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Johnson v. Allstate Insurance Co.11/15/2000
AFFIRMED.
This is a personal injury suit arising out of a traffic accident, in which one of the defendant insurers appeals the trial court's finding that it provided coverage for this accident. We affirm, as set forth below.
On August 18, 1998 Jeannette Johnson was driving her 1993 Nissan Sentra west on Lapalco Boulevard in Jefferson Parish when her vehicle was rear-ended by a 1990 Ford Econoline van driven by Troy Breaux and owned by Kenneth Shea. The impact pushed Johnson's car into the vehicle ahead of her. Johnson and her husband filed suit against Breaux, Shea, Allstate Insurance Company as the insurer of Shea's van, and GEICO General Insurance Company as the Johnsons' uninsured/underinsured motorist ("UM") insurer. Plaintiffs later added as a defendant Permanent General Assurance Corporation ("PGAC"), Breaux's automobile liability insurer.
GEICO settled with plaintiffs for its policy limits ($25,000.00 UM liability, $3,000.00 medical payments) and was dismissed.
PGAC raised a coverage defense, specifically, an exclusion for business use of a non-owned automobile. PGAC admitted that Troy Breaux was an additional insured under an automobile policy issued to his grandfather, Patrick Arceneaux. PGAC asserted, however, that at the time of the accident Breaux was driving a work van owned by his employer while in the course and scope of his employment and, thus, was not covered under the PGAC policy.
PGAC brought a motion for summary judgment on the coverage defense, which was set for hearing on the trial date, November 8, 1999. The trial court deferred decision on the motion until the end of the trial. At the conclusion of trial, the judge stated that the motion for summary judgment was denied on the basis that there was a factual dispute as to business use of the van. After trial the matter was held open for submission of an additional deposition of a medical witness.
On March 9, 2000 the trial court rendered judgment in favor of plaintiffs against Breaux, Allstate and PGAC. The court awarded Jeannette Johnson damages in the amount of $17,734.61 and Steven Johnson $2,500.00 on his loss of consortium claim, plus legal interest and costs.
In written reasons for judgment the trial court found that Breaux was not in the course and scope of his employment because at the time of the accident his workday had ended and he was returning Shea's van back to Shea's home, which was also the headquarters for Shea's business. The court noted that Breaux was employed by Accent Home Improvement, a corporation owned by Shea, and that the van was Shea's personal vehicle, although it also was used in his work. The court also mentioned that Shea testified that the workday for his employees began upon their arrival at his home in the morning and ended upon completion of the job at the particular job site. From the job site employees were free to go on their own. Shea also testified that Breaux was not being paid for driving the van back to Shea's home and that driving the van was not part of his regular duties. Based on the above information, the trial judge concluded that Breaux was not in the course and scope of his employment at the time of the accident.
The court also stated in the reasons for judgment that it found Jeannette Johnson entitled to general damages in the amount of $40,000.000 and special damages in the amount of $5,078.01. The court awarded Allstate and Breaux a credit, however, for the $28,000.00 paid in settlement by GEICO. The court found that GEICO was solidarily liable with Breaux, so that GEICO's payment to Breaux exonerated him of liability for that amount. Further, the court pointed out that GEICO had p
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