Case: Morrow v. State Farm Mut. Auto. Ins. Co.
Louisiana Fourth Circuit Court of Appeal
2015-0578 ( La. App. 4 Cir 06/29/16), 196 So. 3d 773

In July 2012, Scott Morrow filed a lawsuit seeking damages resulting from bodily injuries he allegedly sustained when defendant Jimmy Roberts, an employee of defendant Wayne's Vending Service, Inc., closed the rear door of a delivery truck while it was being inspected by Morrow, a security guard at an oil refinery in St. Bernard Parish. The delivery truck had stopped at a guardhouse at the entrance/exit of the Murphy Oil Refinery, to allow Morrow to inspect the inside of the truck. The truck engine was running. While Morrow was inspecting the cargo compartment of the truck, Roberts closed the rear rolldown door, striking Morrow on the head and/or neck.

American Empire, the general liability insurer of Wayne's Vending, filed a Motion for Summary Judgment based on the standard exclusion in its policy relating to the "use" of an automobile. The GL policy issued by American Empire covered "those sums that the insured becomes legally obligated to pay as damages because of 'bodily injury' or 'property damage' to which this insurance applies." Coverage under the GL policy was excluded, however, for bodily injury "arising out of the ownership, maintenance, use or entrustment to others of any . . . 'auto' . . . owned or operated by . . . any insured. Use includes operation and 'loading or unloading.'" The GL policy further described the business activity of Wayne's Vending as "food sales and service." Based on the above exclusion, the trial court granted American Empire's motion and dismissed the claims against it.

On appeal, the court considered whether, as a matter of law, the auto exclusion applies to bodily injuries allegedly caused while a delivery truck is briefly stopped for the purpose of allowing an inspection of its contents. Morrow contended that the truck was not in "use" at the time of the accident because the truck was not actually in motion, or in the process of being operated, loaded or unloaded. Morrow further argued Louisiana courts have recognized, when automobiles covered under automobile liability policies are not being used for ordinary locomotion or transport purposes — functions typically associated with autos — but rather for purposes usually associated with the type of business activity risks normally covered by a commercial general liability policy, the GL policy will provide coverage.

The court rejected Morrow's position, reasoning the delivery truck was being used solely for transportation and locomotion purposes. The court noted the truck's engine was still running, and Roberts only stopped the truck briefly to open the cargo compartment to allow Morrow to inspect the contents. The court further found Morrow's alleged injuries did not arise out of Wayne's Vending's food sales and service business, as described in the GL policy, but out of the ordinary use of an auto, as set forth in the policy's exclusion, such that no coverage was afforded under the policy. The court thus affirmed the dismissal of American Empire.

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