Tedeton v. Simpson8/22/2001
As amended November 28, 2001.
NORRIS, C.J., concurs.
This appeal arises from a grant by the trial court of summary judgment on behalf of Defendant, Great American Insurance Company, the general liability insurance provider of Plaintiff's employer, Moore & Patron, Inc. For the reasons stated herein, we affirm.
FACTS AND PROCEDURAL HISTORY
On August 2, 1999, Plaintiff, Carol Tedeton, was injured during her employment with Moore & Patron, Inc. ("the Garage"), an automobile service station. On that date, Brandy Simpson brought her car to the Garage to be serviced. Ms. Tedeton was assisting Ms. Simpson when Ms. Simpson caused the vehicle to accelerate and run over Ms. Tedeton. Ms. Tedeton suffered a broken leg which required several surgeries. Defendant, Great American Insurance Company ("GAIC"), provided the Garage with a commercial liability insurance policy which was in effect at that time.
On November 16, 1999, Ms. Tedeton filed suit against Ms. Simpson, a minor at that time, and Ms. Simpson's father, David Simpson. On March 17, 2000, Ms. Tedeton filed a first supplemental and amending petition in which she added GAIC as a defendant. GAIC denied that Ms. Tedeton was an insured under the uninsured/underinsured motorist ("UM") coverage which it provided to the Garage.
On September 18, 2000, GAIC filed a motion for summary judgment urging its position that Ms. Tedeton was not an insured under the policy it provided to the Garage. On October 11, 2000, Ms. Tedeton filed a motion for partial summary judgment asserting that she was an insured under the policy provided to her employer by GAIC. On November 3, 2000, the trial court granted GAIC's motion for summary judgment and dismissed Ms. Tedeton's suit against it. Ms. Tedeton has appealed.
DISCUSSION
Summary Judgment
Summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action allowed by law. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966; Banks v. State Farm Insurance Company, 30,868 (La. App. 2d Cir. 8/19/98), 717 So. 2d 687.
The mover has the burden of establishing an absence of a genuine issue of material fact. A fact is material if its existence or non-existence may be essential to the plaintiff's cause of action under the applicable theory of recovery. Banks, supra; Curtis v. Curtis, 28,698 (La. App. 2d Cir. 9/25/96), 680 So. 2d 1327. Appellate courts review summary judgments de novo under the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Taylor v. Rowell, 98-2865 (La. 5/18/99), 736 So. 2d 812; Banks, supra; Barron v. Webb, 29,707 (La. App. 2d Cir. 8/20/97), 698 So. 2d 727; writ denied, 97-2357 (La. 11/26/97), 703 So. 2d 651.
UM Coverage
On appeal, Ms. Tedeton asserts that the UM coverage afforded by GAIC to the Garage should apply to her as an employee of the Garage. She contends that, although she may not qualify as an insured under the UM portion of the policy, she does qualify as an insured under the liability portion of the policy and is, therefore, entitled to UM coverage by virtue of Howell v. Balboa Insurance Company, 564 So. 2d 298 (La. 1990).
In Howell, supra, the supreme court stated:
We expressly hold that UM coverage attaches to the person of the insured, not the vehicle, and that any provision of UM coverage purporting to limit insured status to
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