Jarrell E. Godfrey, Jr. v. GoAuto Insurance Company and Craig Dewayne Jones

Judgment rendered August 28, 2024.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 55,824-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

JARRELL E. GODFREY, JR. Plaintiff-Appellant

versus

GOAUTO INSURANCE Defendants-Appellees
COMPANY AND CRAIG
DEWAYNE JONES

*****

Appealed from the
Sixth Judicial District Court for the
Parish of Tensas, Louisiana
Trial Court No. 24,397

Honorable Angela Lynn Claxton, Judge

*****

SARTIN LAW FIRM, LLC Counsel for Appellant,
By: J. Cole Sartin Jarrell E. Godfrey, Jr.

JOHN SIBLEY GODFREY

JARRELL E. GODFREY, JR. In Proper Person

BRADLEY J. GADEL, APLC Counsel for Appellee,
By: Bradley J. Gadel GoAuto Insurance
Company

VOORHIES & LABBE Counsel for Appellee,
By: Cyd Sheree Page Craig Dewayne Jones

*****

Before STONE, COX, and ROBINSON, JJ.

STONE, J.

FACTS AND PROCEDURAL HISTORY

This appeal, which is the second appeal in this case, arises from the

Sixth Judicial District Court, the Honorable Angela Claxton presiding.

Jarrell Godfrey, Jr. (hereinafter, “Godfrey” or “plaintiff”), filed suit for

damage to his vehicle against Craig Jones (“Jones”) and his insurer, Go Auto

Insurance Co. (“Go Auto”). Jones was operating Godfrey’s vehicle without

permission and crashed it into a utility pole. At the time of the crash, Jones

had in effect a motor vehicle liability policy issued by the defendant-

appellee, Go Auto.1

The parties filed cross motions for summary judgment (“MSJ”); the

trial court granted Go Auto’s MSJ (based on application of exclusion 4) and

denied the plaintiff’s MSJ. The plaintiff appealed. Holding that exclusion 4

was unenforceable due to La. R.S. 32:900(C), we reversed the summary

judgment in favor of Go Auto and remanded for further proceedings.

Godfrey v. Go Auto Ins. Co., 54,060 (La. App. 2 Cir. 9/22/21), 328 So. 3d

537, writ denied, 21-01496 (La. 12/21/21), 329 So. 3d 826. We also held

that the summary judgment evidence (i.e., Godfrey’s affidavit, which was

not contradicted by any other evidence) established that Jones was operating

the vehicle without permission. Finally, we pretermitted all other issues.

On remand, a flurry of litigious filings ensued. On January 11, 2022,

the plaintiff filed a MSJ “To Implement Opinion Of The Second Circuit

Court Of Appeals,” therein requesting a money judgment in favor of

plaintiff and against both Jones and Go Auto, including approximately

1
This policy will hereinafter be referred to as the “Jones policy.”

$6,000 (against both) in property damage and loss of use, and over $160,000

in bad faith penalties2 and attorney fees against Go Auto only.3 In response,

Go Auto filed exceptions of no cause of action and no right of action

regarding Godfrey’s claims for attorney fees.

On May 9, 2022, Go Auto filed a second MSJ denying coverage: (1)

re-asserting exclusion 4 in light of Louisiana Supreme Court jurisprudence,

Landry v. Progressive Sec. Ins. Co., 21-00621 (La. 1/28/22), 347 So. 3d 712,

reh’g denied, 21-00621 (La. 3/25/22), 338 So. 3d 1162; and (2) asserting

exclusion 12 (damages caused while engaged in a crime) in light of our

holdings in the prior appeal and the aforementioned writ disposition, i.e.,

that Jones did not have permission to operate Godfrey’s vehicle.4

The Jones policy and its declarations page were introduced with the

Go Auto MSJ. The declarations page reflects that Jones only purchased

liability coverage—i.e., no comprehensive or collision. The insuring

agreement for the liability coverage in the Jones policy states that Go Auto

“will pay damages, for which a covered person is legally liable because

of…property damage arising out of an auto accident to which this policy

applies.” However, pursuant to exclusion 12 (as previously mentioned),

there is no liability coverage for damages “caused by a covered person while

engaged in a crime”—and the policy defines “crime” as “any felony or any

action to flee from, evade or avoid arrest or detection by the police or other

2
These are pursuant to La. R.S. 22:1892 or La. R.S. 22:1973.
3
Through independent counsel (provided by Go Auto under a reservation of
rights agreement), Jones filed a limited response to the plaintiff’s MSJ indicating that he
would be asserting his right to silence due to the criminal charges arising out of the motor
vehicle accident herein; the plaintiff moved to strike this response.
4
Both exclusions discussed in this appeal are part of Part A of the Jones policy,
which concerns liability coverage.
2

law enforcement agency.” (Emphasis added). Exclusion 4 eliminates

liability coverage for:

Property damage to any property…including a non-owned
auto or a temporary substitute vehicle, owned by, being
transported by, used by, or in the care, custody, or control
of a covered person. (Emphasis added).

In a judgment dated July 27, 2022, the trial court denied Godfrey’s

aforementioned MSJ in its entirety.5 Go Auto’s opposition to this MSJ was

untimely, but the trial court considered it anyway. Godfrey obtained a

supervisory writ, wherein we held that the trial court erred in considering the

untimely opposition; we conducted de novo review without taking

cognizance of the untimely opposition, reaffirmed our holding in the prior

appeal, i.e., that exclusion 4 is unenforceable, and granted partial summary

judgment for Godfrey to that extent only. This writ disposition was rendered

January 6, 2023, in No. 54,998-CW. This writ disposition granting partial

summary judgment to Godfrey was not designated as a final judgment.

On June 29, 2023, the trial court granted Go Auto’s second MSJ. The

plaintiff filed this appeal and a flurry of motions in this court. In this appeal,

Godfrey urges the following errors: (1) res judicata bars reconsideration of

the question of coverage under the Jones policy; (2) the Godfrey vehicle is a

temporary substitute vehicle under the Jones policy and therefore coverage

is mandated by La. R.S. 32:900(C) and La. R.S. 22:1296(A); (3) exclusion

12 of the Jones policy is inapplicable and unenforceable; (4) Go Auto’s

exceptions were filed late and should have been stricken or denied on that

basis; (5) Go Auto should be required to provide Jones with independent

5
Godfrey’s contention to the contrary is simply wrong.

3

counsel, which Godfrey says entitles him (Godfrey) to attorney fees from Go

Auto; (6) the trial court erred in not ruling on the plaintiff’s MSJ against

Jones; and (7) Judge Claxton should have been recused.6

DISCUSSION

Motions for summary judgment

After an opportunity for adequate discovery, a motion for summary

judgment shall 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).

A fact is “material” when its existence or nonexistence may be essential to

plaintiff’s cause of action under the applicable theory of recovery.

Peironnet v. Matador Res. Co., 12-2292 (La. 6/28/13), 144 So. 3d 791. A

genuine issue is one regarding which reasonable persons could disagree; if

reasonable persons could reach only one conclusion, there is no need for a

trial on that issue and summary judgment is appropriate. Hines v. Garrett,

04-0806 (La. 6/25/04), 876 So. 2d 764.

Furthermore, “[i]n determining whether an issue is genuine, a court

should not consider the merits, make credibility determinations, evaluate

testimony, or weigh evidence.” Marioneaux v. Marioneaux, 52,212 (La.

App. 2 Cir. 8/15/18), 254 So. 3d 13, 20-21. Finally, the court must draw

those reasonable inferences from the undisputed facts which are most

favorable to the party opposing the motion; likewise, all doubt must be

6
Judge Claxton was recused and then, on supervisory writ, reinstated by this
court prior to her issuing the judgments appealed herein. Godfrey filed a motion seeking
to add recusal-related items to the instant record; we denied that motion.
4

resolved in the opposing party’s favor. Wyrick v. Golden Nugget Lake

Charles, LLC, 20-0665 (La. App. 1 Cir. 12/30/20), 317 So. 3d 708.

La. C.C.P. art. 966(D)(1) allocates the burden of proof on a motion for

summary judgment as follows:

The burden of proof rests with the mover. Nevertheless, if
the mover will not bear the burden of proof at trial on the
issue that is before the court on the motion for summary
judgment, the mover’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 the absence of factual support for one or more
elements essential to the adverse party’s claim, action, or
defense. The burden is on the adverse party to produce
factual support sufficient to establish the existence of a
genuine issue of material fact or that the mover is not
entitled to judgment as a matter of law.

Only certain types of documents may be offered in support of or in

opposition to the MSJ. La. C.C.P. art. 966(A)(4)(a).7 Those are:

pleadings, memoranda, affidavits, depositions, answers to
interrogatories, certified medical records, certified copies
of public documents or public records, certified copies of
insurance policies, authentic acts, private acts duly
acknowledged, promissory notes and assignments thereof,
written stipulations, and admissions
Id.

Likewise, the court may consider only those documents filed or

referenced in support of or in opposition to the MSJ. La. C.C.P. art.

966(D)(2). Such reference is governed by La. C.C.P. art. 966(A)(4)(b):

Any document listed in Subsubparagraph (a) of this
Subparagraph previously filed into the record of the cause
may be specifically referenced and considered in support
of or in opposition to a motion for summary judgment by
listing with the motion or opposition the document by title
and date of filing. The party shall concurrently with the
filing of the motion or opposition furnish to the court and

7
La. C.C. art. 1853 provides that “[a] judicial confession is a declaration made by
a party in a judicial proceeding. That confession constitutes full proof against the party
who made it.”
5

the opposing party a copy of the entire document with the
pertinent part designated and the filing information.
“Appellate courts review [grants of] summary judgments de novo

under the same criteria that govern the district court’s consideration of

whether summary judgment is appropriate.” LUBA Cas. Ins. Co. v. Hygenic

Corp., 47,395 (La. App. 2 Cir. 9/20/12), 131 So. 3d 890, 892.

Insurance contracts and coverage litigation, generally

In Lewis v. GEICO Cas. Co., 51,864 (La. App. 2 Cir. 4/27/18), 246

So. 3d 815, 817, writ denied, 18-1024 (La. 10/8/18), 253 So. 3d 796, we

explained:

An insurance policy is a contract between the parties and
should be construed using the general rules of
interpretation of contracts set forth in the Louisiana Civil
Code.
…
Insurance companies may limit coverage in any manner
they desire, so long as the limitations do not conflict with
statutory provisions or public policy. However,
exclusionary provisions in insurance contracts are strictly
construed against the insurer, and any ambiguity is
construed in favor of the insured. (Internal citations
omitted; emphasis added).

The words of an insurance contract, unless defined therein, generally

must be given their “generally prevailing meaning.” La. C.C. art. 2047.

The party asserting coverage bears the burden of proving the existence

of a policy and coverage. Lodwick, L.L.C. v. Chevron U.S.A., Inc., 48,312

(La. App. 2 Cir. 10/2/13), 126 So. 3d 544, 549, writ denied, 13-2898 (La.

2/28/14), 134 So. 3d 1176. However, the insurer bears the burden of

proving policy limits or the applicability of an exclusion. Id.; Lewis, supra.

Res judicata

The plaintiff argues that because we granted in his favor partial

summary judgment decreeing that exclusion 4 is unenforceable, “res

6

judicata” bars Go Auto from again asserting a lack of coverage on any

ground in this second MSJ.

The grant of “partial summary judgment…does not constitute a final

judgment unless it is designated as a final judgment by the court after an

express determination that there is no just reason for delay.” La. C.C.P. art

1915(B)(1). Because our writ disposition granting partial summary judgment

to Godfrey was not so designated, it constitutes an interlocutory ruling, not a

final judgment.

Res judicata does not apply to an interlocutory ruling; rather, the “law

of the case doctrine” determines whether an interlocutory ruling has any

preclusive effect. Lathon v. Leslie Lakes Ret. Ctr., 54,479 (La. App. 2 Cir.

9/21/22), 348 So. 3d 888, 892–93, writ denied, 22-01566 (La. 12/20/22), 352

So. 3d 80. We have previously explained:

Regarding an appellate court, the law of the case doctrine
is merely a discretionary policy. Thereunder, an appellate
court ordinarily will not, on subsequent appeal, reconsider
its own rulings of law on a subsequent appeal in in the
same case.
…
The law of the case rule cannot supplant the Code of Civil
Procedure...[and]...only applies when the same issue is
presented to the same court that has previously decided
that issue in the same case which has not become res
judicata (original emphasis omitted; internal citations and
quotation marks omitted).

Fluid Disposal Specs., Inc. v. UniFirst Corp., 53,014 (La. App. 2 Cir.

9/25/19), 316 So. 3d 1222, 1225, aff’d on reh’g, 53,014 (La. App. 2 Cir.

6/3/20), 316 So. 3d 1252. Nor can the law of the case rule supplant

Louisiana Supreme Court jurisprudence. In light of Landry, supra, we are

compelled to reconsider our earlier rulings regarding the enforceability of

exclusion 4.

7

Exclusion 4 in light of Landry v. Progressive Sec. Ins. Co.

Contrary to our previous holding in this case, Landry holds that the

Louisiana Motor Vehicle Safety Responsibility Law (La. R.S. 32:851 et

seq.) does not legislatively incorporate into insurance policies subject thereto

the coverage described by La. R.S. 32:900(C), except under special

circumstances not present in the instant case. Landry further observed that

this was a conscious choice of the legislature, and therefore, courts may not

override it in the name of “public policy.”

In our prior decisions, we held that Go Auto’s exclusion 4 was invalid

as applied to the facts of this case because it contravened La. R.S.

32:900(C). Landry abolishes the premise for our previous decisions.

Accordingly, we must reconsider our previous decisions. As previously

stated, exclusion 4 eliminates liability coverage for:

Property damage to any property…including a non-owned
auto or a temporary substitute vehicle, owned by, being
transported by, used by, or in the care, custody, or control
of a covered person. (Emphasis added).

Godfrey’s claim is for property damage to his suburban, i.e., a “non-

owned auto” under the Jones policy, and that damage occurred while Jones

was using the suburban. Therefore, exclusion 4 applies on its own terms and

is not in contravention of statutory law or public policy.

As explained below, Godfrey attempts to escape enforcement of

exclusion 4 by arguing that the vehicle is classified as a temporary substitute

vehicle (“TSV”), and therefore, coverage is mandated by La. R.S.

22:1296(A).

Temporary substitute vehicle

In relevant part, La. R.S. 22:1296(A) states:

8

Every approved insurance company…writing automobile
liability, physical damage, or collision insurance, shall
extend to temporary substitute motor vehicles as defined
in the applicable insurance policy…any and all such
insurance coverage in effect in the original policy or
policies. Where an insured has coverage on a single or
multiple vehicles, at least one of which has comprehensive
and collision or liability insurance coverage, those
coverages shall apply to the temporary substitute motor
vehicle, as defined in the applicable insurance
policy…Such insurance shall be primary. (Emphasis
added).

The Jones policy defines “temporary substitute vehicle” as:

Any vehicle you, a family member or any resident of your
household does not own, but borrows or rents, but only
while used as a temporary substitute vehicle for your
insured auto while it is out of normal use because of its
breakdown, repair, servicing, loss, or destruction.
(Emphasis added).

Neither “borrow” nor “rent” is defined in the policy. Therefore, these

terms must be given their generally prevailing meanings. Especially in the

context of the policy’s definition of “temporary substitute vehicle,” both

“borrow” and “rent” impart an element of permission by a counterparty, i.e.,

a lender or lessor, respectively. Jones’ unauthorized use of Godfrey’s

vehicle did not constitute borrowing or renting the vehicle, so it was not a

“temporary substitute vehicle” for purposes of the Jones policy. Godfrey’s

own sworn testimony that Jones did not have permission to use the vehicle is

a binding judicial confession, which has been properly referenced for

purposes of summary judgment. La. C.C. art. 1853; La. C.C.P. art.

966(D)(2). Furthermore, Godfrey is judicially estopped from reversing the

position he originally took in his sworn affidavit which he submitted to the

court as evidence, i.e., that Jones did not have Godfrey’s permission to use

the vehicle. That testimony has already served as the basis for two decisions

of this court. Thomas v. Econ. Premier Assur. Co., 50,638 (La. App. 2 Cir.
9

5/18/16), 196 So. 3d 7, 11, writ denied, 16-1169 (La. 10/28/16), 208 So. 3d

377, and 16-1177, (La. 10/28/16), 208 So. 3d 378 (La. 2016). 8

The “crime exclusion” from liability coverage

Neither our prior opinion, nor our prior writ disposition granting

partial summary judgment to Godfrey, addressed exclusion 12; those

decisions concerned only exclusion 4. Therefore, neither res judicata nor the

law of the case doctrine extends to exclusion 12.

As previously stated, the insurer has the burden of proof regarding

applicability of an exclusion. Therefore, the inquiry is whether the insurer

introduced, for the purpose of summary judgment, prima facie evidence that

Jones was “engaged in a crime” when he crashed the Godfrey vehicle into

the utility pole. The Jones policy defines “crime” as “any felony or any

action to flee from, evade or avoid arrest or detection by the police or any

other law enforcement agency.” (Emphasis added).

We addressed an identical policy exclusion in Harris v. Dunn, 45,619

(La. App. 2 Cir. 9/22/10), 48 So. 3d 367, 372. Therein, the following fact

pattern led to the insurer’s invocation of the “crime exclusion”:

Latiffany [the defendant] was in her vehicle at…[an]
intersection …when a vehicle driven by Latonya Harris
pulled up beside Latiffany’s vehicle. Shatara, who is
Latonya’s sister and was a passenger in Latonya’s vehicle,
exited and approached Latiffany’s vehicle. The two
women exchanged words, and Shatara may have either
swung at Latiffany or hit her. As Shatara walked back to
Latonya’s vehicle, Latiffany drove her car forward, made a

8
Regardless of whether Go Auto’s reference in its second MSJ satisfied La.
C.C.P. art 966(A)(4)(b), this court must consider Godfrey’s affidavit testimony. It has
already been introduced, considered, and explicitly used as the basis for our previous
opinion deciding the first volley of cross MSJs, and as the basis of our writ disposition
granting partial summary judgment to Godfrey. To now disregard this Godfrey affidavit
because Go Auto’s reference thereto in re-urging the grounds for its original MSJ (i.e.,
exclusion 4) did not satisfy every jot and tittle of La. C.C.P. art. 966(A)(4)(b) would be
an absurd result under these circumstances.

10

U-turn, and drove back in the same direction. Latiffany’s
vehicle hit the front passenger door of Latonya’s vehicle.
Shatara, who was behind the passenger door while in the
process of entering the vehicle, was injured.
…
[The police] arrested…[Latiffany] for the charge of
aggravated second degree battery…[Subsequently],
Latiffany pled guilty to simple battery.

Id. at 370. We held that the exclusion was inapplicable, stating:

The USAgencies policy defines the word “crime” as
meaning “any felony or any action to flee from, evade or
avoid arrest or detection by the police or other law
enforcement agency.” Latiffany was not fleeing, evading,
or avoiding arrest when the incident occurred. Thus, this
portion of the definition is not applicable. USAgencies
relies on the court minutes documenting Latiffany’s guilty
plea to simple battery as evidence that she committed a
crime to satisfy the policy exclusion. However, simple
battery is a misdemeanor offense and does not fit the
definition of a crime under USAgencies policy. Because
the guilty plea does not show that Latiffany was engaged
in a “crime” as defined by USAgencies’ policy,
USAgencies is not entitled to summary judgment on the
basis of its crime exclusion. (Emphasis added).

Id. at 372. Thus, Harris teaches that the insured’s conduct is not a “felony”

for purposes of this exclusion unless the insured is convicted of a felony.

This constraint is not explicitly stated (or negated) in the language of the

exclusion, but instead, it is a matter of public policy. Generally, whenever

law or contract prescribes private rights based on another party’s

engagement in/commission of a “felony” (or any crime specified by name

and/or statutory citation), those consequences attach only upon conviction

for that crime. This rule of construction harmonizes such civil consequences

with bedrock constitutional principles of criminal justice, such as the

presumption of innocence, the prosecution’s burden of proof beyond a

reasonable doubt, and the district attorney’s prosecutorial discretion. Harris

demonstrates the potential absurdity that would otherwise obtain: the

11

liability insured therein could have lost coverage for having “engaged in

a…felony” even though she was not convicted of any felony.

In this case, the insurer relies entirely on our earlier finding that

Jones’ use of the Godfrey vehicle was without permission as proof that

Jones was engaged in a felony when he crashed the vehicle. This is clearly

insufficient to satisfy the insurer’s burden of establishing a felony. Harris,

supra.

Also, like the defendant in Harris, Jones was not engaged in “any

action to flee from, evade or avoid arrest or detection by the police or any

other law enforcement agency” when he wrecked Godfrey’s vehicle. This

fact likewise distinguishes the other cases cited by Go Auto, Safeway Ins.

Co. of Louisiana v. Gardner, 15-696 (La. App. 5 Cir. 4/27/16), 191 So. 3d

684, and Charles v. Safeway Ins. Co. of Louisiana, 18-740 (La. App. 3 Cir.

5/15/19), 272 So. 3d 970.

The inapplicability of exclusion 12 has no impact on Go Auto’s

entitlement to summary judgment. Regardless of whether exclusion 12

applies, Go Auto is entitled to summary judgment based on exclusion 4.

Independent counsel for Jones

The plaintiff asserts that he filed a “motion for declaratory judgment”

declaring that Go Auto owes Jones independent counsel regardless of

whether the policy provides coverage, and that, somehow, this entitles the

plaintiff to attorney fees for this effort. However, Go Auto did in fact

provide independent counsel for Jones, and the trial court correctly denied

Godfrey’s motion.

Bad faith; pro se attorney fees; attorney fees for plaintiff’s additional

counsel
12

The plaintiff asserts that he is entitled to bad faith damages, and to

attorney fees largely for his work on his own behalf herein, due to Go Auto’s

supposedly arbitrary and capricious refusal to settle. (He also demands

attorney fees for his “special counsel for argument” in this appeal). In

response to Godfrey’s demand for attorney fees for his own self-

representation, Go Auto filed exceptions of no right and no cause of action.

Godfrey filed two motions to strike these exceptions as “insufficient”

pursuant to La. C.C.P. art. 964.9

Because, pursuant to Landry, supra, there is no coverage under the

Jones policy, Go Auto’s refusal to settle cannot have been in “bad faith,” and

Godfrey cannot be entitled to statutory penalties or attorney fees. If

Godfrey’s allegation that Go Auto breached its contractual duty to defend

Jones were factually true, any resultant cause of action (including an award

of attorney fees) would belong to Jones—not Godfrey, who is not a party to

that contract. Additionally, a self-represented litigant, such as Godfrey,

cannot recover attorney fees. Bradford v. Webster Par. Police Jury, 48,981

(La. App. 2 Cir. 5/14/14), 139 So. 3d 39, 43; Swayzer v. Scoby, 55,416 (La.

App. 2 Cir. 2/28/24), 381 So. 3d 223, 228, writ not considered, 24-00437

(La. 6/25/24). Accordingly, all of Godfrey’s claims for attorney fees and

statutory penalties are meritless, regardless of Go Auto’s peremptory

exceptions.

9
Godfrey asserts that the exceptions were untimely because they were filed after
submission of Go Auto’s first MSJ for decision in the trial court. That decision was the
subject of Godfrey’s first appeal in this case.
13

Recusal of Judge Claxton

Before Judge Claxton denied Godfrey’s second MSJ and granted Go

Auto’s second MSJ, Judge Claxton was recused; however, we granted a

supervisory writ challenging that recusal, and reinstated Judge Claxton.

This issue has already been decided. In fact, this court has already issued an

order denying Godfrey’s motion seeking to include recusal-related items in

the record in this appeal (writ record No. 55,003-C).

CONCLUSION

The judgment of the trial court is AFFIRMED, and all of Godfrey’s

claims against Go Auto are DISMISSED WITH PREJUDICE. Our prior

writ disposition granting partial summary judgment to Godfrey is

REVERSED and VACATED. Our earlier writ disposition reversing the

recusal of Judge Claxton is REAFFIRMED. The trial court’s denial of

Godfrey’s motion to appoint counsel for Jones is AFFIRMED. All costs of

this appeal and the lower court proceedings are taxed to Godfrey, as he has

unremittingly pursued an excessive number of near frivolous motions and

arguments.

14