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Gilbert v. B.D.O.W.S.6/23/2000
Judgment rendered June 23, 2000.
Application for rehearing may be filed within the delay allowed by Art. 2166, LSA-CCP.
Honorable Benjamin Jones, Judge
CARAWAY, J., concurs in part and dissents in part with reasons.
Greg Gilbert ("Gilbert"), the plaintiff in this personal injury action, seeks reversal of summary judgments in favor of State Farm Fire and Casualty Insurance Company ("State Farm"), as insurer of Thomas Lawson ("Lawson") and Dr. James Barron ("Dr. Barron"), and in favor of Aetna Insurance Company ("Aetna"), as insurer of Ed Seymour, Jr. and Ed Seymour, III (the "Seymours"). The issues presented are (1) whether the trial court erred in finding no coverage under the State Farm policy for any liability Lawson may incur in these proceedings; (2) whether the trial court erred in finding that State Farm did not waive any coverage defenses under the policy issued to Lawson; and (3) whether the trial court erred in finding no coverage under the State Farm policy insuring Dr. Barron and under the Aetna policy for medical payments benefits. For the following reasons, we reverse the summary judgment in favor of State Farm, as Lawson's insurer, and remand for further proceedings. However, we affirm the trial courts ruling that State Farm did not waive coverage defenses and the summary judgments in favor of State Farm, as Dr. Barron's insurer, and Aetna, finding that their policies do not provide medical payments coverage in this instance.
FACTS
The facts of this matter have been set forth in detail in Gilbert v. B.D.O.W.S., Inc., 30,439 (La. App. 2d Cir. 4/08/98), 711 So.2d 765, review denied, 98-1269 (La. 6/26/98), 719 So.2d 1059. In summary, Gilbert sustained injuries which rendered him a quadriplegic when he dove into a swimming pool at the Oliver North apartment complex in Monroe, Louisiana, while visiting Tracy Gandy, a college friend and tenant at the Oliver North apartments. Gilbert filed suit for damages against Sherman and Velynda Shaw (the "Shaws"), the owners of both the apartment building in which Gandy resided and the pool in which the accident occurred. By amendments to his petition, Gilbert also named as defendants the other owners of the apartment buildings comprising the complex and their insurers. These defendants included Thomas Lawson and his insurers, State Farm and Aetna; Dr. Barron and his insurer, State Farm; and the Seymours and their insurer, Aetna. Gilbert alleged that these defendants were jointly liable with the Shaws for acts of negligence in maintaining the pool because they shared the cost, upkeep, custody, garde, and use of the pool with the Shaws. The basis for this allegation was that Lawson, Dr. Barron, and the Seymours paid a per apartment assessment fee to the Shaws to allow their tenants to use the Shaws' pool.
Gilbert also alleged that Lawson was an agent, manager, or employee of the Shaws, the Seymours, and Dr. Barron, who were vicariously liable for his acts of negligence, and that Lawson committed acts of fault in a dual capacity as apartment owner and pool manager. Underlying these allegations are the facts that, in addition to owning apartments in the complex, Lawson was hired by the Shaws to manage their apartments and to oversee, clean, and maintain the pool. The Shaws paid Lawson for his pool management services with funds collected from the per apartment assessment fee paid by the other apartment owners. Lawson was also the sole proprietor of a janitorial business known as G & L Janitorial, which provided commercial and residential cleaning services. Lawson is insured under two policies providing commercial liability insurance coverage. A policy issued by Aetna lists the
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