Porter v. Joshua Robert McGuffee Serv. First

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DICKEY PORTER AND DORIS PORTER Plaintiffs v. JOSHUA ROBERT MCGUFFEE SERVICE FIRST, INC. AND TRAVELERS PROPERTY AND CASUALTY Defendants

No. 55,845-CA

Court of Appeals of Louisiana, Second Circuit

August 28, 2024

Appealed from the Fourth Judicial District Court for the Parish of Ouachita, Louisiana Trial Court No. 2020-1891 Honorable Jefferson Bryan Joyce, Judge

LUGENBUHL, WHEATON, PECK, RANKIN & HUBBARD BY: CELESTE D ELLIOTT SETH A. SCHMEECKLE TINA L. KAPPEN COUNSEL FOR APPELLANT, TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA

STEWART LAW GROUP, LLC BY: ARTHUR L. STEWART J. MICHAEL RHYMES COUNSEL FOR PLAINTIFFS, DICKEY PORTER AND DORIS PORTER

ROUNTREE LAW OFFICES BY: JAMES A. ROUNTREE CASTEN & PEARCE, APLC BY: MARSHALL R. PEARCE COUNSEL FOR APPELLEES, SERVICE FIRST, INC., AND JOSHUA MCGUFFEE

HAMMONDS, SILLS, ADKINS & GUICE BY: NEAL L. JOHNSON, JR. COUNSEL FOR APPELLEE, STATE FARM MUTUAL AUTOMOBILE INS., CO.

Before STONE, COX, and ROBINSON, JJ.

COX J.

This appeal arises out of the Fourth Judicial District Court, Ouachita Parish, Louisiana. Dickey Porter and Doris Porter filed a personal injury suit against Joshua McGuffee, Service First, Inc. ("Service First"), and Travelers Property and Casualty Company ("Travelers"). Travelers filed a motion for summary judgment arguing it did not provide coverage for the accident. The trial court granted the motion for summary judgment. Mr. McGuffee and Service First now appeal. For the following reasons, we reverse.

FACTS

Mr McGuffee is an employee of Service First and drove a vehicle owned by Service First as part of his job. Travelers provided automobile insurance to Service First's fleet of vehicles.

On July 17, 2020, Dickey Porter and Doris Porter filed a petition for damages against Mr. McGuffee, Service First, and Travelers and alleged the following facts and damages:

On August 15, 2019, Mr. Porter was driving his 2006 Harley Davidson motorcycle on I-20. Mr. Porter turned on his right turn signal and began slowing down to exit the interstate when he was rear-ended by Mr. McGuffee, who was driving a 2011 Chevrolet Silverado ("2011 Chevy") owned by Service First. Mr. Porter fell off his motorcycle and rolled into the middle of I-20. Mr. Porter was able to get up and move out of traffic. Mr. Porter alleged that his whole body was injured, specifically his shoulders, hips, and dominant right hand. He stated he has had two surgeries on his right hand, but he has effectively lost all use of the hand.

Mr. Porter claimed to continually suffer from pain throughout his body and stated he is still required to take medication as a result of his injuries.

Mrs. Porter claimed she suffered great emotional distress and the loss of services and society of her husband including the loss of his services in helping maintain the marital domicile (which includes five acres of land). The Porters requested the following relief: medical expenses, loss of services and society, mental and emotional distress, all costs of these proceedings, and legal interest from the date of judicial demand.

Service First filed an answer, in which it requested a jury trial, denied the allegations, and asserted comparative fault. Travelers filed its answer and denied the allegations. Travelers asserted several defenses in its answer, including that Mr. McGuffee was not driving a covered auto and the plaintiffs' claims are barred due to a "Change Endorsement" effective January 18, 2019. Service First and Mr. McGuffee filed an answer and cross/third-party claim, denied the allegations, and stated that if the truck was not insured, it was due to a clerical error and Travelers still has a duty to defend. Service First and McGuffee requested that the plaintiffs' demands be denied at their costs and Travelers be required to defend or pay defense costs and indemnify Service First.

Travelers filed an answer and asserted defenses to Service First's and Mr. McGuffee's crossclaim, denied the allegations, and stated that there was no insurance coverage on the truck and Mr. McGuffee was not an "insured" because he was not driving a covered vehicle.

On February 4, 2021, the Porters filed their first motion to amend their petition. They agreed that the truck should still be covered by Travelers' insurance policy, but if not, Service First's commercial general liability ("CGL") insurance policy should cover the negligent action of removing the insurance coverage of the truck. The Porters added as a defendant The Travelers Indemnity Company of America ("Travelers Indemnity"), Service First's GCL insurer.

Travelers filed an answer to the amended petition, reasserted that the truck was not a covered auto, and denied liability coverage. Travelers Indemnity filed an answer and stated that the CGL insurance policy itself is the best evidence of its contents. Travelers Indemnity denied any liability to the plaintiffs and stated the claims fall outside the scope of coverage of the CGL policy due to the automobile exclusion.

On April 28, 2022, the Porters amended their petition to include State Farm Mutual Automobile Insurance Company ("State Farm"), Mr. McGuffee's personal auto liability insurer. Travelers and Travelers Indemnity filed separate answers, denying liability. State Farm answered and stated that it did not issue coverage to Mr. McGuffee for the operation or use of the 2011 Chevy owned by Service First.

Service First and Mr. McGuffee filed an answer and alleged that Mr. Porter's "erratic" attempt to turn caused the accident. They stated that in the list of covered vehicles, the 2011 Chevy was listed directly below an unused 2011 Chevrolet truck, and the 2011 Chevy was inadvertently marked out instead of the unused 2011 truck. They stated they were not given notice that the truck insurance was canceled. They again requested that Travelers provide their defense in the suit.

On October 10, 2022, State Farm filed a motion for summary judgment, asserting that the auto accident was not covered under Mr. McGuffee's insurance. On November 11, 2022, Travelers Indemnity filed a motion for judgment, asserting their auto exclusion precludes coverage of the accident. These motions for summary judgment are not contested on appeal.

On November 15, 2022, Travelers filed its motion for summary judgment, asserting that it should be dismissed because there was no coverage of the 2011 Chevy under the auto policy. Travelers included the affidavit of David Stewart, who stated he is a managing director of the Travelers group of insurers. Mr. Stewart provided a copy of the auto policy, effective September 18, 2018 through September 18, 2019, a copy of the policy change request submitted by or on behalf of Service First, and a copy of the insurance cards. Stewart stated the requested changes were effective January 18, 2019, and Travelers returned $2,477 in premiums to Service First for removing the vehicle from coverage.

Travelers also attached the deposition of Jeff Alford, CEO of Service First. He stated that either he or another employee of Service First requested to have "Vehicle 8" removed from service. He stated the removal was an accident because the truck listed below "Vehicle 8" was supposed to be removed due to it no longer being in use. He stated that his insurance agent was the first to notice that the truck was not covered by insurance after the accident, but he was uncertain how Travelers would handle the claim. Mr. Alford stated that his agent thought the truck that was removed from insurance was the truck that was no longer in service.

Service First opposed Travelers' motion for summary judgment. Service First attached a list of disputed facts and the affidavit of Mr. Alford. Mr. Alford stated that at the beginning of 2019, four trucks were covered by insurance but not in use for various reasons, one of those was a 2011 Chevy Silverado with the VIN number ending in 3740. However, Travelers uses a different numbering system than Service First. For instance, the 2011 Chevy was listed as vehicle 26 on Service First's records and vehicle 8 on Travelers' list. Mr. Alford stated that he confirmed with Service First's insurance representative, Rhonda Crooks, that they were both attempting to remove the truck with the VIN number ending in 3740 when they removed the 2011 Chevy "by mutual error."

Mr. Alford stated that when Service First canceled liability insurance on vehicles in the past, he routinely received a notice from the State of Louisiana to provide proof of insurance or surrender the license plate. He stated that he received no notice of the cancelation of the 2011 Chevy from the State of Louisiana. He stated that if Travelers had correctly notified the State, the error would have been corrected immediately. The affidavit of Margarette Danna, an officer and shareholder of Service First, was also attached, in which she reiterated the statements by Mr. Alford.

Service First also attached a notice of cancelation of liability insurance from the Louisiana Department of Public Safety and Corrections that it received after cancelation of another vehicle's insurance.

The Porters also opposed Travelers' motion for summary judgment. The matter was argued on January 18, 2023. On February 2, 2023, the trial court put its ruling and reasons for ruling on the record. Regarding Travelers' motion, the district court stated:

It is clear the subject truck was removed from the policy prior to the accident. The Court is convinced that removal was in error. However, to reform the policy and provide coverage the mistake must be mutual by both parties... Neither plaintiff nor Service First can point to any evidence that Travelers committed error in the removal of the truck from its list of insured vehicles. There is no

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