Damien Harris v. Safeway Insurance Company of Louisiana and Justin Rossette

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CW 23-165

DAMIEN HARRIS

VERSUS

SAFEWAY INSURANCE COMPANY OF LOUSIANA
AND JUSTIN ROSSETTE

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ON APPLICATION FOR SUPERVISORY WRITS FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF VERMILION, NO. 108063
HONORABLE THOMAS JAMES FREDERICK, DISTRICT JUDGE

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LEDRICKA J. THIERRY
JUDGE

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Court composed of Ledricka J. Thierry, Guy E. Bradberry, and Wilbur L. Stiles,
Judges.

WRIT GRANTED; REVERSED; AND RENDERED.

Scott Anthony Dartez
P.O. Box 116
8907A Maurice Avenue
Maurice, LA 70555
(337) 893-2797
COUNSEL FOR PLAINTIFF-RESPONDANT:
Damien Harris

Tracy L. Oakley
400 E. Kaliste Saloom Road, Suite 2300
Lafeyette, LA 70508
(877) 323-8040
COUNSEL FOR DEFENDANT- APPLICANT:
Safeway Insurance Company of Louisiana

Byron Andrew Richie
Richie, Richie & Oberle
1800 Creswell Avenue
Shreveport, LA 71134
(318) 222-8305
COUNSEL FOR DEFENDANT-RESPONDANT:
Justin Rossette

THIERRY, Judge.

Defendant, Safeway Insurance Company, seeks supervisory writs from the

judgment of the lower court which denied its motion for summary judgment.

FACTS AND PROCEDURAL HISTORY

The operative facts of this case arise out of a motor vehicle accident which

occurred on April 10, 2019, at the intersection of LA Highway 14, Veterans

Memorial Drive and Alphonse Street, in Abbeville, Louisiana. At the time of the

accident, Plaintiff, Damien Harris, was a passenger in a 2009 Toyota Camry being

driven by Defendant, Justin Rossette. The Camry was owned by Natalie A.

Washington and covered by an automobile insurance policy issued by Safeway.

Before the collision occurred, officers from the Abbeville Police Department were

in pursuit of Rossette for a traffic violation at the intersection of North Bailey Street

and Charity Street. Sirens and lights on the police cars were activated and the facts

establish this was a high-speed pursuit. Rossette was traveling north on Alphonse

Street at the intersection of LA Highway 14 and Veterans Memorial Drive. Aaron

T. Durke, driver of the other vehicle, was traveling west on LA Highway 14 and

Veterans Memorial Drive in a 2014 Ford F250. It is alleged that Rossette ignored a

stop sign at the intersection of Alphonse Street and Veterans Memorial Drive and

collided with the vehicle being driven by Aaron T. Durke. Rossette was arrested for

aggravated flight from an officer and possession of narcotics at the scene of the

accident.

Plaintiff sustained multiple injuries, including a cervical fracture. Safeway

denied coverage based on a policy exclusion clause included in their standard

contracts for criminal act. The policy exclusion clause in question is set forth as

follows:

Exclusions. This policy does not apply under Part I:

b) to bodily injury or property damage intended by, or which may
reasonably be expected to result from the intentional or criminal acts or
omissions of, any insured person. This exclusion applies even if:

1) such insured person lacks the mental capacity to govern his
or her own conduct.
2) such bodily injury or property damage is of a different kind
or degree than intended or reasonably expected. This exclusion
applies regardless of whether or not such insured person is
actually charged with, or convicted of a crime.
...

m) to bodily injury or property damage arising out of the ownership,
maintenance or use of any automobile while being operated or used in
the preparation to commit a crime, commission of a crime, and/or flight
from a crime, other than a traffic violation, regardless of whether or not
such insured person is actually charged with, or convicted of a crime.

Following the denial of coverage, Plaintiff filed suit against Safeway and

Rossette in the fifteenth judicial district court for damages arising from the motor

vehicle accident. Plaintiff and Safeway filed cross motions for summary judgment

on the coverage issues. Both motions were denied. The trial court gave the following

reasons for denying Safeway’s motion for summary judgment:

At least in this case, we have some innuendo that Mr. Rossette
had withdrawn from the flight and that he was trying to pull over to
stop. I don’t know if that’s the case. If I was convinced that was the
case, I’d be granting a summary judgment for the plaintiff.
But I think without more information or more testimony as to
what happened, the court is going to deny both motions for summary
judgment on the issue of the criminal conduct exclusion.

Safeway sought review of the denial of its motion for summary judgment.

This court called up the writ and gave each party the right to file additional briefs

and request oral argument.

ANALYSIS

Safeway argues there are no disputed issues of fact regarding whether, at the

time of the collision, Rossette was engaged in and/or committing several criminal

acts. In support of its position, Safeway cites Trumps v. USAgencies Cas. Ins. Co.,
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14- 25, p. 3 ( La.App. 3 Cir. 5/17/ 14), 139 So.3d 643, 645 (alterations in original),

where the court held that a policy exclusion for “[b]odily injury or property

damage caused by any covered person while engaged in the commission of a

crime” applied where the insured was fleeing from law enforcement officers and his

vehicle left the road and came to a stop after colliding with a house.

In the instant case, Safeway notes that before the collision occurred, Rossette

had been chased by numerous police cars for several blocks through parts of

Abbeville. Safeway also notes that Rossette disregarded several stop signs, was

speeding excessively, and the specific cause of the collision was Rossette ignoring

another stop sign at the intersection of Alphonse Street and Veterans Memorial

Drive. Therefore, Safeway argues Rossette was in the commission of a crime under

La.R.S. 14:108.1, which states, in pertinent part:

A. No driver of a motor vehicle or operator of a watercraft shall
intentionally refuse to bring a vehicle or watercraft to a stop knowing
that he has been given a visual and audible signal to stop by a police
officer when the officer has reasonable grounds to believe that the
driver has committed an offense. The signal shall be given by an
emergency light and a siren on a vehicle marked as a police vehicle or
marked police watercraft.

Safeway notes that Rossette had been given a visual and audible signal to stop by a

police officer according to the testimony of Officer Elliot Leleux, who said he

initiated the stop that led to the pursuit with lights and sirens. Safeway argues the

officer has reasonable grounds to believe that the driver committed an offense,

because Officer Leleux initiated the stop of Rossette based on a broken windshield,

a traffic violation. Thus, Safeway maintains Rossette was engaged in the

commission of a crime, flight from an officer, when he collided with the vehicle of

Durke and any bodily injury or property damage arising from that collision is not

covered by Safeway under the plain wording of the policy exclusion.

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Plaintiff counters that Rossette was not engaging in a criminal act in the

moments right before the collision. Plaintiff supports his argument by stating that

Trumps, 139 So.3d 643, is factually different because the instant case involved

Rossette slowing his vehicle in an attempt to avoid the accident. Plaintiff notes that

the testimony of Officer Leleux indicated Rossette slowed his vehicle at the stop

sign at the intersection of Alphonse Street and Veterans Memorial Drive. Plaintiff

further asserts that Officer Leleux testified that Rosette maneuvered left and tried to

revert towards the right in an effort to avoid the impact of the accident. Plaintiff also

relies on his own testimony stating that Rossette told him he was attempting to cross

Alfonse Street to get towards an empty field and park where it was well lit with

cameras before he would pull over. Plaintiff argues that because of the statements

made by Officer Leleux and Plaintiff’s testimony, it is clear that Rossette made every

effort to avoid this accident from happening. Plaintiff further argues that Rossette

was not engaged in the commission of a crime because he had intentions of stopping

when he was at the field near the intersection of Alphonse Street and Veterans

Memorial Drive. Therefore, Plaintiff asserts that Rossette was not engaged in the

commission of a crime when the accident occurred, and the policy exclusion does

not apply.

Safeway argues that the reason Rossette committed the crime of flight from

an officer is irrelevant to the question of whether he was engaged in the commission

of a crime. Safeway cites this court’s case in Charles v. Safeway Ins. Co. of

Louisiana, 18-740 (La.App. 3 Cir. 5/15/19), 272 So.3d 970, wherein we held that a

policy exclusion for criminal acts applied where the insured intentionally fled from

an officer in violation of La.R.S. 14:108.1. This court in Charles did not consider

the reason the insured committed the crime, stating that “the reason Mr. Bernard

committed the crime is irrelevant to the question of whether he committed a crime.”
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Safeway further argues that Rossette had ample time and numerous opportunities to

stop prior to the collision, but chose not to do so.

Plaintiff disagrees with Safeway’s reliance on Charles, arguing it is factually

dissimilar to the instant case because the insured ran into a house and did not attempt

to avoid the accident. Plaintiff maintains the Charles court did not mention that the

insured slowed his vehicle or attempted to swerve/veer to avoid the impact of an

accident. Plaintiff argues that Rossette made every effort to avoid the accident to

park his vehicle under the well-lit area with cameras across the street from the

intersection where the collision occurred. Safeway counters that it was daylight

during the chase and Rossette’s reasoning for wanting to stop in a well-lit area

simply is implausible, as well as irrelevant to the question of whether he was engaged

in the commission of a crime at the time of the accident.

We find persuasive the case of Safeway Ins. Co. of La. v. Gardner, 15-696

(La.App. 5 Cir. 4/27/16), 191 So.3d 684, which also involved a coverage issue under

an automobile liability policy. The defendant driver Gardner was operating a

vehicle, and the police were following him. The police suspected that the vehicle

Gardner was driving recently had been stolen. After witnessing Gardner commit

several traffic violations, the police activated their sirens. Gardner attempted to flee.

During his flight, Gardner collided with multiple other vehicles. Gardner was

charged with various crimes arising out of the incident. Individuals involved in the

collisions filed suit against, among others, Safeway, in its capacity as Gardner’s

liability insurer. In response, Safeway invoked its policy exclusions for intentional

and criminal acts. The trial court found that the policy exclusions were inapplicable,

reasoning that the accident was due to the police officers observing multiple traffic

violations. Reversing, the appellate court found the exclusions applicable, reasoning

that “[Gardner] attempted to make his escape by forcing his way through congested
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rush-hour traffic, colliding with at least six vehicles and forcing others off the road”

and concluded the flight from police “was a crime” pursuant to La.R.S. 14:108.1.

Id. at 689. The fifth circuit in Gardner, 191 So.3d at 688, found the exclusions for

criminal acts applied, but also found the exclusions did not violate public policy,

stating:

Although coverage exclusions generally do not comport with the
policy of granting protection for injured persons, the exclusions here
serve a separate public policy interest of prohibiting persons from
insuring themselves against their own intentional or criminal acts.
Withholding insurance coverage for intentional or criminal acts helps
to disincentivize such conduct, which in turn serves the purpose of
eliminating reckless and irresponsible drivers from the highways. See
Breland v. Schilling, 550 So.2d 609, 610 (La. 1989) (“The exclusion is
designed to prevent an insured from acting wrongfully with the security
of knowing that his insurance company will pay the piper for the
damages.”); Goldsmith v. Green, 45,532 (La.App. 2 Cir. 9/1/10), 47
So.3d 637, 641 (recognizing the strong public policy of preventing
wrongdoers from indemnifying themselves against their own
intentional criminal acts); Young [v. Brown, 27,018 (La.App. 2 Cir.
6/21/95), 658 So.2d 750,] 753 (“The purpose of the exclusion is a
recognition of a long-standing public policy against insuring illegal
activities and thus, promoting their commission.”). For these reasons,
we find the crime exclusion does not violate public policy.

This court in Charles, 272 So.3d 970, cited with approval the fifth circuit’s

reasoning in Gardner. In Charles, 272 So.3d at 978, we noted “there was no

indication that Mr. Bernard [the fleeing driver] intended to collide with, or veer into,

Mr. Charles’s vehicle.” Despite finding Mr. Bernard had no intention to collide with

the vehicle, this court concluded:

As in [Gardner], the undisputed facts show that Mr. Bernard ran into
Mr. Charles’s vehicle while intentionally fleeing from an officer in
violation of La.R.S. 14:108.1, which is a crime. While Mr. Charles tries
to distinguish [Gardner] because Mr. Bernard’s underlying reason for
fleeing from the officer was to avoid a traffic violation, we find that the
reason Mr. Bernard committed the crime (i.e. flight from an officer) is
irrelevant to the question of whether he committed a crime. The policy
is clear that damages arising out of the use of an automobile while that
automobile is being used to commit a crime, other than a traffic
violation, are excluded from coverage.

Id. at 979 (emphasis in original).
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The trial court seemed to find it compelling that Rossette’s actions in the

moments prior to the accident may have indicated a desire to avoid the accident, and

this should somehow indicate he was not engaged in a criminal act in the moments

immediately prior to the collision. Whether Rossette was contemplating

discontinuing the flight from police as the trial court implied, the facts are clear that

the accident occurred immediately after he again ran through a stop sign and collided

with Mr. Durke. Thus, there is no question of fact that Rossette ran into Mr. Durke’s

vehicle while intentionally fleeing from a police officer, which is a crime under

La.R.S. 14:108.1. The Safeway policy in this case clearly provides that damages

arising out of the use of an automobile “while being operated or used in the

preparation to commit a crime, commission of a crime, and/or flight from a crime,

other than a traffic violation,” are excluded from coverage.

DECREE

Safeway’s writ application is granted. Having found that exclusion (m) under

the policy is applicable, and therefore coverage is not available, we reverse the trial

court’s denial of Safeway’s motion for summary judgment, render summary

judgment in favor of Safeway and dismiss Plaintiff’s claims against it. Costs are

assessed to Plaintiff-appellee, Damien Harris.

WRIT GRANTED; REVERSED; AND RENDERED.

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