Steven Thibodeaux v. Living Waters Community Church

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-1064

STEVEN THIBODEAUX, ET AL.

VERSUS

LIVING WATERS COMMUNITY CHURCH, ET AL.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2005-3871
HONORABLE D. KENT SAVOIE, DISTRICT JUDGE

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OSWALD A. DECUIR
JUDGE

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Court composed of John D. Saunders, Oswald A. Decuir, and Elizabeth A. Pickett,
Judges.

AFFIRMED.

Keith L. Richardson
Guglielmo, Marks, Schutte,
Terhoeve & Love
320 Somerulos Street
Baton Rouge, LA 70802
(225) 387-6966
Counsel for Defendants/Appellants:
Living Waters Community Church
Guideone Mutual Insurance Company

Christopher C. McCall
Baggett, McCall, Burgess, Watson & Gaughan
P.O. Drawer 7820
Lake Charles, LA 70602
(337) 478-8888
Counsel for Plaintiffs/Appellees:
Steven Thibodeaux
Barbara Thibodeaux

DECUIR, Judge.

Defendants appeal a judgment of the trial court finding them liable for the fault

of an unnamed third party defendant. For the reasons that follow, we affirm.

FACTS

On October 2, 2004, Stephen Thibodeaux and Lionel Fontenot were hanging

crown molding in the new church building of Living Waters Community Church

(Living Waters) in Sulphur, Louisiana. Thibodeaux and Fontenot were both members

of Living Waters and had volunteered to assist with the project.

Thibodeaux and Fonentot completed hanging all the molding they could reach

from one level of scaffolding and took a break while another level was added. When

they returned they both proceeded to climb the scaffold. As they climbed the scaffold

tipped over causing Thibodeaux and Fontenot to fall. Fontenot landed on another

volunteer and was not injured. Thibodeaux was not so fortunate and sustained

serious injuries.

Subsequently, Thibodeaux filed suit against Living Waters, and its insurer,

Guideone Mutual Insurance Company (Guideone). Fontenot was not named as a

defendant. After trial on the merits, the jury concluded that Thibodeaux, Fontenot

and Living Waters were each one-third at fault in causing Thibodeaux’s injuries. The

trial court found that Living Waters was responsible for the fault of Fontenot. Living

Waters and Guideone lodged this appeal.

DISCUSSION

The sole issue on appeal is whether the trial court erred in finding Living

Waters responsible for Fontenot’s fault. Relying on Billiot v. Terrebonne Parish

Sheriff’s Office, 98-0246 (La.App. 1 Cir. 2/19/99) 735 So.2d 17, writ denied, 99-1376

(La. 7/2/99), 747 So.2d 22, Living Waters argues that the trial court erred in deciding

the coverage issue as matter of law. In Billiot, the court found that the issue of

whether a policy of insurance provides coverage is a purely legal question only in the

context of motions for summary judgment and not where a factual finding is

necessary in order to reach the coverage issue.

As a threshold matter, we note that Billiot has only persuasive potential rather

than precedential value as we are not obliged to follow jurisprudence of other

appellate circuits. Supreme Services and Specialty Co., Inc. v. Sonny Greer, Inc.

04-1400 (La.App. 3 Cir. 5/3/06), 930 So.2d 1077, reversed on other grounds, 06-

1827 (La. 5/22/07), 958 So.2d. 634. While we agree that coverage is a purely legal

question only where a factual finding is not necessary in order to reach the issue, we

decline to limit the application of the principle to the context of summary judgment.

In cases where the relevant facts regarding coverage issues are not disputed, the

question of coverage can remain purely a legal question even though the issue was

not raised in the context of summary judgement.

In the present case, we can ascertain from the record that it was undisputed that

Lionel Fontenot was a member of Living Waters and was working on behalf of

Living Waters at the time of the accident doing what they had requested be done.

Under these circumstances, we need only determine whether the policy language

provides coverage.

Interpretation of an insurance policy is a question of law, and we have authority

to construe the provisions of the policy in order to resolve questions of coverage.

Stoute v. Long, 98-683 (La.App. 3 Cir. 12/9/98), 722 So.2d 102. Our review of the

policy reveals that Living Waters is the named insured and that the following are also

insureds:

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Any of your members, but only with respect to their liability for your
activities or activities they perform on your behalf, at your direction and
within the scope of their duties.

....

Any person(s) who are volunteer worker(s) for you, but only while
acting at your direction and within the scope of their duties.

Applying the plain language of the policy, we find that Fontenot meets either of these

definitions of an insured.

Guideone argues that as a volunteer Fontenot would be excluded from

coverage because injuries to a co-volunteer are excluded. We disagree. The actual

language of the exclusion provides that bodily injury to a “co-volunteer of your

‘employee’” is excluded. This phrasing is somewhat unclear in its meaning but

appears to apply to injuries between a volunteer and an employee. In Tally v. Blue

Cross Blue Shield of Louisiana, 99-1974 (La.App. 3 Cir. 5/3/00), 760 So.2d 1193,

1196, writ denied, 00-1561 (La. 8/31/00), 766 So.2d 1278, this court said:

The law mandates that an exclusion be definable with a reasonable
degree of certainty, and that the terms of the exclusion must be such that
it is clear who is insured and what is excluded. Furthermore, it is the
duty of the insurer to clearly express its limitations. Any doubts as to
coverage must be construed against the drafter of the policy and in favor
of coverage.

We find that Fontenot is an insured under the policy both as a member and a

volunteer. Moreover, we find that the exclusion as written does not apply to the facts

of this case.

Guideone also argues that it cannot be liable for the fault of Fontenot because

the petition did not allege vicarious liablity, and Fontenot was not a named defendant.

We disagree.

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Our review of the petition reveals that Thibodeaux alleged fault on the part of

Living Waters, its agents, servants, and employees. Moreover, evidence regarding

Fontenot’ s relationship and responsibilities to Living Waters was introduced at trial.

In Hopkins v. American Cyanamid Co., 95-1088 (La. 1/16/96), 666 So.2d 615, 624,

the Court held that:

Unobjected to evidence of issues not contained in the pleadings, which
is admitted at trial, serves to enlarge the pleadings. Such evidence is
"treated in all respects as if [it] had been raised by the pleading[s]."
La.Code Civ.P. art. 1154; See also, First National Bank of Abbeville v.
Greene, 612 So.2d 759 (La.App. 3d Cir.1992) and Herrell v. Herrell,
594 So.2d 943 (La.App. 3d Cir.1992)

Living Waters did not make any contemporaneous objection to the admission of

evidence supporting these claims. To the contrary, it was at the insistence of Living

Waters that the fault of Fontenot was placed at issue.

As noted above, Fontenot was an insured under the policy both as a member

and as a volunteer. In addition, in Avery v. Commercial Union, Ins. Co., 621 So. 2d

184 (La.App. 3 Cir. 1993), this court addressed the issue of vicarious liability for the

actions of a volunteer who was not a named defendant. For the reasons, assigned

therein, we find the trial court properly found Living Waters responsible for the fault

of Fontenot.

DECREE

For the foregoing reasons, the judgment is affirmed. All costs of the

proceedings are taxed to Guideone Mutual Insurance Company.

AFFIRMED.

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