omnibus clause in Louisiana

1971In the case of Dominguez v. American Casualty Co., 217 La. 487 , 46 So.2d 744 (1950), the Supreme Court, while opining that the facts in the Waits case "concerning the lack of permission were stronger than exists here", followed the rationale of Parks and Waits in holding that the employee, who had used the truck for the purpose of pulling a fellow employee's truck out of the ditch, was covered under the language of the omnibus clause of the insurance policy issued to the owner of the truck.

1971In the case of Dominguez v. American Casualty Co., 217 La. 487 , 46 So.2d 744 (1950), the Supreme Court, while opining that the facts in the Waits case "concerning the lack of permission were stronger than exists here", followed the rationale of Parks and Waits in holding that the employee, who had used the truck for the purpose of pulling a fellow employee's truck out of the ditch, was covered under the language of the omnibus clause of the insurance policy issued to the owner of the truck.

1961Co. of North America, 215 La. 349 , 40 So.2d 746 , our Supreme Court held that coverage was afforded by the omnibus clause when employees, entrusted with the work-time use of the insured vehicles, went back after work to the designated parking place and took possession of the vehicles for their own personal use, in express violation of the employers' specific instructions.

1961Co. of North America, 215 La. 349 , 40 So.2d 746 , our Supreme Court held that coverage was afforded by the omnibus clause when employees, entrusted with the work-time use of the insured vehicles, went back after work to the designated parking place and took possession of the vehicles for their own personal use, in express violation of the employers' specific instructions.

1968To hold otherwise is to contravene established jurisprudence and violate the terms of the policy by permitting by indirection that which cannot be directly accomplished.” This conclusion was reached after a review of the jurisprudence, Bolton v. North River Insurance Co., La.App., 102 So.2d 544 ; Garvey v. Great Atlantic & Pacific Tea Co., La.App., 125 So.2d 634 ; and, Donovan v. Standard Oil Co. of Louisiana, La.App., 197 So. 320 , which had provoked the argument that the term “actual use” of the omnibus clause relates to the use of the vehicle and not to the identity of the driver, the concl

1967That policy did contain the usual omnibus clause which provides that there is coverage for anyone using a motor vehicle of Brewster with permission and that an additional clause provides that the word use or using was intended to cover the loading or the unloading of the motor vehicle In Garvey v. Great Atlantic & Pacific Tea Co., La.App., 125 So.2d 634 , we considered a situation quite similar to that involved here.

1950The ■court then distinguished this case — correctly, in my opinion — from Parks v. Hall, supra, and Haeuser v. Aetna Casualty & Surety Co., La.App., 187 So. 684 , as follows ( 37 So.2d 40, 43 ) : “There is a fundamental difference between the facts of the two ■cases, in each of which the insurer was held liable under the omnibus clause, and the facts of the present case, and it is this: In both of the cited cases, at the time of the occurrence of the accident, the employee had actually taken the automobile for some purposes contemplated by the employer or owner and had only stepped aside ■or d

1950The court then distinguished this case—correctly, in my opinion—from Parks v. Hall, supra, and Haeuser v. Aetna Casualty & Surety Co., La.App., 187 So. 684 , as follows ( 37 So.2d 40, 43 ): "There is a fundamental difference between the facts of the two cases, in each of which the insurer was held liable under the omnibus clause, and the facts of the present case, and it is this: In both of the cited cases, at the time of the occurrence of the accident, the employee had actually taken the automobile for some purposes contemplated by the employer or owner and had only stepped aside or deviated

1991Jones v. Breaux, 289 So.2d 110 (La.1974) 19 ; Anderson v. Adams, 148 So.2d 347 (La.App. 1st Cir.1962).

1991However, in Jones v. Breaux, 289 So.2d 110 (La.1974), we overruled Normand , and held a non-named driver could fall under the omnibus clause in the rental agency's insurance policy under certain circumstances.

1989Gremillion v. Goleman, 316 So.2d 810 (La.App. 1st Cir.1975); Devall v. State Farm Mutual Insurance Co., 249 So.2d 282 (La.App. 1st Cir.1971).

1988Solice v. State Farm Mutual Auto Insurance Co., 488 So.2d 1159 (La.App., 2nd Cir., 1986); Devall v. State Farm Mutual Auto Insurance Co., 249 So.2d 282 (La.App., 1st Cir.1971).

1989The applicable law for evaluating such cases was set forth by this court in Solice v. State Farm Mutal Auto Insurance Company, 488 So.2d 1159 (La.App.2d Cir. 1986): A plaintiff who seeks to establish coverage under the omnibus clause of an *371 automobile liability policy must prove the vehicle was being used with the express or implied permission of the named insured.

1989Solice v. State Farm Mutual Automobile Insurance Company, 488 So.2d 1159 (La.App. 2nd Cir.1986).

1985Perrodin v. Thibodeaux, La.App. 1 Cir., 191 So. 148 ; Boudreaux v. Cagle Motors, La.App. 1 Cir., 70 So.2d 741 ; Garland v. Audubon Insurance Company, La.App. 1 Cir., 119 So.2d 530 (Cert, denied); Thomas v. Peerless Insurance Company, La.App. 2 Cir., 121 So.2d 593 ; Donovan v. Standard Oil Company of Louisiana, La.App. 2 Cir., 197 So. 320 (Cert. denied).

1968To hold otherwise is to contravene established jurisprudence and violate the terms of the policy by permitting by indirection that which cannot be directly accomplished.” This conclusion was reached after a review of the jurisprudence, Bolton v. North River Insurance Co., La.App., 102 So.2d 544 ; Garvey v. Great Atlantic & Pacific Tea Co., La.App., 125 So.2d 634 ; and, Donovan v. Standard Oil Co. of Louisiana, La.App., 197 So. 320 , which had provoked the argument that the term “actual use” of the omnibus clause relates to the use of the vehicle and not to the identity of the driver, the concl

1985Perrodin v. Thibodeaux, La.App. 1 Cir., 191 So. 148 ; Boudreaux v. Cagle Motors, La.App. 1 Cir., 70 So.2d 741 ; Garland v. Audubon Insurance Company, La.App. 1 Cir., 119 So.2d 530 (Cert, denied); Thomas v. Peerless Insurance Company, La.App. 2 Cir., 121 So.2d 593 ; Donovan v. Standard Oil Company of Louisiana, La.App. 2 Cir., 197 So. 320 (Cert. denied).

1961The trial court held that the driver of the vehicle was an "insured" under the omnibus clause of the policy, basing its decision largely upon the case of Perrodin v. Thibodeaux, supra. The Second Circuit Court of Appeal reversed the trial court, however, holding that the consent of the named insured for the use of the vehicle at the time the accident occurred could not be implied under the circumstances presented there.

1965Thus when Mr. Mon-taldo gave Giblin’s Auto Service, Inc., implied permission to road test the auto during the course of repairs, the repair shop or its agent did not become an additional insured within the meaning of the omnibus clause, Nyman v. Monteleone-Iberville Garage, 211 La. 375 , 30 So.2d 123 (1947); Clostio’s Heirs v. Sinclair Refining Co., 36 So.2d 283 (La.App.1948).

1965Thus when Mr. Mon-taldo gave Giblin’s Auto Service, Inc., implied permission to road test the auto during the course of repairs, the repair shop or its agent did not become an additional insured within the meaning of the omnibus clause, Nyman v. Monteleone-Iberville Garage, 211 La. 375 , 30 So.2d 123 (1947); Clostio’s Heirs v. Sinclair Refining Co., 36 So.2d 283 (La.App.1948).

1955In support of this contention counsel quotes certain language from Dominguez v. American Casualty Co., supra, as follows: "* * * The leading case in the `Initial Permission' states is the case of Dickinson v. Maryland Casualty Co., 101 Conn. 369 , 125 A. 866 , 41 A.L.R. 500 , followed by Stovall v. New York Indemnity Co., 157 Tenn. 301 , 8 S.W. 2d 473 , 72 A.L.R. 1368 .

1940"Counsel cites the case and annotation in 72 A.L.R. 1375 [Stovall v. New York Indemnity Co., 157 Tenn, 301, 8 S.W.2d 473 ], all of which shows that the policies under consideration contained the so-called omnibus clause, as secondly quoted above, the same as the case of Monroe v. Heard [La.App.], 168 So. [519], 520, where the clause referred to as `extended insurance' reads as follows: `The company agrees that in addition to the Assured named in this policy, such insurance * * * shall be available in the same manner and under the same conditions and to the same extent as it is available to the

1930In the case of Hughes, Tax Collector, v. Commercial Securities Co., and in the companion case of Hughes, Tax Collector, v. Federal Securities Co., 163 La. 45 , 111 So. 490 , it was held that the expression “gross annual receipts,” as used in the 25th section *850 of this statute, meant gross annual earnings; hut the reason for the ruling was that the court was then dealing with a business which was provided for, not specifically, but only in the omnibus clause, in the 25th section of the statute, declaring that any other business, not provided for specifically in the act or by any other law, e

1930In the case of Hughes, Tax Collector, v. Commercial Securities Co., and in the companion case of Hughes, Tax Collector, v. Federal Securities Co., 163 La. 45 , 111 So. 490 , it was held that the expression “gross annual receipts,” as used in the 25th section *850 of this statute, meant gross annual earnings; hut the reason for the ruling was that the court was then dealing with a business which was provided for, not specifically, but only in the omnibus clause, in the 25th section of the statute, declaring that any other business, not provided for specifically in the act or by any other law, e

2012La.R.S. 32:900(B)(2); Arceneaux v. Norman, 05-1536 (La.App. 3 Cir.2006), 931 So.2d 484 .

2006Norton v. Lewis, 92-2178 (La.9/3/93), 623 So.2d 874 ; Arceneaux v. Norman, 05-1536 (La.App. 3 Cir. 5/24/06) , 931 So.2d 484 , writ denied, XXXX-XXXX (La.10/6/06), 938 So.2d 76 .

2000Id. at 1044 .

1999We reasoned that if such an exclusion were upheld, it would "exclude coverage of an entire class of drivers who would otherwise be covered under the omnibus clause" of the policy and would result in an "impermissible restriction on the intent and purpose of the legislature's statutory scheme." Id. at p. 6, 729 So.2d at 1044 .

1996Co., 595 So.2d 1218 (La.App. 3 Cir.1992)], and Mercadel [ v. Tran, 92-0798 (La.App. 4 Cir. 3/29/94) ; 635 So.2d 438 ], that exclusions of specific drivers are permitted and not against public policy providing they do not conflict with existing statutory provisions mandating an omnibus clause, it is apparent that the present policy provision goes much farther, excluding coverage for an entire class of drivers who *1130 have the permission of the owner and, therefore, would otherwise be covered under the omnibus clause.

1995While we agree with Hearty v. Harris, 574 So.2d 1234 (La.1991), Raimer, supra and Mercadel, supra, that exclusions of specific drivers are permitted and not against public policy providing they do not conflict with existing statutory provisions mandating an omnibus clause, it is apparent that the present policy provision goes much farther, excluding coverage for an entire class of drivers who have the permission of the owner and, therefore, would otherwise be covered under the omnibus clause.

1992However, in Scoggins v. Agricultural Insurance Company, 161 So.2d 438 (La.App. 4th Cir.1964), a vehicle left in a body shop overnight for repairs was driven by the owner of the shop after hours and was involved in an accident.

1972“The courts of Louisiana have gone far in extending coverage under the omnibus clauses of insurance policies. “[I]t is the rule that in a suit on the omnibus clause of an automobile liability policy the plaintiffs have the burden of producing evidence that the vehicle was being used with the permission of the insured owner. * * * ” In Scoggins v. Agricultural Insurance Company, La.App., 161 So.2d 438 (1964) where the permission vel non of the named insured to the driver of the insured vehicle was an issue, this court held: “[1] In a suit on the omnibus clause of an automobile liability policy

1989Gremillion v. Goleman, 316 So.2d 810 (La.App. 1st Cir.1975); Devall v. State Farm Mutual Insurance Co., 249 So.2d 282 (La.App. 1st Cir.1971).

1986Gremillion v. Goleman, 316 So.2d 810 (La.

1985Perrodin v. Thibodeaux, La.App. 1 Cir., 191 So. 148 ; Boudreaux v. Cagle Motors, La.App. 1 Cir., 70 So.2d 741 ; Garland v. Audubon Insurance Company, La.App. 1 Cir., 119 So.2d 530 (Cert, denied); Thomas v. Peerless Insurance Company, La.App. 2 Cir., 121 So.2d 593 ; Donovan v. Standard Oil Company of Louisiana, La.App. 2 Cir., 197 So. 320 (Cert. denied).

1955Counsel for plaintiff cites Boudreaux v. Cagle Motors, 70 So.2d 741 , also decided by the Court of Appeal, First Circuit, but that case, while interesting, can readily be distinguished from the instant case from a factual standpoint.