Otwell v. State Farm Fire and Casualty Co.10/26/2005
Before WILLIAMS, STEWART and DREW, JJ.
Plaintiffs, Michael Otwell and Karen Otwell, filed suit after their minor son, Cory Dale Otwell, was killed in an automobile accident. Plaintiffs now appeal the judgment of the trial court granting a motion for summary judgment filed by defendant, State Farm Fire and Casualty Company ("State Farm"). For the reasons assigned below, the judgment of the trial court is affirmed.
FACTS
The following allegations are set forth in plaintiffs' petition for damages and first amending and supplemental petition for damages. On June 6, 2003, defendants, Carolyn Lonidier and Danny Lonidier ("the Lonidiers"), left home for the weekend, leaving Carolyn's 17-year old son, Brandon Morris ("Brandon"), unattended. On that same evening, Brandon invited a number of minor children to the Lonidiers' home for a party, which extended overnight and into the morning of June 7, 2003. During the party, Brandon, who had a history of alcohol and drug use, consumed alcohol and controlled dangerous substances and made them available to the other minors present.
Cory Dale Otwell, the 16-year old son of Michael and Karen Otwell, attended the party at the Lonidiers' home. In the early morning of June 7, 2003, Brandon borrowed a 1999 Chevrolet Blazer from Jonathan Waltman, one of the other minor party guests. Brandon left the home driving under the influence of alcohol and/or controlled dangerous substances. Cory Otwell was the only passenger in the vehicle. At approximately 5:15 a.m., Brandon failed to negotiate a curve on Louisiana Highway 821 in Lincoln Parish, and the vehicle left the roadway on the right curve. Brandon over-corrected and lost control of the vehicle. The vehicle became airborne, struck a tree on the passenger side of the vehicle and burst into flames. Cory Otwell suffered severe injuries and subsequently died.
Michael and Karen Otwell filed a wrongful death suit, alleging inter alia, the Lonidiers failed to properly supervise Brandon and the minor guests in their home. Plaintiffs named as a defendant State Farm, the Lonidiers' homeowner's insurer. In response, State Farm filed a motion for summary judgment, arguing Cory Otwell died as a result of an automobile accident, and the use of an automobile is excluded under the language of the homeowner's policy.
The trial court granted State Farm's motion. First, the trial court acknowledged that plaintiffs had not alleged that the language of the homeowner's policy is ambiguous. Next, although the trial court recognized that the accident occurred while Brandon was negligently supervised, and the accident presumably would not have occurred but for the negligent supervision, citing this court's decisions in Mahlum v. Baker, 25,876 (La. App. 2d Cir. 6/24/94), 639 So.2d 820 and Oaks v. Dupuy, 26,729 (La. App. 2d Cir. 4/5/95), 653 So.2d 165, writ denied, 95-1145 (La. 6/16/95), 655 So.2d 335, the court concluded that the policy's automobile use exclusion applied because, although Brandon was negligently supervised, he was operating a motor vehicle at the time of the accident.
DISCUSSION
LSA-C.C.P. art. 966 provides, in pertinent part:
A. (1) The plaintiff or defendant in the principal or any incidental action, with or without supporting affidavits, may move for a summary judgment in his favor for all or part of the relief for which he has prayed. The plaintiff's motion may be made at any time after the answer has been filed. The defendant's motion may be made at any time.
(2) The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by A
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