Steve Walker's parents "had a duty to protect third persons *90 from the dangerous propensities of Steve Walker, due to his infirmities and their de facto status as his custodian," and that, "such a duty would surely include the risk that Steve Walker would engage in irresponsible substance abuse and negligently operate a dangerous instrumentality such as an automobile."
We agree with the position taken by our brethren of the Second Circuit in Oaks v. Dupuy, 26,729, pp. 3-4 (La.App. 2nd Cir.4/5/95);
We believe the policy provisions before us present an even stronger case for the application of the exclusionary provision. While we recognize plaintiff's case herein is not based on entrustment since Steve W. Walker allegedly owned the vehicle he used on the night of the accident, plaintiff alleged that Steve W. Walker's parents provided him with funds to purchase automobile liability insurance, thereby facilitating his operation of a vehicle upon public streets. Still, it is clear from a reading of Trinity's automobile use exclusion in the homeowner's policy, that the parties to this contract of insurance intended the policy to exclude coverage for any liability involving the use or facilitation of the use of a motor vehicle. Therefore, we find the trial court properly rendered judgment finding no coverage under the policy.[7]
CONCLUSION
For the reasons stated herein, the judgment of the trial court is affirmed. All costs of this appeal are to be borne by appellant.
AFFIRMED.
NOTES
Notes
[1] While this appeal was pending, Bonnie Rambo died from natural causes unrelated to the injuries involved in this litigation. Kathy Owens Martin, Ms. Rambo's daughter, has been substituted as party plaintiff.
[2] It is evident from the record that plaintiff, in naming DEF Insurance Company, was referring to Trinity Universal Insurance Company, discussed hereinafter.
[3] Judgment was rendered in favor of the State of Louisiana on July 15, 1996, on its motion for summary judgment, dismissing plaintiff's claims as to that defendant. On April 28, 1997, plaintiff filed a motion for partial dismissal, seeking the dismissal of International Indemnity Company, which was granted by the court.
[4] See footnote 2 supra.
[5] What constitutes a "genuine issue of material fact" was statutorily defined by 1997 La. Acts No. 483, which amended LSA-C.C.P. art. 966(C)(2) to read as follows:
The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.
Although the trial court judgment was rendered prior to the enactment of Act 483, §4 of that Act evidences the Legislature's intent that since the Act merely clarifies existing law, it should be applied retroactively. See LSA-C.C. art. 6. Cf. Reichert v. State, Department of Transportation, 96-1419, 96-1460, p. 7 (La.5/20/97);
[6] While Trinity's attorney stated, during the trial court hearing on the motion for summary judgment, that Steve Walker "[a]rguably ... wasn't living in his parents home," no evidence was presented to this effect.
[7] Moreover, we are convinced the jurisprudence is correct in finding that there is no liability of parents for the acts of their major children. MVG v. Lucas,