DocketNumber： 2022CW0601
Filed Date： 11/8/2022
Status： Precedential
Modified Date： 11/9/2022
STATE OF LOUISIANA COURT OF APPEAL, FIRST CIRCUIT WASTE MANAGEMENT OF NO. 2022 CW 0601 LOUISIANA LLC D/B/A WOODSIDE PAGE 1 OF 2 LANDFILL, WASTE MANAGEMENT NATIONAL SERVICES, INC. VERSUS STAFFORD LOGISTICS, INC. D/B/A CUSTOM ECOLOGY, INC., STARR INDEMNITY & LIABILITY COMPANY, CRUM & FORSTER SPECIALTY INSURANCE COMPANY, AXIS SURPLUS INSURANCE NOVEMBER 8, 2022 COMPANY, AND SCOTTSDALE INSURANCE COMPANY In Re: Axis Surplus Insurance Company and Starr Indemnity & Liability Company, applying for supervisory writs, 19th Judicial District Court, Parish of East Baton Rouge, No. 686651. BEFORE : McDONALD, THERIOT, AND CHUTZ, JJ. WRIT GRANTED. The district court’s April 20, 2022 judgment, which denied the motions for summary judgment filed by defendants, Starr Indemnity & Liability Company and Axis Surplus Insurance Company, is reversed. The commercial auto liability insurance policy issued by defendant, Starr Indemnity & Liability Company, states that it will “pay all sums an ‘insured’ legally must pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies, caused by an ‘accident’ and resulting from the ownership, maintenance or use of a covered ‘auto.’” The excess commercial auto liability insurance policy issued by defendant, Axis Surplus Insurance Company, states that it is “excess insurance and, except as otherwise stated in this policy, follows the terms, conditions, exclusions, and endorsements of the ‘first underlying insurance,’ and it will “pay those sums in excess of the ‘underlying insurance’ that you become legally obligated to pay as damages because of injury or damage to which this insurance applies, provided that the ‘underlying insurance’ also applies.” “Summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation under which coverage could be afforded when applied to the undisputed material facts shown by the evidence supporting the motion.” Guste v. Lirette, 2017-1248 (La. App. lst Cir. 6/4/18),251 So.3d 1126
, 1129. The tort victim in this matter was injured while unloading waste from the trailer he hauled to the facility owned by the tortfeasor, Waste Management of Louisiana LLC d/b/a Woodside Landfill, Waste Management National Services, Inc., while the truck he used to haul the waste was parked. This court has held that in order to determine whether the claim arises out of the use of an automobile, it must examine the acts of the tortfeasor and STATE OF LOUISIANA COURT OF APPEAL, FIRST CIRCUIT NO. 2022 CW 0601 PAGE 2 OF 2 not the accident victim. Fleniken v. Entergy Corp., 99- 3023, 99-3024 (La. App. lst Cir. 2/16/01),790 So.2d 64
, 70, writs denied, 2001-1269 2001-1295 (La. 6/15/01),793 So.2d 1250
, 1252. We find the complained of conduct by the alleged tortfeasor, Waste Management of Louisiana LLC d/b/a Woodside Landfill, Waste Management National Services, Inc., does not constitute use of an automobile. Thus, we find that Starr Indemnity & Liability Company and Axis Surplus Insurance Company met their burden of proving that the policies at issue do not provide coverage because the tortfeasor’s activity did not involve the use of an automobile. See Terminix Services, Inc. v. State Farm Mut. Auto. Ins. Co., 2001-720 (La. App. 5th Cir. 11/27/01),803 So.2d 198
. Therefore, we find that there is no coverage or duty to defend under the policies issued by Starr Indemnity & Liability Company and Axis Surplus Insurance Company. Accordingly, the motion for summary judgment is granted, and all claims against Starr Indemnity & Liability Company and Axis Surplus Insurance Company are dismissed with prejudice. JMM MRT WRC COURT OF APPEAL, FIRST CIRCUIT ACal DEPUTY CLERK OF COURT FOR THE COURT