Randal Boudreaux v. Commerce and Industry Ins. Co.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 18-322

RANDAL BOUDREAUX

VERSUS

COMMERCE AND INDUSTRY INS. CO., ET AL.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2015-3343
HONORABLE RONALD F. WARE, DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Billy Howard Ezell, Phyllis M. Keaty, and Van H. Kyzar,
Judges.

AFFIRMED.

Gregory Paul Marceaux
Marceaux Law Firm
2901 Hodges St.
Lake Charles, LA 70601
(337) 310-2233
COUNSEL FOR PLAINTIFF/APPELLEE:
Randal Boudreaux

Robert I. Siegel
Michael Edward Hill
Tara E. Clement
Gieger, Laborde & Laperouse, L.L.C.
701 Poydras Street, Suite 4800
New Orleans, LA 70139-4800
(504) 561-0400
COUNSEL FOR DEFENDANT/APPELLANT:
Commerce and Industry Insurance Company

EZELL, Judge.

Commerce and Industry Insurance Company appeals a trial court judgment

which granted a partial motion for summary judgment in favor of Randal

Boudreaux and denied its motion for summary judgment. The trial court

determined that Randal was a permissive user when he was driving a truck owned

by owned by AES Drilling Fluids, LLC, which was covered by an

uninsured/underinsured (UM) insurance policy issued by Commerce. The issue

raised on appeal is whether Randal’s son, Micah Boudreaux, had the authority to

give permission to Randal to drive the truck.

FACTS

Micah worked for AES and was given a truck to use as part of his job. On

April 2, 2015, Micah was working on the water well at his house in Lake Charles.

His father was living with him at the time, so he asked his father to take the truck

and go to Lowe’s to get some parts he needed. While at Lowe’s, Randal ran into a

friend who needed a ride home. Randal was on his way to drop the friend off

when he stopped south of the intersection of Common Street and Madeline Street

and was rear-ended by Keigan Hanks. Randal alleges he received injuries because

of the accident.

Randal filed suit against Keigan and her insurer, State Farm Mutual

Automobile Insurance Company. He also filed suit against Commerce, the UM

insurer of AES. Subsequently, AES filed a motion for summary judgment seeking

dismissal from the lawsuit. Randal then filed a partial motion for summary

judgment claiming that he is an insured under the Commerce policy as a

permissive driver.

A hearing on the cross motions for summary judgment was held on

November 28, 2017. Denying Commerce’s motion for summary judgment and

granting Randal’s partial motion for summary judgment, the trial court held that

Randal was a permissive user under the Commerce insurance policy. Judgment

was signed on January 3, 2018, declaring the judgment to be a final judgment.

Commerce then appealed the judgment to this court.

SUMMARY JUDGMENT

A moving party is entitled to summary judgment when it shows that there

are no genuine issues of material fact and that it is “entitled to judgment as a matter

of law.” La.Code Civ.P. art. 966(A)(3). Summary judgment is favored by law and

provides a vehicle by which “the just, speedy, and inexpensive determination” of

an action may be achieved. La.Code Civ.P. art. 966(A)(2).

Appellate courts review summary judgments de novo under the
same criteria that govern a district court’s consideration of whether
summary judgment is appropriate. Greemon v. City of Bossier City,
2010-2828 (La. 7/1/11), 65 So.3d 1263, 1267; Samaha v. Rau, 2007-
1726 (La. 2/26/08), 977 So.2d 880, 882; Allen v. State ex rel. Ernest N.
Morial–New Orleans Exhibition Hall Authority, 2002-1072 (La.
4/9/03), 842 So.2d 373, 377. In ruling on a motion for summary
judgment, the judge’s role is not to evaluate the weight of the
evidence or to determine the truth of the matter, but instead to
determine whether there is a genuine issue of triable fact. All doubts
should be resolved in the non-moving party’s favor. Hines v. Garrett,
2004-0806 (La. 6/25/04), 876 So.2d 764, 765. A fact is material if it
potentially ensures or precludes recovery, affects a litigant’s ultimate
success, or determines the outcome of the legal dispute. A genuine
issue is one as to which reasonable persons could disagree; if
reasonable persons could reach only one conclusion, there is no need
for a trial on that issue and summary judgment is appropriate. Id. at
765–66.

On motion for summary judgment, the burden of proof remains
with the movant. However, if the moving party will not bear the
burden of proof on the issue at trial and points out that there is an
absence of factual support for one or more elements essential to the
adverse party’s claim, action, or defense, then the non-moving party
must produce factual support sufficient to establish that he will be

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able to satisfy his evidentiary burden of proof at trial. If the opponent
of the motion fails to do so, there is no genuine issue of material fact
and summary judgment will be granted. See La. C.C.P. art. 966(D)(1);
see also Schultz v. Guoth, 2010-0343 (La. 1/19/11), 57 So.3d 1002,
1006.

Larson v. XYZ Ins. Co., 16-745, pp. 6-7 (La. 5/3/17), 226 So.3d 412, 416.

DISCUSSION

Commerce argues that the trial court erred in finding that Randal had

permission to use the truck and was insured under the Commerce insurance policy.

Randal argues that he is an insured under the policy for contractual UM coverage,

as he had express or implied permission to “occupy” the truck.

When the existence of UM coverage under a policy of
automobile insurance is at issue, . . . a two-step analysis [is required]:
(1) the automobile insurance policy is first examined to determine
whether UM coverage is contractually provided under the express
provisions of the policy; (2) if no UM coverage is found under the
policy provisions, then the UM statute is applied to determine whether
statutory coverage is mandated.

Green ex rel. Peterson v. Johnson, 14-292, p. 9 (La. 10/15/14), 149 So.3d 766,
773-74.

“[A]n insurance policy is a contract between the parties and should be

construed using the general rules of interpretation of contracts set forth in the Civil

Code.” Id. at 770; La.Civ.Code arts. 2045 – 2057. “According to those rules, the

responsibility of the judiciary in interpreting insurance contracts is to determine the

parties’ common intent; this analysis is begun by reviewing the words of the

insurance contract.” Id. at 770-71.

The Louisiana endorsement under the Commerce policy provides as follows:

B. Who Is An Insured

If the Named Insured is designated in the Declarations as:

....

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2. A partnership, limited liability company, corporation or any
other form of organization, then the following are “insureds”:

a. Anyone “occupying” with the Named Insured’s express
or implied permission a covered “auto” or a temporary
substitute for a covered “auto”. The covered “auto” must
be out of service because of its breakdown, repair,
servicing, “loss” or destruction.

....

F. Additional Definitions

As used in this endorsement

....

2. “Occupying” means in, upon, getting in, on, out or off.

A passenger “occupying” a vehicle is “using” the vehicle and is an insured

under the terms of policy entitled to UM coverage. Bernard v. Ellis, 11-2377 (La.

7/2/12), 111 So.3d 995; Stunkard v. Langlinais, 97-1006 (La.App. 3 Cir. 2/4/98),

708 So.2d 1117.

“AES DRILLING FLUIDS, LLC” is listed as the named insured under the

policy. At the time of the accident, Randal was in the truck and using the truck, so

therefore, he was “occupying” the truck. Under the clear terms of the Commerce

policy, Randal is an insured if he had express or implied permission of the named

insured, AES Drilling Fluids, LLC. Commerce disputes that Randal had its

express or implied permission to drive the truck.

Permission may be either express or implied. In the absence of
express permission, implied permission generally arises from a course
of conduct by the named insured involving acquiescence in, or lack of
objection to, the use of the vehicle. Francois v. Ybarzabal, 483 So.2d
602 (La.1986). Whether an automobile is operated with the express or
implied permission of the named insured is to be determined
according to the facts and circumstances of each particular case.
Malmay v. Sizemore, 493 So.2d 620 (La.1986).

Stunkard, 708 So.2d at 1120.

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“The question of whether the vehicle’s use was permitted is answered by

determining whether it was reasonably foreseeable that the first permittee would

allow someone else to drive the automobile.” Mahaffey v. State Farm Mut. Auto.

Ins. Co., 95-641, p. 4 (La.App. 3 Cir. 2/28/96), 679 So.2d 129, 131, writ denied,

96-1689 (La. 10/11/96), 680 So.2d 650. “Where the named insured gives

permission to another to use the car as his own, the possibility that the permittee

might allow another to drive the automobile is clearly foreseeable.” Id. “Even

where there has been express prohibition against third drivers, it may be reasonably

foreseeable that the initial permittee would allow another to use the car. The

context in which the prohibition is made is a necessary ingredient in determining

reasonable foreseeability.” Id. at 132. “[T]he issue of coverage is subject to a

reasonable foreseeability test. When applying such a test, we must look at all

factors involved.” Id.

In Mahaffey, this court found implied permission when an employee allowed

his girlfriend to drive the car after the employer had orally admonished him not to

let anyone else drive the car. In the present case, Commerce did put such a

restriction in writing. Commerce presented evidence of its Human Resources

Policy 17.0 Driving Rules and Guidelines, which was signed by Micah on August

13, 2014, and stated:

It is the policy of AES Drilling Fluids;[sic] LLC that only authorized
operators or drivers are allowed to drive company owned or leased
vehicles.

All vehicles are primarily for business use. Vehicles are provided for
expressed business purposes and can only be operated by the assigned
driver, or another approved driver of the company. Any deviation
from the above policy by a driver is subject to disciplinary action
and/or termination.

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I hereby acknowledge that I have read and understood AES
Drilling Fluids, LLC’s Driving Rules and Guidelines Policy:

Micah also signed another document on August 13, 2014, entitled

Authorization for Payroll Deduction for Company Vehicles, which states: “I,

Micah Boudreaux, hereby acknowledge that I have read AES Drilling Fluids,

LLC’s Company Vehicle Use Policy, and understand its provisions. Furthermore,

I declare that I choose to use a company vehicle and allow AES Drilling Fluids,

LLC to deduct $80.77 per paycheck, for personal use of the vehicle.”

When deposed, Micah agreed that he signed these documents at the training

facility in Houston. At the time of his employment with AES, Micah was given

the option of receiving $900.00 a month in extra pay for using his own personal

vehicle for work travel. Micah explained that he instead opted in for a deduction

of $80.77 from his paycheck every two weeks for insurance so he could have

personal use of a company truck. He then sold his personal truck. Micah testified

that he understood that the truck was his to use as he pleased on his time off.

Although Micah agreed that AES was not aware that his father would drive his

truck, he did not think he had to get AES’s permission for someone to drive his

truck when he was not working since he was paying for insurance to use AES’s

truck personally. After the accident, Micah’s employment with AES was

terminated for a policy violation of the driving rules.

We find it reasonably foreseeable that Micah would allow his father, who

was living with him, to drive the truck when Micah was using it personally. Even

the written policies he signed contemplated personal use. While the restriction

noted that the truck was to be used primarily for business, it was not limited strictly

to business use. He had personally paid for insurance to have personal use of the

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truck. It is reasonable to assume that Micah was not to allow anyone else to drive

his truck when he was using the truck for business purposes but that it was his

truck to use as he liked when he was using the truck for personal purposes. Under

these circumstances, it is reasonably foreseeable that Micah would allow someone

else to use the truck to run an errand for him. The trial court was correct in finding

that Randal had implied permission from AES to use the truck and that the

Commerce policy provided UM coverage to him.

For these reasons, the judgment of the trial court is affirmed. Costs of this

appeal are assessed to Commerce and Industry Insurance Company.

AFFIRMED.

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