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Collins v. Farris11/3/2004
y judgment in the trial court, raising the same issues as are being considered in this case. Its motion was denied, and in an unpublished writ action, this court denied the writ application for failure to comply with several of this court's rules. Thigpen, 01-2541 (La.App. 1st Cir.12/14/01) (unpublished writ action). However, although the re-filed motion for summary judgment in the Thigpen case raised the issues being considered in this case, the writ denial by this court was not a decision on the merits of those issues. Therefore, the Thigpen decision has no relevance to the issues in this case, because those issues were not addressed by this court in either the appeal or the subsequent writ denial.
The first step in this court's legal analysis must be whether Collins is an "insured" under the liability provisions of the policy, even though she concedes that she is not a named insured. The liability provisions state the insurer will pay damages the insured legally must pay, if those are caused by an accident resulting from the use of a covered auto. Looking at this provision, it says only that the insurer would pay damages if RPM, a named insured, was called upon to pay damages. RPM contends this provision is intended to cover its potential vicarious liability for damages that might be caused by its employees while delivering pizzas on its behalf in their own vehicles. For that reason, the covered autos include non-owned vehicles. Vehicles owned by the named insured corporations are covered in a separate endorsement. There is no endorsement or other provision in the policy providing Collins with "insured" status for liability coverage. Any determination of whether a plaintiff is entitled to UM benefits must follow a determination that the plaintiff is an insured for purposes of auto liability insurance coverage. Magnon, 739 So.2d at 196. Thus, the threshold requirement of finding liability coverage before finding UM coverage for Collins in the policy does not exist.
Contrary to Collins' arguments, this conclusion does not conflict with this court's decision in the Babin case. The exclusion relied on by the trial court states that liability insurance does not apply to "bodily injury to any employee of the insured arising out of and in the course of his or her employment by the insured." Collins claims the trial court erred in interpreting this provision as excluding her from liability and UM coverage, when this court interpreted identical provisions in a similar situation in the Babin case and determined UM coverage was not precluded. Babin, 504 So.2d 558. In that writ action, Babin was a truck driver who sought UM coverage under his employer's liability policy for injuries he suffered in a collision while hauling goods on behalf of his employer using his own truck, which was leased to his employer. The trial court denied the insurer's motion for summary judgment, and the insurer applied for a supervisory writ. This court initially granted the writ after concluding that Babin "was not an insured" under his employer's policy, and that the liability portion of the policy simply was not intended to cover the owner of a vehicle who was an employee of the named insured corporation and had leased his vehicle to the employer before using it with the employer's permission. Babin, 504 So.2d at 560. On rehearing, this court reviewed a policy endorsement it had not previously addressed, under which liability coverage was extended in a typical "omnibus clause" to "any other person while using an owned automobile or a hired automobile with the permission of the named insured" if he was "engaged in the business of transporting property by automobile for the named insured ...." Babin, 504 So.2d at 560 (on rehearing)
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