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Collins v. Farris11/3/2004
usion stated that bodily injury to any employee of the insured arising out of and in the course of his or her employment by the insured was excluded from liability coverage.
A copy of Evanston's "Business Automobile Liability Non Ownership For Delivery Service" policy was attached to Mueller's affidavit. Item One of the Declarations page showed the named insureds as RPM Pizza, Inc. and 2003 Realty Corporation. In Item Four, the operations to be covered were stated to be "Pizza Delivery." Item Six showed there were endorsements for UM coverage, corporation owned vehicles, and additional insureds. Part I, the definitions section of the policy, provided that:
A. "You" and "your" mean the person or organization shown as the named insured in ITEM ONE of the declarations.
D. "Auto" means a non owned or hired motor vehicle, while used to deliver food on behalf of the Named Insured, or for the miscellaneous errands necessary to the business of the Named Insured.
E. "Insured" means any person or organization qualifying as an insured in the WHO IS INSURED section of the applicable insurance. Except with respect to our limit of liability, the insurance afforded applies separately to each insured who is seeking coverage or against whom a claim is made or suit is brought.
Part IV, the liability insurance provisions, stated:
A. WE WILL PAY.
1. We will pay all sums the 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, in excess of the deductible amount stated in the declarations.
C. WE WILL NOT COVER--EXCLUSIONS.
This insurance does not apply to:
4. Bodily injury to any employee of the insured arising out of and in the course of his or her employment by the insured. However, this exclusion does not apply to bodily injury to domestic employees not entitled to workers' compensation benefits.
D. WHO IS INSURED.
1. You are an insured for any covered auto.
Part V of the policy had additional conditions, including:
B. OTHER INSURANCE
1. For any covered auto you don't own, the insurance provided by this policy is excess over any other collectible insurance.
In support of her motion for partial summary judgment, Collins submitted a copy of the Evanston policy, a copy of the accident investigation report, Evanston's response to her requests for admissions of fact, a copy of the required form for rejection or modification of UM coverage, and a copy of portions of the record in the case of Thigpen v. RPM Pizza, Inc., 99-1146 (La.App. 1st Cir.9/22/00), 772 So.2d 704, writ denied, 01-0114 (La.3/30/01), 788 So.2d 1189. The admissions of fact indicate the parties agree Collins was an RPM employee and was within the course and scope of her employment when she was injured in an automobile accident, which occurred while she was delivering pizzas in her own vehicle. They also agree that on the day of the accident, Evanston had in full force and effect a policy of insurance that insured her employer, RPM, and provided UM coverage.
One of Collins' arguments in the trial court and in this court involves the Thigpen case, which addressed the UM coverage issue in a similar situation with the same employer and the same insurance policy. This court reversed the trial court's summary judgment in favor of Evanston, but the only issue addressed in the Thigpen appeal was the adequacy of the UM waiver form. Following that decision, Evanston filed another motion for summar
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