Progressive Paloverde Insurance Company v. Estate of Bobby J. Jenkins et al
ORDER AND REASONS granting 143 Motion for Summary Judgment filed by Progressive. IT IS FURTHER ORDERED that all claims against Progressive in the above-captioned matters are hereby DISMISSED with prejudice. Signed by Judge Carl Barbier on 2/18/21. (Reference: All cases)(cg)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ESTATE OF BOBBY
JENKINS, ET AL
SECTION: “J” (1)
ORDER & REASONS
Before the Court is a Motion for Summary Judgment (Rec. Doc. 143) filed by
Progressive Paloverde Insurance Company (“Progressive”). Oppositions were filed by
Heck Industries Incorporated (“Heck”) and Gray Insurance Company (“Gray”). (Rec.
Docs. 162, 164, 288, 293). Progressive filed a reply (Rec. Doc. 307), and Gray filed a
sur-reply (Rec. Doc. 312). Having considered the motion and legal memoranda, the
record, and the applicable law, the Court finds that the motion should be GRANTED.
FACTS AND PROCEDURAL BACKGROUND
On October 10, 2018, in Tangipahoa Parish, Bobby Jenkins was operating a
1998 Peterbilt Model 379 semi-truck, owned by BJ Trucking Earthmover, LLC (“BJ
Trucking”), which was pulling a 1983 Mate dump trailer also owned by BJ Trucking.
Bobby Jenkins was in the process of hauling sand from a private pit (“the Fluker pit”),
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which was located on property leased by Industrial Aggregates of the Florida
Parishes, L.L.C. (“Industrial Aggregates”).
After filling the trailer with 27 tons of sand, Bobby Jenkins proceeded
westward on a road neither owned nor leased by Industrial Aggregates and attempted
to cross the railroad crossing DOT #930094V (“the Crossing”) while en route to U.S.
Highway 51. 1 While approaching the Crossing, Bobby Jenkins ignored the stop sign
and crossbucks and did not slow down. When he attempted to drive across, the truck
driven by Bobby Jenkins collided with southbound Amtrak Train #59. Bobby Jenkins
perished from injuries sustained in the crash.
On September 26, 2019, Progressive, who insured Bobby Jenkins’s truck, filed
the instant declaratory action. On October 10, 2019, Bobby Jenkins’s widow, Katy
Jenkins, filed suit in the 21st District Court for Tangipahoa Parish. On February 4,
2020, the case was removed to this Court and subsequently transferred to the
undersigned on February 5, 2020, to be consolidated with four related cases. The
other plaintiffs in this matter are Nagra and Kimberly Hershey (“Hershey”),
employees of Amtrak who were on the train at the time of the collision, and Derek
Lagarde (“Lagarde”), a passenger on the Amtrak train. Among the named defendants
were Heck, who Plaintiffs allege was Bobby Jenkins’s employer, and Gray, who
At the time of the accident, Bobby Jenkins was the named insured on
Progressive policy number 03857749-2, which was a non-trucking liability policy. The
There appears to be a great deal of confusion among the parties regarding the correct DOT number for the Crossing;
however, whether or not this is the correct DOT number is irrelevant to the substance of this order.
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policy insured Bobby Jenkins, Katy Jenkins, and BJ Trucking. Heck was listed as an
Originally, the policy was a commercial liability policy, but, after an unrelated
accident on April 25, 2017, Bobby Jenkins’s annual premiums increased dramatically.
On August 12, 2017, Bobby Jenkins renewed the policy and added a non-trucking
liability endorsement. This endorsement meant that the policy would provide no
liability coverage for accidents occurring when Bobby Jenkins’s truck was used for
hauling or for any business purpose. Instead, the person for whom he was hauling
was responsible for his liability insurance. This endorsement resulted in an annual
premiums reduction of $17,612.
On December 29, 2020, Progressive filed the present motion for summary
judgment, arguing that this accident was not covered under their policy because
Bobby Jenkins was hauling and/or driving for a business purpose at the time of the
Summary judgment is appropriate when “the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as
to any material fact and that the movant is entitled to judgment as a matter of law.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed. R. Civ. P. 56); Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). When assessing whether a
dispute as to any material fact exists, a court considers “all of the evidence in the
record but refrains from making credibility determinations or weighing the evidence.”
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Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th
Cir. 2008). All reasonable inferences are drawn in favor of the nonmoving party, but
a party cannot defeat summary judgment with conclusory allegations or
unsubstantiated assertions. Little, 37 F.3d at 1075. A court ultimately must be
satisfied that “a reasonable jury could not return a verdict for the nonmoving party.”
Delta, 530 F.3d at 399.
If the dispositive issue is one on which the moving party will bear the burden
of proof at trial, the moving party “must come forward with evidence which would
entitle it to a directed verdict if the evidence went uncontroverted at trial.” Int’l
Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991) (internal
citations omitted). The nonmoving party can then defeat the motion by either
countering with sufficient evidence of its own, or “showing that the moving party’s
evidence is so sheer that it may not persuade the reasonable fact-finder to return a
verdict in favor of the moving party.” Id. at 1265.
If the dispositive issue is one on which the nonmoving party will bear the
burden of proof at trial, the moving party may satisfy its burden by merely pointing
out that the evidence in the record is insufficient with respect to an essential element
of the nonmoving party’s claim. See Celotex, 477 U.S. at 325. The burden then shifts
to the nonmoving party, who must, by submitting or referring to evidence, set out
specific facts showing that a genuine issue exists. See id. at 324. The nonmovant may
not rest upon the pleadings but must identify specific facts that establish a genuine
issue for trial. See, e.g., id. at 325; Little, 37 F.3d at 1075.
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THE NON-TRUCKING POLICY DID NOT COVER THIS ACCIDENT
Progressive’s non-trucking policy explicitly excludes coverage for damages
arising out of an accident if, at the time of the accident, the insured was hauling
property or using the insured vehicle in any business or for any business purpose.
(Rec. Doc. 143-5, at p. 40). At the time of the accident, Bobby Jenkins’s truck was
loaded with 27 tons of sand. (Rec. Doc. 136-5, at p. 24). The owner of the sand pit near
the site of the accident testified that Jenkins loaded 27 tons of sand into a dump
trailer attached to his 1998 Peterbilt truck just before the accident, and photographs
of the scene of the accident show sand spilling from that trailer. (Rec. Doc. 143-7, at
pp. 10-11). Thus, there is no material dispute that Bobby Jenkins was hauling at the
time of the accident. Since the exclusion applies when Bobby Jenkins was hauling,
this evidence alone is sufficient for the exclusion to apply.
Nevertheless, Heck and Gray argue that Bobby Jenkins requested a “bobtail”
policy but received a “non-trucking” policy instead. Bobtail coverage typically applies
when driving without hauling a trailer, whereas a non-trucking policy typically only
applies when the truck is not being used for business purposes. However, as stated
above, Progressive’s policy excluded coverage when the insured is either hauling or
using the truck for a business purpose. Regardless of whether this distinction was
adequately explained to Bobby Jenkins, this does not create a cause of action in favor
of Heck or Gray against Progressive because Bobby Jenkins was also using his truck
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for a business purpose at the time of the accident, which would have been excluded
under bobtail coverage.
Lanny Crowe, who was an employee of Industrial Aggregates, which operates
the Fluker pit, testified that Bobby Jenkins retrieved the sand on behalf of a customer
and that the cost of the sand was charged to that customer’s open account, which
demonstrates that Bobby Jenkins was using his vehicle for a business purpose. (Rec.
Doc. 136-5, at pp. 15-21, 24). However, Industrial Aggregates allegedly destroyed the
ticket for the sand and never invoiced the customer, so the identity of the customer is
apparently unknown. (Rec. Doc. 143-3, at p. 2).
Although there is much speculation that Heck was the customer, which Heck
denies, that determination is unnecessary for the purposes of this motion. All that is
necessary is to determine whether Bobby Jenkins was either hauling or using his
truck for a business purpose at the time of the accident. Since Bobby Jenkins was
both hauling and using his truck for a business purpose, the non-trucking exclusion
applies, and thus, Progressive has no duty to indemnify or defend any party in this
litigation, nor does it owe statutory penalties or attorney’s fees for its coverage
VIOLATE LOUISIANA LAW
Next, Heck and Gray argue that the endorsement violates Louisiana law and
public policy. Specifically, Heck and Gray argue: (1) the endorsement violates
Louisiana’s public policy; (2) Progressive violated Louisiana’s Compulsory Motor
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Vehicle Liability Security Law; and (3) the endorsement renders the policy illusory
as to Heck.
First, the Court must determine the validity of the endorsement. “[I]t is wellsettled that, absent a conflict with statutory provisions or public policy, insurers are
entitled to limit their liability and to impose reasonable conditions upon the
obligations they contractually assume.” Stewart Interior Contractors, L.L.C. v.
Metalpro Indus., L.L.C., 2007-0251 (La. App. 4 Cir. 10/10/07), 969 So. 2d 653, 659.
Heck and Gray failed to cite a single case where such an endorsement or policy was
found violative of Louisiana law or public policy; however, there are many cases
where Louisiana courts upheld such policies as valid. See, e.g., George v. Suarez,
2018-0484, 2019 WL 168526 (La. App. 1 Cir. 1/10/19); LeBlanc v. Bailey, 97-0388 (La.
App. 4 Cir. 10/1/97), 700 So. 2d 1311; Robinson v. Guillot, 2007-1260, 2008 WL
1897698 (La. App. 3 Cir. 4/30/08). Therefore, the Court concludes that the
endorsement is valid under Louisiana law and does not violate public policy.
Second, the Court must address whether Progressive violated any duty under
Louisiana’s Compulsory Motor Vehicle Liability Security Law. Under this law, the
registered owner of the motor vehicle has a duty to maintain insurance. LA. REV.
STAT. § 22:861(2)(a). However, insurers have no independent duty to determine the
needs of the insured. See e.g. Isidore Newman School v. J. Everett Eaves, Inc., 20092161 (La. 7/6/10), 42 So. 3d 352; Tillman v. USAgencies Cas. Ins. Co., 46,173 (La. App.
2 Cir. 3/2/11), 58 So. 3d 1009; Heidingsfelder v. Hibernia Ins., LLC, 2009-0753 (La.
App. 4 Cir. 11/18/09), 25 So. 3d 976. Thus, since Progressive had no duty to verify
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whether Bobby Jenkins was carrying the requisite insurance, it cannot be held liable
for any failure by Bobby Jenkins to carry the proper insurance.
Third, the Court must decide whether Progressive violated Louisiana’s illusory
coverage doctrine. Insurance coverage is illusory when the insured receives no benefit
under the policy. Rider v. Ambeau, 11-0532, (La. App. 1 Cir. 2012), 100 So. 3d 849.
However, as noted by Progressive, most cases where a Louisiana court determined
than an insurance policy was illusory also included an explanation that the coverage
provided by the policy was not commensurate with the premiums paid by the insured.
See, e.g., Boullt v. State Farm Mut. Auto. Ins. Co., 99-0942, p. 10 (La. 10/19/99), 752
So. 2d 739, 744; Rider, 100 So. 3d at 857. In this case, Bobby Jenkins contacted
Progressive in order to obtain a “bobtail” policy, which led Progressive to suggest and
explain its “non-trucking” policy. In exchange for adding the non-trucking
endorsement, Bobby Jenkins’s annual insurance premiums were reduced by $17,612.
(Rec. Doc. 143-17, at p. 31). Since the non-trucking endorsement was commensurate
with a significant reduction in premiums, the Court concludes that the insurance
coverage was not illusory in this case. Indeed, to hold otherwise “would serve only to
frustrate the reasonable expectations of the contracting parties.” Boullt, 750 So. 2d
Heck and Gray also argue that Progressive violated its duty of good faith and
fair dealing owed by liability insurers to all insureds. Smith v. Citadel Ins. Co., 285
So. 3d 1062, 1067 (La. 2019). This duty applies to additional insureds, such as Heck.
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Am Gulf VII v. Otto Candies, Inc., 1997 U.S. Dist. LEXIS 13414, at *30-31 (E.D. La.
1997) (citing LA. REV. STAT. § 22:1120). Specifically, Heck and Gray assert that
Progressive had a duty to notify Heck of the cancellation of its policy. See Accardo v.
Clarendon, 751 So. 2d 975, 978 (La. App. 5 Cir. 2000).
Assuming, arguendo, that the addition of the non-trucking endorsement
constituted a cancellation of the policy as to Heck, Heck and Gray still have no claim
against Progressive because Heck was provided with notice prior to the accident. The
only evidence provided to the Court surrounding this issue shows that Heck was
notified of the policy change. On January 18, 2018, an employee of Heck called
Progressive and requested a certificate of insurance for the policy at issue. (Rec. Doc.
294-8). During that call, Progressive sent the policy to Heck via fax, and Heck’s
employee verbally confirmed receipt of the certificate of insurance. (Rec. Doc. 294-8).
This certificate of insurance explicitly stated that the policy provided coverage for
“Non-Trucking Bodily Injury/Property Damage.” (Rec. Doc. 143-19, at p. 48). This
is notably different from prior certificates of insurance, which did not include the
“non-trucking” language. (Rec. Doc. 143-16, at p. 14).
Finally, Heck and Gray argue that, even if Heck did receive this certificate of
insurance, Heck was unaware of the substantive changes due to the policy’s
description of coverage as “$1,000,000 Combined Single Limits.” This argument is
unavailing. If Heck had any questions regarding the addition of the “non-trucking”
language, Heck could have contacted Progressive or Bobby Jenkins. Progressive
simply cannot be held liable for Heck’s own failure to read the contents of the
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certificate of insurance and/or failure to inquire regarding the meaning of “nontrucking.” For the above reasons, the Court finds there is no genuine issue of material
fact, and Progressive did not violate any duty owed to Heck.
IT IS HEREBY ORDERED that the Motion for Summary Judgment (Rec.
Doc. 143) filed by Progressive is GRANTED.
IT IS FURTHER ORDERED that all claims against Progressive in the
above-captioned matters are hereby DISMISSED with prejudice.
New Orleans, Louisiana, this 18th day of February, 2021.
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
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