The opinion
STATE OF LOUISIANA
COURT OF APPEAL, FIRST CIRCUIT
HARRY B. BROWN NO. 2021 CW 0365
PAGE 1 OF 2
VERSUS
MARCELO OLVERA, OLVERA' S CONCRETE,
INC.; OLVERA' S CONCRETE LOUISIANA,
INC.; STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY; AND ENDURANCE
NOVEMBER 15, 2021
AMERICAN SPECIALTY INSURANCE
COMPANY
In Re: Endurance American Specialty Insurance Company,
applying for supervisory writs, 21st Judicial District
Court, Parish of Livingston, No. 159979.
BEFORE: GUIDRY, McCLENDON, THERIOT, HESTER, AND BURRIS,' JJ.
WRIT GRANTED. The district court' s February 1, 2021
judgment which denied the motion for summary judgment filed by
defendant, Endurance American Specialty Insurance Company, is
reversed. We find that defendant, Endurance American Specialty
Insurance Company, met its burden of proving the applicability
of the automobile exclusion contained in its commercial general
liability policy issued to Marcelo Olvera, who is the named
insured. The policy excludes coverage for bodily injury or
property damage arising out of the ownership, maintenance, use
or entrustment of any auto owned or operated by any insured.
Marcelo Olvera, who was operating the automobile at the time, is
the named insured in the policy. Plaintiff failed to produce
factual support sufficient to establish the existence of a
genuine issue of material fact or that mover was not entitled to
judgment as a matter of law. Therefore, we find that the
automobile exclusion in the policy issued by Endurance American
Specialty Insurance Company applies and bars coverage for bodily
injury or property damage arising out of the use of the
automobile operated by Marcelo Olvera in the underlying
automobile collision in this matter. McQuirter v. Rotolo, 2011-
0188 ( La. App. lst Cir. 9/ 14/ 11), 77 So. 3d 76, 83. Accordingly,
we grant the motion for summary judgment filed by defendant and
dismiss plaintiff' s claims against defendant, Endurance American
Specialty Insurance Company.
PMC
MRT
CHH
WJB
Guidry, J., dissents and would deny the writ application.
I find, based upon the Declarations page of the commercial
general liability policy issued by defendant, Endurance American
Specialty Insurance Company, that defendant, Marcelo Olvera, the
driver of the vehicle, was not a named insured in his individual
capacity. He does not qualify as an insured under the
1
Judge William J. Burris, retired, serving pro tempore by special
appointment of the Louisiana Supreme Court.
STATE OF LOUISIANA
COURT OF APPEAL, FIRST CIRCUIT
NO. 2021 CW 0365
PAGE 2 OF 2
Description of Business in the Declarations, which indicated
that the " form of business" was an " organization,
including a
corporation ( but not including a partnership, joint venture or
limited liability company)." As an individual driving the
vehicle, Olvera also does not qualify under Section II of the
policy because he was not listed as a named insured in his
individual capacity in the Declarations page. Further, under
Section II, even if he would have qualified as a named insured
in his individual capacity in the Declarations page, he and his
spouse would be insured but only with respect to the conduct of
a business of which he was the sole owner. I find the evidence
submitted in connection with the motion for summary judgment
clearly indicates that Marcelo Olvera was not the sole owner of
his business. Section II of the policy further provides that if
the named insured is an " organization other than a partnership,
joint venture or limited liability company," coverage extends
only to " executive officers" and directors with respect to their
duties as officers or directors. The evidence indicates that
Marcelo Olvera was not acting in his capacity as an executive
officer for this business at the time of the accident.
Accordingly, having found that Olvera in his individual capacity
does not qualify as an insured under the policy, the exclusion
relied upon by defendant, Endurance American Specialty Insurance
Company, is not applicable,
and therefore its motion for summary
judgment was properly denied by the trial court.
COURT OF APPEAL, FIRST CIRCUIT
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