Hilda Latiolais v. State Farm Mutual Auto ins.co.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 06-425

HILDA LATIOLAIS

VERSUS

STATE FARM MUTUAL AUTO INS. CO., ET AL

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF ACADIA, NO. 79082
HONORABLE BYRON HEBERT, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, Mark T. Amy, Elizabeth A. Pickett, Billy H.
Ezell, and James T. Genovese, Judges.

Amy, J., dissents finding that the insurance policies provide no independent
coverage in this instance.

Pickett, J., dissents for the reasons assigned by Judge Amy.

AFFIRMED IN PART, REVERSED IN PART, REMANDED.

Troy Allen Broussard
Allen and Gooch
P. O. Drawer 3768
Lafayette, LA 70584
(337) 291-1375
Counsel for Defendants/Appellees:
The Society of the Roman Catholic Church of the Diocese of Lafayette, Louisiana,
Catholic Mutual Relief Society of America and
Virginia Surety Company, Inc.

Steven J. Bienvenu
Dauzat, Falgoust, Cravens, and Bienvenu
P. O. Box 1450
Opelousas, LA 70570
(337) 942-5811
Counsel for Defendant/Secondary Appellant:
Farm Bureau Mutual Ins. Co.

Armand Brinkhaus
Olivier and Brinkhaus
P. O. Drawer E
957 Napoleon Ave.
Sunset, LA 70584
(337) 662-5242
Counsel for Plaintiff/Appellant:
Hilda Latiolais

Timothy A. Maragos
Attorney at Law
4023 Ambassador Caffery Pkway.
Lafayette, LA 70503
(337) 988-7240
Counsel for Defendant/Appellees:
State Farm Mutual Auto Ins. and James Vellankal

SAUNDERS, Judge.

This litigation arises from a motor vehicle accident wherein a defendant driver

caused personal injuries to plaintiff. After the court granted a motion for summary

judgment removing defendant driver’s employer from the suit based on a finding that

the defendant driver was not in the course and scope of his employment, plaintiff

added two defendants, one that issued the employer a self-insurance certificate and

another that was the insurance company of the employer alleging that the respective

certificate of self-insurance and policy afforded coverage to the defendant driver.

The group and insurance company of the defendant employer filed a motion for

summary judgment alleging that neither the certificate of self-insurance nor the policy

of insurance provided coverage to the defendant driver. The motions were granted

thereby removing both litigants from the suit. This ruling was appealed. We affirm

in part, reverse and remand in part.

FACTS AND PROCEDURAL HISTORY

This lawsuit arises out of an August 2, 2001, motor vehicle accident at the

intersection of La. Highway 95 and La. Highway 356 near the Town of Church Point,

Parish of Acadia, State of Louisiana. At the time, Father James Vellankal, (hereinafter

referred to as “Father Vellankal”), was operating his 1998 Toyota Corolla on La.

Highway 356. Hilda Latiolais, (hereinafter referred to as “Ms. Latiolais”),was

operating her 1991 Toyota Corolla on La. Highway 95. Father Vellankal allegedly

failed to stop or yield the right of way to Ms. Latiolais and caused a collision which

resulted in personal injuries to Ms. Latiolais.

Suit was originally filed against the defendant driver of the vehicle, Father

Vellankal, defendant driver’s personal automobile insurance, State Farm Mutual

Automobile Insurance, (hereinafter referred to as “State Farm”), plaintiff’s UM

Carrier, Farm Bureau Mutual Insurance Company, (hereinafter referred to as “Farm

Bureau”), and defendant driver’s employer, The Society of the Roman Catholic

Church of the Diocese of Lafayette, Louisiana, (hereinafter referred to as “the

Diocese of Lafayette”).

The Diocese of Lafayette was granted a motion for summary judgment

removing them from the case based on the trial court’s finding that Father Vellankal

was not acting within the course and scope of his employment at the time of the

accident. Plaintiff, Hilda Latiolais, then added Catholic Mutual Relief Society of

America (hereinafter referred to as “Catholic Mutual”) alleging that they had issued

a certificate of self-insurance listing the Diocese of Lafayette as a holder, and that

said certificate provided coverage to Father Vellankal for his negligence in the motor

vehicle accident. Plaintiff further added Virginia Surety Company, Inc. (hereinafter

referred to as “Virginia Surety”) alleging that their policy of insurance naming the

Diocese of Lafayette as the insured also provided coverage to Father Vellankal for

his alleged negligence.

Defendants Catholic Mutual and Virginia Surety filed a Motion for Summary

Judgement based on the fact that neither the certificate of self-insurance nor the

policy of insurance afforded coverage to Father Vellankal for his actions on the day

of the accident. The trial court granted the motions and released both Catholic Mutual

and Virginia Surety from the case. Plaintiff, Ms. Latiolais and Defendant/Secondary

Appellant, Farm Bureau, appealed the ruling of the trial court.

We affirm in part, reverse in part, and remand.

ASSIGNMENTS OF ERROR:

1. Can this court properly exercise jurisdiction over whether the trial court erred
in holding that there was no factual dispute as to the relationship between

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Father Vellankal with the Diocese at the time of the wreck in light of a
November 18, 2005, judgment that released the Diocese of Lafayette from this
suit based on a finding that Father Vellankal was not acting within the course
and scope of his employment?

2. Did the trial court err in granting Catholic Mutual and Virginia Surety’s motion
for summary judgement based on their finding that the policies/certificates of
insurance issued to the Diocese of Lafayette do not provide automobile
liability insurance coverage to Father James Vellankal for the accident which
is the subject matter of this lawsuit?

ASSIGNMENT OF ERROR #1:

Plaintiff/Appellant contends that the trial court erred in holding that there was

no factual dispute as to the relationship between Father Vellankal with the Diocese

at the time of the wreck when confronted with the bare denial of a relationship by

Father Vellankal as compared to the testimony of evidence of him being in his

ministry of a 24/7 year-round basis in his employment.

Defendant/ Appellees filed a motion to strike this assignment of error on behalf

of the Diocese of Lafayette, Catholic Mutual and Virginia Surety. They contend that

to discuss this assignment of error is to discuss the merits of a final judgement

rendered on November 18, 2005, whose time for appeal has lapsed. Said judgement

dismissed the Diocese of Lafayette based on the finding that Father Vellankal was not

within the course and scope of his employment, and therefore this assignment is not

properly before this Court as it is barred by the principles of res judicata.

Res Judicata bars relitigation of a subject matter arising from the same

transaction or occurrence of a previous suit. LSA-R.S. 13:4231. It promotes judicial

efficiency and final resolution of disputes. Terrebonne Fuel & Lube v. Placid

Refining, 95-0654, 95-0671, (La. 1/16/96); 666 So.2d 624. A final judgment from

which there can be no appeal acquires the authority of the thing adjudged. La. C.C.

art 3506(31). Once a final judgment acquires the authority of the thing adjudged, no

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court had jurisdiction to change the judgment, regardless of the magnitude of the final

judgment’s error. Tolis v. Board of Supervisors of Louisiana State University, 95-

1529, (La. 10/16/95); 660 So.2d. 1206.

This court grants the Defendant/Appellee’s motion to strike

Plaintiff/Appellant’s Assignment of Error #1 with respect to the former defendant, the

Diocese of Lafayette. The final judgement rendered on November 18, 2005, by the

trial court has already defined the relationship between Father Vellankal and the

Diocese of Lafayette to be one in which Father Vellankal was not acting within the

course and scope of his employment when the motor vehicle accident took place. To

reopen this question would be to question a final judgment on an issue between the

same parties, arising out of the same transaction or occurrence. For this court to

exercise jurisdiction as related to the validity of the dismissal of the Diocese of

Lafayette over this matter at this time would be improper.

However, this court also finds that the November 18, 2005, judgment

dismissing the Diocese of Lafayette does not preclude us from exercising jurisdiction

over the question of whether the trial court was proper in granting a motion for

summary judgment dismissing Catholic Mutual and Virginia Surety.

The doctrine of res judicata is interpreted stricti juris and any doubt regarding

compliance with its requirements is to be resolved in favor of maintaining the action.

Kelty v. Brumfield, 93-1142 (La. 2/25/94), 633 So.2d 1210; McNeal v. State Farm

Mutual Automobile Ins. Co., 278 So.2d. 108 (La.1973). The doctrine of res judicata

only applies in cases involving the same parties, or parties who, though different,

have the same identity and the same quality. La.R.S. 13: 4231; Wooley v. State Farm

Fire & Casualty Insurance Co., 04-882 (La. 1/19/05) 893 So.2d 746.

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In the November 18, 2005, judgment, the relevant parties were Hilda Latiolais,

Father Vellankal and the Diocese of Lafayette. Here the relevant parties are Hilda

Latiolais, Father Vellankal, Catholic Mutual and Virginia Surety. Clearly these are

different parties. In addition, this court finds that the parties do not have the same

identity or the same quality. Defendant/Appellee’s motion for summary judgment

relates to the coverage of Father Vellankal for his actions as opposed to the liability

of the Diocese of Lafayette through its employer/employee relationship with Father

Vellankal. Thus this court finds that the application of res judicata would be

inappropriate. Further, we find that this court can properly exercise jurisdiction over

Assignment of Error #2.

ASSIGNMENT OF ERROR #2:

Both Plaintiff/Appellant and Defendant/Secondary Appellant contend that the

trial court erred in granting Catholic Mutual and Virginia Surety’s motion for

summary judgment. The trial court based its ruling on its finding that the certificate

of insurance/policy issued to the Diocese of Lafayette by Catholic Mutual and

Virginia Surety do not provide automobile liability insurance coverage to Father

James Vellankal for the accident at issue.

In order to release Catholic Mutual from the suit, the trial court found that there

was no dispute of material fact as to whether Father Vellankal was acting within the

scope of his duties or in the official capacity as such nor was he acting on behalf of

the Diocese. We do not agree with this determination.

Appellate courts conduct a de novo review of rulings on motions for summary

judgment.

It is well established that a summary judgment shall be rendered if the
pleadings, depositions, answers to interrogatories, and admissions on

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file, together with the affidavits, if any, show that there is no genuine
issue as to material fact, and that the mover is entitled to judgment as a
matter of law. Palma , Inc., v. Crane Servs. Inc., 03-0614, p. 3 (La.App.
3 Cir. 11/5/03), 858 So.2d 772, 774. La.Code Civ.P. art. 966 quoting
Shelton v. Standard/700 Associates, 01-587, p. 5 (La. 10/16/01), 798
So.2d 60, 64-65.

When the trial court decides a motion for summary judgment, it cannot make

credibility determinations, nor may it inquire into the merits of the issues raised.

Hitchcock v. Heritage Manor Nursing Home, 05-1010 (La.App. 3 Cir. 2/1/06), 922

So.2d 764. If the evidence presented at trial is subject to conflicting interpretations,

then summary judgment is not appropriate. Federated Rural Elec. Ins. Corp. v. Gulf

S. Cable, 02-852 (La.App. 3 Cir. 12/11/02), 833 So.2d 544. The mover must present

virtually conclusive evidence which must be met by the non-mover who must show

evidence of a dispute. Bibins v. St. Francis Cabrini Hosp., 00-133 (La.App. 3 Cir.

6/7/00), 768 So.2d 102; evidence by the non-mover may be circumstantial evidence

of facts and circumstances from which a jury might conclude the existence of other

connected facts according to reason and common experience. Joseph v. Bourssard

Rice mill, Inc., 200-0628 (La. 10/30/00) 772 So. 2d 94.

The Catholic Mutual certificate provides that it will afford coverage to Father

Vellankal while driving his personal vehicle, as an employee of the Diocese of

Lafayette, if he were an employee acting “within the scope of their duties” or “in their

official capacity as such.”

Moreover, Section II (5)(1) provides that Father Vellankal would not be

excluded from coverage while driving his own vehicle “on behalf of” the Diocese of

Lafayette. Appellants address the exclusionary provision while Appellee does not

address this issue, however, it appears that if Father Vellankal does not fit under this

exclusion, he is therefore covered as an employee of the Diocese of Lafayette.

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Accordingly, Catholic Mutual provides coverage in three (3) different

situations: (1) if Father Vellankal is acting “within the scope of their duties” (2) if

Father Vellankal is acting “in their official capacity as such” or (3) if Father Vellankal

is using his personal vehicle “on behalf of” the Diocese of Lafayette.

Defendant/Appellee vociferously maintains that the phrase “while acting within

the scope of their duties or in their official capacity as such” has the exact same

meaning as the phrase “while acting within the course and scope of one’s

employment. We disagree.

Louisiana law pertaining to the course and scope of employment is well settled

and was summarized by the supreme court in Baumeister v. Plunkett, 95-2270, pp. 3-4

(La. 5/21/96), 673 So.2d 994, 996-97:

The law in this area is clear that an employer is liable for a tort
committed by his employee if, at the time, the employee was acting
within the course and scope of his employment. Orgeron v. McDonald,
93-1353 (La.7/5/94), 639 So.2d 224, 226.

According to Louisiana Civil Code article 2320, “[m]asters and
employers are answerable for the damage occasioned by their servants
and overseers, in the exercise of the functions in which they are
employed.” In fact, this Court has held that in order for an employer to
be vicariously liable for the tortious acts of its employee the “tortious
conduct of the [employee must be] so closely connected in time, place
and causation to his employment duties as to be regarded as a risk of
harm fairly attributable to the employer’s business, as compared with
conduct instituted by purely personal considerations entirely extraneous
to the employer’s interest.” Barto v. Franchise Enterprises, Inc., 588
So.2d 1353, 1356 (La. App. 2d Cir. 1991), writ denied, 591 So.2d 708
(1992) (quoting LeBrane v. Lewis, 292 So.2d 216, 217, 218 (La. 1974)).

“An employer is not vicariously liable merely because his
employee commits an intentional tort on the business premises during
working hours.” Scott v. Commercial Union Ins. Co., 415 So.2d 327,
329 (La. App. 2d Cir. 1982) (citing Bradley v. Humble Oil & refining
Co., 163 So.2d 180 (La. App. 4th Cir 1964)). “Vicarious liability will
attach in such a case only if the employee is acting within the ambit of
his assigned duties and also in furtherance of his employer’s objective.”
Id.

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More specifically, our LeBrane v. Lewis decision considered the
following factors in holding an employer liable for a supervisor’s
actions in stabbing his fellow employee:
(1) whether the tortious act was primarily employment rooted;

(2) whether the violence was reasonably incidental to the performance
of the employee’s duties;

(3) whether the act occurred on the employer’s premises; and

(4) whether it occurred during the hours of employment.

292 So.2d 218.
This does not mean that all four of these factors must be met
before liability may be found. Miller v. Keating, 349 So.2d 265, 268
(La. 1977). But as we noted above in Scott, an employer is not
vicariously liable merely because his employee commits an intentional
tort on the employer’s premises during working hours. 415 So.2d at 329.
See also Tampke v. Findley Adhesives, Inc., 489 So.2d 299 (La. App. 4th
Cir.), writ denied, 491 So.2d 24 (1986); McClain v. Holmes, 460 So.2d
681 (La. App. 1st Cir. 1984), writ denied, 463 So.2d 1321 (1985). The
particular facts of each case must be analyzed to determine whether the
employee’s tortious conduct was within the course and scope of his
employment. Scott, 415 So.2d at 329.

While it is clear that the phrase “course and scope of employment” is well

defined, it is equally clear that this certificate’s language “within the scope of their

duties,” “in their official capacity as such” and “on behalf of” is not. At no place in

the Catholic Mutual Certificate are the phrases “within the scope of their duties,” “in

their official capacity as such” or “on behalf of” defined.

“An insurance policy is a contract between the insured and the insurer and has

the effect of law between the parties. Because an insurance policy is a contract, the

rules established for the construction of written instruments apply to contracts of

insurance. The parties’ intent, as reflected by the words of an insurance policy,

determine the extent of coverage and the 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-CC Art. 2047.

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If the language in an insurance contract is clear and unambiguous, the
agreement must be enforced as written and a reasonable interpretation
consistent with the obvious meaning and intent of the policy must be
given. The determination of whether a contract is clear or ambiguous is
a question of law. Jessop v. City of Alexandria, 03-1500, p. 3 (La.App.
3 Cir 3/31/04), 871 So.2d 1140, 1143, citing Miller v. Superior Shipping
& Fabrication, Inc., 01-2907 (La.App. 1 Cir 8/20/03), 859 So.2d 159.

If an ambiguity exists as to the meaning of a provision of an insurance policy,

the ambiguity must be construed against the insurer and in favor of finding coverage.

La.Civ.Code art. 2056; Cadwallader v. Allstate Insurance Co., 02-C-1637 (La.

6/27/03), 848 So.2d 577; Carrier v. Reliance Insurance Co., 99-2573 (La. 4/11/00)

759 So.2d 37.

Because the phrases “within the scope of their duties,” “within their capacity

as such” or “on behalf of” are not defined in the certificate, we look to the plain,

ordinary and popular meaning of the language in the certificate.

First, we will look at the use of the word “duties” versus the use of the word

“employment.” The certificate’s language on Page 1 does not refer to the scope of

one’s employment to provide coverage, instead it states that one must be within the

scope of their duties. Popular usage tells us that one’s employment encompasses the

performance of may job related duties. The use of the word “duties” indicates

expansive coverage over actions complementary to any of many job duties rather than

coverage of actions that are only employment rooted or essential to an employee’s

entire employment.

Next, we will look at the use of the term “scope” versus the use of the phrase

“course and scope .” The course of employment test refers to time and place. “The

scope of employment test examines the employment- related risk of injury.” Benoit

v. Capitol Manufacturing Co., 617 So.2d 477, 479 (La.1993). Ergo, “course” refers

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to time and place in relation to one’s employment while “scope” questions whether

the activity is encompassed in the ambit of one’s employment. Based on the language

of the certificate, one does not have to be both within the course and the scope of his

employment, rather one must merely be within the scope of his duties. This language

use again broadens the coverage of the certificate as one does not have to be at the

time and place of his work, i.e. in the course of his work, scheduled to work, being

compensated for his work, located on his employer’s premises or“at work” in order

to be afforded coverage.

The record before us is incomplete and leaves unanswered questions regarding

the activities of Father Vellankal. The trial court relied on a affidavit of Father

Vellankal wherein he states that he was coming from the house of a personal friend

when the accident took place. But, did Father Vellankal bless the house of his friend?

Did Father Vellankal discuss any subject related to his duties as a priest with his

friend? Did Father Vellankal discuss any Diocese business with his friend? Did they

pray together? Why was Father Vellankal dressed in a priest-like manner at the time

of the accident? Did Father Vellankal get dressed at his friend’s house? Was he on

his way to say a Mass?

All that the record shows is that there is conflicting testimony in the form of

affidavits. Catholic Mutual relies upon the affidavit of Father Vellankal where he

stated that his mission was strictly and exclusively personal, motivated purely by

personal concerns. Appellants rely upon the affidavits of Ms. Latiolais, Denise

Meche, Dannette Bruce and Linda Boudreaux to state that Father Vellankal was

dressed in a priest-like manner and that he was agitated because he was concerned

about time. Further, Ms. Latiolais’ affidavit states that she had a conversation with

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Father Vellankal wherein he stated that he was going to say Mass. The affidavits

submitted by the parties are at odds regarding the activities of Father Vellankal at the

time of the accident. Father Vellankal’s activities at the time of the accident are the

very crux of this matter and a material of this case.

Because these conflicting affidavits relate to a material issue in this case , they

create a genuine issue of material fact as to whether Father Vellankal was acting

(1)on behalf of the Diocese or (2) within the scope of his duties or (3) in his official

capacities as such at the time of the accident.

This combination of conflicting affidavits, an incomplete record wherein many

questions are left unanswered, and the expansive language of the certificate,

precludes this court from affirming the trial court’s decision to release Catholic

Mutual from this suit.

Therefore, we find that the trial court improperly released Catholic Mutual. We

find that there exists genuine issues of material fact as to whether the self-insurance

certificate issued by Catholic Mutual to the Diocese of Lafayette provided coverage

to Father Vellankal. Accordingly, we reverse the judgment of the trial court and

remand this case for further fact finding related to this matter.

Next this court will determine if the trial court was proper in dismissing

Virginia Surety from this suit. The trial court found that reasonable minds could not

differ as to whether the policy of insurance they issued to the Diocese of Lafayette

afforded coverage to Father Vellankal for his actions in the accident in question.

Appellant, Hilda Latiolais, argues that the Father Vellankal’s vehicle is a listed

vehicle under the Virginia Mutual Policy. Appellant makes this contention by

pointing out that a list of covered vehicles in the policy includes one car that is the

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same model and make of Father Vellankal’s vehicle. We find that this argument is

lacking in merit.

The Virginia Surety policy lists a partial Vehicle Identification Number (VIN)

for each vehicle covered by its policy. The listed partial VIN of the particular vehicle

that the Appellant contends is Father Vellankal’s is not included in the VIN of the

vehicle owned and driven by Father Vellankal. Accordingly, Father Vellankal’s

personal vehicle that he was driving when this accident occurred is not a listed

vehicle and is not covered by the policy.

Defendant/Secondary Appellant, Farm Bureau, argued that Section II A. (1) b.

(2) of the Virginia Surety Policy is ambiguous because it does not define the term

“employee” and therefore should be read against the drafter, Virginia Surety, and

provide coverage to Father Vellankal. Section II A. (1) lists as an insured as:

a) You (The Named Insured) for any covered auto;

b) Anyone else while using with your permission a covered ‘auto’ you
own, hire or borrow except:
...
(2) Your employee if the covered ‘auto’ is owned by that employee
or a member of his or her household....

Appellants raised the issue that under Section II A. (1) b. (2), there is some

ambiguity as to what the term “employee” means. They accurately point out that the

term “employee” is not defined in the policy. Appellants question whether the

meaning of the term “employee” in the exclusionary provision means employee in

general, or in the sense that the person must actually be acting as an employee, i.e. in

the course and scope of his employment.

We find that whether this exclusionary provision applies to Father Vellankal

in this situation is moot. If the exclusion is to apply to Father Vellankal, then he is

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specifically excluded from coverage. If the exclusion does not apply to Father

Vellankal, then Father Vellankal is not excluded from coverage, but this does not

mean that he is an insured under the policy. It merely means that Father Vellankal is

not excluded as an insured under the policy. For Father Vellankal to be covered by

the policy for the accident, he would need to be driving “a covered ‘auto’ you [the

Diocese] own, hire or borrow.” There is no evidence in the record to suggest that the

Diocese hired or borrowed the personal vehicle of Father Vellankal, and we have

already determined that Father Vellankal’s personal vehicle, itself, is not covered by

the policy. Thus, while Father Vellankal may or may not be excluded by the alleged

ambiguous exclusion, it is irrelevant.

Therefore, after reviewing the record and all briefs submitted by the parties, we

find that the trail court properly granted the motion for summary judgment filed by

Virginia Surety and as such, properly dismissed Virginia Surety from this suit with

prejudice. Accordingly, we affirm the judgment of the trial court on this issue.

Finally, Appellees object to the impropriety that Appellants seek to use

evidence in the review of this motion for summary judgment that was introduced

during the summary judgment hearing that released The Diocese of Lafayette via the

November 18, 2005, judgment. They state, in brief, that “the evidence relied upon by

Appellants on appeal” was never introduced in the hearing on the summary judgment

that released Catholic Mutual and Virginia Surety.

While Appellee’s contention may be accurate; it is also accurate that the record

before us does contain the evidence relied upon by Appellants. The appellate court

shall render any judgment which is just, legal, and proper upon the record on appeal.

La.Code Civ.P. art. 2164. Therefore, when we look to the record, it does contain the

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evidence relied upon by Appellants. We therefore find that the Appellees’ objection

is without merit.

CONCLUSION

The judgment of the trial court is affirmed in part, and reversed remanded in

part. Costs of this appeal are assessed equally against the parties.

AFFIRMED IN PART, REVERSED IN PART, REMANDED.

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