NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
L yr
NUMBER 2012 CA 0124
f
1
5
ANGELICA C BIMAH AND DERRICK M BIMAH
INDIVIDUALLY AND ON BEHALF OF THE MINOR CHILD
VICTOR BIMAH
VERSUS
LAURA A MEZA EMMA JAUREZ TIERRABLANCA SILVESTRE
MEZA DOMINQUEZ AND US AGENCIES CASUALTY
INSURANCE COMPANY
Judgment Rendered November 2 2012
Appealed from the
Seventeenth Judicial District Court
In and for the Parish of Lafourche Louisiana
Docket Number 117186
Honorable Jerome J Barbera III Judge Presiding
Woody Falgoust
Cassie Rodrigue
Braud
Counsel for Plaintiffs
Appellants
Angelica and Derriek Bimah individually
Thibodaux LA
and on behalf of Victor Bimah
Jonathan W Duncan
Counsel for Defendants
Appellees
Jay
M Simon
Baton
Rouge
Laura Meza Emma Juarez Tierrablanca
LA
and Sylvestre Meza Dominquez
and
Charles Benjamin Landry
Lafayette LA
Anthony M Butler
Ryan A Creel
Baton Rouge LA
Counsel for Appellee
Defendant
USAgencies Casualty Insurance Co
and
James L Donovan Jr
Metairie LA
Jrxie
Y
x
e
k
BEFORE WHIPPLE McCLENDON AND HIGGINBOTHAM JJ
s
s
WffiPPLE J
In this automobile accident case plaintiffs appeal the trial court
s
judgment granting the motion for summary judgment filed by the defendant
automobile liabiliry insurer and dismissing plaintiffs claims against it on the
basis that the automobile liability policy issued by the insurer excluded
coverage far the defendant driver For the following reasons we affirm
FACTS AND PROCEDURAL HISTORY
On February 27 2010 Angelica Bimah and Laura A Meza were
involved in an automobile accident at the intersection of West S
th Street and
Canal Boulevard in Thibodaux Louisiana
The vehicle being driven by
Meza was owned by Meza
s parents Emma Juarez Tierrablanca and
Silvestre Meza Dominquez and was insured by an automobile liability
policy
issued
by
USAgencies
Casualty
Insurance
Company
Inc
USAgencies to Dominguez As a result of the accident Bimah and her
husband Derrick Bimah filed suit for damages individually and on behalf of
their minor child Victar Bimah against Meza Tierrablanca Dominquez
and USAgencies contending that Meza was at fault in causing the accident
In response to the suit USAgencies filed a motion far summary
judgment contending that the automobile liability insurance policy it issued
to Dominguez covering the vehicle involved in this accident contained a
driver restriction endorsement as authorized by LSA
S 32
R
L
900
excluding coverage for Meza under the policy In support of its motion
USAgencies filed the insurance policy together with the declarations page
and named driver exclusion endorsement On both the declarations page and
named driver exclusion endorsement Meza was listed as an excluded
operatar for whom coverage was not afforded under the policy
2
In opposition to the motion plaintiffs contended that the named driver
exclusion endorsement is unenforceable because Louisiana law and public
policy do not allow insurance companies to exclude minor drivers from their
parents insurance policies
Following a hearing on the motion the trial
court granted USAgencies
s motion for summary judgment and rendered
judgment dismissing plaintiffs claims against it with prejudice From this
judgment plaintiffs appeal
DISCUSSION
The Louisiana Motor Vehicle Safety Responsibility Law LSA
S
R
851 through 32
32
1043 provides a mandatory comprehensive scheme for
the protection of the public from damage caused by motor vehicles The law
requires that the owner of every motor vehicle registered in this state with
limited exception obtain proof of security prior to registration application
for an inspection certificate and
or the issuance of a driver
s license LSA
S 32
R
12 LSA
A
861
S 32
R
C D Bryant v United
862
Services Automobile Association 2003
3491 La 9
04 881 So 2d 1214
1218
One method of complying with this requirement is to obtain an
automobile liability policy LSA
S 32
R
1
A
861
The statutory scheme provided by the Louisiana Motor Vehicle Safety
Responsibility Law is intended to attach financial protecrion to the vehicle
rather than the operator Accordingly Louisiana
sautomobile insurance law
requires omnibus coverage in favor of any person using an insured vehicle
with the
permission
or
consent
of the
named
insured
S
R
LSA
2Bant 881 so Za at I21g
B
9oo
3a
However in 1992 the legislature created an exception to the general
rule of omnibus coverage in enacting section L of LSA
S 32
R
900 which
permits a named insured to exclude from coverage a resident of his
3
household The purpose of this provision is to allow the named insured the
option of paying a reduced premium in exchange for insurance that affords
no coverage to the excluded driver
Joseph v Dickerson 99
1046 La
19 754 So 2d 912 917
1
00
In the instant case plaintiffs do not dispute that the USAgencies
policy at issue contained a
Named Driver Exclusion Endorsement which
was signed by the named insured Dominguez and which provided that no
coverage was afforded by the policy when a covered vehicle was being
driven by Meza Rather they assert that the trial court erred in finding the
endorsement to be enforceable in the instant case
Specifically plaintiffs
assert that the policy
s named driver exclusion endorsement cannot
be
applied legally to a minor They argue that pursuant to LSA
S 32
R
1
863
a vehicle owner must obtain automobile liability insurance but that a minor
cannot purchase insurance because the minor lacks the contractual capacity
to do so under LSA
C art 1918
Plaintiffs further note that in the case
where the driver is a minor child section F of LSA
S 32
R
1 places
863
Section L of LSA
S32
R
900 provides in pertinent part as follows
1 Notwithstanding the provisions of Paragraph B
2 of this
Section an insurer and an inswed may by written agreement exclude from
coverage the named insured and the spouse of the named insured The
insurer and an insured may also exclude from coverage any other named
person who is a resident of the same household as the named insured at the
time that the written agreement is entered into and the exclusion shall be
effective regardless of whethex the excladed person continues to remain a
resident of the same household subsequent to the execution of the written
agreement It shall not be necessary for the person being excluded from
coverage to execute or be a party to the written agreement
The Named Driver Exclusion EndorsemenY provides in pertinent part
Z
In consideration of the premium chazged the Named Insured agrees that
no coverage provided by the Company is afforded while any vehicle listed
on this policy is being used driven operated or manipulated by or under
the
care
of
Laura Meza
Although not clearly established in the record the parties do not dispute that
3
Meza was a minar at the time of the accident in question
4
the responsibility of coverage on the owner of the vehicle Accardingly
plaintiffs assert that the only way for a minor to become a legally
compliant insured driver is to receive coverage from her parents policy
Plaintiffs also
note
that LSA
C art
2318
renders
parents
vicariously liable for the negligence of their child who resides with them
Moreover they contend that LSA
S 32
R
Lwhich allows for a named
900
driver exclusion does not mention the word minor and does not claim to
deny coverage for a named insured
svicarious liability
i
Thus plaintiffs maintain that reading these statutes and articles
together in a manner that harmonizes them requires a finding that LSA
S
R
Lcannot be applied to exclude minor drivers from their parents
900
32
Louisiana Revised Statute 32
4
8631 provides that an owner of a motor vehicle
registered in this state shall not operate or allow the operation of his vehicle on any
public road unless among other things a certificate of insurance is contained within the
vehicle LSA
S 32
R
1 Section F of the statute further provides that i
A
8631
n
the case where the driver is a minor child the owner of the vehicle shall be responsible
under this Section and that i
f the owner of the vehicle is the minor child the parents
of the minor child shall be jointly subject to the provisions of this Section along with the
minor child
On the issue of vicazious liability we note that Meza
S
s parents Tierrablanca and
Dominquez filed peremptory exceptions of no right and no cause of action in response to
plaintiffs original petition filed by Angelica Bimah in proper person contending that
plaintiffs had not alleged a factual basis for any liability against them By judgment
dated July 5 2011 the trial court dismissed plaintiffs claims against Tierrablanca and
Dominquez with prejudice in the event that plaintiffs fail to amend their petition for
damages within 15 days from the date of this order to allege a viable cause of action
against these defendants
Thereafter on August 15 2011 tku
ough counsel plaintiffs sought to file an
amending petition alleging that Tierrablanca and Dominquez were vicaziously liable for
the negligence of their minor daugbter Despite the passage of more than fifteen days
from the date of the judgment of dismissal the trial court signed an order granting
plaintiffs leave to file the amending petition However the effect if any of this amended
pleading is not before us
5
automobile liability policies According to plaintiffs any other reading of
S 32
R
LSA
Lwould defeat the purpose of the compulsory insurance
900
law of provid
ing compensation for persons injured by the operation of
insured vehicles and the purpose of the tutorship and other child
advocacy
laws of protection of the minor
s interest We disagree
At the outset we note that both this court and the Louisiana Supreme
Court have upheld named driver exclusions that have excluded coverage far
accidents involving a minor driver
See Williams v Watson 2001
0495
La 10
O1 798 So 2d 55 and Aikman v Thomas 2003
16
2241 La App
l Cir 04
17 887 So 2d 86 see also Brvant 881 So 2d at 1220
9
1224
interpreting the no pay no play law LSA
S 32
R
866 together with
S
R
LSA
L In Williams the defendant driver who was an
900
32
excluded driver under his mother
s automobile liability insurance policy
was seventeen years old at the time of the accident Similarly in Aikman
the minor driver who had been excluded
from
coverage under his
s policy was seventeen years old at the time of the accident
stepfather
therein
While tl
e precise issue presented in Williams i
e whether the
named driver exclusion remains valid when the excluded driver is no longer
a resident of the insured
shousehold is not present in the instant case the
Supreme Court
s analysis therein is helpful in addressing the arguments
raised by plaintiffs herein
First the Court looked to the statutory language itsel Williams 798
So 2d at 59 Using this approach herein we note that subsection L
1 of
S 32
R
LSA
900 allows the insurer and an insured to exclude from
coverage any other named person who is a resident of the same household as
The opinion in Williams reveals that the son
6
s date of birth was January 31
1978 and the accident at issue therein occurred on Clctober 16 1995 Williams 798 So
2d at 56
6
the named insured at the time that the written agreement is entered into
Emphasis added Thus the statutory language at issue clearly allows the
insured and insurer to exclude from coverage any person the parties
specifically name in the exclusion and does not limit ar restrict the ability of
the parties to the contract to exclude coverage for a named person based on
the age of the driver
Moreover the Court in Williams noted that the sole purpose for this
type of exclusion is premium reduction Williams 798 So 2d at 59 An
excluded driver endorsement can enable an insured who would otherwise
have difficulty obtaining insurance coverage far a vehicle to obtain
insurance at a reasonable rate While it may be economically unfeasible for
a person whose teenager is a young inexperienced driver living in his
household to obtain the liability insurance mandated by law an excluded
driver endorsement naming the high
risk driver could result in a premium
reduction that would enable the insured to obtain the required coverage at an
affordable
price
See Medina v Woods 2005
1303 La App 4 Cir
06 944 So 2d 697 702 Although a parent may be vicariously liable
31
10
far the negligence of his minor child residing with him pursuant to LSA
C art 2318 where an insured parent chooses to execute an excluded
driver endorsement to reduce his insurance premium he obligates himself to
abide by the terms of the exclusion and the Compulsory Motar Vehicle
Safety Responsibility Law by preventing his excluded minor child from
driving any vehicle covered under the relevant policy to which the
endorsement applies Where such an excluded driver endorsement has been
validly executed refusing to recognize the validiry of the exclusion would
result in imposing on the insurer a coverage obligation that is not
commensurate with the premium paid and thus would defeat the purpose of
7
the omnibus coverage exception provided for in LSA
S 32
R
L See
900
Williams 798 So 2d at 59
It is unfortunate that at times either the excluded driver or the insured
owner of the vehicle or both would choose to disregard the named driver
exclusion and thus violate the law by operating or allowing the operation
of the vehicle without insurance coverage thereby putting other motorists at
risk of being involved in an accident wherein insurance coverage will not be
provided
However we note that the legislature has enacted statutes to
penalize those who drive without proper insurance for the sake of the public
safety LSA
S 32
R
861 et s Cocl
ran v Safewav Insurance Companp of
Louisiana 2006
0811 La App 1 Cir 07
14
2
unpublished
Moreover as noted by the Supreme Court in Adams v Thomas 98
2003 98
2005 La 99
13 729 So 2d 1041 1044 t
4
he detemiination of
what is an acceptabie exclusion in an insurance policy is up to the
legislature By enacting LSA
S 32
R
L the legislature has permitted
900
the exclusion of high
risk drivers from coverage in exchange for a reduced
premium Medina 944 So 2d at 702 Whi1e the result may seem harsh in
the circumstances we cannot overturn that legislative declaration
We note that in Joseuh the Louisiana Supreme Court pointed out but did not
resolve that if a named insured were deemed vicariously liable for the excluded driver
s
negligent conduct then an important public policy question would arise regarding an
insurance policy covering the insured but nonetheless denying coverage to the insured
for vicazious liability Joseph 754 So 2d at 917 However we believe that the same
public policy considerations discussed in Williams would apply to any alleged vicarious
liability of the pazents for the negligence of their minor child To allow the insured the
benefit of a reduced premium by specifically excluding his minor child from coverage
but to then force the insurer to provide coverage for the parenUinsured
s vicarious
liability for the excluded minor child
s negligence would likewise impose on the insurer a
coverage obligation that is not commensurate with the premium paid See Williams 798
So 2d at 59 see also Manlev v Alphonso 97 334 La App 4 Cir 2
99 729 So 2d
3
1070 1071 holding that LSA
S 32
R
L permits a specified driver exclusion that
900
excludes coverage not only for the specified driver but also for an insured sued under a
negligent entrustment theory
8
Accordingly we are unable to find error in the trial court
s grant of
summary judgment
CONCLUSION
For the above and foregoing reasons the October 31 2011 judgment
granting USAgencies
s motion for summary judgment and dismissing
plaintiffs claims against it with prejudice is affirmed Costs of this appeal
are assessed against plaintiffs Angelica and Derrick Bimah
AFFIRMED
9
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2012 CA 0124
ANGELICA C BIMAH AND DERRICK M BIMAH
INDIVIDUALLY AND ON BEHALF OF THE MINOR CHILD
VICTOR BIMAH
VERSUS
LAURA A MEZA EMMA JAUREZ TIERRABLANCA SILVESTRE MEZA
DOMINQUEZ AND US AGENCIES CASUALTY
r
INSURANCECOMPANY
ax
x
r
McCLENDON
agrees and assigns additional reasons
This case raises serious public policy issues However the clear language
of LSA
S 32
R
900 allows an insured to exclude from coverage any other
named person who is a resident of the same household as the named insured at
the time that the written agreement is entered into The statute provides no
exceptions for minor children
addressed
by the legislature
Therefore these policy concerns are best