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Dunn v. St. Paul Fire & Marine Insurance Co.9/27/2000
Brown, J., concurs. The policy language is apparently clear to the Supreme Court.
Plaintiff Marjorie Dunn appeals from the grant of summary judgment in favor of Phoenix Insurance Company, her employer's uninsured motorist insurance carrier. For the following reasons, we affirm.
FACTS
On March 5, 1998, Marjorie Dunn was injured in an automobile accident while driving her personally-owned vehicle in the course and scope of her employment with Central American Life Insurance Company ("Central"). The cause of the accident was the negligence of Nancy Solito, a third-party tortfeasor. Ms. Dunn sustained personal injuries and property damage as a result of the accident. On March 5, 1999, Ms. Dunn filed suit against Ms. Solito; Ms. Solito's insurer, St. Paul Fire & Marine Insurance Company; and Central's commercial automobile liability insurance carrier, Phoenix Insurance Company ("Phoenix"). Superior National Insurance Group, Central's workers' compensation carrier, intervened for amounts it paid on behalf of Ms. Dunn.
Phoenix subsequently filed a motion for summary judgment on the issue of coverage, contending that (1) Ms. Dunn was not an "insured" for automobile liability purposes and, as such, was not entitled to uninsured motorists ("UM") benefits; and (2) Ms. Dunn was not entitled to such benefits under the UM endorsement to the policy. On February 16, 2000, the trial court granted summary judgment in favor of the insurer and dismissed it from the lawsuit.
DISCUSSION
The precise issues presented in this case have recently been addressed by our supreme court in Carrier v. Reliance Insurance Co., 99-2573 (La. 4/11/00), 759 So. 2d 37. The issues are (1) whether Ms. Dunn, who was injured while driving her own vehicle in the course and scope of her employment, qualifies as an insured under the UM coverage, or endorsement, of the employer's policy; and (2) if not, whether she qualifies as an insured under the liability coverage of the policy, thereby entitling her to UM coverage. Construing virtually identical policy language to the one presently under our review, the supreme court answered both questions in the negative, holding that the employer's commercial auto policy provided no uninsured motorist coverage to an employee using his own car while in the course and scope of his employment. We will briefly address each issue in turn.
Coverage under UM Endorsement
Ms. Dunn argues that the UM endorsement affords her coverage. In light of Carrier, supra, we must disagree. The UM endorsement in the present case is identical to the endorsement at issue in Carrier, and provides as follows:
B. WHO IS AN INSURED
1. You.
2. If you are an individual, any "family member."
3. Anyone else "occupying" a covered "auto" or a temporary substitute for a covered "auto." The covered "auto" must be out of service because of its breakdown, repair, servicing, loss or destruction.
4. Anyone for damages he or she is entitled to recover because of "bodily injury" sustained by another "insured."
5. Anyone else "occupying" an "auto" you do not own and that is a covered "auto" under this coverage part for Liability Insurance and is licensed or principally garaged in Louisiana. (Emphasis ours.)
The definitions section of the liability insurance policy defines "auto" as follows:
"Auto" means a land motor vehicle, trailer or semitrailer designed for travel on public roads but does not include "mobile equipment."
Ms. Dunn asserts the same argument as the plaintiff in Carrier - since she was occupying a vehicle,
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