Althea Dupar v. the Estate of Maurice D. McNeal

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-941 consolidated with 09-942

ANDRE ALEXANDER, ET AL.

VERSUS

THE ESTATE OF MAURICE D. MCNEAL, ET AL.

**********

APPEAL FROM THE
TWELFTH JUDICIAL DISTRICT COURT
PARISH OF AVOYELLES, NO. 20081592 C/W 20081993
HONORABLE MARK A. JEANSONNE, DISTRICT JUDGE

**********

ELIZABETH A. PICKETT
JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, Marc
T. Amy, and Elizabeth A. Pickett, Billy H. Ezell, Judges.

REVERSED AND REMANDED.

Thibodeaux, Chief Judge, dissents with written reasons.
Cooks, Judge, dissents and assigns written reasons.

Dale G. Cox
Bradley Murchison Kelly & Shea LLC
401 Edwards St., Ste 1000
Shreveport, LA 71101
(318) 227-1131
Counsel for Defendants-Appellees:
Althea Dupar
Jerod Dupar
Paige Dupar

John W. Munsterman
Attorney at Law
P. O. Box 1848
Alexandria, LA 71309-1848
(318) 445-6111
Counsel for Defendant-Appellee:
Tyler Timber, Inc.

Donald Armand, Jr.
S. Michael Cooper
Pettiette, Armand, Dunkelman, Woodley, Byrd & Cromwell, LLP
P. O. Box 1786
Shreveport, LA 71166-1786
(318) 221-1800
Counsel for Defendant-Appellant:
Praetorian Specialty Insurance Co.

Cory Paul Roy
Attorney at Law
P. O. Box 544
Marksville, LA 71351
(318) 240-7800
Counsel for Plaintiffs-Appellees:
Andre Alexander
Phaetra Moore

PICKETT, Judge.

The appellant, Praetorian Specialty Insurance Company, appeals the trial

court’s ruling granting a motion for partial summary judgment.

STATEMENT OF THE CASE

Maurice D. McNeal and Marvin Dupar were both killed when the vehicles they

were driving collided on December 7, 2007. At the time of the accident, McNeal was

an employee of Tyler Timber, driving a vehicle owned by Tyler Timber in the course

and scope of his employment. The Tyler Timber vehicle was insured under a policy

issued by Praetorian Specialty Insurance Company (Praetorian).

The heirs of Dupar filed two separate suits in district court, which were

consolidated. Among the defendants named in the suits were Tyco Centures, the

parent company of Tyler Timber, and Praetorian. Additionally, Tyler Timber filed

a third party demand against Regions Insurance, Inc., its insurance agent, and

Praetorian. After some discovery, the plaintiffs and Tyler Timber filed a motion for

partial summary judgment asking the court to find that a certain endorsement in the

policy issued to Tyler Timber was unenforceable. This endorsement required Tyler

Timber to give notice to Praetorian of any new drivers in order for the coverage limits

of one million dollars to apply; otherwise, the statutory minimum coverage of

$100,000 would apply to that driver. The trial court heard the matter on March 20,

2009, and at the conclusion of the hearing he granted partial summary judgment in

favor of the plaintiffs and Tyler Timber. A second hearing was held on April 26,

2009, when Praetorian opposed certification that the partial summary judgment was

immediately appealable pursuant to La.Code Civ.P. art. 1915(B). The trial court

certified the judgment as immediately appealable. Praetorian now appeals.

1

ASSIGNMENTS OF ERROR

Praetorian asserts four assignments of error:

1. The trial court impermissibly decided a disputed issue of material fact.
Specifically, the trial court believed the testimony of Tyler Timber
employee Donna Desselle over the testimony of Regions employees
Nancy Green and Caren Hebert, and concluded that Regions received
notice that McNeal was to be added as a “specified operator.” Based on
this factual conclusion on a disputed issue of fact, the trial court granted
partial summary judgment.

2. The trial court erred in finding that Regions had apparent and/or actual
authority to bind coverage for Praetorian.

3. The trial court erred to the extent it found the Auto 100A endorsement
ambiguous or unenforceable.

4. The trial court erred in certifying the Partial Summary Judgment as final.

Althea Dupar, Jared Dupar and Paige Dupar have filed an answer to the appeal

arguing that this court should “approve a second grounds upon which the appellees’

partial motion for summary judgment should be granted, in addition to the grounds

cited by the trial court, to-wit: that the fifteen day requirement in the Praetorian

endorsement leads to an absurd result.”

DISCUSSION

Certification as Immediately Appealable

We shall address Praetorian’s final assignment of error first, since resolution

of that issue in favor of Praetorian would end our consideration of this case. When

the trial court gives explicit reasons for certifying a partial judgment as final, the

proper standard of reviewing that determination on appeal is whether the trial court

abused its discretion. R.J. Messinger, Inc. v. Rosenblum, 04-1664 (La. 3/2/05), 894

So.2d 1113. Following the hearing on April 26, the trial court found that the ruling

on summary judgment was “a crucial and threshold issue” that should be resolved

2

before proceeding to the trial on the merits. We find no abuse of discretion in the trial

court’s determination. This assignment of error lacks merit.

Standard of Review

The supreme court discussed the applicable standard of appellate review in

summary judgments involving insurance contracts in Robinson v. Heard, 07-1697,

pp. 3-4 (La. 2/26/02), 809 So.2d 943, 945:

A reviewing court examines summary judgments de novo under
the same criteria that govern the district court’s consideration of whether
summary judgment is appropriate. Smith v. Our Lady of the Lake
Hospital, Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750. A reviewing
court thus asks the same questions as does the trial court in determining
whether summary judgment is appropriate: whether there is any genuine
issue of material fact, and whether the mover is entitled to judgment as
a matter of law. Smith, 639 So.2d at 750.

Interpretation of an insurance contract is usually a legal question
that can be properly resolved in the framework of a motion for summary
judgment. Sanchez v. Callegan, 99-0137 (La.App. 1 Cir. 2/18/00), 753
So.2d 403, 405. When the language of an insurance policy is clear and
unambiguous, a reasonable interpretation consistent with the obvious
meaning and intent of the policy must be given. Sanchez, 753 So.2d at
405.

The motion for partial summary judgment filed by the plaintiffs and Tyler

Timber asserted three distinct reasons that the policy limits of one million dollars

should apply. First, they argued that there was no genuine issue of material fact that

Tyler Timber notified Regions that McNeal had been hired, and that as Regions was

an agent for Praetorian, notice to Regions was sufficient to meet the notice

requirements of the endorsement. Second, the movers argued that the notice

provision violated Louisiana public policy by reducing Praetorian’s liability

exposure. Third, the movers argued that the endorsement was ambiguous because it

was impossible for Tyler Timber to give notice to Praetorian as required in the

3

endorsement. Alternatively, they argued that the fifteen day limit to add new drivers

to the policy was arbitrary.

Disputed Issue of Material Fact

In its first assignment of error, Praetorian alleges that the trial court erred when

it decided a genuine issue of material fact in reaching its decision to grant summary

judgment. The endorsement at issue requires the insured, Tyler Timber, to notify the

insurer, Praetorian, when it adds a new driver to its policy in order to be covered

under the policy limits of one million dollars. Failure to properly notify Praetorian

would result in the limits of coverage being reduced to the statutory minimum of

$100,000. The notification clause that is at issue in this case is:

Should you decide to add a “specified operator” (who is regularly
furnished with a covered “auto” for use in the course and scope of
employment) to this policy, you shall provide to us the following
information in writing within fifteen (15) days of either 1] the initial hire
date or 2] the first date the operator or driver begins regularly operating
a covered “auto” on your behalf, whichever occurs first:

– Full Name, and
– Driver’s License Number.

In the event you fail to give us such written notice within the timeframe
specified above, the individual concerned shall be considered a “non-
specified operator”, rather than a “specified operator” under this policy.

We find that the trial court did in fact make a credibility determination in

deciding that the evidence proved that Tyler Timber faxed the document adding

McNeal as a “specified operator” to Regions, where employees of Regions disputed

in their depositions that they ever received that document. In determining that the

one million dollar policy limits applied, the trial court stated:

I believe there is no issue of fact as far as Tyler giving, giving and going
through the appropriate channels to specify Mr. McNeal as an operator.
Now, whether there was a failure between Regions and Praetorian I

4

don’t think should bind or prejudice the plaintiffs. It is a matter for a
cross claim.

Thus, we find that the trial court improperly granted summary judgment on the

grounds that Tyler gave notice adding McNeal as a “specified operator” to its agent,

Regions, where there is a disputed issue of material fact about whether that notice

was ever transmitted.

Ambiguity of the Endorsement

At the hearing on the motion for partial summary judgment, the trial court

pointedly refused to reach the issue of whether the policy language was ambiguous

or against public policy for the reasons assigned in the motion and repeated in the

answer to the appeal filed by the Dupars. Inasmuch as discovery is still ongoing in

this case and further information may be developed regarding the endorsement and

notice requirement therein, we reserve to the trial court the opportunity to rule on

those issues in the first instance once discovery has been completed.

Motion to Remand

Given our ruling on the merits, we find Praetorian’s Motion to Remand moot.

CONCLUSION

The judgment of the trial court granting the plaintiff’s partial summary

judgment is reversed. The matter is remanded for proceedings consistent with this

opinion. Half of the costs of this appeal are assessed to the plaintiffs, Althea Dupar,

Jared Dupar, Paige Dupar, Andre Alexander, and Phaetra Moore, and half of the costs

of this appeal are assessed to Tyler Timber.

REVERSED AND REMANDED.

5

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-941 consolidated with 09-942

ANDRE ALEXANDER, ET AL.

VERSUS

THE ESTATE OF MAURICE D. MCNEAL, ET AL.

THIBODEAUX, Chief Judge, dissenting.

The Auto 100A endorsement, written by Praetorian, is subject to more

than one interpretation. Thus, it is not clear and unambiguous and must be interpreted

in favor of coverage.

I respectfully dissent.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-941 c/w 09-942

ANDRE ALEXANDER, ET AL.

VERSUS

THE ESTATE OF MAURICE D. MCNEAL, ET AL.

COOKS, J., dissenting.

I dissent from the majority’s decision to reverse the trial court’s judgment

granting summary judgment and remand for further proceedings. I find summary

judgment was appropriate in this matter, albeit for different reasons than the trial

court’s factual assumption. Summary judgment is appropriate because the policy

required a mechanism of notice that was not possible. Deep South Surplus, Inc. was

the exclusive managing general agent in Louisiana for Praetorian. Michael Dugan,

the president of Deep South, testified unequivocally that they did not accept notice

for Praetorian. The real issue in this case is was notice possible if the policy is read

as Defendant insists? I believe the answer is no, because Deep South clearly said

they would not accept notice on behalf of Praetorian. Thus, whether Regions

received a faxed notice from Tyler Timber may be a disputed fact, but this fact is

neither material nor genuine because notice was not possible, as contemplated by the

policy and as Defendant, the author of the policy, interprets it. Therefore, I would

affirm the grant of summary judgment.