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Evins v. Louisiana Farm Bureau Mutual Insurance Co.2/11/2005
Before: PARRO, KUHN, and WELCH, JJ.
The plaintiff in this action appeals from a summary judgment in favor of an insurance company on the issue of coverage relative to an umbrella policy of insurance. For the following reasons, we affirm.
Factual Background and Procedural History
While a pedestrian in a marked crosswalk on the campus of Louisiana State University in Baton Rouge, Louisiana, on October 5, 2001, Kell Evins (Evins) was hit by a 1998 Ford Expedition owned by Alton J. Landry (Alton) and driven by his son, Brandon Landry (Brandon). The vehicle was insured under a policy with Progressive Security Insurance Company (Progressive Security).
In connection with this accident, Evins filed suit against Louisiana Farm Bureau Mutual Insurance Company and Louisiana Farm Bureau Casualty Insurance Company (collectively Farm Bureau) based on its issuance of a comprehensive automobile policy and an umbrella policy of insurance to Alton. Following the filing of an exception raising the objection of no cause of action, Brandon was added as a defendant by an amended petition. Farm Bureau later filed a motion for summary judgment on the issue of coverage relative to the auto and umbrella policies. After reviewing those policies, the trial court granted summary judgment in favor of Farm Bureau. Evins appealed. Subsequently, she conceded that the comprehensive automobile policy did not provide coverage for the accident, because the Expedition was not listed as a covered vehicle on the declarations page of that policy. Thus, the dispute on appeal relates solely to the umbrella policy, which Evins urged provided liability coverage for the ownership, use, and operation of the Expedition, since Brandon was a resident relative of Alton's household.
Discussion
In determining whether summary judgment is appropriate, appellate courts conduct a de novo review of the evidence, employing the same criteria that govern the district court's determination of whether summary judgment is appropriate. Schwehm v. Jones, 03-0109 (La.App. 1st Cir.2/23/04), 872 So.2d 1140, 1144. The issue of whether an insurance policy, as a matter of law, provides or precludes coverage is a dispute that can be resolved properly within the framework of a motion for summary judgment. Johnson v. Allstate Ins. Co., 95-1953 (La.App. 1st Cir.5/10/96), 673 So.2d 345, 347, writ denied, 96-1292 (La.6/28/96), 675 So.2d 1126.
The initial burden of proof is on the moving party. However, on issues for which the moving party will not bear the burden of proof at trial, the moving party's burden of proof on the motion is satisfied by pointing out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, the nonmoving party must produce factual support sufficient to establish that it will be able to satisfy its evidentiary burden of proof at trial; failure to do so shows that there is no genuine issue of material fact. LSA-C.C .P. art. 966(C)(2); Clark v. Favalora, 98-1802 (La.App. 1st Cir.9/24/99), 745 So.2d 666, 673.
Louisiana law places the burden on the plaintiff to establish every fact essential to recovery and to establish that the claim falls within the policy coverage. Ho v. State Farm Mutual Auto Ins. Co., 03-0480 (La.App. 3rd Cir.12/31/03), 862 So.2d 1278, 1281, citing Pierce v. Aetna Life and Casualty Ins. Co., 572 So.2d 221, 222 (La.App. 1st Cir.1990). Summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence
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