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Miller v. Superior Shipyard and Fabrication11/8/2002
e did not know who had actually written it. Since the evidence does not establish who made the written notation or the meaning/intent of the words, the invoice cannot be considered as proof of a rental agreement between Superior and Guidry regarding Guidry's vehicle. Furthermore, Guidry's vehicle does not meet the policy definition of a "rental vehicle" because it was used for business purposes and Guidry was not engaged in the business of leasing vehicles without a driver. Thus, the "rental vehicle" endorsement does not provide coverage in this instance.
The meaning of "leased" or "hired" vehicles revolves around whether the alleged lessee exercised dominion, control or the right to direct the use of the vehicle. The fact that wear and tear and use of equipment may have been factored into an amount paid to a subcontractor or employee does not make the vehicle a hired or leased auto. See Green v. Bobby A. Freeman Estate, 99-1262, p. 6 (La. App. 3 Cir. 415/00), 759 So.2d 201, 205; Gore v. State Farm Mut. Ins. Co., 26,417, p. 5 (La. App. 2 Cir. 1/25/95), 649 So.2d 162, 165, writ denied, 95-0481 (La. 4/21/95), 653 So.2d 555. Even if it could be proven that the wages paid to Guidry included a reimbursement of expenses for the use of his vehicle, this still does not constitute a "hiring" or "leasing" of his vehicle. See Dupre v. Maynard, 96-1183, p. 5 (La. App. 1 Cir. 3/27/97), 692 So.2d 36, 39, writ denied, 97-1508 (La. 9/26197), 701 So.2d 986; Johnson v. Continental Cas. Co. (on rehearing), 167 So. 114, 115 (La. App. 2 Cir. 1936). When a vehicle is leased, the lessee has complete control over it to use as he sees fit. Id. at 114-115.
The evidence reveals that Superior exercised no control regarding Guidry's vehicle. Deposition testimony of Guidry and Superior owner, Brent Duet, established that no one at Superior ever drove or requested permission to drive Guidry's vehicle. Guidry was responsible for maintaining and insuring his own vehicle. Guidry was the only driver of his vehicle while it was located on Superior's premises. Guidry never left his vehicle at Superior's premises when he finished his work. A Superior supervisor instructed Guidry as to which boat he was to perform his welding services on each day. However, Superior had no control over how Guidry performed the welding services or how he operated his welding equipment or his vehicle. There were no conditions or terms fixed under which Guidry's vehicle was to be used. If Guidry were to leave the employment of Superior, his vehicle and welding equipment would go with him. Superior could not keep the equipment or the vehicle and put another welder into it.
In order for Guidry's vehicle to constitute a hired, leased or rented vehicle within the meaning-of the policy language, we believe there must have been a separate contract by which the vehicle was leased, rented or hired to the named insured, Superior, for its exclusive use or control. See Sampay v. Morton Salt Co., 482 So.2d 752, 758 (La. App. 1 Cir. 1985), writ granted, 488 So.2d 684 (La. 1986), appeal dismissed, 496 So.2d 315 (La. 1986). Plaintiffs produced no evidence of any such contract or agreement. We find plaintiffs' arguments to the contrary unpersuasive. For these reasons, there is no coverage under the policy issued by Allstate to Superior for Guidry's alleged negligence.
CONCLUSION
We affirm the trial court's judgment grant of summary judgment in favor of Allstate Insurance Company and against plaintiffs, dismissing Allstate from the lawsuit. All costs of this appeal are to be paid by plaintiffs-appellants.
AFFIRMED.
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