Ann Newman v. State Farm Mutual Auto Ins. Co.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 10-1389

ANN NEWMAN

VERSUS

STATE FARM MUTUAL AUTO INSURANCE COMPANY, ET AL.

**********

APPEAL FROM THE
THIRTY-SIXTH JUDICIAL DISTRICT COURT
PARISH OF BEAUREGARD, NO. C-2008-0311
HONORABLE HERMAN I. STEWART, JR., DISTRICT JUDGE

**********

BILLY HOWARD EZELL
JUDGE

**********

Court composed of John D. Saunders, Billy Howard Ezell, and James T. Genovese,
Judges.

AFFIRMED.

Douglas Kent Williams
Breazeale, Sachse & Wilson, L.L.P.
P. O. Box 3197
Baton Rouge, LA 70821-3197
(225) 387-4000
Counsel for Defendant/Appellee:
Clarendon America Insurance Company

Joseph Payne Williams, Sr.
Williams Family Law Firm, LLC
Post Office Box 15
Natchitoches, LA 71458-0015
(318) 352-6695
Counsel for Plaintiff/Appellant:
Ann Newman

Robert Stuart Wright
P.O. Box 1156
Natchitoches, LA 71458-1156
(318) 352-9950
Counsel for Plaintiff/Appellant:
Ann Newman

Thomas Patrick LeBlanc
Loftin, Cain, & LeBlanc
113 Dr. Michael DeBakey Drive
Lake Charles, La 70601
(337) 310-4300
Counsel for Defendant/Appellee:
Clarendon America Insurance Company

Michael J. Williamson
Plauche, Smith & Nieset
P. O. Drawer 1705
Lake Charles, LA 70602
(337) 436-0522
Counsel for Defendant/Appellee:
State Farm Mutual Auto Insurance Company

EZELL, JUDGE.

Ann Newman appeals the decision of the trial court granting Clarendon

American Insurance Company’s (Claredon) motion for summary judgment and

dismissing her claims against it. For the following reasons, we affirm the decision

of the trial court.

Leslie Roshong owns Arrow Mobile Home Movers (Arrow). On June 30,

2007, Arrow was moving a double-wide mobile home from DeRidder, Louisiana to

Vinton, Louisiana. Mr. Roshong’s son was driving the truck actually moving the

home, while Mr. Roshong drove his personal 2006 Dodge Ram truck to Lowe’s

Hardware in Leesville, Louisiana, to purchase materials to set up the mobile home.

While driving from Leesville to Vinton with the supplies, Mr. Roshong rear-ended

Ms. Newman, injuring her. At no time during the trip did Mr. Roshong ever leave the

state of Louisiana.

Ms. Newman filed suit against Mr. Roshong and State Farm Mutual Auto

Insurance Company, the insurer of Mr. Roshong’s personal vehicle. She then

amended her claim to add Clarendon, who provided automotive liability insurance for

Arrow. Clarendon filed a motion for summary judgment, claiming that it did not

provide coverage for Mr. Roshong’s personal vehicle or for the accident in question.

The trial court below agreed, granting Clarendon’s motion for summary judgment and

dismissing Ms. Newman’s claims against them. From that decision, Ms. Newman

appeals.

On appeal, Ms. Newman asserts three assignments of error: that the trial court

erred in finding the relevant Clarendon policy did not provide coverage for this

accident; in ruling that coverage was not provided because Mr. Roshong did not

travel across state lines; and in ruling that the Roshongs’ business was not a

1

partnership. Because the first and second assignments of error are so directly related,

we will address them together as one.

Louisiana Code of Civil Procedure Article 966(B) provides that summary

judgment shall be granted where the pleadings, depositions, answers to

interrogatories, admissions on file and affidavits show that there is no genuine issue

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

Louisiana Supreme Court discussed the standard applicable to appellate review of

summary judgments involving insurance contracts in Robinson v. Heard, 01-1697,

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.

Ms. Newman first claims that the trial court incorrectly interpreted the policy

at issue as requiring Mr. Roshong to cross state lines, i.e., to be in interstate

commerce, for the policy to provide coverage for the vehicle he was driving at the

time of the accident in question. Ms. Newman claims two endorsements attached to

the policy provided coverage for Mr. Roshong’s personal vehicle, the federally

required policy endorsements B.M.C. 90 and MCS-90. We disagree.

Ms. Newman primarily claims that the trial court erred in its interpretation of

the B.M.C. 90 endorsement, arguing that the endorsement allows coverage for

2

vehicles not specifically described in the policy and that it allows coverage for

vehicles in intrastate commerce as well as in interstate commerce. The provision

provides (emphasis ours):

In consideration of the premium stated in the policy to which this
endorsement is attached, the company agrees to pay, within the limits of
liability prescribed herein, any final judgment recovered against the
insured for bodily injury to or death of any person, or loss of or damage
to property of others (excluding injury to or death of the insured’s
employees while engaged in the course of their employment, and
property transported by the insured, designated as cargo), resulting from
negligence in the operation, maintenance, or use of motor vehicles
under certificate or permit issued to the insured by the Interstate
Commerce Commission, or otherwise in interstate or foreign
commerce subject to Subchapter II, Chapter 105, Subtitle IV of Title 49
of the United States Code, regardless of whether or not such motor
vehicles are specifically described in the policy and whether or not such
negligence occurs on any route or in any territory authorized by the
Interstate Commerce Commission to be served by the insured or
elsewhere.

The clear and unambiguous language of the endorsement requires that for a

vehicle to be covered, it must have a certificate or permit issued by the ICC or the

vehicle must be used in interstate commerce. Mrs. Roshong testified in deposition

that, while there were ICC permits for the vehicles owned by the business (the trucks

actually used to move the mobile home), there was no permit obtained for Mr.

Roshong’s personal vehicle. Moreover, the moving job, as well as Mr. Roshong’s

related actions the day of the accident, were based entirely in the state of Louisiana.

Because Mr. Roshong’s personal vehicle was neither certified under the ICC nor in

interstate or foreign commerce, it is obvious that coverage is not extended to that

vehicle under the plain terms of the B.M.C. 90 endorsement.

Ms. Newman also makes a blanket assertion that the trial court erred in finding

that the MCS-90 endorsement also required Mr. Roshong to be operating in interstate

commerce in order for coverage to be provided, but she makes no real legal argument

to support that claim. However, out of an abundance of caution, we will address that

3

claim as well. As recently noted in Pace v. Travelers Indemnity Co. of America,

___F.3d___, ___ (E.D.La. 2010)(emphasis added):

The MCS-90 is a federally mandated policy endorsement, the
purpose of which is to assure motor carriers’ compliance with federal
minimum levels of financial responsibility. Canal Ins. Co. v. Coleman,
2010 WL4276074, at *2 (5th Cir. Nov. 1, 2010) (citing 49 C.F.R. §
387.15 illus. 1). The endorsement is required to be attached to any
liability policy issued to for-hire motor carriers operating motor vehicles
transporting property in interstate commerce. Id. (citing 49 C.F.R. §§
387.3, 387.7). The endorsement operates to create a suretyship,
obligating the insurer to pay certain judgments against the insured
arising from interstate commerce activities, even though the insurance
contract would have otherwise excluded coverage. Id. (citing Minter v.
Great Am. Ins. Co. of N.Y., 423 F.3d 460, 470 (5th Cir.2005)). Whether
the endorsement covers an accident is a question of federal law. Id. at *3
(citing Lincoln Gen. Ins. Co. v. Garcia, 501 F.3d 436, 439 (5th
Cir.2007)).

. . . [In Coleman, supra, the] Court began its opinion by
analyzing the plain text of the MCS-90 and the statute it
effectuates, § 30 of the Motor Carrier Act of 1980. Id. at *3-*4
(see 49 C.F.R. § 387.15 illus. 1; 49 U.S.C. § 31139(b)). In so
doing, the Court concluded that “the endorsement covers vehicles
only when they are presently engaged in the transportation of
property in interstate commerce.” Id. at *4 (emphasis added). The
Court additionally noted that the majority of courts have agreed
with its “trip-specific” approach to determining the applicability
of the MCS-90 endorsement, by finding the relevant question in
these cases to be whether the accident occurred while the insured
vehicle was transporting property in interstate commerce. Id. at
*5, *8 [citations omitted].

It is undisputed that at the time of the accident in question,
Schnyder was driving the Southern vehicle from Southern’s facility in
Metairie to his place of business in Chalmette to perform decal work and
other repairs on the vehicle. . . . Plaintiffs do not contend that the
vehicle was operating in interstate commerce, but instead argue that
there is no interstate requirement to the applicability of the MCS-90
endorsement, as the endorsement applies even in accidents that occur
during a wholly intrastate trip. . . . In light of the Fifth Circuit’s
decision and reasoning in Coleman, this argument must be rejected. As
the vehicle in question was not engaged in interstate commerce at the
time of the accident, the MCS-90 endorsement does not apply. . .

Here, Mr. Roshong was not using his personal vehicle in a for-hire capacity,

as he was hauling materials he had personally purchased to set up the mobile home

4

his company’s truck was moving. Moreover, the entire trip engaged by Mr. Roshong

was within the state of Louisiana, with no reason for or intention of leaving the state.

Accordingly, Mr. Roshong was not transporting property in interstate commerce, and,

therefore, Ms. Newman’s assertion that the MCS-90 endorsement applies to this

accident must be rejected under Pace.

In light of our above findings, there is no genuine issue of material fact as to

coverage under the Clarendon policy, as under the clear language of the policy,

neither the B.M.C. 90 nor the MCS-90 provision provides coverage for the accident

at issue. These assignments of error are devoid of merit, and the trial court committed

no error in its interpretation of the Clarendon policy.

Ms. Newman next claims that the trial court erred in ruling that the Roshong’s

community-owned business could not be a partnership. Ms. Newman claims that the

accident vehicle was owned by a partner in the business, allowing coverage under the

non-owned vehicles provision of the Clarendon policy. There is no evidence

whatsoever in the record before this court to indicate that the business was in any

way, shape, or form a partnership. Rather, every bit of evidence indicates to the

contrary. Both Mr. and Mrs. Roshong testified that Arrow Mobile Home Movers was

a sole proprietorship and was not a partnership or incorporated in any way. This is

uncontradicted. Moreover, the Clarendon insurance policy disputed in this suit

explicitly shows that the policy was written for “Arrow Mobile Home Movers Leslie

Roshong DBA.” The form of business described in the policy is “individual,” rather

than a partnership. Essentially, Ms. Newman wants this court to find that a vehicle

owned by Leslie Roshong is a non-owned vehicle under a policy written to and for

the individual Leslie Roshong d/b/a Arrow Mobile Home Movers. We refuse to do

5

so. The trial court committed no error in granting Clarendon’s motion for summary

judgment.

For the above reasons, the ruling of the trial court is hereby affirmed. Costs of

this appeal are assessed against Ms. Newman.

AFFIRMED.

6