Stephanie McFarland v. Shelter Mutual Insurance Company

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

23-686

STEPHANIE MCFARLAND

VERSUS

SHELTER MUTUAL INSURANCE COMPANY
AND USAA CASUALTY COMPANY

**********

ON APPLICATION FOR SUPERVISORY WRITS FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2021-517
HONORABLE RONALD F. WARE, DISTRICT JUDGE

**********

WILBUR L. STILES
JUDGE

**********

Court composed of Sharon Darville Wilson, Charles G. Fitzgerald, and Wilbur L.
Stiles, Judges.

WRIT GRANTED AND MADE PEREMPTORY.

J. Lee Hoffoss, Jr.
Donald W. McKnight
Lee Hoffoss Injury Lawyers, LLC
517 West College Street
Lake Charles, LA 70806
(225) 448-2267
COUNSEL FOR PLAINTIFF/RESPONDENT:
Stephanie McFarland

Christopher P. Ieyoub
Karen M. Green
Plauché, Smith & Nieset, LLC
1123 Pithon Street
Lake Charles, LA 70601
(337) 436-0522
COUNSEL FOR DEFENDANT/RELATOR:
Shelter Mutual Insurance Company

V. Ed McGuire, III
Plauche, Smith & Nieset, LLC
1123 Pithon Street
Lake Charles, LA 70601
(337) 436-0522
COUNSEL FOR DEFENDANT/RESPONDENT:
USAA Casualty Company

STILES, Judge.

This writ application is from the trial court’s denial of Defendant Shelter Mutual

Insurance Company’s (Shelter’s) motion for summary judgment. For the following

reasons, we grant the writ application, reverse the trial court’s ruling denying Shelter’s

motion for summary judgment, and enter summary judgment in favor of Shelter. We

dismiss all claims against it with prejudice.

FACTUAL AND PROCEDURAL HISTORY

On February 28, 2019, Plaintiff Stephanie McFarland was travelling as a

passenger in a Ford F-150 owned and operated by her mother, Pamela Harris, when a

tire from an unidentified vehicle struck a trailer attached to Ms. Harris’ truck. Ms. Harris

lost control of the truck, resulting in a collision with another vehicle.

Plaintiff instituted this matter against her uninsured/underinsured motorist

insurer, USAA Casualty Insurer, and against Ms. Harris’ uninsured/underinsured

motorist insurer, Shelter. In response, Shelter filed a motion for summary judgment in

February 2022, asserting that Plaintiff was not insured under the explicit language of

the UM portion of Ms. Harris’ Shelter policy and, therefore, Shelter was not liable for

Plaintiff’s alleged injuries.

Following a September 2023 hearing, the trial court denied Shelter’s motion for

summary judgment. Shelter thereafter filed an application for supervisory writs with

this court. After review of the writ application, this Court allowed the parties the

opportunity to request oral argument and submit additional briefing in accordance with

La.Code Civ.P. art. 966(H).1 The court also ordered a stay of the trial court proceedings

pending this court’s ruling. Neither party requested oral argument. Plaintiff submitted

an additional brief.

1
Louisiana Code of Civil Procedure Article 966(H) provides that, “[o]n review, an appellate
court shall not reverse a trial court’s denial of a motion for summary judgment and grant a summary
judgment dismissing a case or a party without assigning the case for briefing and permitting the parties
an opportunity to request oral argument.”

By Shelter’s writ application, it argues that:

1. The district court erred in denying Shelter’s motion for
summary judgment because the court ignored the clear language of the
insurance contract to expand the coverages beyond the intent of the
parties.

2. The district court erred in failing to engage in the two-step
analysis articulated by the Louisiana Supreme Court in Green ex rel.
Peterson v. Johnson, 14-0292 (La. 10/15/14), 149 So.3d 766, to
determine if Stephanie McFarland is entitled to UM coverage under the
Shelter policy.

3. The district court erred in denying Shelter’s motion for
summary judgment on the basis of public policy in light of the
Louisiana Supreme Court’s holding that there is no public policy
mandating UM coverage for guest passengers when those guest
passengers are not insureds under the policy.

(Footnote omitted.)

DISCUSSION

Louisiana Code of Civil Procedure Article 966(A)(3) provides that “a motion for

summary judgment shall be granted if the motion, memorandum, and supporting

documents show that there is no genuine issue as to material fact and that the mover is

entitled to judgment as a matter of law.” An appellate court reviews summary judgment

de novo under the same criteria that govern the trial court’s consideration 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.

Moreover, interpretation of an insurance policy generally involves a legal

question properly resolved by a motion for summary judgment. Bonin v. Westport Ins.

Corp., 05-886 (La. 5/17/06), 930 So.2d 906. As insurance policies are contracts

between the parties, they should be construed using the general rules of interpretation

of contracts set forth in the Civil Code. Id. In this regard, La.Civ.Code art. 2047

provides that words in a contract are to be construed using their generally prevailing

meaning. The supreme court has explained that “[t]he rules of construction do not

2

authorize a perversion of the words or the exercise of inventive powers to create an

ambiguity where none exists or the making of a new contract when the terms express

with sufficient clearness the parties’ intent.” Cadwallader v. Allstate Ins. Co., 02-1637,

pp. 3-4 (La. 6/27/03), 848 So.2d 577, 580. Unless an insurance policy conflicts with

statutory provisions or public policy, it may limit an insurer’s liability and impose and

enforce reasonable conditions upon the policy obligations the insurer contractually

assumes. Bonin, 930 So.2d 906.

Mindful that our review of the motion for summary judgment is de novo, we

consider Shelter’s assertion that it is entitled to dismissal of Plaintiff’s claims as the

policy expressly excludes guest passengers from UM coverage. The supreme court has

explained that, when the existence of UM coverage under a policy of insurance is called

into question, a two-step analysis is required as follows: “(1) the automobile insurance

policy is first examined to determine whether UM coverage is contractually provided

under the express provisions of the policy; (2) if no UM coverage is found under the

policy provisions, then the UM statute is applied to determine whether statutory

coverage is mandated.” Green ex rel. Peterson v. Johnson, 14-292, p. 9 (La. 10/15/14),

149 So.3d 766, 774. Shelter maintains that, under the Green analysis, Plaintiff is entitled

to neither contractual UM coverage, nor statutory UM coverage.

Employing the Green analysis on de novo review, we first consider whether the

Shelter policy provided UM coverage to Plaintiff.

We begin with review of the liability portion of the policy as the supreme court

has explained that “[a]lthough Louisiana’s public policy strongly favors UM coverage

and a liberal construction of the UM statute, it is well-settled that a person who does

not qualify as a liability insured under a policy of insurance is not entitled to UM

coverage under the policy.” Magnon v. Collins, 98-2822, p. 5 (La. 7/7/99), 739 So.2d

191, 196. In this regard, the Shelter policy sets forth four categories of insureds for

liability purposes, including Category 4 which provides coverage for “Individuals who

3

have permission or general consent to use the described auto are insureds for claims

resulting from that use.”2

Specific to UM coverage, the policy again sets forth four categories of insureds

as follows:

(2) Insured means:

(a) You;

(b) Relatives;3

(c) Individuals listed in the Declarations as an
“additional listed insured” who do not own a motor
vehicle, and whose spouse does not own a motor
vehicle; and

(d) Any individual using the described auto with
permission.

The parties agree that Plaintiff does not meet the requirements of an “insured” under

the first three categories. In further arguing that Plaintiff does not meet the requirements

of an “insured” under category (d), Shelter focuses on the policy’s defined terms of

“use,” “operator,” and “passenger.”

The Shelter policy contains the following definitions:

(30) Operator means an individual who is using a vehicle.

....

(33) Passenger means an individual who is occupying one of the
seats of a vehicle with permission but does not include the
operator of a vehicle.

....

(54) Use means physically controlling, or attempting to physically
control, the movements of a vehicle. It includes any emergency
repairs performed in the course of a trip, if those repairs are
necessary to the continued use of the vehicle.

2
We have maintained the Shelter’s policy inclusion of bold typeface for terms defined within
the policy.
3
While Plaintiff is Ms. Harris’ daughter, the record indicates that she is not a resident of Ms.
Harris’ household and thus does not meet the policy’s definition of “relative.”
4

Shelter argues that Plaintiff does not fit any category of “using” the vehicle while being

an operator and thus does not satisfy the requirements of an insured under category (d),

i.e., an “individual using the described auto with permission.” (Emphasis added.)

Plaintiff was instead only a passenger as she was occupying a seat in the vehicle and

was not operating the vehicle.

Following review of the policy and the undisputed facts, we find merit in

Shelter’s position. The Shelter policy specifically defines “use” as “physically

controlling, or attempting to physically control, the movements of a vehicle.” As a

passenger, Plaintiff was not performing any of these functions and was therefore not

“using” the insured vehicle. Although Plaintiff suggests that the policy’s definition of

“use” must yield to a broader interpretation than clearly provided for by the clear terms

of the policy, “[w]hen a policy of insurance contains a definition of any word or phrase,

this definition is controlling.” Maxi v. Bates, 54,256, p. 9 (La.App. 2 Cir. 4/13/22), 338

So.3d 564, 570.

Having found that UM coverage is not contractually provided to Plaintiff under

the express provisions of the Shelter policy, we next consider whether statutory

coverage is mandated. See Green, 149 So.3d 766. Louisiana Revised Statutes 22:1295

provides for uninsured motorist coverage as:

(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 . . . .

(Emphasis added.) On application of the policy’s definition of “use,” Plaintiff was not

insured under the Shelter policy for liability in this instance as she was not “physically

5

controlling, or attempting to physically control, the movements of a vehicle.” She was

instead a mere passenger/occupant. Absent liability coverage, La.R.S. 22:1295(1)(a)(i)

cannot be construed to otherwise require an insurer to provide UM coverage. Rather,

the statute pertains to coverage “for the protection of persons insured thereunder[.]” Id.

See also Magnon 739 So.2d at 196 (“it is well-settled that a person who does not qualify

as a liability insured under a policy of insurance is not entitled to UM coverage under

the policy.”)

That requisite also undermines Plaintiff’s further reliance on La.R.S.

22:1295(1)(c)(i), a provision supplying the priorities of UM coverage in the event that

an injured person has multiple insurance policies on which to rely. Plaintiff argues in

her supplemental brief to this court that La.R.S. 22:1295(1)(c)(i) reflects a legislative

mandate “that all policies provide that when a person occupying an automobile not

owned by that person is injured, UM coverage on the vehicle they are occupying is

primary.” However, La.R.S. 22:1295(1)(c) foundationally addresses a circumstance

where “the insured has any limits of uninsured motorist coverage in a policy of

automobile liability insurance, in accordance with the terms of Subparagraph (1)(a) of

this Section[.]” (Emphasis added.) As stated, Plaintiff is not an “insured” under the

terms of La.R.S. 22:1295(1)(a).4

4
Plaintiff focuses on an excerpt of La.R.S. 22:1295(1)(c)(i) which indicates that “[t]he
uninsured motorist coverage on the vehicle in which the injured party was an occupant is primary.”
Reference to the larger context of the priority provision, however, reveals that it is dependent on the
status as an insured under Subparagraph (1)(a). La.R.S. 22:1295(1)(c) (emphasis added) provides:

(c) If the insured has any limits of uninsured motorist coverage in a policy
of automobile liability insurance, in accordance with the terms of Subparagraph
(1)(a) of this Section, then such limits of liability shall not be increased because of
multiple motor vehicles covered under such policy of insurance, and such limits of
uninsured motorist coverage shall not be increased when the insured has insurance
available to him under more than one uninsured motorist coverage provision or
policy; however, with respect to other insurance available, the policy of insurance
or endorsement shall provide the following with respect to bodily injury to an
injured party while occupying an automobile not owned by said injured party,
resident spouse, or resident relative, and the following priorities of recovery under
underinsured motorist coverage shall apply:

(i) The uninsured motorist coverage on the vehicle in which the injured
party was an occupant is primary.
6

We similarly find no merit in Plaintiff’s contention that La.R.S. 32:900(B)(2)

demonstrates the legislature’s intent to require an insurer to provide UM coverage for a

person occupying an automobile not operated by that person. Louisiana Revised

Statutes 32:900(B)(2), which provides the statutory omnibus clause, requires a motor

vehicle liability policy to “insure the person named therein and any other person, as

insured, using any such motor vehicle[.]” In addition to the fact that La.R.S.

32:900(B)(2) relates to liability insurance and not to UM coverage, the statute further

pertains to either a named insured or “any other person, as insured, using” the motor

vehicle. (Emphasis added.) Under the terms of the Shelter policy, Plaintiff is not an

insured in the underlying accident as the policy specifically requires that “use”

necessarily entails “physically controlling or attempting to physically control the

movements of the vehicle.”

Having considered both La.R.S. 22:1295 and La.R.S. 32:900(B)(2) as required

under the second component of the Green analysis, we conclude that UM coverage is

not statutorily mandated in favor of Plaintiff. We therefore find that the trial court erred

in denying Shelter’s motion for summary judgment.

In concluding that summary judgment is appropriate, we are mindful that Plaintiff

cites jurisprudence which she suggests mandates UM coverage in this instance. In

particular, Plaintiff relies on Bernard v. Ellis, 11-2377 (La. 7/2/12), 111 So.3d 995, a

matter in which the supreme court indicated that, if a plaintiff is insured under a policy’s

liability coverage, the plaintiff is further entitled to UM coverage. Plaintiff maintains

that, by extension, “[s]ince a guest passenger is covered, as a matter of law, by the

liability portion of the policy, the guest passenger is covered by the UM portion.” The

present case is factually distinguishable from Bernard, however.

Critically, in Bernard, the supreme court considered whether UM coverage was

afforded a guest passenger under a policy that did not define the term “use.” The

supreme court thus explained that it was “tasked with determining whether the Plaintiffs

7

are insureds under” the policy’s definition of “‘insured person[.]’” Id. at 1001. The

policy, in turn, broadly defined “‘insured person’ as ‘any person with respect to an

accident arising out of that person’s use of a covered vehicle with the express or

implied permission of you. (Emphasis added.)” Id. The supreme court concluded that

the general and comprehensive use of the term “arising out of” was to be construed

broadly to afford coverage. Id. at 1005.

In stark contrast to the policy in Bernard, the Shelter policy in this case contains

a definition of “use” and makes a definitive distinction between a mere

passenger/occupant and an operator of the vehicle. Under those definitions, Plaintiff is

not an insured under either the liability portion of the policy or the UM portion of the

policy. Simply, Shelter’s contract excludes Plaintiff from both the liability and UM

portions of its policy under the circumstances of this case. Bernard does not preclude

such an exclusion.

Importantly, the supreme court has explained that courts are not to invalidate an

insurance policy’s exclusion of coverage “based on so-called ‘public policy’ that is

devoid of—or in, fact, contrary to—statutory authority.” Landry v. Progressive Sec. Ins.

Co., 21-621, p. 11 (La. 1/28/22), 347 So.3d 712, 720. Moreover, “[t]he role of the

judiciary is not to generate public policy for the state related to automobile liability

insurance or to determine the bounds of contractual liberty of insurers. That power rests

with the Legislature. Ultimately, ‘[t]he court’s search for the public policy governing

automobile insurance policies . . . must begin with the statutes enacted by the

legislature.’” Id. (citations omitted.) Having examined the pertinent legislation in light

of Shelter’s “contractual liberty” to define the parameters of its coverage, we find no

merit in Plaintiff’s assertion that Shelter was mandated to provide coverage for Plaintiff,

a guest passenger who was merely occupying the vehicle.

Finally, we point out that panels of both the first and second circuit have reviewed

similar policy language and found that it was neither in conflict with pertinent statutory

8

mandates nor with public policy. See, e.g., Wines v. Hollingsquest, 54,605 (La.App. 2

Cir. 7/6/22), 343 So.3d 332, writ denied, 22-1193 (La. 11/1/22), 349 So.3d 7; Nielson

v. Shelter Mut. Ins. Co., 14-614 (La.App. 1 Cir. 11/7/14), 167 So.3d 697, writ denied,

14-2564 (La. 3/13/15), 160 So.3d 964. In both instances, the panels applied the clear

policy definitions limiting UM coverage. In Wines, 343 So.3d at 340, the second circuit

determined that Plaintiff’s “statutory and public policy arguments in support of her

claim that the Shelter insurance policy provides UM coverage for her as a passenger,”

were “unfounded.” It instead remarked that, “[u]ntil and unless the Louisiana

Legislature sees fit to amend the UM statute, we will not usurp its function by doing so

as a court.” Id. (citing Landry, 347 So.3d 712). It further noted that although

“‘automobile liability policies’ are issued primarily for the protection of the public

rather than the insured, it is not the public policy of this state to protect and provide

compensation to injured persons at all times.’” Id. (quoting Taylor v. Rowell, 98-2865,

p. 8 (La. 5/18/99), 736 So.2d 812, 818).

DECREE

For the foregoing reasons, we grant and make peremptory the writ application

filed by Defendant/Relator Shelter Mutual Insurance Company. The ruling of the trial

court is reversed, the motion for summary judgment filed by Shelter Mutual Insurance

Company is granted, and the claims of Plaintiff/Respondent Stephanie McFarland

against Shelter Mutual Insurance Company are dismissed with prejudice. Costs of this

writ application are assessed to Ms. McFarland.

WRIT GRANTED AND MADE PEREMPTORY.

9