Tiffany Wines v. Jamila Hollingsquest and Geico Casualty Company

Judgment rendered July 6, 2022.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 54,605-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

TIFFANY WINES Plaintiff-Appellant

versus

JAMILA HOLLINGSQUEST AND Defendants
GEICO CASUALTY COMPANY

*****

Appealed from the
Third Judicial District Court for the
Parish of Union, Louisiana
Trial Court No. 49,696

Honorable Thomas Wynn Rogers, Judge

*****

LAW OFFICES OF THOMAS B. WAHLDER Counsel for Appellant
By: Thomas Benjamin Wahlder
Laurie Simms Wahlder
Stephen Hecker

DAVENPORT, FILES & KELLY, L.L.P. Counsel for Appellee,
By: Martin Shane Craighead Shelter Mutual
Insurance Company

*****

Before STONE, STEPHENS, and MARCOTTE, JJ.

STEPHENS, J.

This appeal is from the trial court’s judgment granting summary

judgment in favor of defendant, Shelter Mutual Insurance Company

(“Shelter”), and dismissed all claims of plaintiff, Tiffany Wines (“Tiffany”),

against Shelter, with prejudice, at her cost. For the reasons set forth below,

we affirm.

FACTS/PROCEDURAL HISTORY

On May 9, 2020, Tiffany was a guest passenger riding in a vehicle

owned and being operated by Markeia Hicks (“Ms. Hicks”) when it was

struck by a vehicle being negligently operated by defendant, Jamila

Hollingsquest (“Ms. Hollingsquest”). Tiffany filed suit against Ms.

Hollingsquest and her auto liability insurer, GEICO Casualty Company

(“GEICO”), and Ms. Hicks’s uninsured/underinsured motorist (“UM”)

insurer, Shelter.

In its answer, Shelter denied that its policy provided any UM coverage

to Tiffany and moved for summary judgment, seeking dismissal of the UM

claims asserted by Tiffany. Specifically, Shelter alleged that because

Tiffany is not a named insured or an “additional listed insured” under the

policy, is not a “relative” of the named insured, and was not “using” the

vehicle as defined in the policy, she has no claim for UM coverage under the

Shelter policy. According to Shelter, Tiffany was simply a guest passenger

in Ms. Hicks’s vehicle.

Tiffany filed an opposition to the motion for summary judgment,

contending that she was an “individual using the described auto with

permission,” and therefore is an “insured” under the Shelter policy for

purposes of UM coverage. Going further, Tiffany suggested that the Shelter

policy’s definition of “use” is unenforceable because it “impermissibly

contravenes” the mandates of La. R.S. 22:1295(1)(a)(i) and (ii), inter alia.

A hearing on the motion was held on August 16, 2021, and a written

ruling was issued by the court on August 20, 2021. The trial court found

that Nielson v. Shelter Mut. Ins. Co., 2014-0614 (La. App. 1 Cir. 11/7/14),

167 So. 3d 697, writ denied, 2014-2564 (La. 3/13/15), 160 So. 3d 964, cited

by Shelter in its memorandum in support of summary judgment, was directly

on point and granted the insurer’s motion for summary judgment. A written

judgment in accordance therewith was signed by the trial court on

September 1, 2021, granting Shelter’s motion for summary judgment and

dismissing with prejudice, at plaintiff’s cost, her claims against the insurer.

It is from this judgment1 that plaintiff, Tiffany Wines, has appealed.

DISCUSSION

Tiffany’s sole assignment of error is that the trial court erred in

granting summary judgment in favor of Shelter, the defendant insurer, and

dismissing her claims. Tiffany urges that this ruling is an error of law based

upon a misstatement of law set forth in Nielson, supra, wherein the appellate

court upheld and enforced an identical policy definition of “use” to exclude

and dismiss the UM claims of an injured guest passenger without observing

the statutory mandates of Louisiana’s UM law.

In response, Shelter denies that its policy provides UM coverage for

Tiffany Wines under the facts of this case. In Nielson, supra, the First

Circuit found that Shelter’s auto policy does not extend UM coverage to a

1
On August 25, 2021, a revised ruling was issued by the trial court; this revision
was identical to the original ruling, the exception being the assessment of costs associated
with the motion to plaintiff, Tiffany Wines.
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guest passenger who does not qualify as an “insured” under the policy.

Nielson dealt with the same factual scenario and the same Shelter policy

language, and interpreted the policy language as precluding UM coverage

for these reasons:

• While there is strong public policy in favor of UM insurance coverage
in Louisiana, an insured is free to reject or limit UM coverage in order
to reduce premiums;

• The Shelter policy clearly limits who is covered for UM purposes; and

• The policy should be enforced as written, as such limitations are
permissible under Louisiana’s UM law.

Appellate courts review summary judgments de novo under the same

criteria that govern the trial court’s consideration of whether summary

judgment is appropriate. Leisure Recreation & Entertainment, Inc. v. First

Guaranty Bank, 2021-00838 (La. 3/25/22), ___ So. 3d ___, 2022 WL

883911; Elliott v. Continental Cas. Co., 2006-1505 (La. 2/22/07), 949 So. 2d

1247; Reynolds v. Select Properties, Ltd., 1993-1480 (La. 4/11/94), 634 So.

2d 1180; Davis v. Whitaker, 53,850 (La. App. 2 Cir. 4/28/21), 315 So. 3d

979. A motion for summary judgment will be granted if the motion,

memorandum, and supporting documents show that there is no genuine issue

as to material fact, and that the mover is entitled to judgment as a matter of

law. La. C.C.P. art. 966(A)(3).

Where the facts are undisputed and the matter presents a purely legal

question, summary judgment is appropriate. Higgins v. v. Louisiana Farm

Bureau Cas. Ins. Co., 2020-01094 (La. 3/24/21), 315 So. 3d 838.

Interpretation of an insurance policy ordinarily involves a legal question that

can be properly resolved by a motion for summary judgment. Bernard v.

Ellis, 2011-2377 (La. 7/2/12) 111 So. 3d 995, 1002.

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An insurance policy is a contract that constitutes the law between the

insurer and the insured. La. C.C. art. 1983; Doucet v. Darwin Select Ins.

Co., 2016-1989 (La. 2/3/17), 210 So. 3d 794; Peterson v. Schimek, 1998-

1712 (La. 3/2/99), 729 So. 2d 1024. The judiciary’s role in interpreting

insurance contracts is to ascertain the common intent of the parties to the

contract. C.C. art. 2045; Cadwallader v. Allstate Ins. Co., 2002-1637 (La.

6/27/03), 848 So. 2d 577.

Absent a conflict with statutory provisions or public policy, insurers

are entitled to limit their liability and to impose reasonable conditions upon

the obligations they contractually assume. Landry v. Progressive Security

Ins. Co., 2021-00621 (La. 1/28/22), ___ So. 3d ___, 2022 WL 263003. The

purpose of liability insurance is to afford the insured protection from damage

claims. Peterson, supra; Ledbetter v. Concord General Corp., 1995-0809

(La.1/6/96), 665 So. 2d 1166.

The extent of coverage is determined from the intent of the parties as

reflected by the words of the insurance policy. Ledbetter, supra. Exclusions

in an insurance policy that conflict with statutes or public policy will not be

enforced. Landry, supra; Marcus v. Hanover Ins. Co., 1998-2040 (La.

6/4/99), 740 So. 2d 603. The Court’s search for public policy governing

automobile insurance policies must begin with the statutes enacted by the

Legislature. Landry, supra; Sensebe v. Canal Indem. Co., 2010-0703 (La.

1/28/11), 58 So. 3d 441.

When the existence of UM coverage under a policy of insurance is at

issue, a two-step analysis is required. First, the automobile insurance policy

is examined to determine whether UM coverage is contractually provided

under the express provisions of the policy. Next, if no UM coverage is
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found under the policy provisions, then the UM statute is applied to

determine whether statutory coverage is mandated. Higgins, 315 So. 3d at

441-42; Green ex rel. Peterson v. Johnson, 2014- 0292 (La. 10/15/14), 149

So. 3d 766, 773-74; Filipski v. Imperial Fire & Cas. Ins. Co., 2009-1013

(La. 12/1/09), 25 So. 3d 742; Cadwallader, supra; Succession of Fannaly v.

Lafayette Ins. Co., 2001-1355 (La. 1/15/02), 805 So. 2d 1134; Magnon v.

Collins, 1998-2822 (La. 7/7/99), 739 So. 2d 191; Davis, supra.

We therefore look first at the UM coverage expressly provided in

Markeia Hicks’s Shelter policy to determine whether contractual UM

coverage existed for Tiffany’s injuries in the present case. See, Green ex rel.

Peterson, 149 So. 3d at 774.

• The insurance policy issued by Shelter to Ms. Hicks provided auto
liability and UM coverages in the amount of $50,000 each
person/$100,000 each accident.

• UM coverage in an amount equal to the bodily injury liability limits
was provided for in the Shelter policy.

• The Shelter policy specifically described as a “covered vehicle” the
2020 Kia Forte FR 4DR operated by Ms. Hicks and occupied by
Tiffany as a passenger at the time of the accident.

• In addition to the named insured, Markeia Hicks, the Shelter policy
also provided liability and UM coverage to individuals using the
covered vehicle with permission.

• The Shelter policy has an omnibus insured clause providing liability
coverage to permissive users. The omnibus clause provides:
o Individuals who have permission or general consent to use the
described auto are insureds for claims resulting from that use.

• The Shelter policy also provided UM coverage to any individual
permissively using the described vehicle.
o Part IV-Coverage E-Uninsured Motor Vehicle Liability
Coverage contains “Additional Definitions Used in Coverage
E,” which include:
o (1) Damages means money owed to an insured for bodily
injuries, sickness or disease, sustained by that insured and
caused by an accident arising out of the ownership or use of a
motor vehicle.
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o (2) Insured means:
▪ (a) You;
▪ (b) Relatives;
▪ (c) Individuals listed in the Declarations as an
“additional listed insured” who do not own a motor
vehicle, and whose spouse does not own a motor vehicle;
and
▪ (d) Any individual using the described auto with
permission. (Emphasis added.)

• The Shelter policy contains the following definitions:
o (30) Operator means an individual who is using a vehicle.
o (33) Passenger means an individual who is occupying one of
the seats of a vehicle with permission but does not include the
operator of a vehicle.
o (42) Relative means an individual related to you by blood,
marriage, or adoption who is a resident of your household. It
includes your child who is away at school, if that child is both
unmarried and unemancipated. Relative also includes any
foster children in your legal custody for more than 90
consecutive days immediately before the occurrence. An
individual who owns a motor vehicle or whose husband or wife
owns a motor vehicle, is excluded from the definition of
relative.
o (52)(2)(b)(iii) Uninsured motor vehicle means a motor vehicle
being used by a person liable for damages because of that use;
if that owner or operator is covered by a policy of liability
insurance applicable to the accident but the monetary limits of
that policy are less than the full amount owed by its owner or
operator for the insured’s damages.
o (54) Use means physically controlling, or attempting to
physically control, the movements of a vehicle. It includes any
emergency repairs performed in the course of a trip, if those
repairs are necessary to the continued use of the vehicle.

As set forth in Shelter’s insurance policy, damages means “money

owed to an insured…” As noted by the First Circuit in Nielson, supra at

701-02, per its policy’s plain language, Shelter owes underinsured/uninsured

motorist damages only to individuals who are an “insured” for purposes of

UM coverage. The policy clearly defines an insured for UM coverage as:

(1) “you” (defined as the named insured); (2) relatives (as defined in the

policy); (3) persons listed in the declarations as an “additional listed insured”

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who do not own a motor vehicle and whose spouse does not own a motor

vehicle; and (4) an individual “using” the described auto with permission.

Tiffany is not the named insured—Markeia Hicks is the sole named

insured. Next, there is no evidence that Tiffany is an individual related to

Ms. Hicks by blood, marriage, or adoption and a resident of her household;

therefore, Tiffany is not a “relative” of the named insured, Markeia Hicks.

Third, Tiffany is not listed as an additional insured on the Shelter policy.

Finally, Tiffany was not “using” the described auto with permission; as a

guest passenger, Tiffany, while in the vehicle with permission, was merely

an occupant, not a user, as defined by the clear language of the Shelter

policy. As noted above, to be considered “using” the described auto,

Tiffany would have to have been a permitted operator, not a passenger, and

would have been, at the time of the accident, “physically controlling, or

attempting to physically control, the movements” of the described vehicle.

Since Tiffany does not qualify for UM coverage under the contractual

provisions of the Shelter policy, we turn to the second step of the analysis set

forth in Green ex rel. Peterson, supra, which is application of the UM

statute, La. R.S. 22:1295, to determine whether statutory coverage is

mandated.

Louisiana Revised Statute 22:1295 provides in part:

The following provisions shall govern the issuance of uninsured
motorist coverage in this state:
(1)(a)(i) No automobile liability insurance covering liability
arising out of the ownership, maintenance, or use of any motor
vehicle shall be delivered or issued for delivery in this state
with respect to any motor vehicle designed for use on public
highways and required to be registered in this state or as
provided in this Section unless coverage is provided therein or
supplemental thereto, in not less than the limits of bodily injury
liability provided by the policy, under provisions filed with and
approved by the commissioner of insurance, for the protection
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of persons insured thereunder who are legally entitled to
recover nonpunitive damages from owners or operators of
uninsured or underinsured motor vehicles because of bodily
injury, sickness, or disease, including death resulting
therefrom… (Emphasis added.)

By its express language, La. R.S. 22:1295 does not require UM coverage for

passengers; what it does require is that automobile liability policies shall

include UM coverage “for the protection of persons insured thereunder.”

“Although Louisiana’s public policy strongly favors UM coverage and a

liberal construction of the UM statute, it is well settled that a person who

does not qualify as a liability insured under a policy of insurance is not

entitled to UM coverage under the policy.” Magnon, 739 So. 2d at 196;

Taylor v. Rowell, 1998-2865 (La. 5/18/99), 736 So. 2d 812; Howell v.

Balboa Ins. Co., 564 So. 2d 298 (La. 1990); Seaton v. Kelly, 339 So. 2d 731

(La. 1976). Therefore, if a person is not an insured under a liability policy,

then there is no requirement that UM coverage be provided to them,

regardless of whether they are a passenger. Magnon, supra.

Regarding the liability portion of Shelter’s insurance policy issued to

Markeia Hicks:

• As to liability coverage for bodily injury and property damage
coverage, Shelter agrees to pay damages on behalf of an insured….

• In Coverage A (Bodily Injury) and Coverage B (Property Damage):

o (1) Damages means money, including pre-judgment interest,
an insured is legally obligated to pay another person because of
bodily injury, property damage, or consequential loss, arising
out of an accident caused by that insured’s ownership,
maintenance, or use of the described auto or a non-owned auto.

o (2) Insured means a person included in one of the following
categories, but only to the extent stated for that category.
▪ Category 1: You are an insured for claims resulting from
your ownership, maintenance, or use of the described
auto; and your use of non-owned autos.

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▪ Category 2:
• (a) Relatives; and
• (b) Individuals listed in the Declarations as an
“additional listed insured” who do not own a motor
vehicle, and whose spouse does not own a motor
vehicle; are insureds for claims resulting from their
use of the described auto and their use of non-
owned autos.

▪ Category 3:
• (a) Individuals who would meet the definition of
relative except for the fact that they own a motor
vehicle, or their spouse owns a motor vehicle; and
• (b) Individuals listed in the Declarations as an
“additional listed insured” who own a motor
vehicle, or whose spouse owns a motor vehicle;
are insureds for claims resulting from their use of
the described auto.

▪ Category 4:
▪ Individuals who have permission or general consent to
use the described auto are insureds for claims resulting
from that use.

To determine whether UM coverage is mandated by La. R.S. 22:1295 in this

case, as the UM statute has been interpreted by our supreme court, the

question to be answered is whether Tiffany qualifies as an insured under one

of the above four categories of insureds.

Tiffany is not a named insured, and there is no evidence that she was

related to Ms. Hicks by blood, marriage, or adoption, or that she “resided” in

Ms. Hicks’s household to be within the policy’s definition of relative.

Likewise, Tiffany is not included as an “additional listed insured” under the

terms of the Shelter policy. Finally, Tiffany’s claims do not result from her

“use” of the described auto as defined by the policy. Therefore, Tiffany

Wines is not within the four specific categories of insureds for liability

coverage under the Shelter auto policy issued to Ms. Hicks. Because

Tiffany is not a liability insured under the Shelter policy, La. R.S. 22:1295

does not require UM coverage for her.
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In finding that the identical Shelter policy language was neither

contrary to public policy nor in conflict with statutory provisions mandating

UM coverage in Louisiana, the First Circuit in Nielson wrote the following:

Nielson relies on the recent Louisiana Supreme Court case,
Bernard v. Ellis, 2011-2377 (La. 7/2/12), 111 So. 3d 995, 1003.
In Bernard, the Supreme Court evaluated whether there was
UM coverage for a guest policy under a policy issued by
Imperial Fire and Casualty Insurance Company, specifically
recognizing that Imperial’s policy did not define the term “use,”
which necessitated the Court to look to jurisprudence and
interpret the ambiguous term broadly to include riding as a
passenger. It is important to note the factual distinction
between Bernard and the case before us, since we are dealing
with an insurance policy that specifically defines the term “use”
to not include a passenger. We further note that the Supreme
Court did not hold that Louisiana law prohibits an insurance
company from excluding a guest passenger from UM coverage.
Rather, it simply held that under the ambiguously undefined
policy language at issue in Bernard, a passenger would be
included as an insured for UM purposes. Id. at 1005. Shelter’s
policy, on the other hand, very clearly defines “use” in such a
way that a guest passenger is not an insured for purposes of
liability or UM coverage. Thus, we find that Bernard is not
controlling of the facts in this case.

While there is strong public policy in favor of UM insurance
coverage in Louisiana, an insured is free to reject or limit UM
coverage in order to reduce premiums. The Shelter policy
clearly limits who is covered for UM purposes, and the policy
should be enforced as written. (footnote omitted).

Nielson, 167 So. 3d at 701-02. We agree with the First Circuit, and find no

reason to decide otherwise in the case before us.

While Tiffany has also made statutory and public policy arguments in

support of her claim that the Shelter insurance policy provides UM coverage

for her as a passenger, we summarily reject them as unfounded. Until and

unless the Louisiana Legislature sees fit to amend the UM statute, we will

not usurp its function by doing so as a court. Landry, supra, 2021-00621 at

**11-12. As stated by the supreme court in Taylor, 736 So. 2d at 818, citing

Hearty v. Harris, 574 So. 2d 1234, 1242 (La. 1991), “while ‘automobile
10

liability policies’ are issued primarily for the protection of the public rather

than the insured, it is not the public policy of this state to protect and provide

compensation to injured persons at all times.”

CONCLUSION

For the reasons set forth above, the judgment of the trial court is

affirmed. Costs are assessed against plaintiff, Tiffany Wines.

AFFIRMED.

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