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NEW ORLEANS (WVUE) – The Louisiana Supreme Court on Wednesday (Jan. 18) rejected an insurance claim made by a bicyclist injured in 2019 when drunk driver Tashonty Toney plowed into nine riders on Esplanade Avenue after the Krewe of Endymion parade.
In a unanimous decision, the high court granted summary judgment in favor of State Auto Property and Casualty Insurance Company, removing the insurer from a lawsuit seeking damages filed by Penelope Catzen.
According to a deposition, Catzen moved to New Orleans in 2013 and has resided in a home on St. Roch Avenue since 2017. She testified that she had received mail at the address and used the address to register to vote in Louisiana and to file Louisiana state income taxes.
But Catzen also included State Auto among the defendants in her personal injury lawsuit, because it had issued an insurance policy providing uninsured motorist coverage to her father in Maryland.
State Auto challenged its inclusion in the lawsuit, arguing that Catzen did not meet its policy definition of “family member” because she was not a resident of her father’s household in Maryland. The policy defines “family member” as “a person related to you by blood, marriage or adoption who is a resident of your household.”
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Attorneys for State Auto asked Orleans Parish Civil District Court Judge Sidney H. Cates IV to grant their motion for summary judgment removing the company from the suit. But Cates denied the motion, saying, “I think there clearly are disputed issues of material fact, and I do think that questions of intent and motive, current as well as future intentions, are not appropriate for summary judgment.”
The 4th Circuit Court of Appeal denied a writ sought by State Auto, leaving it to the state’s high court to decide the matter.
“In this case, the objective facts indicate plaintiff’s absence from her father’s Maryland household was not intended to be merely temporary,” the state Supreme Court ruled. “She had lived and worked in New Orleans for approximately six years prior to the accident. She has consistently used her New Orleans address for official purposes. … Moreover, in her petition for damages in this case, she alleged she is ‘domiciled in the Parish of Orleans, State of Louisiana.’
“By her actions and conduct both before and after the accident, plaintiff has clearly demonstrated she had no intent to return to a permanent residence in Maryland. We conclude plaintiff has failed to produce any evidence establishing there is a genuine issue of material fact concerning her residence for purposes of coverage under the State Auto policy. Accordingly, summary judgment in favor of State Auto is mandated.”
Catzen’s claims against State Auto were dismissed with prejudice, and the case was remanded back to Cates’ court for further proceedings on the remaining claims against Toney and Esurance Insurance Company.
Toney initially was sentenced to 90 years for the vehicular homicides of 27-year-old Sharee Walls of New Orleans and 31-year-old David Hynes of Seattle, and for the negligent injuring of the seven other cyclists he struck while racing down Esplanade Avenue with a blood-alcohol content of .215, more than twice the legal limit.
The state Supreme Court found Criminal District Court Judge Laurie White had not properly articulated her reasoning for imposing such a severe sentence and remanded the case back to her court for re-sentencing. Catzen was among four victims who wrote a letter to White asking her to reduce Toney’s sentence.
White re-sentenced Toney last month to a 65-year state prison term.
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