Ferguson v. Plummer's Towing & Recovery Inc.2/18/2000
Appellants, Joyce Ferguson, individually and on behalf of her minor child, Sylvia Jade Ferguson, and Joseph Mars and Craig Ferguson, appeal the trial court's grant of summary judgment in favor of appellee, State Farm Fire and Casualty Company (State Farm). We reverse and render.
FACTS AND PROCEDURAL HISTORY
On or about July 27, 1994, Richard Ferguson was fatally injured in an automobile accident when a vehicle driven by Tyrone S. Perry and owned by Plummer's Towing and Recovery, Inc. (Plummer's) ran a red light at the intersection of Dalrymple and East Lakeshore Drives in Baton Rouge, Louisiana, and collided with Mr. Ferguson's vehicle. At the time of the accident, Mr. Perry was in the course and scope of his employment with Plummer's. On the date of the accident, Plummer's vehicle was insured by State Farm with policy limits of $100,000.00 per person/$300,000.00 per accident. However, on May 24, 1994, an employee of Plummer's insurance agent issued to the City-Parish a certificate of insurance which indicated bodily injury and property damage single limits coverage in the amount of $1,000,000.00.
Appellant, Joyce Ferguson, filed a petition for damages for wrongful death on November 2, 1994, naming Mr. Perry, Plummer's, and State Farm Mutual Automobile Insurance Company as defendants, and by amended petition, naming State Farm as a defendant. Appellants, Joseph Mars and Craig Ferguson (hereafter collectively "Mars"), filed a petition for damages on June 19, 1995, naming the same defendants. The defendants answered Joyce Ferguson's petition on November 29, 1994, and the Mars' petition on August 18, 1995.
A motion to consolidate the two lawsuits was filed by the defendants on August 29, 1995, and, thereafter, the cases were ordered consolidated.
On January 30, 1998, appellants filed a motion for summary judgment asserting that they were entitled to a judgment declaring that State Farm afforded $1,000,000.00 in liability coverage to Plummer's on the date of the accident. On March 30, 1998, State Farm filed a motion for summary judgment asserting that it was entitled to a judgment declaring it only provided $100,000.00 in coverage for the claims asserted in the lawsuit. A hearing on the cross-motions was held on April 13, 1998, and judgment, granting State Farm's motion and denying appellants' motion, was rendered that day and signed April 29, 1998.
On May 1, 1998, appellants filed a motion for new trial and renewed their motion for summary judgment. The matters were heard on May 18, 1998. A judgment denying the motion for new trial, upholding the April 29, 1998 judgment, and certifying that judgment as appealable, was rendered at the hearing and signed May 21, 1998. This appeal followed.
On appeal, appellants assign as error the trial court's grant of summary judgment in favor of State Farm and the trial court's denial of appellant's motion for new trial.
DISCUSSION
Summary Judgment-Standard of Review
On appeal, summary judgments are reviewed de novo under the same criteria that govern the district court's consideration of whether summary judgment is appropriate. J. Ray McDermott, Inc. v. Morrison, 96-2337, p. 9 (La. App. 1st Cir. 11/7/97), 705 So. 2d 195, 202, writs denied, 97-3055, 97- 3061-63 (La. 2/13/98), 709 So. 2d 753, 754. An appellate court thus asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover-appellant is entitled to judgment as a matter of law. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512, p. 26 (La. 7/5/94), 639 So. 2d 730, 750.
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