Brenton Bobb and Valarie Pickette v. Chester Slyvester and State Farm Insurance Company

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

23-109

BRENTON BOBB AND VALARIE PICKETTE

VERSUS

CHESTER SLYVESTER AND

STATE FARM INSURANCE COMPANY

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-2017-3644
HONORABLE LAURIE A. HULIN, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Elizabeth A. Pickett, Shannon J. Gremillion, and Guy E.
Bradberry, Judges.

REVERSED AND REMANDED.

Marcus A. Bryant
The Law Offices of Marcus A. Bryant, L.L.C.
1405 W. Pinhook Road, Suite 110
Lafayette, LA 70503
(337) 504-4106
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Brenton Bobb
Valarie Pickett

David O. Way
Kenny L. Oliver
Marjorie B. Breaux
Oliver & Way, L.L.C.
100 Rue Bastille
Lafayette, LA 70598
(337) 988-3500
COUNSEL FOR DEFENDANTS/APPELLEES:
State Farm Mutual Automobile Insurance Company
Chester Sylvester

GREMILLION, Judge.

Appellants, Brenton Bobb and Valarie Pickett1, appeal the trial court’s grant

of summary judgment in favor of State Farm Mutual Automobile Insurance

Company and its insured, Chester Sylvester, Jr. For the reasons that follow, we

reverse.

FACTS2 AND PROCEDURAL POSTURE

Ms. Pickett was driving her Toyota Camry in Lafayette, Louisiana in the early

morning hours of June 22, 2016. At approximately 12:34 a.m., she was waiting at

the intersection of Cameron Street and Eraste Landry to turn right. Her Camry was

struck from behind by a Ford F-350 truck owned by Mr. Sylvester. Ms. Pickett got

out of her car. She began to call the police when she saw the driver of the pickup

flee on foot. The only description of the driver she could offer was that the “person”

wore a white shirt.

Due to illness, Mr. Sylvester could not drive at the time of the accident. The

pickup was available for Mr. Sylvester’s employees to use in activities related to his

crawfish farming and processing. Employees were not allowed to take the truck

home or on personal errands.

On the day of the accident, the last employee to use the truck was Abraham

Chambers; however, neither Mr. Sylvester nor his son, Chester Sylvester, III, know

whether Mr. Chambers was driving the truck on the night in question. Mr. Sylvester

testified in his deposition that he believes Mr. Chambers “stole” the vehicle, even

though he “was a good worker.” Mr. Sylvester never gave Mr. Chambers permission

to take the pickup to run a personal errand, but he had permission to drive the truck

for work purposes.

1
Ms. Pickett’s name is misspelled in the case caption.
2
The facts recited herein are taken from the evidence presented in support of and
opposition to State Farm’s motion for summary judgment.

Ms. Pickett and her guest passenger, Mr. Bobb, filed suit against Mr. Sylvester

and State Farm. Their first petition alleged that Mr. Sylvester was driving the pickup

and that his negligence caused the accident. State Farm and Mr. Sylvester answered

the suit denying the allegations of the original petition. They then moved for

summary judgment on the grounds that Mr. Sylvester was physically incapacitated

from operating a motor vehicle and had not given anyone permission to drive the

pickup.

Plaintiffs then filed a supplemental and amending petition that asserted that

Mr. Chambers was the driver of the pickup in his employment by Mr. Sylvester.

Thereafter, the motion for summary judgment filed by State Farm and Mr.

Sylvester was heard. The trial court granted partial judgment as to Mr. Sylvester’s

liability as the alleged driver of the truck. Mr. Sylvester was not dismissed from the

suit, though, because of the plaintiff’s supplemental and amending petition that

asserted master/servant liability against him.

State Farm and Mr. Sylvester then filed a second motion for summary

judgment in which they argued that plaintiffs would be unable to prove that Mr.

Chambers was driving the truck, that the truck had been driven with Mr. Sylvester’s

permission, that the driver was employed by Mr. Sylvester, or that the driver was

acting in the course and scope of employment by Mr. Sylvester.

Ms. Pickett and Mr. Bobb then filed a motion for summary judgment of their

own. In this, plaintiffs asserted that all the evidence pointed to Mr. Chambers as the

driver of the truck. The trial court denied plaintiffs’ motion because it found that a

genuine issue of material fact existed as to whether insurance covered the accident.

The third and present motion for summary judgment filed by State Farm and

Mr. Sylvester was then filed. The trial court found that plaintiffs could not carry

their burden of proof that Mr. Chambers was driving the truck; therefore, they could
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not carry the burden of proving that the driver had express or implied permission to

drive the truck. This appeal followed.

Ms. Pickett and Mr. Bobb assert that the trial court erred in three respects: it

failed to view the evidence in the light most favorable to them as the non-moving

party; that “it failed to apply the concept of express or implied permission to the

insurance contract at issue”; and there were genuine issues of material fact that

preclude summary judgment.

ANALYSIS

We review a district court’s grant of summary judgment de novo,
viewing the record and all reasonable inferences that may be drawn
from it in the light most favorable to the non-movant. Summary
judgment is warranted only if “there is no genuine issue as to material
fact and [ ] the mover is entitled to judgment as a matter of law.”
La.Code Civ.Proc. art. 966(C)(1). 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, 04-806, p. 1 (La. 6/25/04), 876 So.2d 764, 765. If reasonable

people could only arrive at one conclusion, no genuine issue exists. Wroten v.

Ferriday Auto Ventures, LLC, 20-387, 20-102 (La.App. 3 Cir. 12/16/20), 310 So.3d

621, writ denied, 21-85 (La. 3/9/21), 312 So.3d 585. “A fact is material if it

potentially ensures or precludes recovery, affects a litigant’s ultimate success, or

determines the outcome of a legal dispute.” Id. at 624.

If the mover will not bear the burden of proof at trial on the issue before the

court on the motion for summary judgment, the mover’s burden on the motion is:

to point out to the court the absence of factual support for one or more
elements essential to the adverse party’s claim, action, or defense. The
burden is on the adverse party to produce factual support sufficient to
establish the existence of a genuine issue of material fact or that mover
is not entitled to judgment as a matter of law.

La.Code Civ.P. art. 966(D)(1).

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It has long been held that the insurance policy, as a contract, forms the law

between the parties. See, e.g., Muse v. Metro. Life Ins. Co., 193 La. 605, 192 So. 72

(1939); Landry v. Progressive Sec. Ins. Co., 21-621 (La. 1/28/22), 347 So.3d 712.

Unless the policy conflicts with statutory dictates or prohibitions or with public

policy, the insurer is entitled to impose limitations on its liability and reasonable

conditions on its obligations. Id. Of course, provisions that violate statutes or public

policy will not be enforced. Id.

The insuring agreement in the policy issued by State Farm to Mr. Sylvester

defines who will be insured. It provides that the “named insured or named insureds

shown on the Declarations Page” are insured for “the ownership, maintenance, or

use of” the named insured’s vehicle or vehicles “shown under ‘YOUR CAR’ on the

Declarations Page.”(emphasis in original). Further, “any other person” is insured

“for his or her use of” the named insured’s vehicle or vehicles; however, “Such

vehicle must be used with the express or implied permission of [the named insured].”

(emphasis in original). The clause providing for coverage of permittees is generally

referred to as the omnibus clause.

The burden of proving that a driver operated the vehicle with permission rests

with the party asserting coverage. Norton v. Lewis, 623 So.2d 874 (La.1993). Were

the present matter to proceed to trial, Ms. Pickett and Mr. Bobb would bear that

burden of proof. Thus, the identity of the driver certainly represents a material fact

in this case; if the plaintiffs cannot establish the identity of the driver, they cannot

establish whether he had permission to operate the truck. And because the proof of

this is their burden at trial, once State Farm establishes an absence of factual support

for the proposition that Mr. Chambers was driving the truck, it is entitled to summary

judgment unless sufficient factual support demonstrating a genuine issue is produced.

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Another longstanding axiom of insurance law is the “initial permission rule,”

first recognized in Parks v. Hall, 189 La. 849, 181 So. 191 (1938). In Hall, Gans’

chauffeur, Hall, was involved in a collision while using Gans’ vehicle to run a

personal errand. Gans’ insurer asserted that Hall was not covered because he had

exceeded Gans’ instructions, which were that he was not to use the vehicle for his

own purpose. The policy in Hall contained the following omnibus clause:

[T]he term ‘Assured’ shall include the named Assured and any other
person while riding in or legally operating such automobile and any
other person or organization legally responsible for its operation,
provided: (8) it is being used with the permission of the named
Assured, or, if he is an individual, with the permission of an adult
member of his household other than a chauffeur or domestic servant[.]

Id. at 193.

The supreme court held:

The provisions of the policy do not limit the liability thereunder to
causes arising when the permitted driver was using the car either for the
owner’s business or under any restricted circumstances. The language
is not restricted, but used in its broadest possible sense and under the
rules of construction generally applicable in cases of this kind, we must
give the language used the same broad construction. The words used
in the clause would be practically meaningless and the object there
made nugatory if it were necessary to determine in every case whether,
at the time and under the circumstances of the accident, the driver was
proceeding within the limitations of the permission of the assured to
use the car.

Id. at 189 La. 858-59, 181 So. 194.

Somewhat more recently, the supreme court has held:

Once permission, whether express or implied, to use a motor vehicle is
established it is given a wide and liberal meaning in determining
coverage. So long as the initial use of the vehicle is with the consent,
express or implied, of the insured, any subsequent changes in the
character or scope of the use do not require additional specific consent
of the insured; coverage will be precluded only where the deviation
from the use consented to amounts to theft or other conduct displaying
utter disregard for the return or safekeeping of the vehicle.

The primary justification for the “initial permission” rule is that
it effectively furthers the state’s policy of compensating and protecting
innocent accident victim [sic] from financial disaster. Moreover, its
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application serves to discourage collusion between lender and lendee in
order to escape liability and to greatly reduce a most costly type of
litigation.

In our opinion, the narrower “minor deviation” and “conversion”
rules followed by some jurisdictions, which make coverage turn on
scope of the permission given in the first instance, render coverage
uncertain, foster unnecessary litigation, and do not comport with our
state’s legislative policy of assuring an available fund for the innocent
victims of automobile accidents.

Norton, 623 So.2d at 875 (citations omitted).

In Arceneaux v. Norman, 05-1536, 05-1537 (La.App. 3 Cir. 5/24/06), 931

So.2d 484, writ denied, 06-1629 (La. 10/6/06), 938 So.2d 76, an employee of Swift

Transportation Company took the two passengers on what is best described as a joy

ride in Swift’s eighteen-wheeler. The plaintiff passengers stated that the driver was

consuming alcohol when she picked them up, while she claimed that they all drank

and that one of the plaintiffs was smoking marijuana. The two passengers alleged

they were injured when one (Johnson) jumped from the truck either to confront

someone who owed him money (according to the employee) or because he was

scared by the employee’s drinking and driving (according to Johnson), and the other

(Arceneaux) because he fell after the employee sharply applied the brakes.

After suit was filed, Swift filed a motion for summary judgment asserting that

the driver was not acting within the course and scope of her employment, that it was

not guilty of negligent entrustment of the vehicle to the driver, and that the driver

was not a permissive user. The trial court granted Swift’s motion as to the course-

and-scope and negligent-entrustment issues but denied it as to permissive use. We

affirmed. Even the choice of drinking and driving did not amount to utter disregard

for the return and safekeeping of the vehicle, though. Swift had given the driver

permission to drive the truck.

6

Plaintiffs refer the court to Carpenter on behalf of Walters v. State Farm Mut.

Auto. Ins. Co., 17-552 (La.App. 3 Cir. 12/28/17), 235 So.3d 1187. In Carpenter, Mr.

Walters was a guest passenger who was killed in a one-car accident. There were

two other people in the vehicle, Broussard and Ledet. The vehicle was owned by

Leger. No one ascertained who was driving at the time of the wreck. Nevertheless,

plaintiff sued Leger, Ledet’s parents, and Broussard. Subsequently, all parties

except State Farm, which insured the car, were dismissed with reservations of rights

against State Farm.

State farm filed a motion for summary judgment to which it attached affidavits

of the Legers that asserted that they gave no one permission to drive the car.

Plaintiffs asserted that there was a genuine issue of material fact regarding the

identity of the driver and whether the driver had permission. The trial court

disagreed and granted State Farm summary judgment. On appeal, this court found

that the inability of the plaintiff to prove who was driving and that the driver had

permission entitled State Farm to summary judgment. However, we note that the

result would have been the same in Carpenter even if the plaintiff had proven who

was driving the car because State Farm demonstrated that she would not have been

able to prove that the driver had permission. No one had permission; therefore, the

omnibus clause was not in play.

Plaintiffs maintain that a genuine issue of material fact exists regarding the

identity of the driver of the truck. In fact, they argue that the driver was “later

identified as Chambers.” Both Sylvesters assume that Mr. Chambers was the driver

because he was the last person to use the truck on the day of the accident. But no

one involved in the case knows. The question here is whether the Sylvesters’

implications of Mr. Chambers represents factual support sufficient to establish the

existence of a genuine issue of material fact, per La.Code Civ.P. art. 966(D).
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The scope of permission is irrelevant given the language of the State Farm

policy, but the identity of the driver is an essential element of the plaintiffs’ case. It

is incumbent upon them to produce evidence of who was driving in order to prove

that the driver had permission. Once plaintiffs could produce evidence of a driver

who had permission, they would have carried their burden of production pursuant to

La.Code Civ.P. art. 966(D). Contrary to State Farm’s assertion, at this stage of the

proceedings—in the context of a motion for summary judgment—plaintiffs do not

“themselves bear the burden of proving, by a preponderance of the evidence, every

element of their case, including the identity of the driver of the F-350 that struck

them.” That is their burden at trial. Plaintiffs do have the burden of producing

factual support sufficient to demonstrate the existence of a genuine issue regarding

the material fact, the identity of the driver.

The evidence demonstrates that Mr. Chambers drove the truck on the date of

June 22, 2016. He had permission to drive the truck. His employer and the

employer’s son do not know who had the truck at the time of the accident, but both

suspect that it was Mr. Chambers. After all, Mr. Chambers was the last person they

knew to have driven it.

This strikes the court as a reasonable inference drawn from the evidence. The

Sylvesters are competent to testify as to their knowledge that Mr. Chambers was the

last employee to drive the truck. The simplest explanation is that the last person

known to have driven the truck was the last person who drove it. Reasonable

inferences must be viewed in the light most favorable to the non-moving parties.

Schroeder v. Bd. of Supervisors of La. St. Univ., 591 So.2d 342 (La.1991).

Accordingly, we find that plaintiffs produced factual support sufficient to

demonstrate a genuine issue of material fact. The judgment of the trial court is

reversed, and the matter is remanded for further proceedings consistent with this
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opinion. All costs of this proceeding are taxed to Defendant/Appellee, State Farm

Mutual Automobile Insurance Company.

REVERSED AND REMANDED.

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