David and Jill Jeansonne Indv. and O/B/O Adam Jeansonne (Deceased) v. Ohio Security Insurance Company

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

19-870

DAVID JEANSONNE, ET AL.
VERSUS

OHIO SECURITY INSURANCE COMPANY, ET AL.

SE Re i oie oi ak a a a

APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 261,688
HONORABLE MONIQUE F. RAULS, DISTRICT JUDGE

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VAN H. KYZAR
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, John E. Conery, and
Van H. Kyzar, Judges.

REVERSED IN PART; AFFIRMED IN PART;
AND REMANDED.

Greg A. Rozas

Paul J. Tanner

Rozas Law Firm, LLC

9332 Bluebonnet Boulevard

Baton Rouge, LA 70810

(225) 343-0010

COUNSEL FOR PLAINTIFFS/APPELLANTS:
David Jeansonne individually and on behalf of Adam Jeansonne
Jill Jeansonne individually and on behalf of Adam Jeansonne

H. Minor Pipes, III

Catherine Fornias Giarrusso

Pipes, Miles & Beckman, LLC

11400 Poydras Street, Suite 1800

New Orleans, LA 70163

(504) 322-7070

COUNSEL FOR DEFENDANT/APPELLEE:
Ohio Security Insurance Company

Bonita Preuett-Armour

Armour Law Firm

P. O. Box 8386

Alexandria, LA 71306

(318) 442-6611

COUNSEL FOR DEFENDANTS/APPELLEES:
David Miller
Steven Miller

Ryan M. Malone
Duplass, Zwain, Bourgeois, Pfister, Weinstock & Bogart, APLC
3838 North Causeway Boulavard, Suite 2900
Metairie, LA 70002
(504) 832-3700
COUNSEL FOR DEFENDANT/APPELLEE:
Technology Insurance Company

KYZAR, Judge.

In this wrongful death and survival action, the plaintiffs, David and Jill
Jeansonne, appeal the grant of summary judgment in favor of Ohio Security
Insurance Company, dismissing it as a party defendant to the suit, finding that it did
not provide insurance coverage for the vehicle involved in this dispute. For the
reasons assigned, we reverse in part, affirm in part, and remand.

FACTS AND PROCEDURAL HISTORY

David and Jill Jeansonne, individually and on behalf of their deceased child,
Adam Jeansonne, filed suit, seeking wrongful death and survival damages for the
death of their son, naming several parties as defendants, including Ohio Security
Insurance Company (Ohio Security), the business auto insurer of A&E Enterprises
of Louisiana, LLC d/b/a Alexandria Business Machines (A&E). The facts leading
up to this suit, for the most part, are undisputed.

On the afternoon of Friday, April 21, 2017, Steven Miller, a managing partner
of A&E, and his son, David Miller, went to Walker Automotive (Walker
Automotive), a dealership in Alexandria, Louisiana, to take delivery of a 2012 Ford
F-150 truck, that Mr. Miller was considering purchasing for his son. Mr. Miller
signed a Loaner/Rental Agreement with Walker Automotive so that his son could
test drive the truck over the weekend, after which they would return the truck on
Monday. The Loaner/Rental Agreement contained Mr. Miller’s home address,
telephone number, and signature. After completing the agreement and providing
Walker Automotive with proof of insurance and a copy of his driver’s license, Mr.
Miller drove the truck to his ex-wife’s home, where David, who was seventeen years
old at the time, lived. Mr. Miller admitted that he placed no restrictions on David’s

use of the vehicle.

Later that night, David and his two friends, Adam Jeansonne and Richard
O’Neal, attended a party near Woodworth. Although they drove the truck to the
party, David allowed Richard to drive the truck as the designated driver. When they
left the party at approximately 1:00 a.m., the three friends, with Richard still driving,
drove back to Alexandria and picked up two female friends, after which they rode
around town for a time.

David testified that they eventually decided to take Adam home because he
was inebriated and becoming sick. He claimed that once they arrived at his home,
Adam refused to exit the truck, so everyone got out of the truck in order to make him
get out. He stated that after Adam exited the truck and everyone else reentered the
truck, Adam’s father came out of the house, whereupon he locked the doors so Adam
could not reenter the truck. David testified that Adam jumped into the bed of the
truck and told them to leave. Shortly thereafter, Adam, who had climbed down to
the passenger-side running board, was run over by the truck and killed after he fell
from the running board onto the street.

The Jeansonnes filed a survival action and wrongful death suit, naming as
defendants: Richard, his grandfather/guardian Russell Wilson, Richard’s insurer
(ABC Insurance Company), David and Steven Miller, and Ohio Security, as Mr.
Miller’s insurer. The Jeansonnes settled their claims against Richard, Mr. Wilson,
and his insurer, and a partial judgment of dismissal was rendered on December 4,
2018, dismissing the Jeansonnes’ claims against these defendants with prejudice.
However, the Jeansonnes reserved their rights against Mr. Miller, David, State Farm
Mutual Automobile Insurance Company (State Farm) (Mr. Miller’s personal
insurer), and Ohio Security.

In answering the Jeansonnes’ petition, Ohio Security raised affirmative

defenses alleging that the truck involved in the accident was not covered under

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A&E’s policy. It then moved for summary judgment on the issue of insurance
coverage, arguing that Mr. Miller’s act of borrowing the truck from Walker
Automotive was personal rather than business related and that David’s and Richard’s
actions in regards to the truck at the time of the accident were unrelated to A&E’s
business. In support of its motion, Ohio Security introduced excerpts from Mr.
Miller’s and David’s depositions; a certified copy of A&E’s business auto policy;
the Millers’ responses to the Jeansonnes’ second requests for admissions; and a copy
of the Walker Automotive Loaner/Rental Agreement executed by Mr. Miller.

The Jeansonnes responded by filing a cross motion for partial summary
judgment on the coverage issue. They argued that the Ohio Security policy provided
coverage for the truck because Mr. Miller, as a fifty-percent owner of A&E, was an
insured under the policy and because he was authorized to execute the Loaner/Rental
Agreement on A&E’s behalf, the truck was insured under the policy’s rental
endorsement. They further argued that David was a permissive driver under the
policy because Mr. Miller had given him permission to drive the truck; thus, Richard
was also a permissive driver because he was given permission to drive the truck by
David. In support of their motion, the Jeansonnes introduced Mr. Miller’s and
David’s depositions and Walker Automotive’s February 15, 2019 response to the
Jeansonnes’ subpoena duces tecum.

Following a June 17, 2019 hearing, the trial court granted summary judgment
in favor of Ohio Security and rendered the following oral ruling:

[With regard to the [sic] both Motions for Summary Judgment, the

Motion for Summary Judgment filed by the defendant, Ohio Insurance

[sic] Company, the language is clear, and we must look at the policy

language. And, of course, it clearly states that you are the insured, and

‘you? would be A&E. And I don’t think no one has disputed that,

because, today the plaintiffs state that they are alleging the coverage

comes under the vehicle, I mean excuse me, Rental Vehicle

Endorsement. But the Court is of the opinion that this vehicle was not
rented. This vehicle was borrowed.

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It’s unfortunate that kids do what happened here, they party, have
a little alcohol, and accident [sic] happened. And, unfortunately, the
money lies in this policy. And there’s —his life is gone, and the money
would never replace him, and that’s not what his parents are trying to
do. But they’re trying to get some type of compensation, and this is
just the larger policy. But there has to be coverage.

And this Court is of the opinion that the Rental Vehicle
Endorsement was not triggered. Mr. Miller’s testimony was he was
borrowing the vehicle for his son to drive. They were going to test drive
it, to see if he wanted to purchase it in the future for his son. He son
already had a F-150. It was an older mode!. He’s interested in get [sic]
him, getting him another vehicle, and they went there and got this
vehicle. They borrowed it. They didn’t rent it. It was a borrowed
vehicle, a courtesy. Just like we all can go and say we’re interested in
buying a vehicle, and you — they let you borrow them. You ride right
off the lot, as long as you leave your insurance information and your
ID.

I — the Court is just — doesn’t see where the Rental Vehicle
Endorsement is appliable, and where anything triggered that
Endorsement to provide coverage.

So, therefore, Ohio’s Motion for Summary Judgment is granted,
and the plaintiff's Motion for Summary Judgment is denied.

Judgment was rendered on July 3, 2014, in favor of Ohio Security, finding no
insurance coverage under its policy; denying the Jeansonnes’ motion; and dismissing
the Jeansonnes’ claims against Ohio Security with prejudice. The Jeansonnes then
moved for a new trial, which the trial court denied on September 24, 2019.
Thereafter, the Jeansonnes’ perfected this appeal.

On appeal, the Jeansonnes raise one assignment of error. They argue that
[t]he trial court erred by granting Defendants’ [sic] Motion for Summary [Judgment]
when [it] found the Ohio Security Insurance Company policy did not provide
coverage for the subject accident.”

OPINION

A motion for summary judgment is properly granted only if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, 1f any, show there is no genuine issue of material fact, and the mover is

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entitled to judgment as a matter of law as to all or part of the relief prayed for.
La.Code Civ.P. art. 966. A material fact is one that “potentially insures or precludes
recovery, affects a litigant’s ultimate success, or determines the outcome of the legal
dispute.” Hines v. Garrett, 04-806, p. 1 (La. 6/25/04), 876 So.2d 764, 765 (per
curiam). “A genuine issue of material fact is one as to which reasonable persons
could disagree; if reasonable persons could reach only one conclusion, there is no
need for trial on that issue and summary judgment is appropriate.” Smitko v. Gulf S.
Shrimp, Inc., 11-2566, p. 8 (La. 7/2/12), 94 So.3d 750, 755.

Appellate courts review summary judgments de novo using the same criteria
that governs the trial court’s determination of whether summary judgment is
appropriate, i.e., whether there is any genuine issue of material fact, and whether the
movant is entitled to judgment as a matter of law. Wright v. La. Power & Light, 06-
1181 (La, 3/9/07), 951 So.2d 1058; La.Code Civ.P. art. 966(A)(3). The
interpretation of an insurance contract presents a question of law and is an issue well
suited for resolution through a motion for summary judgment. Cutsinger v. Redfern,
08-2607 (La. 5/22/09), 12 So.3d 945. “An insurance policy is a contract between
the parties and should be construed by using the general rules of interpretation of
contracts set forth in the Civil Code.” Bernard v. Ellis, 11-2377, p. 9 (La. 7/2/12),
111 So.3d 995, 1002.

The policy issued to A&E by Ohio Security consists of several sections,
including the common policy declarations, the business automobile policy
declarations, the business auto coverage form, and various endorsements. The
endorsements pertinent to this matter are entitled Louisiana Changes, Louisiana
Changes — Coverage Extension for Rental Vehicles, and Business Auto Coverage

Enhancement Endorsement Louisiana.

The Ohio Security policy is based on a standardized Business Auto Policy or
BAP, which breaks down the autos covered by the policy into various categories,
with each designated by a numerical symbol.' Pursuant to the declarations page, the
policy provides liability coverage for “Any autos”; medical payments and uninsured
motorists coverage for “Owned Private Passenger Autos”; and physical damage and
towing and labor coverage for “Specifically Described Autos.” “Any auto” is
defined as “one that is owned, hired, nonowned, leased, or borrowed, regardless of
type.” PAT MAGARICK & KEN BOWNLEE, 2 CASUALTY INSURANCE CLAIMS § 22:86
(4th ed. 2008 & Supp. 2020). The policy defines “an owned private passenger auto”
as an auto owned by the insured, and “specifically described autos” as those listed
on the policy declaration page.

The rental-vehicle endorsement provides coverage for rental vehicles rented
by the insured pursuant to a written rental agreement. A rental vehicle is defined as
a vehicle “of the private passenger, pick-up or van type, not used for business
purposes other than farming or ranching,” if:

a. Not used for transporting persons for hire; and
b. Owned by a person engaged in the business of
renting or leasing vehicle that are rented or leased
without a driver, to persons other than the owner,
and is registered in the name of such owner.
A “rental agreement” is defined as “any written agreement setting forth the terms

and conditions governing the use of a vehicle provided by the rental company for

rental or lease.” La.R.S. 22:1762(F); see also La.R.S. 22:1523(D).

The ten categories and their numerical designations are as follows: (1) Any autos, (2)
Owned autos only; (3) Owned private passenger autos only; (4) Owned autos other than private
passenger autos only; (5) Owned autos subject to No-Fault; (6) Owned autos subject to a
compulsory uninsured motorist law; (7) Specifically described autos; (8) Hired autos only; (9)
Non-owned autos only; and (19) Mobile equipment subject to compulsory or financial
responsibility or other motor vehicle insurance law only.

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At the outset, we note that La.R.S. 22:1291(B)(1) defines a loaner vehicle as
“any vehicle which is provided to an insured driver by a vehicle service or sales
dealer for the purpose of allowing the driver to demonstrate or test drive the vehicle.”
Thus, we find that the 2012 Ford F150 truck Walker Automotive provided Mr.
Miller to test drive was a loaner vehicle rather than a rental vehicle. Accordingly,
we find that Ohio Security’s policy does not provide coverage to the Jeansonnes
under the rental endorsement. If coverage is available to the Jeansonnes it must be
found under the policy’s primary coverage provisions.

The Ohio Security policy, under its liability coverage section, provides that it
“will pay all sums an ‘insured’ legally must pay as damages because of ‘bodily injury’
or ‘property damage’ to which this insurance applies, caused by an ‘accident’ and
resulting from the ownership, maintenance or use of a covered ‘auto’.” The policy
delineates who is an insured as follows:

The following are “insureds”.

a. You for any covered “auto.”

b. Anyone else using with your express or implied permission a
covered “auto” you own, hire or borrow except:

(1) The owner or anyone else from whom you hire or
borrow a covered “auto”. This exception does not
apply if the covered “auto” is a “trailer” connected
to a covered “auto” you own.

(2) Your “employee” if the covered “auto” is owned by
that “employee” or a member of his or her
household.

(3) Someone using a covered “auto” while he or she is
working in a business of selling, servicing, repairing,
parking or storing “autos” unless that business is
yours. However, such persons are “insureds” up to
the financial responsibility limits required by
Louisiana Motor Vehicle Safety Responsibility law.

(4) Anyone other than your “employees”, partners (if
you are a partnership), members (if you are a limited

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liability company), or a lessee or borrower or any of
their “employees”, while moving property to or
from a covered “auto”.

(5) A partner (if you are a partnership), or a member (if
you are a limited liability company), for a covered
“auto” owned by him or her or a member of his or
her household.

c. Anyone liable for the conduct of the “insured” described above
but only to the extent of that liability.

f. Any “employee” of yours while using a covered a “auto” you do
not own, hire or borrow but only for actions within the scope of
their employment by you. Insurance provided by this
endorsement is excess over any other insurance available to any
“employee”.

g. Any “employee” of yours while operating an “auto” hired or
borrowed under a written contract or agreement in that
“employee’s” name, with your permission, while performing
duties related to the conduct of your business and within the
scope of their employment. Insurance provided by this
endorsement is excess over any other insurance available to the
“employee.”

The policy states that “you” and “‘your” refers to the “Named Insured,” which
is listed on the declarations page as A&E Enterprises of Louisiana, LLC dba
Alexandria Business Machines. An “insured” is defined as “any person or
organization qualifying as an insured in the Who Is An Insured provision of the
applicable coverage.”

It is undisputed that A&E is the named insured under the policy and that as a
juridical person, its personality is separate and distinct from those of its members.
Thus, under the plain language of the policy, A&E is the only insured under Sub-
section “a.” However, there is no doubt that Mr. Miller was an insured under Sub-
section “b.” while using the BMW auto owned by A&E. He would also be an

insured when using, with A&E’s express or implied permission, a covered auto that

A&E owned, hired, or borrowed. We further find that Mr. Miller, as a member of

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A&E, does not qualify as an “employee” under the terms of the policy as it makes a
distinction between the employees, partners, or members of the insured.

In Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d
342, 346 (La.1991), the supreme court considered a similar commercial auto policy,
which provided that an “insured” is “[a]nyone else . . . while using with your
permission a covered auto you own, hire or borrow[.]” The issue was whether a
vehicle driven by a student of LSU’s University Laboratory School, who caused an
accident while driving another student on an errand for one of the school’s teachers,
was a borrowed auto under LSU’s auto policy. The supreme court, while noting that
“borrow” was not defined under the policy at issue, stated, “[i]n common parlance,
to borrow means not only that one receives the benefit of the borrowed object’s use
but also that the borrower receives temporary possession, dominion, or control of
the use of the thing.” /d. It further stated:

Additionally, the prevailing meaning of borrowing is essentially
the same as that conceived of by the drafters of the Civil Code. The
loan for use, or commodatum, is a gratuitous contract by which one
person delivers a thing for anothers [sic] temporary use. La.C.C. arts.
2891-2909; A. Ezkovich, Beware! The Commodatum Lurks, 58
Tul.L.Rev. 342 (1983). The parties to a loan for use, or commodatum,
are referred to as the “borrower” and the “lender.” La.C.C. arts. 2898,
2906. The lender retains the ownership of the object, La.C.C. art. 2895,
but gratuitously delivers to the borrower the possession and use of the
object, subject to the borrower returning the property after he is finished
with it. By definition, the commodatum involves the use of
nonconsumable things, and historically contemplated the use of
instruments of transportation borrowed by others. In the early years of
the Civil Code, horses, oxen and donkeys were the most common
means of land transportation, and often the subjects of the commodatum,
1.e., “borrowing” and “lending.” See Lislet and Carleton, The Laws of
Las Siete Partidas which Are Still in Force in the State of Louisiana,
623 (1820). The gratuitous loan principles of the Civil Code conform
with the prevailing meaning of “borrowing” today, and have equal
application to loans for use of our modern vehicles of transportation.
See, e.g., Lyle v. Guillot, 143 So. 511, 513 (La.App. Ist Cir.1932) (“A
gratuitous loan for use [of an automobile] makes the borrower, after
delivery, the master of the thing borrowed, for the purpose of its use
and while using it under the loan’’).

Id. at 346-47 (second alteration in original).

In reversing the trial court’s grant of summary judgment in favor of the vehicle
owner, the supreme court held that because “LSU never had any control over the
automobile, even though it may have benefitted from its use by the students[,]” the
vehicle at issue was not a borrowed vehicle under its policy. /d. at 347. Thus, in
order for a vehicle to qualify as a “borrowed” vehicle, the insured or borrower must
“acquire substantial possession, dominion, control, or the right to direct the use of
the vehicle.” /d. Thus, even though the truck is statutorily defined as a loaner, we
find that it qualifies as a borrowed vehicle under Ohio Security’s policy if it is
determined that A&E, as the borrower, acquired substantial possession, dominion,
or control over the truck or the right to direct its use. There is no doubt that once
Mr. Miller drove the truck off Walker Automotive’s lot, he acquired substantial
possession, dominion, and control, and the right to direct the truck’s use. The
question remains whether Mr. Miller borrowed the truck for himself, personally, for
A&E, or both.

Under the policy at issue, liability coverage will be found if it is determined
that Mr. Miller was using with A&E’s express or implied permission a vehicle that
A&E owned, hired, or borrowed. After reviewing the evidence presented in support
of the motions for summary judgment, we find that a genuine issue of material fact
exists on the coverage issue, and that the trial court erred in granting summary
judgment in favor of Ohio Security.

The Jeansonnes argue that based on his testimony, Mr. Miller, as a member
with a fifty-percent ownership interest in A&E, “has the authority to act for A&E in
all matters, including renting a vehicle, that do not require unanimous membership
consent as stated in A&E’s operating agreement.” Thus, they argue that his act of

borrowing or renting the truck from Walker Automotive was necessarily A&E’s act

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as well. Conversely, Ohio Security asserts that Sub-section “b.” does not apply to
this accident unless A&E, as the named insured, actually borrowed the 2012 Ford F-
150 pick-up truck from Walker Automotive on April 21, 2017.

We note here that prior to the hearing on the cross-motions for summary
judgment, Ohio Security objected to the Jeansonnes’ submission of A&E’s operating
agreement, which purported to grant authority to Mr. Miller for certain actions on
behalf of A&E without the express consent of his co-member, including hiring or
renting a vehicle on behalf of A&E. The trial court sustained the objection, finding
the document inadmissible for consideration of the motions. The Jeansonnes did not
appeal this ruling; thus, we do not consider the operating agreement herein.
However, we find from the properly submitted evidence, specifically Mr. Miller’s
testimony, that there is no issue of material fact that he had such authority to act on
behalf of A&E.

Even though Mr. Miller was authorized to borrow a vehicle for or on behalf
of A&E, this does not necessarily mean that he did so on April 21, 2017. Mr.
Miller’s testimony reflects that he was acting in his personal capacity as a father
when he borrowed the truck. He intended to test drive the vehicle over the weekend
to determine if it was suitable for his son David. David’s testimony states that the
vehicle, if purchased, was to replace the truck he was presently driving, which Mr.
Miller owned in his personal capacity.

In addition, Mr. Miller signed the Loaner/Rental Agreement with Walker
Automotive in his individual capacity and not in his capacity as an A&E
representative. A&E is not listed on the agreement at all. Furthermore, while Mr.
Miller gave Walker Automotive his business insurance card for the A&E-owned

BMW, he stated that he also gave Walker Automotive his State Farm vehicle

11

insurance card, though he had no explanation for why Walker Automotive did not
have a copy of that card on file.

Mr. Miller testified that A&E owns a number of vehicles, which are used as
delivery and service technician vehicles. He stated that it also owns several vehicles
that are driven exclusively by him, his business partner, Dale Rachel, and Mr.
Rachel’s wife. He stated that Mr. Rachel drives a 2017 GMC Sierra 1500 truck; Mrs.
Rachel, who works for A&E, drives a 2012 Ford Expedition; and he drives a 2011
BMW 3-Series, which they drive to and from work. He stated that he and the
Rachels use these vehicles for personal as well as business purposes. Mr. Miller
admitted that Mr. Rachel was aware that he was test driving this truck because he
intended to purchase it for David. He stated, “He — he would have a meeting with
me, David, and he all — several times.”

In the Millers’ responses to the Jeansonnes’ second request for admissions,
they admitted that Mr. Miller rented the 2012 Ford F-150 from Walker Automotive
prior to the accident and that he executed the Loaner/Rental Agreement and
presented Walker Automotive with the Ohio Security insurance card as proof of
insurance. They further admitted that David had permission to drive the truck from
Mr. Miller’s apartment back to his home and that David was in possession of the
truck. They also admitted that Richard had David’s permission to drive the truck on
the night/early morning of the accident and that Mr. Miller was a member-manager
of A&E.

Walker Automotive’s file consists of copies of the Loaner/Rental Agreement,
Mr. Miller’s driver’s license, and the Ohio Security insurance card covering the 201 1
BMW 3-Series vehicle. The Loaner/Rental Agreement includes Mr. Miller’s name,
address, driver’s license number, birthday, phone number, and two signatures. The

agreement also contained the following notice:

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You must have collision coverage under your own automobile
insurance policy written in Louisiana and your collision coverage must
extend to rental motor vehicles pursuant to R.S. 22:1406(f). You are
responsible for any damage to or loss of the vehicle, including any
consequential damages. There is no Physical Damage Waiver offered
for this vehicle and your insurance is primary. You are responsible for
all traffic, parking, and / or toll violations incurred during the rental or
loan of this vehicle.

This is a non-smoking vehicle. Additionally, you acknowledge that the
vehicle has 1/4 tank of gas and you are required to return it with the
same amount. In the event the vehicle is returned with less than 1/4
tank of gas a $20.00 surcharge will be applied to your credit card.

By signing below, You acknowledge that You received and read both
sides of this notice before You signed the rental Agreement.

The question to be answered is whether Mr. Miller obtained the truck as an
authorized representative of A&E, in his personal capacity, or both. Surely, if he
had signed the Loaner/Rental Agreement with Walker Automotive in his
representative capacity for the company, we would have no difficulty in finding that
there was, in fact, coverage under the express provisions of the Ohio Policy. In this
case, however, Mr. Miller did not sign the agreement in the name of A&E as its
authorized representative but did so in his own name. However, he provided the
Ohio Security insurance card to Walker Automotive, reflecting that he was an
“insured” under that policy. Louisiana Revised Statutes 22:1291(A) provides that
“the primary liability, physical damage, or collision coverage for a loaner vehicle
shall be the policy of the driver, not the policy of the vehicle sales or service dealer
who provided the loaner vehicle.” The Ohio Security policy is Mr. Miller’s policy,
as is the State Farm policy.

Although Mr. Miller testified that he also gave the Walker Automotive
representative his State Farm insurance card, this was contradicted by Walker
Automotive’s records, which only contained the Ohio Security insurance card.

Clearly, Walker Automotive relied on the A&E insurance policy through Ohio

Security when loaning the truck to Mr. Miller. Whether he also presented his State
Farm insurance card is a genuine issue of material fact.

Furthermore, as a member with a fifty-percent membership interest in A&E,
Mr. Miller enjoys a fifty percent share in A&E’s profits and loses, the right to receive
distributions of A&E’s assets, and the right to vote or participate in A&E’s
management. La.R.S. 12:1301(14). He further admitted that he is a managing
member of A&E and that the company operates pursuant to an operating agreement,
which allows him to act on behalf of A&E without first obtaining permission from
his co-managing member. La.R.S. 12:1311; La.R.S. 12:1301(16). Moreover, as a
managing member, Mr. Miller is a mandatary of A&E “for all matters in the ordinary
course of its business[.]” La.R.S. 12:1317(A).

As a managing member, Mr. Miller had the right to make business decisions
on behalf of A&E. Based on the record, Mr. Miller and Mr. and Mrs. Rachel all
drove vehicles that were owned by A&E, were provided for their business and
personal use, and were insured under the Ohio Security policy. Mr. Miller further
admitted that Mr. Rachel met with him and David several times for discussions
concerning the purchase of a truck for David. Furthermore, the Ohio Security policy
contained an endorsement, which amended Section “C.” to include “[r]ecreational
trailers and boat trailers designed for use with an auto of the private passenger type
provided the trailers are not used for business purposes[]” as a covered auto under
the liability coverage section of the policy. This endorsement is obviously not
intended to further the business interests of A&E. Thus, we find that by providing
Walker Automotive with the Ohio Security insurance card, a material issue of fact
exists as to whether Mr. Miller intended to obligate A&E as the borrower or co-

borrower of the truck.

Accordingly, we find that a genuine issue of material fact exists as to whether
Mr. Miller, as a member-manager, had A&E’s express or implied permission to
borrow the truck on its behalf from Walker Automotive. For these reasons, the trial
court judgment granting summary judgment in favor of Ohio Security is reversed
and the judgment denying summary judgment in favor of the Jeansonnes is affirmed.
Permissive Use of the Vehicle

The next question that must be addressed is whether Richard O’Neal, the
driver of the Ford F150 truck rented from Walker Automotive, was a permissive user
of the vehicle at the time of the incident giving rise to Adam’s death. The Jeansonnes
allege in their petition that “Steven Miller granted his minor son, David Miller,
permission to use the subject vehicle” and that “David Miller granted Mr. O’ Neal
permission to operate the subject vehicle as the group’s designated driver[,]” and
thus, “Mr. O’Neal was a permissive driver of the subject vehicle at the time of the
incident.”

Once the Loaner/Rental Agreement was completed, Mr. Miller testified that
the truck was parked at his ex-wife’s home, where David lived. However, he
admitted that he never informed David that he did not have permission to drive the
truck. He stated that he “anticipated maybe [David] would not use it until we drove
it the next day.” However, he admitted that he never had that conversation with
David. When asked if he would approve of David designating Richard as a
designated driver in any vehicle David drove, he stated, “I suppose so; yes, sir.”

David confirmed that his father never specifically told him whether he could
or could not drive the truck after they left Walker Automotive. He admitted that he
had permission to drive the truck home after he dropped his father off at his
apartment. However, he stated that he never needed his parents’ permission to run

errands or to drive the 2006 Ford F150 prior to this incident and the same applied to

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his use of the 2012 Ford F150. He further stated that Richard was driving the truck
with his permission when this incident occurred. Furthermore, the Millers admitted
that Richard had David’s permission to drive the truck the night/early morning of
the accident.

In Boudreaux v. Commerce and Industry Insurance Co., 18-322, p. 5 (La.App.
3 Cir. 11/7/18), 258 So.3d 856, 860-61 (alteration in original), writ denied, 18-2005
(La. 2/11/19), 263 So.3d 897, this court stated:

“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.” Jd. “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.” Jd. 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.

Based on the evidence, we find that David had permission to drive the 2012
Ford F150 and that it was reasonably foreseeable that he would allow someone else
to drive the truck. Accordingly, we find that Richard was a permissive driver under
the Ohio Security policy should it be found to provide coverage for the Jeansonnes’
claims.

DISPOSITION
Based on the foregoing, the judgment of the trial court, granting summary

judgment in favor of Ohio Security Insurance Company, is reversed; the judgment,

denying summary judgment in favor of David and Jill Jeansonne, individually and

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on behalf of their deceased child, Adam Jeansonne, is affirmed; and the matter is
remanded to the trial court for further proceedings consistent herewith. The costs of

this appeal are assessed equally between the parties.

REVERSED IN PART; AFFIRMED IN PART; AND REMANDED.

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