Ebony S. Poole v. David Matthew Buys

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

20-532

EBONY S. POOLE

VERSUS

DAVID MATTHEW BUYS, ET AL.

**********

APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 18-C-0987-B
HONORABLE A. GERARD CASWELL, DISTRICT JUDGE

**********

JOHN E. CONERY
JUDGE

**********

Court composed of John E. Conery, Van H. Kyzar, and Sharon Darville Wilson,
Judges.

MOTION TO DISMISS DENIED.
REVERSED AND REMANDED.

Donald F. de Boisblanc
410 South Rampart Street
New Orleans, Louisiana 70112
COUNSEL FOR PLAINTIFF/APPELLEE:
Ebony S. Poole

Kenny L. Oliver
Oliver & Way
Post Office Box 82447
Lafayette, Louisiana 70598-2447
(337) 988-3500
COUNSEL FOR DEFENDANT-IN-RECONVENTION/APPELLEE:
Louisiana Farm Bureau Mutual Insurance Company

Charles Benjamin Landry
1309 Lafayette Street
Lafayette, Louisiana 70501
(337) 232-9806
COUNSEL FOR PLAINTIFF-IN-RECONVENTION/APPELLANT:
David Matthew Buys

CONERY, Judge.

The appellant, Matt Buys, sought recovery from Louisiana Farm Bureau

Casualty Insurance Company under the underinsured/uninsured motorist coverage

of his automobile liability policy for damages sustained in an automobile accident.

Farm Bureau filed a motion for summary judgment alleging that the subject policy

excluded coverage as Mr. Buys was driving a non-listed vehicle owned by his

girlfriend, a household resident. The trial court entered summary judgment in

favor of Farm Bureau. Mr. Buys appeals. For the following reasons, we deny

Farm Bureau’s motion to dismiss appeal and, on the merits, reverse the summary

judgment and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

At the time of the subject November 5, 2017 automobile accident, Mr. Buys

was driving a 2013 Nissan Altima owned by his girlfriend, Courtney Brown. He

was doing so due to a mechanical issue with his own vehicle, a truck. While

traveling in the left lane in order to pass a vehicle, Mr. Buys was struck by an

oncoming vehicle driven by Ebony Poole. Mr. Buys allegedly sustained severe

and debilitating injuries as a result of the accident.

Ms. Poole filed the initial suit in this matter in March 2018, naming as

defendants Mr. Buys and his insurer, Farm Bureau, as well as Ms. Brown and her

insurer, State Farm Mutual Automobile Insurance Company (State Farm). Ms.

Poole sought damages she alleged resulted from Mr. Buys’ negligent operation of

Ms. Brown’s Nissan.1

Mr. Buys and Ms. Brown filed a reconventional demand in July 2018,

alleging that it was Ms. Poole’s negligence that caused the accident and noting that

1
Ms. Poole’s suit against Ms. Brown and State Farm was dismissed following settlement
of the claim.

Ms. Poole was cited for operating her vehicle with no headlights after dark. The

demand listed Ms. Poole, her insurer Progressive Security Insurance Company

(Progressive), Ms. Brown, her insurer, State Farm, and Farm Bureau as defendants.

Although Farm Bureau provided insurance for Mr. Buys, the vehicle listed on the

Farm Bureau policy, a 2011 Chevrolet Silverado truck owned by Mr. Buys, was

not involved in the accident. Mr. Buys and Ms. Brown, however, alleged that the

Farm Bureau policy provided uninsured/underinsured motorist coverage for both

collision damages to Ms. Brown’s vehicle and to Mr. Buys. Mr. Buys’ injuries

purportedly exceed all available insurance coverage.

In its answer to the reconventional demand, Farm Bureau acknowledged that

it issued a policy to Mr. Buys but denied liability thereunder. Farm Bureau filed an

initial motion for summary judgment in January 2020, first alleging that Mr. Buys

and Ms. Brown “were residents of the same household and the 2013 Nissan Altima

was furnished or available for Buys’ regular use.” Farm Bureau contended that its

policy covering Mr. Buys’ truck provided that “the term ‘uninsured or

underinsured automobile shall not include: (a) an owned automobile or an

automobile furnished for the regular use of the named insured or a

relative; ….” (Emphasis added.) The policy further specifically excluded

“uninsured/underinsured motorist coverage (Coverage U) to ‘any automobile or

trailer owned by or furnished or available for the regular use of the named

insured or a resident of the insured’s household if that automobile is not

described on the Declarations.’” (Emphasis added.) Farm Bureau alleged that

this definition and exclusion are pertinent as Ms. Brown’s Nissan was furnished or

available for Mr. Buys’ regular use and was “not described” on the declaration

page of the policy.

2

Mr. Buys opposed that initial motion for summary judgment and argued that

there were genuine issues of material fact regarding whether Ms. Brown’s Nissan

was available for Mr. Buys’ regular use. Acknowledging his deposition statements

that he, at times, used the Nissan, Mr. Buys noted that he had explained that his use

on the date of the accident was due solely to mechanical issues with his own

vehicle, and that Ms. Brown confirmed in her affidavit that each of them used their

own vehicles regularly. His use of her vehicle on that day was extraordinary. The

trial court denied that initial motion for summary judgment following a March 2,

2020 hearing.

Farm Bureau followed that denial with a second motion for summary

judgment on March 24, 2020, contending the policy’s “Coverage U, Uninsured

Motorist (Damages for bodily injury)” did not afford coverage as Ms. Brown’s

Nissan was not listed on the declaration sheet of Farm Bureau’s policy issued to

Mr. Buys. Farm Bureau relied on the policy provision indicating that “[t]he term

insured automobile … shall not include: (1) any automobile or trailer owned by a

resident of the same household as the named insured[.]” Farm Bureau additionally

noted that Coverage U excludes UM coverage:

(b) to any automobile or trailer owned by or furnished or available for
the regular use of the named insured or a resident of the insured’s
household if that automobile is not described on the Declarations.

Farm Bureau did not focus on the “regular use” aspect of exclusion “(b)” but

instead focused on the fact that the Nissan was owned by Ms. Brown, a resident of

the insured’s house, and that the vehicle was not described on the declaration sheet.

Finally, Farm Bureau noted that the policy limits coverage for the use of

“other automobiles” does not apply “to any automobile owned by or furnished for

regular use to either the name insured or a member of the same household[.]”

Reasoning that the Nissan belonged to Ms. Brown, a resident of Mr. Buys’
3

household, Farm Bureau sought summary judgment indicating that the policy does

not provide UM coverage to Mr. Buys “for the above described accident as he was

driving a vehicle not described on the policy[.]”2

In opposition, Mr. Buys again challenged Farm Bureau’s interpretation of

the policy and asserted that he was an insured for UM purposes regardless of the

vehicle driven. He did so under that portion of the policy providing coverage for

payment of all sums “which the insured or his legal representative shall be legally

entitled to recover as damages from the owner or operator of an uninsured or

underinsured automobile because of bodily injury … sustained by the insured,

caused by accident and arising out of the ownership, maintenance or use of such

uninsured automobile.” Mr. Buys pointed out that he was clearly the named

insured on the Farm Bureau policy and was injured in an automobile accident

caused by the fault of another while the tortfeasor, Ms. Poole, was driving an

underinsured vehicle. Mr. Buys maintains that ownership of the vehicle driven by

him at the time of the accident is irrelevant.

Following a June 2020 hearing, the trial court granted Farm Bureau’s motion

for summary judgment, finding “that the Exclusion does apply to prevent

additional UM Coverage for Mr. Buys on the Farm Bureau policy.”

Mr. Buys appealed the resulting July 1, 2020 judgment and argues to this

court that:

1. The District Court erred when it granted the Motion for
Summary Judgment filed by Louisiana Farm Bureau and ruled that the
named insured, David Matthew Buys, was not insured for injuries
caused by an uninsured/underinsured motorist in the accident which is
the subject of this case.

2
Farm Bureau also argued in the motion for summary judgment that the Nissan did not
fit the policy’s definition of a “temporary substitute vehicle.” That issue was resolved in earlier
proceedings and is not now before the Court.
4

2. The District Court erred when it “interpreted” the Louisiana
Farm Bureau uninsured/underinsured motorist policy to require that a
named insured establish, as a prerequisite to coverage, that he was
injured “while occupying an insured automobile,” a condition which
only applies to UM claims by “all other persons” and not to claims by
a named insured.

LAW AND DISCUSSION

Motion to Dismiss Appeal

At the commencement of oral argument held in this matter, Farm Bureau

sought to dismiss Mr. Buys’ appeal, noting that it had tendered its policy limits in

light of the supreme court’s recent release of Higgins v. Louisiana Farm Bureau

Cas. Ins. Co., 20-1094 (La. 3/24/21), _ So.3d _ (2021 WL 1115393). That ruling

is discussed further below. Counsel for Mr. Buys objected to the request for

dismissal and urged his position that, notwithstanding Farm Bureau’s tender, he

was entitled to reversal of the subject summary judgment entered in Farm Bureau’s

favor. Counsel for Mr. Buys further indicated that, in light of Higgins, he has

amended the petition below to pursue penalties and attorney fees. Given that

objection by the appellant, we deny the motion to dismiss.

Summary Judgment – Standard of Review

Louisiana Code of Civil Procedure Article 966(A)(3) requires a court to

grant a motion for summary judgment “if the motion, memorandum, and

supporting documents show that there is no genuine issue of material fact and that

the mover is entitled to judgment as a matter of law.” On appeal, a trial court’s

ruling on a motion for summary judgment is reviewed de novo. Bufkin v. Felipe’s

La., LLC, 14-288 (La. 10/15/14), 171 So.3d 851. We therefore turn to

consideration of Farm Bureau’s motion for summary judgment under the de novo

standard of review.

5

Uninsured/Underinsured Coverage

Louisiana Revised Statutes 22:1295(1)(a)(i) provides that “[n]o automobile

liability insurance” policy shall be issued in the state unless it provides UM

coverage for persons injured in accidents involving “owners and operators of

uninsured or underinsured motor vehicles.” The statute reflects a strong public

policy of allowing innocent automobile accident victims to fully recover their

damages from their UM motorist coverage when their injuries are caused by a

tortfeasor who is not adequately covered by liability insurance. Cutsinger v.

Redfern, 08-2607 (La. 5/22/09), 12 So.3d 945 (citing Duncan v. U.S.A.A. Ins. Co.,

06-0363 (La. 11/29/06), 950 So.2d 544).

As applicable to Farm Bureau’s motion for summary judgment and the

parties’ respective arguments, Mr. Buys’ subject policy provides:

PART IV. PROTECTION AGAINST
UNINSURED/UNDERINSURED MOTORIST

Coverage U, Uninsured Motorist (Damages for bodily injury)

To pay all sums, except punitive and/or exemplary damages, which
the insured or his legal representative shall be legally entitled to
recover as damages from the owner or operator of an uninsured or
underinsured automobile because of bodily injury, sickness or disease,
including death resulting therefrom, hereinafter called bodily injury,
sustained by the insured, caused by accident and arising out of the
ownership, maintenance or use of such uninsured automobile.

Definitions

The definitions under PART I. LIABILITY, except the definition of
insured, apply to Coverage U, and under coverage U:

insured means:

(a) the named insured and any relative while a resident of the
named insured’s household;

(b) any other person while occupying an insured automobile; and

....

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insured automobile means:

(a) An automobile described on the Declarations for which a
specific premium charge indicates that coverage is afforded;

....

(d) a non-owned automobile while being operated by the named
insured.

The term insured automobile includes a trailer while being used with
an automobile described in (a), (b), (c) or (d) above, but shall not
include:

(1) any automobile or trailer owned by a resident of the
same household as the named insured;

....

uninsured or underinsured automobile includes an automobile with
respect to which there is bodily injury liability applicable at the time
of the accident but the company writing the same becomes insolvent
after such accident. Also, uninsured automobile includes a trailer of
any type and means:

....

(c) an insured motor vehicle when the automobile liability
insurance coverage on such vehicle is less than the amount of
damages suffered by an insured and/or the passengers in the
insured’s vehicle at the time of an accident, as agreed to by the
parties and their insurers or as determined by final adjudication.

The term uninsured or underinsured automobile shall not include:

(a) an owned automobile or an automobile furnished for the
regular use of the named insured or a relative;

....

Exclusions

This policy does not apply under Coverage U:

....

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(b) to any automobile or trailer owned by or furnished or available
for the regular use of the named insured or a resident of the
named insured’s household if that automobile is not described
on the Declarations.

(Emphasis added.)

Farm Bureau acknowledges that Mr. Buys is an insured for UM purposes,

but argues that the policy specifically excludes coverage for this accident.

Referencing the definition of an “insured automobile,” Farm Bureau argues that,

although Mr. Buys is the named insured, he does not have coverage while driving

“a non-owned auto owned by a resident of the same household if it is not described

on the Declarations.” It contends that this is “a standard exclusion contained in

practically all UM policies to prevent a person from purchasing only one UM

policy with the intent of having it cover unlimited autos in the same household.”

We disagree. The policy readily describes Mr. Buys as an “insured,” as that

term is plainly defined as: “(a) the named insured and any relative while a resident

of the named insured’s household[.]” See also Higgins, _ So.3d _. Application of

the clear wording of that provision undermines the necessity of resorting to the

secondary, “(b),” definition urged by Farm Bureau. Mr. Buys is, in fact, the named

insured on the Farm Bureau policy and is afforded Coverage U unless otherwise

excluded. It is only definition “(b)” which is applicable to “any other person” that

requires occupancy in “an insured vehicle[.]”

Turning to the Coverage U’s “Exclusions” section, Farm Bureau

additionally suggests that since Mr. Buys was driving Ms. Brown’s Nissan, a non-

listed vehicle, the policy’s “Exclusions” preclude coverage as “the policy does not

apply under Coverage U: … (b) to any automobile or trailer owned by or furnished

or available for the regular use of the named insured’s household if that automobile

is not described on the Declarations.” Farm Bureau does not focus on the fact that

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the vehicle described in definition “(b)” must be “furnished or available for the

regular use” of the named insured. (Emphasis added.) Farm Bureau instead

summarily asserts that no genuine issues of material fact remain. Farm Bureau

relies on two cases, Melder v. State Farm Mut. Auto. Ins. Co., 16-692 (La.App. 3

Cir. 12/14/16), 208 So.3d 416, writ granted, 17-95 (La. 4/7/17), 218 So.3d 1073

and Gray v. American Nat’l Prop. & Cas. Co., 07-415 (La.App. 3 Cir. 10/3/07),

966 So.2d 1237.

Following the parties’ submission of briefs to this court, however, the

Louisiana Supreme Court rendered Higgins, _ So.3d _, speaking definitively on the

exact “regular use” exclusion relied on by Farm Bureau and specifically overruled

both Melder and Gray. Its reasoning in doing so is determinative in this matter as

well.

In Higgins, the plaintiff sought recovery under his personal Farm Bureau

policy following an automobile accident in which he was operating his employer’s

vehicle. Farm Bureau denied coverage, citing the “regular use” exclusion

contained within the policy’s Coverage U section. As in the present case, the

exclusion indicated that UM coverage does not apply: “(b) to any automobile or

trailer owned by or furnished or available for the regular use of the named insured

or a resident of the named insured’s household if that automobile is not described

on the Declarations.” Id. at p. 2 (emphasis added).4

The supreme court observed the public policy strongly favoring UM

coverage and the liberal construction afforded La.R.S. 22:1295. Higgins, _ So.3d

3
Following the supreme court’s granting of the writ application in Melder, the parties
settled, and the case was dismissed. See Higgins, _ So.3d at _ n.8.
4
As in this case, the liability portion of the Farm Bureau policy also contained a “regular
use” exclusion, providing: “(d)(1) the insuring agreement does not apply to any automobile
owned or furnished for regular use to either the named insured or a member of the same
household.”
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_ (citing Magnon v. Collins, 98-2822 (La. 7/7/99), 739 So.2d 191; Taylor v. Rowell,

98-286 (La. 5/18/99), 736 So.2d 812; Howell v. Balboa Ins. Co., 564 So.2d 298

(La.1990)). It recognized that, in light of the Farm Bureau policy “regular use”

exclusion, UM coverage was contractually provided for, but that “coverage in this

instance is excluded[.]” Id. at _ (emphasis in the original). Like Mr. Buys in this

case, however, Mr. Higgins, was “the named insured in his personal automobile

insurance policy” and therefore “obviously an ‘insured’ person under the policy.”

Id. at _ (footnote omitted). Recognizing that the exclusion was “vehicle-based,”

the supreme court explained that such an exclusion “cannot be used to artificially

limit the definition of the ‘insured’ for purposes of UM coverage in a personal

automobile policy where that coverage has not been declined, but is expressly

provided.” Id. at _.

The supreme court reasoned, instead, that Farm Bureau’s construction of the

exclusion “would allow insurers to write vehicle-based exclusions into the liability

section of personal automobile insurance policies and in turn limit UM coverage

for the insured, so as to render meaningless the limited exceptions to UM coverage

allowed by the legislature.” Id. at _. The supreme court continued and referenced

Melder, a case relied on by Farm Bureau in this case, in recognizing that “lower

courts have at times broadly pronounced that insurers ‘can exclude an insured from

UM coverage in the same manner that the insured would be excluded under

liability insurance[.]’” Higgins, _ So.3d at _ (quoting Melder, 208 So.3d at 420).

Maintaining that jurisprudential principle, the supreme court stated, would be

“inconsistent” with both La.R.S. 22:1295 and supreme court jurisprudence

“interpreting that statute as requiring that UM coverage follow the person, not the

vehicle.” Id. at _ (citing Bernard v. Ellis, 11-2377 (La. 7/2/12), 111 So.3d 995;

10

Filipski v. Imperial Fire & Cas. Ins. Co., 09-1013 (La. 12/1/09), 25 So.3d 742;

Howell v. Balboa Ins. Co., 564 So.2d 298 (La.1990)).

While acknowledging a “regular use” exclusion’s legitimate purpose of

protecting an insurer from “‘double coverage when a premium has been paid on

only one vehicle[,]’” the supreme court considered that purpose in light of the

public policy of allowing full recovery for innocent automobile victims who suffer

damages caused by an uninsured/underinsured tortfeasor as reflected in La.R.S.

22:1295(1)(a)(i). 5 Higgins at _ (quoting, in part, Romano v. Girlinghouse, 385

So.2d 352 (La.App. 1 Cir. 1980)). The purpose of the exclusion, the supreme court

concluded, must yield to the statutory constraint of the UM provision. Notably,

La.R.S. 22:1295(1)(a)(ii) provides that a rejection or modification of UM coverage

5
In pertinent part, Louisiana Revised Statutes 22:1295 provides:

(1)(a)(i) No automobile liability insurance covering liability arising out of
the ownership, maintenance, or use of any motor vehicle shall be delivered or
issued for delivery in this state with respect to any motor vehicle designed for use
on public highways and required to be registered in this state or as provided in
this Section unless coverage is provided therein or supplemental thereto, in not
less than the limits of bodily injury liability provided by the policy, under
provisions filed with and approved by the commissioner of insurance, for the
protection of persons insured thereunder who are legally entitled to recover
nonpunitive damages from owners or operators of uninsured or underinsured
motor vehicles because of bodily injury, sickness, or disease, including death
resulting therefrom; however, the coverage required under this Section is not
applicable when any insured named in the policy either rejects coverage, selects
lower limits, or selects economic-only coverage, in the manner provided in Item
(1)(a)(ii) of this Section. In no event shall the policy limits of an uninsured
motorist policy be less than the minimum liability limits required under R.S.
32:900, unless economic-only coverage is selected as authorized in this Section.
Such coverage need not be provided in or supplemental to a renewal,
reinstatement, or substitute policy when the named insured has rejected the
coverage or selected lower limits in connection with a policy previously issued to
him by the same insurer or any of its affiliates. The coverage provided under this
Section may exclude coverage for punitive or exemplary damages by the terms of
the policy or contract. Insurers may also make available, at a reduced premium,
the coverage provided under this Section with an exclusion for all noneconomic
loss. This coverage shall be known as “economic-only” uninsured motorist
coverage. Noneconomic loss means any loss other than economic loss and
includes but is not limited to pain, suffering, inconvenience, mental anguish, and
other noneconomic damages otherwise recoverable under the laws of this state.

(Emphasis added.)
11

limits “shall be made only on a form prescribed by the commissioner of insurance.”

Id.

Referencing its earlier jurisprudence, the supreme court remarked that the

coverage mandated by La.R.S. 22:1295 “cannot be qualified by a requirement of

relationship with an insured vehicle.” Id. at _ (quoting Howell, 564 So.2d at 301).

One limited exception, contained in La.R.S. 22:1295(1)(e), provides only that UM

coverage does not apply to injury “while occupying a motor vehicle owned by the

insured if such motor vehicle is not described in the policy under which a claim is

made ….” That limited exception, the supreme court explained, is “to keep vehicle

owners from carrying UM coverage on only one of two or more owned vehicles,

thus obtaining the benefit of UM coverage regardless of which vehicle they

occupied, at the cost of only one UM policy.’” Higgins, _ So.3d at _ (quoting

Mayo v. State Farm Mut. Auto. Ins. Co., 03-1801, p. 6 (La. 2/25/04), 869 So.2d 96,

101).

Thus, the statutory exclusion of La.R.S. 22:1295(1)(e) “unambiguously

applies only to ‘vehicle[s] owned by the insured[.]’” Higgins at _. Given the strict

construction afforded exceptions to the UM coverage provided by La.R.S. 22:1295,

the supreme court reasoned “that Farm Bureau’s policy impermissibly expanded

the category of vehicles excluded from UM coverage beyond that which the UM

statute allows.” Higgins, _ So.3d at _. The supreme court correspondingly

overruled appellate jurisprudence, including Melder and Gray, which “reached a

different conclusion” upon presentation of similar facts. Id. at _ (overruling, e.g.,

Melder, 208 So.3d 416; Gray, 966 So.2d 1237; Davenport v. Prudential Prop. &

Cas. Ins. Co., 03-2593 (La.App. 1 Cir. 10/29/04), 897 So.2d 98, writ denied, 04-

2900 (La. 2/4/05), 893 So.2d 882; Peyton v. Bseis, 96-0309 (La.App. 4 Cir.

12

8/21/96), 680 So.2d 81; and Kerner v. Laballe, 560 So.2d 571 (La.App. 5 Cir.

1990)).

That reasoning, and the supreme court’s directive, is applicable to this case,

one involving the same “regular use” exclusion analyzed in Higgins. Mr. Buys is

the named insured on the policy, and Farm Bureau acknowledges that he secured

UM coverage thereunder. Farm Bureau’s reliance on the policy’s “regular use”

exclusion(s) therein is contrary to the requirements of La.R.S. 22:1295, the limited

exclusions of La.R.S. 22:1295, and the supreme court’s expression in Higgins.

Accordingly, Farm Bureau’s motion for summary judgment must be rejected.6 We

reverse the trial court’s entry of summary judgment in Farm Bureau’s favor and

remand for further proceedings.

DECREE

For the foregoing reasons, the Motion to Dismiss the Appeal is denied, and

the trial court’s July 1, 2020 judgment in favor of Louisiana Farm Bureau Casualty

Insurance Company is reversed. This matter is remanded to the trial court for

further proceedings. Costs of this proceeding are assigned to Farm Bureau.

MOTION TO DISMISS DENIED.
REVERSED AND REMANDED.

6
This decision pretermits consideration of Mr. Buys’ argument questioning whether
genuine issues of material fact exist as to the availability of Ms. Brown’s Nissan for his regular
use.
13