Charles Thiels v. American International South Ins. Co.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

03-774 consolidated with 03-775, 03-776, & 03-777

CHARLES THIELS, ET AL.

VERSUS

AMERICAN INTERNATIONAL SOUTH INSURANCE CO., ET AL.

**********
APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 208,655 C/W 209,772; 209,915; & 210,027
HONORABLE HARRY FRED RANDOW, DISTRICT COURT JUDGE

**********
ULYSSES GENE THIBODEAUX
JUDGE
**********

Court composed of Ulysses Gene Thibodeaux, Oswald A. Decuir, and Jimmie C.
Peters, Judges.

AFFIRMED.

Kenneth Pitre
PITRE LAW OFFICE
P. O. Drawer 1260
Eunice, LA 70535
Telephone: (337) 457-9048
COUNSEL FOR:
Appellant - Deborah Banks

Henry Gregory Walker, Jr.
Walker, Passman & Michiels
P. O. Box 13020
Alexandria, LA 71315-3020
Telephone: (318) 445-4516
COUNSEL FOR:
Plaintiffs/Appellees - Charles Thiels, Ralph Thiels, Harvey Thiels,
Darrell Thiels, and Janel Thiels Gains
James Berry Reichman

Reichman & Armour
P. O. Box 210
Alexandria, LA 71309
Telephone: (318) 442-6611
COUNSEL FOR:
Defendant/Appellee - State Farm Mutual Auto Insurance Co.

Monique Freeman Rauls
Assistant Attorney General
P. O. Box 1710
Alexandria, LA 71309-1710
Telephone: (318) 487-5944
COUNSEL FOR:
Defendant/Appellee - State of Louisiana, Through DOTD

Shannon James Gremillion
Briney & Foret
P. O. Drawer 51367
Lafayette, LA 70505-1367
Telephone: (337) 237-4070
COUNSEL FOR:
Defendants/Appellees - American International South Insurance
Company and Michael S. Thibodeaux

THIBODEAUX, Judge.

Deborah Banks (Banks), the plaintiff in this personal injury case, appeals

a judgment rendered by the trial court in a concursus proceeding invoked by American

International South Insurance Company (AIS) in connection with a motor vehicle

accident that occurred on August 21, 2001, in Rapides Parish. The accident resulted

in the death of Robert Thiels (Robert). The trial court’s judgment held that the

language of the AIS policy provided $10,000.00 “per person” claim coverage to each

of Robert’s children, Charles Thiels, Ralph Thiels, Harvey Thiels, Darrell Thiels and

Janel Thiels Gaines (the Thiels), subject to the $20,000.00 “per accident” maximum

limit. Banks, the guest passenger in the vehicle driven by the tortfeasor, appeals that

judgment. We affirm.

I.

ISSUE

The issue in this case is whether survival, wrongful death and personal

injury actions that arise out of the same accident entitle the heirs of the deceased and

the tortfeasor’s injured guest passenger to the “per person” coverage for each

claimant, subject to the $20,000.00 “per accident” maximum, or whether the language

of the liability policy limits the heirs to the “per person” policy limit of $10,000.00 to

share among the five heirs, leaving another $10,000.00 “per person” limit to the guest

passenger who was injured in the accident.

II.

FACTS

The facts of the accident giving rise to the present case are not in dispute.

On August 21, 2001, at the intersection of Louise Street and the west service road

1

along MacArthur Drive in Alexandria, Louisiana, Robert had the right of way and was

driving on Louise Street through the intersection. A vehicle operated by Michael

Thibodeaux (Thibodeaux) was on the service road and failed to yield in accordance

with the yield sign, causing Robert’s vehicle to collide with Thibodeaux’s vehicle. As

a result of the injuries he received from the accident, Robert was taken to Rapides

Regional Medical Center by ambulance. He died there on August 31, 2001.

Robert had five children who each asserted wrongful death and survival

action claims against Thibodeaux and his insurer, AIS. Banks, who was a guest

passenger in Thibodeaux’s vehicle, was also injured. She asserted a personal injury

claim against Thibodeaux as a result of his negligence. AIS provided a liability

insurance policy with bodily injury limits of $10,000.00 per person subject to a

maximum of $20,000.00 per accident. Both Banks and the Thiels filed cross motions

for summary judgment in the trial court. The issue was whether the AIS policy

provides $10,000.00 per person claim coverage to each of the five Thiel children

subject to the $20,000.00 per accident cap or whether the five Thiel children are

subject, collectively, to a $10,000.00 per person limit. The trial court decided in favor

of the Thiels, finding that the policy issued by AIS provides $10,000.00 per person

coverage to each of the five Thiel heirs subject to the $20,000.00 per accident

maximum. It is from this judgment that Banks appeals.

III.

LAW AND DISCUSSION

Summary Judgment

In Louisiana, summary judgment is now favored and it shall be used to

secure the just, speedy, and inexpensive determination of all actions, except those

specifically excluded in La.Code Civ.P. art. 969. La.Code Civ.P. art. 966(A)(2). A

2

summary judgment shall be rendered if the pleadings, depositions, interrogatory

responses, and admissions, together with any affidavits, show that there is no genuine

issue of material fact and that the mover is entitled to judgment as a matter of law.

La.Code Civ.P. art. 966(B). Material facts are those that have the potential to insure

or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of

a legal dispute. Rambo v. Walker, 96-2538 (La.App. 1 Cir. 11/7/97), 704 So.2d 30.

Appellate courts review summary judgments de novo applying the same criteria as the

trial court to determine whether summary judgment is appropriate. Schroeder v. Bd.

of Sup’rs, 591 So.2d 342 (La.1991). Accordingly, we undertake a de novo review of

the matter at bar.

The party moving for summary judgment has the burden of affirmatively

showing the absence of a genuine issue of material fact. Any doubt as to whether the

moving party has met that burden should be resolved against granting the motion.

Bradford v. Louisiana Downs, Inc., 606 So.2d 1370 (La.App. 2 Cir. 1992). The

likelihood that a party will prevail on the merits does not constitute a basis for

granting a motion for summary judgment. Claiborne v. Conagra, Inc., 96-482

(La.App. 3 Cir. 10/30/96), 682 So.2d 851.

AIS Policy Language

This case involves the interpretation of the language in the AIS liability

insurance policy issued to Thibodeaux. The AIS policy’s limit of liability provision

states:

LIMIT OF LIABILITY

A. The limit of liability shown in the Declarations for
this coverage is our maximum limit of liability for all
damages resulting from any one auto accident. This
is the most we will pay regardless of the number of:

1. “Insureds,”

3

2. Claims made;
3. Vehicles or premiums shown in the
Declarations; or
4. Vehicles involved in the auto accident.

The policy defines “bodily injury” as “bodily harm, sickness or disease including

death that results.” According to the policy, the total amount of money available per

accident is $20,000.00. Thus, if the “per accident” amount of $20,000.00 is applicable

in this case, all of the injured parties would have to share in the $20,000.00. Although

not completely clear from her brief, it appears that Banks contends that the Thiels are

entitled to share only the “per person” amount of $10,000.00 because their claims are

derivative of the bodily injury to and subsequent death of their father.

The rules concerning the interpretation of insurance contracts were set

out by the court in State Farm Mutual Automobile Insurance Co. v. Cooper, 97-1134

(La.App. 3 Cir. 2/18/98), 707 So.2d 986, 988, citing Crabtree v. State Farm Insurance

Co., 93-0509 (La.2/28/94), 632 So.2d 736, 741 (footnotes omitted):

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 Civil Code.
Louisiana Ins. Guar. Ass’n v. Interstate Fire & Casualty
Co., 93-0911 p. 5 (La. 1/14/94), 630 So.2d 759, 763; Smith
v. Matthews, 611 So.2d 1377, 1379 (La.1993); Schroeder
v. Board of Supervisors of La. State Univ., 591 So.2d 342,
345 (La.1991). If the words of the policy are clear and
explicit and lead to no absurd consequences, no further
interpretation may be made in search of the parties’ intent
and the agreement must be enforced as written. Smith, 611
So.2d at 1379; Central La. Elec. Co. v. Westinghouse Elec.
Corp., 579 So.2d 981, 985 (La.1991); Pareti v. Sentry
Indem. Co., 536 So.2d 417, 420 (La.1988); see
La.Civ.Code art. 2046. An insurance policy should not be
interpreted in an unreasonable or strained manner so as to
enlarge or restrict its provisions beyond what is reasonably
contemplated by its terms or so as to achieve an absurd
conclusion. Interstate, 93-0911 p. 5, 630 So.2d at 763;
Fertitta v. Palmer, 252 La. 336, 211 So.2d 282, 285 (1968).
The policy should be construed as a whole and one portion
thereof should not be construed separately at the expense of
disregarding another. Westinghouse, 579 So.2d at 985;
Pareti, 536 So.2d at 420; see La.Civ.Code art. 2050. If

4

after applying the other general rules of construction an
ambiguity remains, the ambiguous contractual provision is
to be construed against the insurer who issued the policy
and in favor of the insured. Interstate, 93-0911 p. 6, 630
So.2d at 764; Smith, 611 So.2d at 1379; Pareti, 536 So.2d
at 420; see La.Civ.Code art. 2056.

In Crabtree, a wife was driving a vehicle behind her husband who was

driving a motorcycle. She suffered mental anguish when she witnessed another

vehicle cross the center line and collide head-on with her husband’s motorcycle. She

brought suit against the insurer of the tortfeasor seeking damages for her mental

anguish caused by seeing, not only the collision, but also her husband’s leg almost

completely severed. Thus, she had a Lejeune claim. The defendant in Crabtree

asserted the same argument asserted by Banks in the present case—that because the

wife’s mental anguish resulted from her husband’s bodily injury, it falls within the

“per person” limit of the policy as opposed to the “per accident” limit. The supreme

court decided that the wife’s mental anguish claim was an additional bodily injury

under the insurance policy language in that case, separate and apart from the injury

to the person actually involved in the accident.

Likewise, the supreme court decision in Walls v. American Optical Corp.,

98-455 (La. 9/8/99), 740 So.2d 1262, a case involving a wrongful death action,

establishes that a wrongful death and a survival action are two separate causes of

action. The language in the AIS policy is not ambiguous. It provides for the payment

of $20,000.00 for all damages resulting from one accident regardless of the number

of claims. Each of the five Thiel heirs has a wrongful death action. Additionally, the

deceased has a survival action which was inherited by his heirs, and Banks, the guest

passenger in Thibodeaux’s vehicle, has a personal injury claim. One accident, caused

by Thibodeaux, resulted in multiple injuries to several persons. The Thiels’ wrongful

death claims are not subject to the single person policy limit applicable to their

5

father’s survival action. The trial court’s grant of summary judgment in favor of the

Thiels was correct.

IV.

CONCLUSION

The insurance policy issued by American International South Insurance

Company provides a $10,000.00 “per person” coverage to each of the Thiel heirs,

subject to the $20,000.00 “per accident” maximum limit of the policy. The judgment

of the trial court is affirmed. All costs of appeal are assessed against plaintiff-

appellant, Deborah D. Banks.

AFFIRMED.

6