SAVOIE, Judge.
Plaintiffs, Danny and Dawn Castille, appeal the trial court's summary judgment dismissing their claims against Defendant, Certain Underwriters at Lloyd's, London ("Certain Underwriters"), on the grounds that no coverage existed under the Uninsured/Underinsured (UM/UIM) provisions of a policy issued to Danny Castille. For the following reasons, we reverse.
On September 24, 2011, Plaintiff-Appellant, Danny Castille, was operating a tractor/trailer traveling westbound on Interstate 10 in Kenner, Louisiana. He was travelling directly behind a vehicle operated by Defendant Denise Breaux, and Ms. Breaux was travelling behind a truck operated by Defendant Jonathan Blum. According to Mr. Castille, a ladder in the back of Mr. Blum's truck fell into the path of Ms. Breaux, and as Ms. Breaux attempted to avoid the ladder, a collision occurred between Ms. Breaux's vehicle and Mr. Castille's vehicle.
Danny Castille and his wife Dawn filed suit against Ms. Breaux and her automobile liability insurer, and Mr. Blum and his automobile liability insurer, among others. They later added Certain Underwriters as a defendant, seeking UM/UIM coverage under a surplus lines insurance policy issued to Mr. Castille. Certain Underwriters answered the Castilles' petition admitting the issuance of an insurance policy to Mr. Castille, but averring that there was no UM/UIM coverage.
The policy Certain Underwriters issued to Mr. Castille is a "Bobtail Liability Insurance Policy." "Bobtailing" is a trucking industry term meaning that the tractor is being operated without a trailer attached. Jurey v. Kemp, 11-142, 11-143 (La.App. 1 Cir. 9/20/11), 77 So.3d 83. According to Certain Underwriters, because liability coverage was only available when the insured's tractor was "bobtailing", UM/UIM coverage was also only available when the insured's tractor was "bobtailing." It is undisputed that Mr. Castille's vehicle was not "bobtailing" since a trailer was attached to the tractor.
Certain Underwriters subsequently sought and obtained a summary judgment against the Castilles. The trial court found that the policy did not provide UM/UIM coverage and dismissed the Castilles' claims against Certain Underwriters. The Castilles appealed; however, that appeal was dismissed because the original summary judgment was not certified as a final appealable judgment pursuant to La.Code. Civ.P. art.1915.
In their first assignment of error, the Castilles contend that the trial court applied an improper standard when considering the Motion for Summary Judgment and reviewing the policy; however, they do not identify what standard was or should have been applied. The proper standard to be applied by the trial court in a summary judgment proceeding and the standard of review to be employed by this court is as follows:
Berard v. Home State County Mut. Ins. Co., 11-1372, p. 2 (La.App. 3 Cir. 5/9/12), 89 So.3d 470, 471-72.
Regardless of the standard of review applied by the trial court, on appeal, we conduct a de novo review of the record; and, as such, the Castilles' claim of legal error has no bearing and is without merit.
The Castilles' remaining assignments of error involve the trial court's interpretation of the policy and its finding that language in the liability portion of the policy limited UM/UIM coverage to tractors that were "bobtailing." In reviewing the applicable insurance policy provisions, we are mindful of the following:
Cadwallader v. Allstate Ins. Co., 02-1637, pp. 3-4 (La. 6/27/03), 848 So.2d 577, 580 (citations omitted)(emphasis in original).
In finding that UM/UIM coverage was not available in this case, the trial court relied on Section II of the "Bobtail Liability Insurance Policy." That section is entitled "II-INSURING AGREEMENTS," and defines the coverage provided as follows (emphasis added):
Section II.2 of the liability portion of the policy states (emphasis added):
The trial court found that this language, which appears in the liability portion of the policy, also limited UM/UIM coverage to trailers that were bobtailing. The UM/UIM endorsement attached to the policy defines coverage available as follows (emphasis added):
As made clear by the underlined portions of the policy above, we first note that liability coverage available under the liability portion of the policy is defined to insure a completely different loss than UM/UIM coverage. Liability coverage protects the insured from certain amounts "for which the insured is legally liable," whereas UM/UIM coverage protects against uninsured or underinsured persons who are legally obligated to pay certain amounts to the insured. Therefore, the language in the liability section's insuring agreement that limits the applicability of "this insurance" (i.e. the liability insurance) to "covered automobiles" that are "bobtailing" does not affect the UM/UIM coverage defined by the policy.
In fact, the insuring agreement of the liability portion of the policy makes clear that it is "subject to .... other terms and conditions" of the policy, and Section IV of the liability policy provides that UM/UIM coverage "will be provided as defined by the attached endorsement" (emphasis added). Therefore, in determining whether UM/UIM coverage is available, we must look to how UM/UIM insurance is defined in the attached endorsement.
The UM/UIM endorsement makes clear that it "changes" the policy. With respect to "covered autos," it modifies coverage to include coverage for "all sums the `insured' is legally entitled to recover as compensatory damages from the owner or driver of an `uninsured motor vehicle.'"
A covered auto is defined by the policy as "a land motor vehicle designated in the Declarations Page ... and designed for travel on public roads, but does not include `mobile equipment.'" A covered auto is not defined to include only "bobtailing" tractors, and, similarly, the definition of the UM/UIM coverage available is not otherwise limited to "covered autos" that are "bobtailing."
Therefore, we find that the policy affords otherwise available UM/UIM coverage to covered autos, even if they were not "bobtailing" at the time of the accident, and reverse the summary judgment granted in favor of Certain Underwriters.
For the reasons set forth above, the summary judgment granted in favor of Certain Underwriters at Lloyd's London is reversed, with costs of the appeal assessed to Certain Underwriters at Lloyd's London.
GENOVESE, J., dissents and assigns written reasons.
GENOVESE, J., dissents and assigns the following reasons.
The majority opinion in this case creates uninsured motorist/underinsured motorist (UM/UIM) coverage where there is none.
The crux of the majority opinion is that the UM/UIM endorsement "changes" the policy. That is a truism insofar as every endorsement "changes" the policy. The
The policy of insurance in question is a "Bobtail Liability Insurance Policy," and it specifically states, "This Insurance Policy applies to business and non-business uses of a covered automobile, but only as respects to the trailer unit whilst the tractor unit is not attached to a trailer." It is not disputed that a trailer was attached to a tractor unit at the time of the accident in question.
In this case, the insuring agreement is the insurance policy, and UM/UIM coverage is the endorsement. It is akin to the adage of the dog and the tail. Here, the insurance policy is the dog, and the UM/UIM endorsement is the tail. As stated in the proverb, the dog wags the tail; the tail does not wag the dog. There is nothing in the endorsement which changes, much less overrides, the clear and unambiguous language in the general insuring agreement which only affords coverage when the tractor unit is not attached to a trailer.
The Bobtail Liability Insurance Policy, under the heading "
The definition of an "uninsured motor vehicle" contained within the UM/UIM endorsement does not modify or negate what constitutes a covered accident or loss from the use of "a covered automobile" under the policy. To the contrary, the UM/UIM provision referenced by the Castilles serves only to define what constitutes an "uninsured motor vehicle[,]" and it does not eliminate what is set forth in the Insuring Agreement portion of the policy. That portion of the policy remains unmodified and, by its express terms, affords coverage for "a covered automobile" only if it is not "bobtailing."
In conclusion, the Bobtail Liability Insurance Policy provides coverage for an accident or loss arising from the use of a covered automobile if the tractor is not attached to a trailer. The definition of an uninsured motor vehicle under the UM/UIM provisions of the policy does not modify or "change" this policy provision as proclaimed in the majority opinion. Thus, the policy's Insuring Agreements' general provision relative to bobtailing remains as written and governs the UM/UIM provisions of the policy. Because Mr. Castille was operating a tractor with a trailer attached when the accident occurred, the claims of the Castilles do not come within the ambit of the policy's UM/UIM coverage, and Certain Underwriters is entitled to judgment as a matter of law.
I respectfully dissent from the majority opinion and would affirm the trial court judgment.