GENOVESE, Judge.
Plaintiffs, Linda J. Burns, Leon Burns, Elaine M. Long, Marshall Long, and Evie Dixon (collectively "Burns"), appeal the trial court's grant of summary judgment in favor of Defendant, Progressive Security Insurance Company (Progressive). For the following reasons, we affirm.
The present litigation arises out of an automobile accident which occurred on October 12, 2005, in Simmesport, Louisiana. Linda Burns was operating a vehicle, occupied by Evie Dixon and Elaine Long, on Louisiana Highway 1, preparing to make a left-hand turn, when she was rear-ended by a 1988 International 53500 farm vehicle bean truck, being operated by Burton Dupuis. At the time of the accident, Mr. Dupuis was in the course and scope of his employment with Victor Lachney and was engaged in bean harvesting operations. The farm truck being driven by Mr. Dupuis was owned by Ted and Don Couvillion and had been lent by them to Mr. Lachney on that particular occasion.
Burns filed suit against Progressive, among others, alleging that the policy of insurance issued by Progressive to Mr. Lachney provided coverage for the damages they sustained as a result of the negligence of Mr. Dupuis. Progressive admitted that it had issued a policy of insurance to Mr. Lachney, which policy provided coverage on a separate vehicle, but denied that coverage existed under the policy for the vehicle involved in the accident, the 1988 International 53500 farm vehicle, or for the driver of said vehicle, Mr. Dupuis.
Burns filed a motion for summary judgment on the issues of the liability of Mr. Dupuis and of coverage under the Progressive policy. Progressive filed a crossmotion for summary judgment relative to coverage. Following a hearing on April 13, 2009, the trial court denied Burns' motion for summary judgment on both issues raised therein. On the issue of coverage, the trial court found that there was no coverage under the Progressive policy for the accident at issue and granted summary judgment in favor of Progressive. Burns appealed.
Burns presents the following assignments of error for our review:
The issues raised in the present appeal involve questions of law.
In their first assignment of error, Burns asserts that the trial court erred in issuing conflicting judgments on the issue of insurance coverage under the Progressive policy. We disagree.
The record reflects that the trial court held a March 19, 2007 hearing on a motion for summary judgment filed on behalf of Progressive. The trial court denied Progressive's motion and signed a concomitant judgment on March 29, 2007. Progressive filed a subsequent motion for summary judgment on April 13, 2009, the grant of which is the subject of the present appeal. Burns argues, in brief, that because Progressive "did not take an appeal or writs on [the 2007] judgment" and "the issue of coverage had been previously reviewed by the [district] court[,] . . . . this court should consider the issue of coverage res judicata because of the failure to seek timely relief before this court on the issue of coverage."
The denial of a motion for summary judgment is an interlocutory judgment. See S.S. v. State, 00-953 (La.App. 3 Cir. 9/20/00), 771 So.2d 187. Thus, an appeal cannot be taken from a trial court's denial of a motion for summary judgment. La.Code Civ.P. art. 968. While Progressive could have applied for supervisory writs, it was not required to do so. Moreover, there is no legal prohibition against a party re-urging a previously denied motion for summary judgment. Belt v. Wheeler, 36,585 (La.App. 2 Cir. 12/18/02), 833 So.2d 1256; Melton v. Miley, 98-1437 (La.App. 1 Cir. 9/24/99), 754 So.2d 1088, writ denied,
In its second assignment of error, Burns contends that the trial court erred in hearing Progressive's motion for summary judgment "because the motion was not properly served and heard on April 13, 2009." We disagree.
The transcript reveals the following colloquy between the attorneys and the trial court at the opening of the hearing:
Additionally, following discussions in open court and in chambers, the trial court stated the following:
Based upon the foregoing, we find that Burns expressly waived service of Progressive's motion for summary judgment; thus, they are precluded from now asserting on appeal that the motion was not properly served. For these reasons, we find no merit to this assignment of error.
The third assignment of error raised by Burns on appeal is that the trial court erroneously found "no competent evidence" of the fault of Mr. Dupuis. However, the issue of liability is not properly before this court for its consideration.
Burns, in their motion for summary judgment, raised the issue of the negligence of Mr. Dupuis. However, Burns' motion for summary judgment was denied by the trial court. As discussed above, an appeal cannot be taken from a trial court's denial of a motion for summary judgment. La.Code Civ.P. art. 968. We, therefore, do not consider Burns' third assignment of error as it is not properly before us.
The fourth and fifth assignments of error raised by Burns both encompass the issue of coverage under the Progressive policy. As such, we will discuss them together.
The crux of Burns' argument on the issue of coverage is that the Progressive policy contained Form No. 1890 (06/04), an Employers Non-Ownership Liability Endorsement, which provides that "[t]he definition of
To the contrary, Progressive maintains that "[t]he policy is not modified nor is there any indication that it is modified by Form No. 1890 (06/04)[,]" the Employers Non-Ownership Liability Endorsement. Particularly, Progressive notes that the Declarations Page specifically identifies those forms which do modify the policy. Although there are some forms delineated on the Declarations Page of Mr. Lachney's policy, notably absent therefrom is Form No. 1890 (06/04).
Differing pages or sections of the Progressive policy are identified by reference to a form number. The Declarations Page, which itself is Form 6489 LA (05/02), provides: "The policy contract is form 6912 (02/04). The contract is modified by forms 4852LA (04/05), 4881LA (04/05) and 4792LA (01/03)." The cover of the policy, Form No. 1781 (02/05) LA, identifies the policy as a commercial auto insurance policy issued by Progressive, and provides, as follows:
Following the Index of Policy Provisions is Form 6912 (02/04), consisting of the thirty-two pages of the policy contract. Next in sequence is an Index of Endorsements. Form No. 1890 (06/04), the Employers Non-Ownership Liability Endorsement at issue in this case, is listed on this index, among others, comprising a total of eight endorsements. Each of these endorsements then appear as set forth on the index.
Burns contends that all of the endorsements which follow the policy contract, including the Employers Non-Ownership Liability Endorsement, "are not optional endorsements or optional endorsements that may be selected." They reach this conclusion, despite the bold language on Form 1781 (02/05) LA which expressly notes that not all forms appearing in the endorsement section necessarily apply to a given policy, by negating Form 1781 in its entirety. It is Burns' position that "nothing in Endorsement Form 1781 can be considered effective unless Form 1781 is listed on the Declarations Pages, and it clearly is not." Their argument, however, fails to distinguish between forms, endorsements, and modifications of the policy contract.
As described above, the differing pages or sections of the Progressive policy are identified by form numbers. Consistent therewith, the policy contract and each of the endorsements have a unique form number. While all endorsements have form numbers, not every page containing a form number is an endorsement. Those forms which are available endorsements are those eight forms listed on the Index of Endorsements; however, only those endorsements listed on the Declarations
"An insurance policy is an agreement between the parties and should be interpreted by using ordinary contract principles." Orazio v. Henderson, 01-28, p. 2 (La.App. 3 Cir. 7/11/01), 790 So.2d 754, 755 (quoting Ledbetter v. Concord Gen. Corp., 95-809, p. 3 (La. 1/6/96), 665 So.2d 1166, 1169, amended on other grounds, 95-809 (La.4/18/96), 671 So.2d 915). Additionally, "[t]he contract has the effect of law for the parties. La.Civ.Code art. 1983." Id. When the language in an insurance contract is clear and explicit, no further interpretation may be made in search of the party's intent. Hill v. Shelter Mut. Ins. Co., 05-1783, 05-1818 (La.7/10/06), 935 So.2d 691. A court should not strain to find ambiguity where none exists. Hebert v. Webre, 08-60 (La.5/21/08), 982 So.2d 770.
A review of Progressive's policy reveals clear and unambiguous language. The policy expressly notes in bold language that not all endorsements pertain to a given policy. Additionally, the forms which result in a modification of the policy contract are delineated on the Declarations Page. If a form, be it an endorsement or otherwise, that would modify the policy contract does not appear on the Declarations Page, the provisions of that form do not apply in that instance. In this case, the policy issued by Progressive to Mr. Lachney contains a Declarations Page that does not identify Form No. 1890 (06/04) as being a form that modifies the policy contract. Therefore, the Employers Non-Ownership Liability Endorsement does not apply to Mr. Lachney's policy, and the definition of an insured auto within the policy contract was not modified to include a non-owned auto used by Mr. Lachney or any of his employees in connection with Mr. Lachney's business.
We conclude, therefore, that Mr. Dupuis was not an insured under the Progressive policy and that the 1988 International 53500 farm vehicle was not an insured auto under the Progressive policy. Additionally, the Progressive policy was not modified by Form No. 1890 (06/04), the Employers Non-Ownership Liability Endorsement, so as to provide coverage for a non-owned auto. Given these policy provisions, there remains no genuine issue as to any material fact and, as a matter of law, the Progressive policy did not provide coverage for Burns' damages. Accordingly, we find no legal error in the trial court's grant of Progressive's motion for summary judgment on the issue of coverage.
For the foregoing reasons, we affirm the trial court's grant of summary judgment in favor of Defendant, Progressive Security