Kenneth Troy Green, (hereinafter Green) the plaintiff in this tort suit, was injured on December 29, 1979 while helping his uncle, James DeFelice, (hereinafter DeFelice) operate an insulation machine installed in the back of a Ford Van Truck.
Green brought this action against the owner of the truck, DeFelice, and his automobile liability insurer, Argonaut Insurance Company (hereinafter Argonaut). Argonaut moved for a summary judgment based upon its various policy defenses and the motion was denied. The case was tried before a jury which rendered a verdict in favor of Green against DeFelice and Argonaut, in solido, for $100,000.00. After trial Argonaut moved for a judgment notwithstanding the verdict and alternatively for a new trial. Both motions were denied. From this judgment, the defendant, Argonaut, timely perfected this appeal. We affirm.
Argonaut contends on appeal that (1) a summary judgment should have been granted based upon its various policy defenses; (2) there was no coverage by its policy for this accident; (3) the trial court committed error in failing to give jury instructions as requested and required by law; (4) the jury erred in failing to find that Green assumed the risk or was contributorily negligent, (5) the trial court erred in failing to grant a judgment notwithstanding the verdict; and (6) the trial court erred in denying defendants' motion for a new trial without a hearing.
In his reasons for judgment the trial judge set forth the facts, which we adopt as our own, as follow:
ASSIGNMENT OF ERROR NUMBER 1
Argonaut contends that the trial judge erred in failing to grant their motion for summary judgment based upon the provisions of its policy. Our court has recently detailed the standard for considering a motion for summary judgment in Concrete Post-Tensioning v. Armco, Inc., 449 So.2d 712 (La.App. 3rd Cir.1984) by stating:
Argonaut argues that two of its policy provisions exclude coverage and therefore a summary judgment should have been granted. The policy provisions only exclude coverage if the accident did not arise out of the ownership, maintenance, or use of the vehicle or if Green was an employee of DeFelice or if DeFelice could be held liable under any workmen's compensation or similar law. After a careful review of the insurance policy and supporting documents filed with the motion for summary judgment we find that there was a genuine issue of law as to whether the policy provisions excluded coverage for this accident and a genuine issue of fact as to whether the policy exclusions were applicable under the facts of the accident. For these reasons, we find that the trial court's denial of Argonaut's motion for summary judgment was correct.
ASSIGNMENT OF ERROR NUMBER 2
The Argonaut automobile liability insurance policy provides that the insurer will pay for damages "arising out of the ownership, maintenance or use of the automobile." Argonaut contends that while Green was physically in the automobile at the time of the accident, the automobile was not in "use" as contemplated by the terms of the policy.
Green contends on appeal that Argonaut did not plead or raise the "arising out of the use" provision at the trial court level and therefore should be precluded from raising it at the appellate level. We find this argument without merit in that Argonaut in its answer pled its insurance policy and all of its terms, conditions and limitations in defense of Green's claims. Argonaut apparently further raised the policy defenses in its motion for summary judgment in the trial court. For this reason Green's contention is without merit.
The meaning of the term "use" in vehicle liability insurance policies has been
There are many cases which have given a broad interpretation to the term "use." In Duvingneaud v. Government Emp. Ins. Co., 363 So.2d 1292 (La.App. 4th Cir.1978), writ denied, 366 So.2d 560 (La.1979), a vehicle was found to be in "use" when the driver left his dog in his car with the windows open and the dog jumped out and ran into a motor bike injuring the plaintiff. In Bolton v. North River Insurance Company, 102 So.2d 544 (La.App. 1st Cir.1958) the vehicle was in "use" when plaintiff was standing outside the insured vehicle and a passenger in the car slammed the car door on plaintiff's hand. In Cagle v. Play land Amusement, Inc., 202 So.2d 396 (La.App. 4th Cir.1967), writ denied 251 La. 403, 404, 204 So.2d 578 (1967) the vehicle was in "use" when plaintiff was injured by a gun which accidentally discharged as defendant's employee used the gun to break into the insured vehicle to retrieve the car keys. In Baudin, supra, the defendant was sitting in his parked car whose position blocked the view for oncoming cars and, as a result, an approaching auto struck plaintiff's child who was a pedestrian. In all these cases the courts found the insured vehicles were in "use" within the meaning of the applicable liability insurance policies.
In each of the cited cases the injury causing activity was one that could be readily associated with the use of a vehicle. In the present case, the injury of the young man operating an insulation machine built into the back of a Ford Van Truck, can be readily associated with the "use" of this vehicle. The Argonaut insurance policy provides that it affords coverage to the 1964 Ford Van Truck used commercially in the insulation business of the James DeFelice Insulation Co. Further, the policy designates the business of the named insured as "insulation contractor." It is obvious from the policy itself that Argonaut knew that the van truck would be used commercially for operations in connection with an insulating business. When Green was injured he was in fact operating the insulation machine in the back of the van truck. For these reasons we find that the injury arose out of the "use" of the vehicle as contemplated by the policy provisions and that coverage was afforded under the policy for this accident.
Argonaut also contends that the plaintiff should be excluded from coverage under the policy's employment and worker's compensation exclusions. This exclusion of the policy reads as follows:
Argonaut argues that the trial court erred in not finding that there was an employer-employee relationship between DeFelice and Green, which would have limited Green's claims to those which he could assert under the Louisiana Workmen's Compensation Law, arguing that Green
At the time of the accident, Green was attending school and working part-time at two jobs after school. He testified that he would occasionally help his uncle, DeFelice, on weekends by assisting him in the operation of the insulation machine. Green testified that he was never under any obligation to work for DeFelice and that when he did help him out he was free to leave the job at anytime. He only helped his uncle when his uncle needed him and if it was at a time convenient to Green and his personal schedule or other work activities. Thus, DeFelice did not control when, where and how Green worked. There was no fixed agreement between Green and DeFelice as to what, if any, wages were to be paid. Green testified that sometimes he was given different sums of money and other times none and that on some occasions he would receive a steak dinner or gasoline for his car. Green was never given any type of compensation for the work he did on the day he was injured. Thus, DeFelice and Green had no agreement for the payment of wages. The powers of control and payment of wages which an employer ordinarily commands over an employee are not present in this case. The relationship between Green and DeFelice was merely an uncle-nephew type of relationship, or a family relationship, rather than an employer-employee relationship as argued by Argonaut. Therefore, we find no manifest error in the jury's finding of fact that Green was not an employee of DeFelice at the time of the accident. Absent a showing of manifest error in the record, the finding of the trier of fact (in this case, a jury) will not be disturbed on appeal. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).
ASSIGNMENT OF ERROR NUMBER 3
Argonaut argues that the trial court erred in failing to give its requested jury instructions and that by the jury instructions that the court did give, that the court misled the jury regarding the elements of an employment relationship. The following instructions were submitted to the jury by the trial judge:
We find no error in the instructions of the trial judge. Concerning the failure of the trial judge to give Argonaut's jury instructions we note that adequate jury instructions are those which fairly and reasonably point up the issues and provide correct principles of law for the jury to apply to those issues. Kaplan v. Missouri-Pacific R. Co., 409 So.2d 298 (La.App. 3rd Cir. 1981). The trial judge is under no obligation to give the exact and specific jury instructions, word for word, that may be submitted and requested by either party. The trial judge must, however, correctly charge the jury. Our review of the jury charge in this case convinces us that the
ASSIGNMENT OF ERROR NUMBER 4
Argonaut contends the jury committed manifest error in failing to find Green assumed the risk or was contributorily negligent in operating the insulation machine. To uphold this contention, the record must negate the findings of the jury. Absent a showing of manifest error in the record, the trier of facts' finding (in this case, a jury) will not be disturbed. Arceneaux v. Domingue, supra. After a careful review of the record we find that there was sufficient evidence for the jury to have concluded that Green was not guilty of contributory negligence nor of assumption of the risk.
We find the record supports the jury's findings and the finding will not be disturbed on appeal.
ASSIGNMENT OF ERROR NUMBER 5
The standard of proof which the trial judge is to use in deciding a motion for judgment notwithstanding the verdict has been set forth by this Court in Campbell v. Mouton, 373 So.2d 237 (La.App. 3rd Cir. 1979):
In applying this standard the court cannot weigh the evidence, pass on the credibility of the witnesses, or substitute its judgment of the facts for that of the jury. Campbell, supra.
Argonaut argues on appeal that the trial judge erred in failing to grant a judgment notwithstanding the verdict because the trial court characterized DeFelice's help as part-time workers in its written reasons for judgment in denying Argonaut's motion for a judgment notwithstanding the verdict and motion for a new trial. Although the judge may have used the words "part-time workers" this is certainly not either an indication or determination that Green was an employee of DeFelice. The jury found that Green was not an employee of DeFelice. The judge also denied defendant's Motion For Judgment Notwithstanding The Verdict so it is quite clear that the trial judge believed from the evidence presented at the trial that "reasonable and fairminded men in the exercise of impartial judgment might reach different conclusions." We do not find that the trial judge was in error in not granting the defendants' Motion For Judgment Notwithstanding The Verdict.
ASSIGNMENT OF ERROR NUMBER 6
Argonaut argues that it was error for the trial judge to not grant a hearing on defendant's motion for a new trial.
The motion for a new trial was presented to the judge on the grounds that St. Paul Fire and Marine Insurance Company had a General Contractor's Liability policy covering DeFelice at the time of the accident and therefore a new trial should have been granted for the purpose of adjudication of its rights to contribution from St. Paul. The trial judge in his written reasons denying Argonaut's motion for a new trial found and we quote:
The contention that a motion for a new trial must be heard contradictorily is without merit. Such a motion may be denied summarily without holding a contradictory hearing. Sonnier v. Liberty Mutual Insurance Company, 258 La. 813, 248 So.2d 299 (1971); Bordelon v. Dauzat, 389 So.2d 820 (La.App. 3rd Cir.1980). We do not find that the trial judge was in error in denying, without a hearing, Argonaut's motion for a new trial. The lack of diligence of Argonaut in impleading or attempting to prove liability on the part of third persons, during the trial on the merits of this case, certainly is not grounds for a new trial.
For the reasons assigned herein, the judgment of the trial court awarding Kenneth Green damages in the amount of $100,000.00 is affirmed. Costs of this appeal are assessed to defendant-appellant, Argonaut.