Thunderrolls, Inc. v. Ooida Risk Retention Group

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-1271

THUNDERROLLS, INC.

VERSUS

OOIDA RISK RETENTION GROUP

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APPEAL FROM THE
THIRTY-SIXTH JUDICIAL DISTRICT COURT
PARISH OF BEAUREGARD, NO. C-2004-0859
HONORABLE STUART S. KAY JR., DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Sylvia R. Cooks, Michael G. Sullivan, and Elizabeth A. Pickett,
Judges.

REVERSED AND REMANDED.

Elvin C. Fontenot Jr.
Attorney at Law
110 East Texas Street
Leesville, LA 71446
(337) 239-2684
Counsel for Plaintiff-Appellant:
Thunderrolls, Inc.

Alan John Yacoubian
Neal J. Favret
Johnson, Johnson, Barrios & Yacoubian
701 Poydras, Suite 4700
New Orleans, LA 70139-7708
(504) 528-3001
Counsel for Defendant-Appellee:
OOIDA Risk Retention Group

PICKETT, Judge.

The plaintiff-appellant, Thunderrolls, Inc., appeals a judgment of the trial court

granting summary judgment in favor of the defendant, OOIDA Risk Retention Group,

and dismissing Thunderrolls’s suit with prejudice.

STATEMENT OF THE CASE

On March 10, 2004, Gerald Soileau parked his tractor and trailer in the parking

lot at Winner’s Choice Truck/Travel Plaza in Sulphur, Louisiana. Soileau, an

employee of Thunderrolls, owned the tractor and the trailer, and the cargo was being

delivered on behalf of Thunderrolls. Soileau disconnected his tractor and went home

and left the trailer and cargo in the parking lot overnight. The trailer and cargo were

stolen overnight.

Thunderrolls filed a claim with their cargo liability insurer, OOIDA Risk

Retention Group (OOIDA), to recover $12,000.00 for the loss of the cargo. OOIDA

refused to pay the claim, alleging that the insurance contract excluded coverage for

unattended vehicles.

Thunderrolls filed suit on September 28, 2004, to recover $12,000.00 plus

penalties, interest and attorney fees. On November 3, 2006, OOIDA filed a motion

for summary judgment based on an exclusion in the insurance contract. Thunderrolls

filed an opposition to the motion, and both parties waived a hearing. In open court

on February 5, 2007, the trial court called the case and orally granted the motion for

summary judgment. A judgment granting the motion and dismissing the claims of

Thunderrolls with prejudice was signed on March 14, 2007. Thunderrolls now

appeals.

1

ASSIGNMENTS OF ERROR

Thunderrolls asserts one assignment of error:

The Court below committed reversible error by granting summary
judgment as there exist issues of material fact sufficient to not entitle
mover to judgment as a matter of law.

DISCUSSION

An appellate court reviews summary judgments de novo, and applies the same

criteria as the trial court in deciding if summary judgment is appropriate. Schroeder

v. Bd. of Supervisors, 591 So.2d 342 (La.1991). The supreme court discussed

appellate review of summary judgments in Duncan v. U.S.A.A. Insurance Co., 06-

363, pp. 3-4 (La. 11/29/06), 950 So.2d 544, 546-547:

A motion for summary judgment is a procedural device used when
there is no genuine issue of material fact. The summary judgment
procedure is favored and designed to secure the just, speedy, and
inexpensive determination of every action and shall be construed to
accomplish these ends. La. C.C.P. art. 966(A)(2). Appellate courts
review summary judgments de novo under the same criteria that govern
the district court’s consideration of whether summary judgment is
appropriate. Schroeder v. Board of Supervisors of Louisiana State
Univ., 591 So.2d 342, 345 (La.1991). A motion for summary judgment
is properly granted only if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if
any, show there is no genuine issue of material fact, and the mover is
entitled to judgment as a matter of law. La. C.C.P. art. 966.

The contract of insurance issued by OOIDA contains the following exclusion:

This insurance does not insure the liability of the insured for:
....
l) Any losses from unattended trucks while in the ordinary
course of transit unless:
a) The truck is garaged in a building or parked in a
fully enclosed yard which is securely closed and
locked, or under constant surveillance, or on a
guarded lot
and
b) The truck has all openings closed and securely
locked and keys removed, in so far as local
regulations permit.

2

Furthermore, the definition of “truck” in the policy states:

The word “truck” shall mean a truck or truck-trailer designed for travel
on public roads.

“Truck” includes trailers and semi-trailers, dollies or auxiliary wheels
combined, or any combination of them, or any unidentified trailer, but
only

i) whilst attached to a covered truck or tractor
or
ii) whilst temporarily detached for a period not exceeding seventy-
two (72) consecutive hours (Sundays and holidays excluded) from
a covered truck or tractor and whilst garaged in a building or
parked in a fully enclosed yard which is securely closed and
locked, or under constant surveillance, or on a guarded lot and the
trailer or semi-trailer has all the openings closed and securely
locked with keys removed.

Also pertinent to this case is the definition of “unattended” in the policy:

The word “unattended” shall mean:
A truck which has been left without a responsible person whose duty is
to drive, guard, or attend the truck being either on, in, or within ten (10)
yards of the truck.

To support their motion for summary judgment, OOIDA submitted two

affidavits of employees of Winner’s Choice stating that while there were video

cameras in the parking lot, they were not monitored by anyone and were for

documentation purposes only. Also, while there were security guards on the

premises, they were there for the safety of the patrons of the truck stop and casino,

and not there to guard the parking lot. OOIDA argued that these affidavits show that

the trailer was not “under constant surveillance” or “on a guarded lot” as required for

coverage in both the exclusion clause and the definition of “truck.”

In opposition to the motion for summary judgment, Thunderrolls submitted

affidavits from Soileau and David Midkiff. These affidavits state that there were

surveillance cameras and security guards at the truck stop.

3

We find that these affidavits create a genuine issue of material fact. The trial

court erred in discounting the affidavits submitted in opposition to the motion for

summary judgment. As the supreme court recently stated in S.J. v. Lafayette Parish

School Board, 06-2862, p. 5 (La. 6/29/07), 959 So.2d 884, 887:

Even though summary judgment is now favored, it is not a substitute for
trial on the merits, and it is inappropriate for judicial determination of
subjective facts, such as motive, intent, good faith or knowledge that call
for credibility evaluations and the weighing of the testimony. Chivleatto
v. Sportsman's Cove, Inc., 05-136, p. 6 (La.App. 5 Cir. 6/28/05), 907
So.2d 815, 819. The trial judge cannot make credibility calls on a
motion for summary judgment, but must draw those inferences from the
undisputed facts which are most favorable to the party opposing the
motion for summary judgment. See Independent Fire Insurance
Company v. Sunbeam Corporation, 99-2257 (La.2/29/00), 755 So.2d
226.

The judgment of the trial court is reversed, and this matter is remanded to the

trial court for further proceedings. Costs of this appeal are assessed to OOIDA Risk

and Retention Group.

REVERSED AND REMANDED.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Rule 2-16.3, Uniform Rules, Courts of Appeal.

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