Nestor v. State Farm Mutual Automobile Insurance Co.12/27/2000
VACATED IN PART; AFFIRMED IN PART; REMANDED.
In this personal injury matter, the trial court granted summary judgment in favor of one of the defendant-insurers, finding no coverage for the accident. The trial court also denied plaintiff's motion for summary judgment regarding coverage. For the following reasons, we vacate in part, affirm in part and remand.
This matter arose after plaintiff, Catherine M. Nestor, was involved in an automobile accident with a pick up truck being driven by defendant, Kelly Bankston. The pick up truck was titled to defendant, United Salvage, Inc., a dormant company owned by defendant, Glen Carimi, who also owned the business which employed Bankston, defendant, Coastal Seafood Processors, Inc. Mr. Bankston had borrowed the pick up truck from Mr. Carimi.
Ms. Nestor filed suit against Mr. Bankston, Mr. Carimi, United Salvage, Coastal Seafood, and State Farm Mutual Automobile Insurance Company, which insured the United Salvage pick up truck and was also the uninsured/underinsured motorist carrier of Ms. Nestor. Allstate Insurance Company, which insured Mr. Bankston's personal vehicle, was later added as a defendant.
After the depositions of Mr. Carimi and Mr. Bankston were taken, Allstate filed a motion for summary judgment, arguing that coverage for this accident was excluded under the terms of its policy because the pick up truck was "available for the regular use of an insured person" (Mr. Bankston). Ms. Nestor opposed the motion for summary judgment, arguing that based on the depositions and Mr. Carimi's affidavit, the pick up truck was not available for Mr. Bankston's "regular use." Plaintiff also filed her own motion for summary judgment, arguing that under other terms of the Allstate policy, Mr. Bankston was covered for any loss because the pick up truck "was being temporarily used while [Bankston's] insured auto being serviced or repaired."
Prior to the hearing on the opposing motions for summary judgment, plaintiff settled her claims with the remaining defendants, and filed a "limited motion and order of dismissal" into the record. The dismissal, which was signed by the trial court on May 15, 2000, dismissed "Glen Carimi, United Salvage, Inc., Coastal Seafood Processors, Inc., Kelly Bankston, and State Farm Mutual Insurance Company, only, while reserving any rights [plaintiff] may have against any other party."
The opposing motions for summary judgment were heard by the trial court on May 19, 2000. At the conclusion of the hearing, the trial court ruled in favor of Allstate, granting its motion for summary judgment and denying plaintiff's motion for summary judgment. The ruling of the trial court was reduced to a written judgment, which was rendered on May 23, 2000. Plaintiff appeals, arguing that the trial court should have denied Allstate's motion for summary judgment, and further that the trial court should have granted plaintiff's motion for summary judgment.
Initially, we note that an appeal generally does not lie from the denial of a motion for summary judgment. La. C.C.P. art. 968. However, in this matter, because of the prior order of dismissal, the trial court's May 23, 2000 judgment disposed of all issues and all parties to this proceeding. Therefore, we consider the entire May 23, 2000 judgment to be a final, appealable judgment.
It is well settled that a court of appeal reviews summary judgments de novo, under the same criteria that govern the district court's consideration of the appropriateness of summary judgment. Magnon v. Collins, 98-2822 (La.7/7/99), 739 So.2d 191; Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342 (La.1991). A
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