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MARCO BURGOS AND PILAR DIAZ VERSUS STAR AUTO SERVICE, INC., JOSEPH B. MARGAVIO, II, ABC INSURANCE COMPANY AND XYZ INSURANCE COMPANY

NO. 07-CA-229 FIFTH CIRCUIT COURT OF APPEAL STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 600-513, DIVISION "D" HONORABLE ROBERT M. MURPHY, JUDGE PRESIDING
COURT OF APPEAL,

NOVEMBER 13, 2007

FIFTH CIRCUIT

BLED NOV 13 2007

MARION F. EDWARDS
JUDGE
Panel composed of Judges Marion F. Edwards, Clarence E. McManus, and Greg G. Guidry

WILLIAM J. WEGMANN, JR. ORR ADAMS, JR. LAW FIRM OF WILLIAM J. WEGMANN
110 Veterans Memorial Boulevard Suite 440

Metairie, Louisiana 70005 COUNSEL FOR DEFENDANTS/APPELLANTS/THIRD-PARTY PLAINTIFFS DOMINIC J. GIANNA ALAN D. WEINBERGER MIDDLEBERG, RIDDLE & GIANNA 201 St. Charles Avenue, 31st Floor New Orleans, Louisiana 70170-3100 COUNSEL FOR THIRD-PARTY DEFENDANT/APPELLEE

AFFIRMED

In this automobile accident case, defendants/appellants/third-party plaintiffs, Joseph B. Margavio, II and Star Auto Service, appeal from a summary judgment which ranked their general liability policy ahead of another liability policy issued by third-party defendant/appellee, Electric Insurance Company. For the reasons that follow, we affirm. On October 30, 2002, plaintiff, Marco Burgos ("Burgos"), was driving southbound on Causeway Boulevard in Jefferson Parish with passenger Pilar Diaz ("Diaz"). While stopped at the intersection of North Causeway Boulevard and West Metairie Avenue, the Burgos vehicle was rear ended by a car driven by Joseph B. Margavio, II ("Margavio"), who was acting in the course and scope of his employment at the time of the collision on behalf of Star Auto Service, Inc. ("Star Auto"). The car being test-driven by Margavio was owned by Carmen J. Tessitore ("Tessitore"), a customer of Star Auto. At the time of the collision, the

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Tessitore vehicle had liability coverage underwritten by Electric Insurance Company ("Electric"). Margavio, as an employee of Star Auto, was covered under a "Garagekeepers" liability policy issued by Lafayette Insurance Company ("Lafayette").
On October 29, 2003, Burgos and Pilar filed suit in the Twenty-Fourth Judicial District Court for the Parish of Jefferson against Margavio, Star Auto, ABC Insurance Company as Margavio's liability insurance carrier, and XYZ Insurance Company as the liability insurance carrier for Star Auto. On January 20, 2005, Star Auto and Margavio filed a Third-Party Demand against Electric. On May 12, 2006, Electric filed a Motion for Summary Judgment in which it argued that its policy on the Tessitore vehicle provides for a business use exclusion under which it could properly deny a defense and indemnity to Star

Auto and Margavio.
On April 15, 2005, Star Auto and Margavio filed their own Motion for Summary Judgment in which they asserted that the automobile liability policy of Electric is primary. The trial court heard the cross-motions for summary judgment on August 9, 2006. On August 25, 2006, the trial court granted Electric's Motion for Summary Judgment and denied Star Auto and Margavio's cross motion for summary judgment. The judgment of the court was declared final on October 30, 2006, and Star Auto and Margavio timely filed the present appeal.

LAW AND ARGUMENT
On appeal, Star Auto and Margavio raise six assignments of error: 1) The trial court erred in ranking the commercial general policy (CGL) of Lafayette Insurance as primary on the vehicle and its driver, ranked ahead of the automobile liability insurance on the vehicle provided by Electric Insurance Company. The automobile liability insurance policy on the vehicle of Electric Insurance

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Company should have been ranked as primary, ahead of the Lafayette CGL policy.
2) The trial court erred in granting Electric Insurance's motion for summary judgment.

3)

The trial court erred in not enforcing against Electric Insurance Company, the statutory, minimum liability coverage that applied to the vehicle involved in the accident.
The trial court erred by not requiring Electric to defend and indemnify its insureds, Mr. Margavio and his employer, Star Auto Service.

4)

5)

The trial court erred in enforcing Electric's business use exclusion to circumvent coverage for the minimum, statutory liability limits of $10,000/$20,000 for the vehicle and its driver for the benefit of the plaintiffs, contrary to the legislative public policy of this State.
Alternatively, as the primary carrier on the vehicle, the Electric policy should be interpreted to provide its stated, full liability limits

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of $100,000/$300,000.
Appellate courts review summary judgments de novo under the same criteria

that govern the district court's consideration of whether summary judgment is appropriate.' An appellate court must ask the same questions as does the trial court
in determining whether summary judgment is appropriate: whether there is a

genuine issue of material fact remaining to be decided, and whether the appellant is
entitled to judgment as a matter of law.2 The appellate court must consider whether the summary judgment is appropriate under the circumstances of the case.3

There must be a "genuine" or "triable" issue on which reasonable persons could
disagree.4 Under the amended version of LSA-C.C.P. art. 966, the burden of proof remains on the mover to show "that there is no genuine issue as to material fact and

'Bua v. Dressel, 96-79 (La. App. 5 Cir. 5/28/96), 675 So.2d 1191, writ denied, 96-1598 (La. 9/27/96), 679 So.2d 1348 (citing Reynolds v. Select Properties, Ltd., 93-1480 (La. 4/11/94), 634 So.2d 1180). 2

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