text:
    Ruth I. DRAWDY, Appellant, v. Herbert P. SAPP, Jr., Appellee.
    No. KK-80.
    District Court of Appeal of Florida, First District.
    Dec. 28, 1978.

      Robert B. Staats, Panama City, for appellant.
    Marvin Urquhart, Jr., Panama City, for appellee.
   PER CURIAM.

The issue on this appeal is whether the trial court erred in dismissing appellant’s complaint against appellee for legal malpractice. The complaint alleged that appel-lee, representing appellant’s husband in divorce proceedings, negligently prepared a deed conveying certain property from the husband to appellant and that subsequently she incurred damages when she was unable to sell the property to willing purchasers at a favorable price because of the defect in title caused by that negligence. The record revealed that appellant had been represented by her own counsel in the divorce proceedings. Appellee’s motion to dismiss urged that the complaint failed to state a cause of action because it failed to allege facts giving rise to a legal duty owed appellant by appellee in that he was not her attorney. After a hearing the trial court agreed.

We affirm. Generally in a suit against an attorney for negligence, the plaintiff must prove: (1) the attorney’s employment; (2) his neglect of a reasonable duty; and (3) that such negligence resulted in and was the proximate cause of loss to the client. Maryland Casualty Co. v. Price, 231 F. 397 (4th Cir. 1916), as adopted in Weiner v. Moreno, 271 So.2d 217 (Fla. 3d DCA 1973).

There is a limited exception to this general rule in will-drafting cases, see Annotation, “Attorney’s liability to one other than his immediate client for consequences of negligence in carrying out legal duties,” 45 A.L.R.3d 1181 (1972); and the Fourth District Court of Appeal adopted the exception in McAbee v. Edwards, 340 So.2d 1167 (Fla. 4th DCA 1976). Subsequently, however, the Fourth District Court of Appeal declined to further extend the liability of an attorney to a nonclient in Adams v. Chenowith, 349 So.2d 230 (Fla. 4th DCA 1977).

We know of no authority, nor was any cited, holding that where both parties are represented by counsel, an error by the lawyer not representing the allegedly injured party will render him liable to that party.

Accordingly, there being no error in the dismissal of appellant’s complaint, the order is AFFIRMED.

McCORD, C. J., ERVIN and MELVIN, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    James DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. KK-232.
    District Court of Appeal of Florida, First District.
    Dec. 28, 1978.
    Michael J. Minerva, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Charles Stampelos, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Upon consideration of the briefs, record, and oral argument, we affirm appellant’s judgment and sentence for robbery with a firearm, but vacate that portion of the sentence mandating a three-year minimum term and remand the cause for its deletion, Earnest v. State, 351 So.2d 957 (Fla.1977). Appellant need not be present for the correction of his sentence.

ERVIN, Acting C. J., MELVIN, J., and MASON, ERNEST E.-, Associate Judge, concur.


text:
    Clinton Edward BELL, Appellant, v. STATE of Florida, Appellee.
    No. KK-74.
    District Court of Appeal of Florida, First District.
    Dec. 29, 1978.
    Michael J. Minerva, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Miguel A. Olivella, Jr., Asst. Atty. Gen., for appel-lee.
   PER CURIAM.

Bell contends the trial court improperly considered Bell’s juvenile record in the sentencing determination arguing that the inclusion of juvenile records in the pre-sentence investigation report and consideration of this information by the court in determining the sentence of an adult offender was contrary to the legislative intent expressed by Chapter 39, Florida Statutes (1977). We disagree and hold that juvenile records may properly be included in the presentence investigation report of an adult offender and may properly be considered by the trial court in his sentencing determination. Such information is material and relevant to the sentencing determination. A rule which would prevent consideration of an adult offender’s prior juvenile record would unjustly penalize the adult offender who had no significant juvenile record. Since we find no error in the trial court’s consideration of Bell’s juvenile record, the judgment and sentence are AFFIRMED.

BOYER, Acting C. J., and MILLS and BOOTH, JJ., concur.


author:
SUMMERS, Justice. DIXON, Justice
      CALOGERO, Justice, CALOGERO, Justice. SANDERS, C. J.,

text:
    STATE of Louisiana v. Leo J. MULLER, Sr.
    No. 61348.
    Supreme Court of Louisiana.
    May 22, 1978.
    On Rehearing Sept. 5, 1978.
    Rehearing Denied Oct. 5, 1978.
    John Wilson Reed, New Orleans, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Wilton E. Bland, III, Asst. Dist. Attys., for plaintiff-respondent.
   SUMMERS, Justice.

Defendant Leo J. Muller, Sr., was charged with obscenity, in that he did indecently and publicly expose his penis in the presence of another person in a location open to public view or the people at large with the intent of arousing sexual desire. In a former review of a bench trial conviction, we remanded the case to the trial judge on a finding that defendant had not knowingly and intelligently waived his right to trial by jury. State v. Muller, 351 So.2d 143 (La.1977). In doing so the Court pretermitted consideration of defendant’s motion to quash the bill of information.

In the trial court on remand defendant reurged the motion to quash, alleging that it fails to charge an offense which is punishable under a valid statute. More particularly, the motion states the place of the offense as specified in the bill of particulars, a supermarket, is not a place contemplated by Section 106 of Title 14 of the Revised Statutes. Insofar as it is applicable to this motion to quash, the statute provides:

“A. The crime of obscenity is the intentional:
(1) Exposure of the genitals, pubic hair, anus, vulva or female breast nipples in any location or place open to the view of the public or the people at large such as a street, highway, neutral ground, sidewalk, park, beach, river bank or other place or location viewable therefrom with the intent of arousing sexual desire.

In a memorandum to support defendant’s motion to quash it is contended that the inside of an enclosed supermarket is not a place covered by the statute. In reply the State’s attorney argues that the supermarket is any location or place open to the view of the public or the people at large. The trial judge denied the motion to quash, and certiorari was granted on defendant’s application. 354 So.2d 205. Relying upon the decision in Nelson v. Natchez, 197 Miss. 26, 19 So.2d 747 (1944), this Court in the original opinion in State v. Christine, 239 La. 259, 118 So.2d 403 (1960), rev’d. on rehearing on other grounds, approved this definition of “public place” as the term was used in a city ordinance, making it a crime for any person to profanely swear or curse or use vulgar or indecent language in any public place within the city:

“ . . .a public place within the ordinance, and as applied to an enclosure, room or building, must be considered as one wherein, by general invitation, members of the public attend for reasons of business, entertainment, instruction or the like, and are welcome so long as they conform to what is customarily there done . . ..An eating house is a public place . . and a restaurant is an eating house under another name. It is within this definition that a church is a public place . . . and so a barber shop.”

According to the definition already approved by this Court, a public place is not limited to streets, parks, beaches, etc. It is “any location” which is open to the view of the public to which the statute applies. Surely, within this definition, a supermarket must be considered as a building wherein “by general invitation, members of the public attend for reasons of business . . . and are welcome so long as they conform to what is customarily there done.” If that be so, the supermarket is a public place as contemplated by the definition in State v. Christine and in the statute before us.

And a holding that the supermarket is a public place as that phrase is used in the statute is not altered by the illustrative clause “such as a street, highway, neutral ground, sidewalk, park, beach, riverbank or other place or location viewable therefrom.” “Such as” has traditionally been used in Louisiana law to set off an illustrative list. Realizing as we do that the Civil Code does not pertain to criminal law, the rule of reason that Article 3556(29) expounds is one which has prevailed here at least since 1825. It reads, “Such as. — These are words employed to give some example of a rule, and are never exclusive of other cases which that rule is made to embrace.”

Certainly, as the defense contends, the rule of law announced in Section 3 of Title 14 of the Revised Statutes is that “The articles of this Code cannot be extended by analogy so as to create crimes not provided for [t]herein . . and this Court does not purport to do so by its decision. Instead, we read the whole article in arriving at our conclusion and are guided by this language also,

“in order to promote justice and to effect the objects of the law, all of its [the Code’s] provisions shall be given a genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision.”

Courts are directed by Section 3 to take a reasonable and common sense view of the evil at which a statute is directed and the protection it is designed to afford; and when these are within the letter of the statute, the enactment is to be construed in accordance with its purpose, although its letter would admit a narrower interpretation. State v. Butler, 331 So.2d 425 (La.1976). The conduct charged here can reasonably be considered as the evil contemplated by the legislature.

For the reasons assigned, the ruling of the trial judge is affirmed, and the case is remanded for further proceedings.

DIXON, J., dissents with reasons.

CALOGERO, J., dissents with reasons.

DENNIS, J., dissents for the reasons assigned by DIXON and CALOGERO, JJ.

DIXON, Justice

(dissenting).

I respectfully dissent.

R.S. 14:106 A(l) seems to limit the places where exposure is made criminal to those like the ones listed as illustrations, which do not include a supermarket.

CALOGERO, Justice,

dissenting.

Louisiana Revised Statute 14:106 A(l) is a criminal statute and as such it must be construed strictly, any ambiguity being resolved in favor of lenity. State v. McCarroll, 337 So.2d 475 (La.1976); State v. Gyles, 313 So.2d 799 (La.1975); State v. Patterson, 259 La. 508, 250 So.2d 721 (1971). The statute in question proscribes obscenity “in any location or place open to the view of the public or the people at large such as a street, highway, neutral ground, sidewalk, park, beach, river bank or other place or location viewable therefrom . . ..” It seems to me that the statutory list of examples reflects the legislative determination to proscribe obscenity only in places like those listed above which are out of doors and in the public domain, or another place viewable from that sort of place. I believe that when R.S. 14:106 A(l) is strictly construed it becomes apparent that a supermarket is not the sort of place “open to the view of the public or the people at large” contemplated by the statute.

For this reason I respectfully dissent.

ON REHEARING

CALOGERO, Justice.

The narrow issue presented for the Court’s determination is whether a supermarket is “any location or place open to the view of the public or the people at large such as a street, highway, neutral ground, sidewalk, park, beach, river bank or other place or location viewable therefrom . . ”, in view of the denunciation of intentional exposure of certain parts of the anatomy in such places by La.R.S. 14:106, defining the crime of obscenity. In our original opinion herein we concluded that such intentional exposure in a supermarket is proscribed by the definition of the crime of obscenity set forth in the statute. To arrive at our conclusion we proceeded from the premise that La.R.S. 14:106 forbids certain conduct in any “public place”, drawing on the definition of “public place” approved by the Court in the original opinion in State v. Christine, 239 La. 259, 118 So.2d 403 (1960), rev’d on rehearing on other grounds, and deciding that a supermarket is a public place.

Because the words, “public place” are no part of the applicable portion of the obscenity statute Muller is asserted to have violated, we granted a rehearing to reconsider the correctness of our ruling. We conclude that our original opinion was in error, that the statute does not contemplate exposure in a supermarket and that the defendant’s motion to quash should therefore have been sustained by the trial court.

Prior to 1974, La.R.S. 14:106 broadly prohibited the “[e]xposure of one’s person in a public place in such manner that any part of a sex organ may be seen by another person, with the intention of arousing sexual desire” (emphasis added). Act 274 of 1974, amending the statute, removed the words “a public place” and substituted therefor “any location or place open to the view of the public or the people at large such as a street, highway, neutral ground, sidewalk, park, beach, river bank or other place or location viewable therefrom.”

The State’s argument and our original opinion would ascribe no effect whatever to the change in the language. Applying the rationale of that opinion, a supermarket is a “public place” just as a place open to the view of the public or the people at large such as a street, highway or any of the other enumerated places is a “public place.” Since all the enumerated places are public places, the reasoning of the original opinion requires a conclusion that a public place such as a supermarket be held to be within the statute’s contemplation.

This reasoning, however, violates simple rules of logic as well as fundamental principles of statutory construction. The result of the original opinion ignores the presumption that the mere fact of statutory amendment manifests the legislative intent to effect change which alters legal rights and disabilities. “The legislature is presumed to know the prior construction of terms in the original act, and an amendment substituting a new term or phrase for one previously construed indicates the judicial or executive construction of the former term or phrase did not correspond with the legislative intent and a different interpretation should be given the new term or phrase.” 1A Sutherland Statutory Construction § 22.30 (4th ed. 1972). In Louisiana Civil Service League v. Forbes, 258 La. 390, 246 So.2d 800 (1971), overruled on other grounds in Barnett v. Develle, 289 So.2d 129 (La.1974) the Court stated: “It is a well established rule of statutory construction that the Legislature is presumed to have enacted a statute in the light of preceding statutes involving the same subject matter and decisions construing such statutes, and, where the new statute is worded differently from the preceding statute, the Legislature is presumed to have intended to change the law.”

Conformity with well established principles of statutory construction dictates a determination that a change was intended by the 1974 amendment of La.Rev.Stat. 14:106 which implicitly rejected the judicial construction of the term “public place” as reflecting the legislative intent.

Of equal importance, and equally ignored by our opinion on original hearing, is the rule mandating that criminal statutes found ambiguous even after being construed in accordance with the provisions of La.R.S. 14:3 be construed strictly in favor of the defendant and lenity. State v. Young, 357 So.2d 503 (La.1978).

An examination of the pertinent portion of the obscenity statute reveals clearly that not all places come within its intendment. Rather, the provision carefully sets forth limitations essentially defining two classes of places where the described conduct is illegal. The first class is comprised of “location^] or place[s] open to the view of the public or the people at large such as a street, highway, neutral ground, sidewalk, park, beach, [or] river bank. . . The second class embraces “other place[s] or location[s] viewable therefrom,” that is, a location or place one can see from one of the first class of locations or places.

Finding that the phrases attempting to delineate location lack the requisite clarity, we discharge our duty to ascertain the meaning of the phrases by resort to a consideration of the words and phrases with which they are associated. State v. Booth, 347 So.2d 241 (La.1977). Each of the enumerated places or locations is open, out of doors and in the public domain. Sharing these attributes, the named places differ radically from the type of place with which we are presently concerned, a supermarket. Such a structure is, typically, completely enclosed, indoors and invested with some degree of exclusivity, if only by virtue of its private ownership. Consideration of the associated places and locations to divine the intended scope of the classification of places made by the legislature militates in favor of our holding that supermarkets were not intended to be included in the legislature’s classification.

In so holding, we do not disagree with the State’s argument that the law should proscribe as criminal violations of the obscenity law the intentional exposure of the parts of the anatomy described in R.S. 14:106 in places such as supermarkets, hotels, hospitals and churches. The Court’s function, however, is limited to interpreting and applying as written the laws passed by the legislature. In carrying out that function, we conclude that La.R.S. 14:106 as written does not make criminal intentional exposure in a supermarket.

Decree

For the foregoing reasons, the trial court’s ruling is reversed, the defendant’s motion to quash is sustained and the prosecution against Muller dismissed.

REVERSED AND REMANDED.

SANDERS, C. J.,

dissents, adhering to the views expressed on original hearing.

SUMMERS and MARCUS, JJ., dissent for reasons assigned in the opinion on original hearing.

      . Louisiana Revised Statute 14:3 provides:
      The articles of this Code cannot be extended by analogy so as to create crimes not provided for herein; however, in order to promote justice and to effect the objects of the law, all of its provisions shall be given a genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision.


text:
    STATE of Louisiana ex rel. Edward James ARMISTEAD, Jr. v. C. Paul PHELPS, Secretary Dept. of Corrections and Frank Blackburn, Warden, Louisiana State Penitentiary.
    No. 62712.
    Supreme Court of Louisiana.
    Oct. 10, 1978.
   PER CURIAM.

The petitioner applies to this court for supervisory writs to review the district court’s denial, without a hearing, of his habeas corpus application. By his habeas corpus application, the petitioner sought review of a determination by a prison Disciplinary Board that he was guilty of attempted theft by forging his inmate store card so as to show a balance ten dollars greater in his favor than was the case.

Apparently without reviewing the tapes of the prison board hearing, the district court concluded that minimum due process requirements had been met by the disciplinary proceedings of the Department of Corrections. These had resulted in the applicant’s disciplinary sentence of five days isolation and loss of ten days good time.

The writ is granted, primarily in order to clarify the appropriate procedure of judicial review of such applications, but also because the petitioner’s contentions were not reviewed on their merits, as contemplated by statute.

The administrative proceeding was held under the Louisiana Department of Corrections’ “Adult Rules, Regulations and Disciplinary Procedures” (January, 1977). Promulgated pursuant to La.R.S. 15:829 (1968), these rules provide for notice of charges to be heard before a prison disciplinary board, the right to present evidence and to confront and cross-examine his accusers, the right to remain silent, the right to counsel or counsel substitute, and the right to a summary of the evidence and the reasons for judgment. They also provide for a right to appeal to the Secretary of the Department of Corrections; his review is of the record of the disciplinary board proceedings, which are tape-recorded in their entirety.

Under these circumstances, the applicant has mistaken his remedy as being by writ of habeas corpus to the district court, with direct review of the district court’s finding being by supervisory writs to this court.

The Louisiana Administrative Procedure Act, La.R.S. 49:951 et seq. (1976), provides for its application to all state agencies (boards, commissions, or departments), Section 951(2), except the Board of Tax Appeals, the Department of Revenue, and the Department of Employment Security, Section 967. It also provides for judicial review of any final decision or order in an agency adjudication proceeding, Section 964, as well as for appeal to the court of appeal of any final judgment in the district court, Section 965.

Under its terms, this act is applicable to the present proceeding. Since this is the first time that this court has designated this as the correct procedure for judicial review in cases such as this, however, we have decided to review the petitioner’s application on its merits. For this purpose, we have had transmitted to this court the tapes and the record of the disciplinary proceedings before the board and on the department appeal.

The standard of judicial review is set forth by Section 964 G. We have set forth Section 964 in full in an appendix to this opinion.

The disciplinary hearings before the board were conducted in accordance with law and the lawful procedures promulgated by the Department of Corrections. Insofar as the applicant attacks the factual findings, we find no cause for judicial modification, applying the statutory standard that agency determinations within the agency’s statutory authority should not be disturbed unless “arbitrary or capricious or characterized by abuse of discretions or clearly unwarranted exercise of discretion,” La.R.S. 49:964 G(5) or “manifestly erroneous in view of the reliable, probative, and substantial evidence on the whole record,” having due regard to credibility evaluations of the trier of fact with first-hand observation of the witnesses’ demeanor, La.R.S. 49:964 G(6). See also Sanchez v. Hunt, 329 So.2d 691 (La.1976).

Although we have reviewed the present application on its merits, we will henceforth require compliance with the statutory procedures which we now find to be applicable to review of these agency determinations. As guidance to review of future applications, we note the procedures contemplated by the Administrative Procedure Act, La. R.S. 49:951 et seq., especially Section 964, are as follows:

After an adverse ruling by the prison Disciplinary Board, the inmate should exhaust his administrative remedies by appealing to the Secretary of Corrections pursuant to procedures established by the Department of Corrections. If the Secretary of Corrections affirms the decisions of the prison Disciplinary Board, the inmate may petition the district court for review of the decision pursuant to the provisions of La. R.S. 49:964, which requires him to appeal within thirty days after mailing of agency decision. (If the written decision is delivered to him instead of mailed, the thirty-day delay commences on the day after such delivery.)

The district court will review the agency determination upon the administrative record, as provided by R.S. 49:964 F. Judicial review of the agency determination should adhere to the standard of review set out in La.R.S. 49:964 G, quoted in full in the appendix.

The district court’s review of the agency adjudication is reviewable by appeal to the court of appeal, within the delay provided for other civil appeals, La.R.S. 49:965.

WRIT GRANTED; DISMISSAL OF ACTION FOR JUDICIAL REVIEW AFFIRMED.

APPENDIX

La.R.S. 49:964 provides in full:

A. A person who is aggrieved by a final decision or order in an adjudication proceeding is entitled to judicial review under this Chapter whether or not he has applied to the agency for rehearing, without limiting, however, utilization of or the scope of judicial review available under other means of review, redress, relief, or trial de novo provided by law. A preliminary, procedural, or intermediate agency action or ruling is immediately reviewable if review of the final agency decision would not provide an adequate remedy and would inflict irreparable injury.
B. Proceedings for review may be instituted by filing a petition in the district court of the parish in which the agency is located within thirty days after mailing of notice of the final decision by the agency or, if a rehearing is requested, within thirty days after the decision thereon. Copies of the petition shall be served upon the agency and all parties of record.
C. The filing of the petition does not itself stay enforcement of the agency decision. The agency may grant, or the reviewing court may order, a stay upon appropriate terms.
D. Within thirty days after the service of the petition, or within further time allowed by the court, the agency shall transmit to the reviewing court the original or a certified copy of the entire record of the proceeding under review. By stipulation of all parties to the review proceedings, the record may be shortened. A party unreasonably refusing to stipulate to limit the record may be taxed by the court for the additional costs. The court may require or permit subsequent corrections or additions to the record.
E. If, before the date set for hearing, application is made to the court for leave to present additional evidence, and it is shown to the satisfaction of the court that the additional evidence is material and that there were good reasons for failure to present it in the proceeding before the agency, the court may order that the additional evidence be taken before the agency upon conditions determined by the court. The agency may modify its findings and decision by reason of the additional evidence and shall file that evidence and any modifications, new findings, or decisions with the reviewing court.
F. The review shall be conducted by the court without a jury and shall be confined to the record. In cases of alleged irregularities in procedure before the agency, not shown in the record, proof thereon may be taken in the court. The court, upon request, shall hear oral argument and receive written briefs.
G. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
(6) Manifestly erroneous in view of the reliable, probative, and substantial evidence on the whole record. In the application of the rule, where the agency has the opportunity to judge of the credibility of witnesses by first-hand observation of demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency’s determination of credibility issues.

      . In Sanchez, we likewise reviewed the agency determination upon its merits, although review was sought by habeas application.


author: TATE, Justice.

text:
    Theotis Fontenot LeJEUNE et al., Plaintiffs-Relators, v. ALLSTATE INSURANCE CO. et al., Defendants-Respondents.
    No. 61748.
    Supreme Court of Louisiana.
    Nov. 13, 1978.
    Rehearings Denied Dec. 14, 1978.

      Guillory, McGee & Mayeux, Robert K. Guillory, Eunice, Puselier, Pucheu & Soi-leau, L. 0. Fuselier, Ville Platte, for plaintiff-applicant.
    Durrett, Hardin, Hunter, Dameron & Fritchie, H. Evans Scobee, Calvin E. Hardin, Jr., Baton Rouge, for defendant-respondent.
    Stephen A. Berniard, Jr., Raggio, Farrar, Cappel & Chozen, Lake Charles, C. Brent Cored, Ville Platte, for Danny Glenn Le-fleur, third-party, defendant-respondent.

      Arthur I. Robison, Allen, Gooch & Bourgeois, Lafayette, for Ins. Co. of North America, intervenor-respondent.
    Jack C. Fruge, Sr., Fruge & Vidrine, Ville Platte, for Dixie Auto Ins. Co.
    Patrick A. Juneau, Jr., Voorhies & Labbe, Lafayette, for Western World Ins. Co.
    L. Lane Roy, Davidson, Meaux, Sonnier & Roy, Lafayette, for Allstate Ins. Co.
    Randall Molitor and Mrs. Ivey Molitor, Joe A. Brame, Brame, Bergstedt & Brame, Lake Charles, for Zurich Ins. Co.
    J. Nilas Young and Joseph Bradley Orte-go, Young & Burson, Ltd., Eunice, for Ivy Fruge Molitor, all defendants-respondents.
   TATE, Justice.

This is a wrongful death action. While riding as a passenger in a funeral hearse, the decedent was killed as the result of a collision at an intersection through which the funeral cortege was proceeding. The trial court awarded the decedent’s survivors judgment against some of the defendants, rejecting the demands against others, and the court of appeal essentially affirmed. 356 So.2d 537 (La.App. 3rd Cir. 1978).

We granted certiorari, 358 So.2d 956 (La. 1978), principally to consider the following issues: (1) whether a cause in fact of the decedent’s death was the negligence of a deputy sheriff in failing to secure properly the intersection through which a funeral cortege was passing; and (2) whether the general employer of a negligent employee, driver of one of the vehicles, remained liable for its employee’s tort, despite the circumstance that the employee had been borrowed to perform services for a special employer at the time of the accident. (Also involved are certain other substantial issues of coverage of the policies issued by the insurers of the sheriff’s department, of the general employer, of the special employer, and of the driver of the hearse.)

Procedural Context

The collision occurred at the intersection of two rural highways. The vehicles involved were the hearse in which the decedent LeJeune was riding, the driver (Danny Lafleur) of which had failed to stop at a flashing red light; and an automobile being driver by Randall Molitor at a grossly excessive rate of speed on the favored highway. The deputy sheriff (Willie Smith) assigned to escort the funeral procession had failed to secure the intersection, so that vehicles in the funeral cortege could safely proceed, without stopping, through the intersection despite its inhibiting red light.

The widow and children of LeJeune bring this wrongful death action to recover from numerous defendants, principally: (1) Molitor, the driver of the speeding automobile and his insurer; (2) the general liability and the automobile liability insurer of the sheriff’s department, which allegedly furnished coverage for the negligence of Deputy Smith in failing to secure the intersection through which the funeral cortege was passing; and (3) the family automobile insurer of Lafleur, the driver of the hearse, and also the insurer of both his general and his special employer at the time of the accident.

The trial court held that the collision resulted from the concurring negligence of Molitor and Lafleur, but it also held that the negligence of Deputy Smith was not a cause-in-fact of the accident. It awarded judgment against Molitor and his insurer and against Lafleur’s family automobile insurer, but it denied recovery against all other parties, including the insurer of both the general and special employer of La-fleur. The court of appeal essentially affirmed, although amending the judgment so as to deny recovery against Lafleur’s family automobile policy under an exclusion clause.

Facts

The collision occurred at the intersection of Louisiana State Highways 10 and 13, two hard-surfaced rural highways. A funeral procession was proceeding northward on Highway 13. The plaintiffs’ decedent, Ro-lance LeJeune, was the director of Ardoin’s Funeral Home of Mamou, Inc. (“Mamou”). He was riding in a hearse driven by Danny Lafleur, an employee of Ardoin’s Funeral Home of Ville Platte, Inc. (“Ville Platte”), a corporation distinct from Ardoin’s of Mam-ou. Lafleur was driving in the procession at the direction of his employer (Ville Platte), pursuant to a request by LeJeune. The funeral cortege was led by an Evangeline Parish sheriff’s car driven by deputy Willie Smith.

At the intersection where the collision occurred, traffic on Highway 13 (on which the cortege was approaching) is controlled by a flashing red light, requiring vehicles to stop and yield to traffic on Highway 10 before proceeding into the intersection. Traffic on Highway 10 (on which Molitor was approaching) is controlled only by a flashing yellow light, requiring vehicles to proceed with caution into the intersection. When he approached the intersection and the flashing red light, Deputy Smith stopped, looked both ways, saw no approaching traffic on Highway 10, and proceeded across the intersection. He did not stop and secure the intersection with his automobile, nor did he get out of the car to direct traffic so that the funeral cortege could continue safely through the intersection without the need for each vehicle to stop at the flashing red light.

Deputy Smith, 68 years of age, had never before led a funeral procession on this route. He was untrained in the manner in which such a procession was to be escorted, and in the manner in which intersecting avenues of travel should be secured to allow unimpeded travel to a funeral cortege.

The witnesses differ as to whether the hearse driven by Lafleur was the second or third vehicle in the cortege. Upon arriving at the intersection, Lafleur slowed down but did not stop. He observed that the intersection had not been secured by the police escort and that no one was directing traffic, and he could see the flashing red light.

At this point Lafleur also noticed a vehicle being driven by Molitor, proceeding on Highway 10 toward the intersection. Molitor was driving at a grossly excessive rate of speed, and gave no sign that he was preparing to stop at the intersection. Nevertheless, Lafleur drove the hearse into the intersection.

At this point, Molitor’s vehicle was about 300 feet from the intersection. Molitor attempted to stop and laid down skid marks for about 154 feet before striking the hearse, a few feet after the hearse had cleared the intersection. Molitor and La-fleur were injured, and LeJeune, the funeral director who was riding in the hearse, was killed.

Issues

The principal issues before us concern:

(1) Whether the negligence of Deputy Smith was a cause-in-fact of the accident;

(2) If so, whether his negligence is covered by either or both of the two liability insurance policies issued to the sheriff’s department;

(3) Whether Lafleur’s general employer, Ville Platte, is liable for the injuries caused by his negligence in proceeding into the intersection in the face of a blinking red light and after observing Molitor’s right-of-way vehicle approaching at unchecked speed. This issue involves a consideration of whether the circumstance that, at the time of the accident Lafleur was a “borrowed employee” of Mamou, relieves Ville Platte of its usual liability for the torts of its employee in performing business duties for it.

(4) What was the effect of Lafleur’s status as a “borrowed employee” upon the liability of the coverage afforded Ville Platte (his general employer) and Mamou (his special employer) under a policy with a “fellow employee” exclusion clause.

1. Was Deputy Smith’s Negligence a Cause in Fact of the Accident?

The negligence of both drivers undoubtedly contributed to the accident: Lafleur, by proceeding into the intersection under the circumstances; and Molitor, by his heedless approach at high speed, in the face of the amber caution light, towards the intersection until too near to be in effective control of his vehicle.

Both previous courts indicated, although they did not expressly so hold, that Deputy Smith was also negligent in failing to stop and secure this principal intersection to permit safe and unstopping passage of the funeral cortege through it. The previous courts found, however, that Smith’s negligence was not a cause in fact of the accident.

A negligent party may not be held liable where his negligence is not a cause in fact of the accident — i. e., where the negligence is not a substantial factor in bringing about the harm. Dixie Drive It Yourself System v. American Beverage Company, 242 La. 471, 137 So.2d 298 (1962); Restatement of Torts, 2d, Sections 431-33 (1965). As noted in the Restatement, factors which may be considered in determining whether the actor’s negligence is a substantial factor include “whether the actor’s conduct has created a force or series of forces which are in continuous and active operation up to the time of the harm * * *.” Section 433(b).

For reasons to be stated, the trial court and the court of appeal applied an incorrect legal standard in determining whether, under the virtually undisputed facts, Deputy Smith’s negligence, if any, was not a cause in fact of the collision. Accepting the facts as found by the trial court, it is clear that Deputy Smith was negligent, and that his negligence was a substantial factor in bringing about the collision.

Deputy Smith’s duty was to do what was necessary to ensure that the funeral cortege could pass safely through the intersection, despite the automatic signals that designated Highway 10 — the road the cortege had to cross — as the favored highway. The customary method of ensuring safe passage across such a favored highway is to secure the intersection by blocking the favored road with a police vehicle, whose flashing red light would be a signal to approaching traffic that the automatic signal was being superseded.

Molitor, seeing only the amber “caution” light, and seeing the hearse hesitate before entering the intersection, did not attempt to slow or stop his vehicle until it was too late. Even to a cautious driver, a flashing yellow light is only a signal to be on guard, not to stop. To a driver like Molitor, who was driving his vehicle at a grossly excessive rate of speed, the yellow light may have operated primarily as an indication that the traffic on the other highway would probably stop. Regardless of the standard of care being observed by a driver, however, when he sees the flashing emergency lights of a police vehicle ahead of him, and the police vehicle is blocking the road, he will receive the message that he is required to stop.

The trial court and the court of appeal were able to find that Deputy Smith’s negligence was not a cause-in-fact of the collision only by an improper application of the so-called “but-for” test of causation.

The trial court found that Molitor failed to reduce his speed when confronted with the caution light. The court of appeal, by pointing out that Molitor did try to stop once he saw the hearse enter the intersection — too late — concluded that the presence of the sheriff’s vehicle might not have made any difference.

The conclusion, however, rests on the implicit hypothesis that Molitor would have ignored the police vehicle just as he ignored the caution light. The hypothesis rests on the speculative inference that' the presence of a sheriff’s automobile, with flashing lights, parked across an intersection does not signal to oncoming drivers the need to stop and a greater need for caution than is represented simply by a flashing amber light. To some extent, the inference relies upon an unjustified assumption that an oncoming driver on the right-of-way highway would approach the amber caution light at an intersection in the same manner, whether he had simply seen from 300-500 feet away a vehicle (the lead vehicle) cross it, or whether instead he was put on notice by a sheriff’s vehicle with flashing lights that an uninterrupted flow of vehicles in the cortege would flow through it without pause for the flashing red light facing them.

The fact is that Deputy Smith negligently failed to supersede the flashing lights by blocking the intersection. Molitor saw only the caution light and ignored it. The accident may or may not have happened if (a) Molitor had seen the police vehicle properly parked and designed to warn him of the cortege, or even had taken heed of the caution light and approaching cross-traffic; (b) Lafleur had not misjudged Molitor’s speed and unchecked approach toward the intersection, or (c) Smith had stationed the sheriff’s vehicle at the intersection or had taken other steps to warn approaching motorists (such as Molitor) on the right-of-way highway of the extra caution required of them and the certain (rather than merely potential) need for a stop, in order to let pass the entire line of vehicles in the funeral procession (as compared with the passage of the intermittent traffic normally to be expected at the intersection, which vehicle by vehicle might probably have been inhibited from entering the intersection by the flashing red light facing them).

All three of these parties were negligent, Molitor, Lafleur, and Deputy Smith. It is true that the accident might possibly have happened anyway if one of the actors was not negligent, but it is equally true that the accident might not have happened except for the negligence of any of these three parties. The negligence of each of the three actors was a substantial factor in producing the situation which resulted in the harm sustained by the plaintiffs’ decedent, and there is no substantial reason to absolve the negligence of any one of the three actors as not a cause in fact of the tragic accident.

Nor is there any reason to say that Deputy Smith’s negligence was not causative because it consisted entirely in omission, whereas the other two parties were “positively” negligent. See: Dixie Drive It Yourself System New Orleans Co. v. American Beverage Co., 242 La. 571, 137 So.2d 298 (1962); Prosser on Torts, Section 41 at pp. 237-38 (4th ed. 1971). Thus Louisiana courts use the “substantial factor” test, which is similar to the “but-for” test, except that where more than one party’s negligence would have cause the collision absent another party’s negligence, all are held to be causative. See Dixie Drive It Yourself, cited above, and Prosser, Id., at pp. 238-241.

As Prosser notes, the “but-for” test (that the accident would not have happened but for the defendant’s negligence), while it explains the greater number of cases, does not serve as an adequate test for the present situation: “If two causes concur to bring about an event, and either one of them, operating alone, would have been sufficient to cause the identical result, some other test is needed. ... In such cases it is quite clear that each cause has in fact played so important a part in producing the result that responsibility should be imposed upon it; and it is equally clear that neither can be absolved from that responsibility upon the ground that the identical harm would have occurred without it, or there would be no liability at all.” Id., p. 239.

Nevertheless, it is argued that certain indicia of the present facts militate against Deputy Smith’s negligence constituting a cause in fact of the accident.

It is suggested, for instance, that Deputy Smith might have observed his duty to secure the intersection by placing his police car on the farther side of the intersection from Molitor’s approach. Since such placement would have made Deputy Smith non-negligent (without allegedly giving Molitor any more notice of the funeral cortege than he already had), it is argued that Deputy Smith’s negligence must not then have been causative.

However, the evidence also reflects that Deputy Smith’s car was several car lengths ahead of the hearse. The cars in the procession were not proceeding bumper to bumper so as to block out from Molitor any observation of a sheriff’s vehicle with flashing lights parked across but on the far side of the intersection. Under the evidence, we cannot conclude that the funeral procession would have obstructed Molitor’s view of the emergency flashing lights on the sheriff’s vehicle, had it been placed anywhere in the intersection, as it should have been.

It is also irrelevant that the collision actually occurred a few feet beyond the intersection. Molitor, seeing the hearse enter the intersection, tried to stop his vehicle, and laid 154 feet of skid marks before colliding with the hearse. That his car actually left the road it was travelling on, and crossed Highway 13 at a point beyond the intersection, indicates that he lost control when he attempted too late to stop his vehicle. This late attempt to stop, with the consequent loss of control, is precisely the harm that Deputy Smith’s placement of his emergency vehicle in the intersection would have been designed to avoid.

Having determined that Deputy Smith’s negligence was a cause-in-fact of the collision, we must determine whether the duty breached by Deputy Smith was designed to prevent the type of harm that actually occurred. It might be that a breach of a duty .imposed by law, although a cause-in-fact of harm, might not impose legal liability for the harm because the duty was designed to protect some other potential victim, or to protect the same victim from some other harm. See, e. g., Laird v. Travelers Insurance Company, 263 La. 199, 267 So.2d 714 (1972).

The duty breached by Deputy Smith was to secure the intersection in order to give drivers on the favored highway, such as Molitor, warning that the funeral cortege was passing through the intersection, and thus to make it safe for vehicles such as the hearse to ignore the flashing red light. The duty was designed to prevent an intersec-tional collision involving the funeral procession, with the consequent risk of injuries such as those that killed LeJeune.

Unlike the situation presented in Laird, we are presented here with a plaintiff to whom a duty was clearly owed, and an accident that the emergency lights on Deputy Smith’s car, had they been placed in the intersection to deter gross negligence as well as to warn careful drivers, might have prevented. Lingering doubts about whether Smith’s negligence actually caused the collision, once it has been determined that causation-in-fact was more probable than not, cannot be permitted to spill over into the duty/risk determination, a question of law. See Laird, cited above; Boyer v. Johnson, 360 So.2d 1164 (La.1978).

2. Is Deputy Smith’s Liability for his Negligence Covered by the Liability Insurance Policies Issued to the Sheriffs Department?

In holding that Deputy Smith’s negligence was not a cause in fact of the accident, the intermediate court nevertheless further observed that the liability insurers of the sheriff’s department could not be held liable, since the sheriff himself was not present, nor was Deputy Smith shown to have been acting in compliance with a direct order of the sheriff in failing to secure the intersection.

This latter observation was based on La. R.S. 33:1433 (1972) as interpreted by us in Foster v. Hampton, 352 So.2d 197 (La.1977). The statute attempts to limit the personal liability of a sheriff (individually) for the acts of his deputies, and Foster concerned only the personal or individual liability of a sheriff for this deputy’s acts.

The issue before us does not concern any personal liability of the sheriff. It concerns, rather, whether liability policies issued to cover negligent acts of a sheriff’s office and its deputies may be enforced according to their terms, if the negligence of a deputy in the performance of his duties caused injury to another. Neither the cited statute nor Foster are apposite to this issue.

In the present instance, two insurers are sued who had issued liability policies to the “Evangeline Parish Sheriff’s Office” as named insured: (a) Western World, which had issued a “Law Enforcement Officers Professional Liability Policy”; and (b) Dixie, which had issued a “Basic Combination Automobile Policy”.

(a) Western World’s Professional Liability Policy

By the insuring agreement in its Law Enforcement Officers Professional Liability Policy, Western World agreed to “pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of negligent acts, errors, or omissions of the insured” within limits of one million dollars. The insured protected by the policy was defined as the named insured (the sheriff’s department) and “all paid full and parttime law enforcement officers of the named insured.”

Western World’s policy clearly applied, unless the coverage of Deputy Smith’s negligence is excluded by a clause that the policy does not apply “to bodily injury arising out of the ownership, operation, or use, loading or unloading, of land motor vehicles.”

An exclusion clause in a liability policy is strictly construed against the insurer and in favor of coverage, if more than one interpretation is possible. Creole Explorations, Inc. v. Underwriter's at Lloyd’s of London, 245 La. 927, 161 So.2d 768 (1964); Stanley v. Cryer Drilling Co., 213 La. 980, 36 So.2d 9 (1948); Couch on Insurance 2d, Section 44:414 (1964). Consonant with this principle, the decisions we could find hold that, where the automobile use exclusion clause is sought to be applied so as to avoid coverage for injuries otherwise covered by a general liability policy, the exclusion clause does not apply where the insured’s act is a result of negligence independent of, even though concurring with, his use of an automobile. State Farm Mutual Automobile Insurance Co. v. Partridge, 10 Cal.3d 94, 109 Cal.Rptr. 811, 514 P.2d 123 (1973); United States Fidelity & Guaranty Co. v. Breslin, 243 Ky. 734, 49 S.W.2d 1011 (1932); Assurance Company of North America, 108 Ga.App. 766, 134 S.E.2d 540 (1963); Couch, cited above, Section 44:532.

Accordingly, the exclusion clause in Western World’s policy does not operate to exclude coverage of Deputy Smith’s negligence leading up to the collision. Although he could and should have used his police car to block the intersection and warn approaching drivers of the dangerous situation, it was not any use or abuse of his vehicle itself that led to his liability. Rather, it was his failure to supersede the automatic traffic signal and warn traffic approaching on the right-of-way highway that a funeral procession was going to pass through it, a function of his duties as law enforcement officer.

The basis of Deputy Smith’s liability is his negligent failure to perform this law enforcement duty, the risk specifically insured by Western World’s policy. The circumstance that the deputy was to use his automobile in the performance of this duty was incidental to the breach of this law enforcement duty. His liability is not based upon the negligent use of his vehicle, but rather upon his negligence in failing to secure the intersection so as to alert approaching traffic of the danger involved. The damages to the injured victim arose out of the deputy’s breach of his law enforcement duties, not from the deputy’s use of his automobile.

The judgment must be amended so as to hold Western World, as insurer of Deputy Smith, a joint tortfeasor, solidarily liable with other parties cast in judgment for the decedent’s death.

(b) Dixie’s Automobile Liability Policy

The Dixie policy contains the following language: “[The insurer agrees] . [t]o pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages . . . arising out of the ownership, maintenance or use of the automobile.” Subsequent provisions indicate that “the automobile” refers only to automobiles owned or used by the sheriff’s department.

In view of our previous determination, we are willing to hold that Deputy Smith’s liability did not arise out of the “use” of the automobile, but, rather, out of the breach of his law enforcement duties. This holding may be especially appropriate in the present situation, where one policy (Western World) was designed to cover non-automobile risks and the other (Dixie, the present one) was designed to supplement this by covering automobile risks.

3. Is Lafleur’s General Employer, Ville Platte, Liable for His Negligent Acts as “Borrowed Employee” of Mamou?

Lafleur, the negligent driver of the hearse, was an employee of Ville Platte. At the time of the accident, as directed by his supervisor, he was driving a hearse for Mamou. The evidence shows that, as the need arose, these two corporations would lend their employees from one funeral home to another for short periods to assist in funerals of the day.

The plaintiffs sued the Insurance Company of North America (“INA”), which had issued a comprehensive automobile liability insurance policy that had insured both Ville Platte and Mamou as named insureds. The policy covered the liability of each company for the negligent use by their employees of any automobile.

Despite the contrary contention raised in this court, the plaintiffs’ pleadings were broad enough to cover INA’s liability either as insurer of Ville Platte or as insurer of Mamou or as insurer of both. See, e. g., Third Supplemental and Amending Petition. Tr. 354. Further, these issues were all tried and decided by the trial court. La.C.Civ.P. art. 1154.

In holding that INA was not liable as insurer of Ville Platte, the intermediate court affirmed the trial court’s determination that, at the time of the accident, La-fleur had become a “borrowed employee” of Mamou, as subject to the control of Mamou in the performance of his work at that funeral. In so holding, the court cited five decisions, four of which had in fact held the general employer liable for his employee’s torts:

In each of these last four cases, the courts pointed out that the general employer had not met the heavy burden of overcoming the presumption that he retained control (and thus remained liable for his employee’s tort) and of proving that “the relationship of master and servant which previously existed between the general employer and employee has been suspended, that a new such relationship has been created between the borrowing employer and that employee, and that such new relationship was in existence at the time the accident occurred.” Vincent v. Ryder Enterprises, Inc., 352 So.2d 1061, 1067 (1977).

Under the tests (see, e. g., footnote 9) of some of these cited decisions, a strong argument can be made that Lafleur’s general employment was not suspended during his temporary duty performing his same duties for Mamou. He was doing so at the direction of his supervisor at Ville Platte and under a standing arrangement between the two corporations to interchange employees during, short periods of particular need for the benefit of both corporations. The only “control or direction” exercised by Mamou, the borrowing employee, was to dictate the details of the task essentially assigned to Lafleur by his supervisor at Ville Platte.

On the other hand, under quite similar facts as those in which suspension of the borrowed employee’s employment with his general employer was denied (see decisions cited in footnotes 8 and 10), the employee has been held to be a borrowed employee for whose acts the general employer was not responsible, on the ground that the special employer was in control of the work at hand. We note, however, that most of the decisions concern an issue of whether a special employer was liable in tort instead of for workmen’s compensation when a borrowed employee was injured, or a dispute between the general and the special employer as to which of the two should pay for damage done by the borrowed employee.

Only two decisions cited to us actually held that the general employer was not liable to a third person injured by his employee while lent to another. These did so by citing eases which, in the main, had only determined the liability inter se between the general and special employer, or the workmen’s compensation vs. tort liability of the special employer; or which had, in fact, held the general employer responsible for the borrowed employee’s tort by applying the stringent exculpatory test required of a general employer attempting to avoid liability to a third person for damages caused by his employee’s tort.

Ultimately, however, we determine that for at least some purposes Lafleur may indeed have been a borrowed employee of Mamou, as working under Mamou’s direction at the time of the accident. For instance, Mamou may indeed be responsible for workmen’s compensation to him or for his negligent acts to others, arising out of an accident while Lafleur was performing work for Mamou under its supervision.

Nevertheless, this determination should not relieve the general employer of his liability for his employee’s negligent acts done in the pursuance of duties designated for him by his employer, in whose pay he continued and who had the sole right to discharge him. This is especially so in the present case, where the employee was loaned out to another in a continuing arrangement between the employers for their mutual benefit.

This court has never decided in a tort case that both general and special employer may be liable for the borrowed employee’s torts. However, we have held that both a lending and a borrowing employer are soli-darily liable for workmen’s compensation benefits to their injured employee. Humphreys v. Marquette Casualty Co., 235 La. 355, 103 So.2d 895 (1958). There, in a swapping-employee situation similar to the present, we held that the general employer cannot be heard to complain that the task was outside the scope of the employee’s duties for him, when he had instructed the employee to perform that task for the special employer at whose work the employee was injured.

In B & G Crane Service v. Thomas W. Hooley & Sons, 227 La. 677, 80 So.2d 369 (1965), we held that the general employer could not be held liable to the special employer for damages caused by the borrowed employee in the negligent performance of the special employer’s work. However, in related subsequent litigation, we expressly noted the effect of our holding was only that the special employer rather than the general, “as between the two, was liable for the damages resulting from the accident” caused by the negligent employee. Thomas W. Hooley & Sons v. Zurich Gen. Acc. & L. Ins. Co., 235 La. 289, 103 So.2d 449, 450 (1958).

In Lowenburg v. Labor Pool of America, Inc., 296 So.2d 846 (La.App.4th Cir.1974), the court held both general and special employer solidarily liable in tort to a third person injured by the employee’s negligent act. The court pointed out that while the borrowed employee was subject to the special employer’s supervision and direction while performing work for him, nevertheless he remained in the employment of and subject to direct orders of his general employer, who had ordered him to perform duties for the special employer. We denied certiorari sought by both the special employer, 300 So.2d 191(1) (La.1974) and the general employer, 300 So.2d 191(2) (La.1974).

In our view, this principle is here applicable. It is consistent with our holding that both general and special employer are soli-darily liable to the borrowed employee for workmen’s compensation, if he is injured at work for the special employer. Humphreys v. Marquette Casualty Co., 235 La. 355, 103 So.2d 895 (1958). Further, as we have noted, despite the confusion in the jurisprudence — in that seemingly indistinguishable facts produce disparate results as to whether a borrowed employee is still subject or not to the control of his general employer so as to have abandoned or not the latter’s employment — , the jurisprudence almost uniformly has held the general employer liable to a third person for the employee’s torts, when that issue has arisen.

A number of other jurisdictions have likewise held that both the general and special employer may be held solidarily liable for the employee’s tort. We believe this to be the better rule and, accordingly, overrule expressions indicating to the contrary, as well as the two decisions of the intermediate courts (see footnote 11) which expressly held the general employer not liable to a third person for torts committed by his employee while loaned to a special employer.

We conclude, therefore, that under the circumstances, Ville Platte, the general employer, is liable to the plaintiffs for the damages caused them by Lafleur while negligently driving the hearse for Mamou.

Ville Platte was not sued, however — only INA, as the automobile liability insurer of each company. Accordingly, we will next discuss INA’s liability, both as insurer of Ville Platte and as insurer of Mamou’s borrowed employee, Lafleur. (Since Mamou was the employer of LeJeune (the plaintiffs’ decedent), the company itself is not liable in tort for his death while working for it. The plaintiffs’ exclusive remedy against that company was for workmen’s compensation benefits. La.R.S. 23:1032.)

4. INA Liability Policy — The “Fellow Employee” Exclusion Clause — Effect of Lafleur Being A “Borrowed Employee”.

INA issued an automobile liability policy to Ville Platte and Mamou, naming each as a named insured. The policy covered any liability of the companies and of their employees arising out of use of the listed motor vehicles. The policy limits provided were $100,000 bodily injury for each person. As we read the policy, these limits were provided as to the coverage provided for each named insured as to any person injured.

INA’s liability as insurer of Ville Platte for its employee Lafleur’s negligence is allegedly excluded by the policy provision that:

“None of the following is an insured:
“1) Any person while engaged in the business of his employer with respect to bodily injury to any fellow employee of such person injured in the course of his employment.” (Italics ours.)

The clause does not apply to INA’s liability as insurer of Ville Platte itself. Ville Platte is a named insured and was the employer. The clause was not intended to deprive the named insured itself of its insurance protection if one of its employees injured another; the apparent aim of the clause was to prevent an employee of Ville Platte from becoming an additional insured under such circumstances.

The clause further does not apply as to INA’s liability as insurer of Lafleur, Ville Platte’s employee, as additional insured under Ville Platte’s coverage. Insofar as the coverage provided for Ville Platte, Lafleur was its employee; but the decedent Le-Jeune was employed by Mamou, an entirely different employer. Lafleur and LeJeune were not “fellow employees”, insofar as the coverage provided by Ville Platte; for they were not both employed by this named insured. Cf. Pullen v. Employers’ Liability Assurance Corp., 230 La. 867, 89 So.2d 373 (1956).

With regard to the coverage afforded to Mamou as a named insured, if Lafleur is an additional insured as Mamou’s borrowed employee, then it seems reasonable to conclude, as did the previous courts, that he fell under the exclusion clause as a fellow employee of LeJeune, Mamoti’s payroll employee:

As the plaintiffs argue, a “borrowed employee” is not necessarily to be defined as a “fellow employee” for purposes of an exclusion clause, given the usual construction of language in insurance policies. This favors coverage and avoids exclusion where the terms are ambiguous or uncertain and may be given two or more reasonable interpretations. We doubt, for instance, that the clause could be used to deny coverage to a payroll employee on the contention that the person injured was a “borrowed” employee and therefore (artificially) a fellow employee.

Here, however, coverage is afforded the tortfeasor primarily because of his status as a borrowed employee. It therefore does not appear to be an unreasonable interpretation or beyond the intent of the policy language to assign him the same employee status for purposes of the policy exclusion clause; especially since the employee is protected for his employment-related tort liability by a coverage in this joint policy afforded him as an additional insured of his general (payroll) employer. Considering the joint policy as a whole, no intent is reflected to afford him protection in the amount of double the policy limits for each named insured.

In summary, INA is liable solidarily with the other tortfeasors, not to exceed its policy limits of $100,000 in all, as the liability insurer of Ardoin’s of Ville Platte, Inc., and of its negligent employee, Danny Lafleur.

Conclusion

By the previous courts in this litigation, the plaintiffs widow and children are awarded a total of $156,400.86 against Molitor and his insurer (Allstate); also, the demands against other defendants were rejected, and certain third-party demands were granted or denied, some on the basis of coverage issues decided differently by this court.

In reviewing the quantum, the court of appeal did not consider the plaintiffs’ request for an increase, feeling that Molitor’s impecunious condition and the small policy limits ($5,000) of his policy could be taken into consideration in making an award; an impecunious condition which may also have affected the trial court’s award.

However, we have determined that two insurer defendants also are solidarily liable, within their substantial policy limits, with Molitor and Allstate for the damages here sustained: Western World, as insurer of Deputy Smith; and INA, as insurer of Ar-doin’s of Ville Platte, Inc., and of its employee, Danny Lafleur. These holdings concerning coverage provided by these additional defendants may not only raise different issues of quantum than were previously considered by the court of appeal, but they may also raise new issues as to matters not decided in the third-party demands which were granted or rejected. We have not been furnished briefs or argument on these issues or on the issue of the apportionment between themselves of the liability of the three insurers cast solidarily, but not to exceed their policy limits, for the concurring negligence of the three tortfeasors, Molitor, Deputy Smith, and Lafleur.

In our ordinary practice, we usually do not attempt to determine issues of a complex nature that the appellate court has not passed upon, especially when they have not been fully briefed and argued in this court. Instead, we remand the proceedings to the court of appeal for that purpose.

Decree

Accordingly, we amend the judgment so as to hold that the Insurance Company of North America and the Western World Insurance Company are solidarily cast, not to exceed their respective policy limits of one hundred thousand and of one million dollars, with the defendants previously east, i. e., Randall Molitor and the Allstate Insurance Company, for all amounts which may be awarded the plaintiffs upon the remand below. We affirm the dismissal of the plaintiffs’ demands against Mrs. Ivy Molitor, the Dixie Auto Insurance Company, and the Zurich Insurance Company, and likewise affirm the dismissals of third-party demands or interventions by or against these parties. We further affirm the allowance of the intervention by the Insurance Company of North America allowing it to claim by preference and priority out of the award sums paid and to be paid as compensation benefits by it arising out of Rolance LeJeune’s death.

The trial court judgment, as amended by the court of appeal, is otherwise set aside, and the case is remanded to the Court of Appeal, Third Circuit, for further proceedings consistent with the views expressed in this opinion. All costs, including those in this court, are to be assessed by directions of the court of appeal upon the final determination of this litigation.

JUDGMENT AMENDED, AND CASE REMANDED TO THE COURT OF APPEAL.

SUMMERS and MARCUS, JJ., dissent.

      . LeJeune’s widow and children sued for his wrongful death, naming the following defendants: Randall Molitor, the driver of the automobile; Ivy Molitor, his mother, the owner of the automobile; Allstate Insurance Company, the automobile liability insurer of the Molitor vehicle; Western World Insurance Company, the comprehensive liability insurer of the Evangeline Parish Sheriff’s Department; Dixie Auto Insurance Company, the motor vehicle liability insurer of the Sheriff’s Department; Zurich Insurance Company, the family automobile liability insurer of Danny Lafleur; and Insurance Company of North America (INA), the motor vehicle liability insurer of the Ardoin’s Funeral Home of Ville Platte, Inc. and of Ar-doin’s Funeral Home of Mamou, Inc., two corporations. Several defendants made third-party demands or intervene against other defendants, and several also named the driver Lafleur as third-party defendant. INA also intervened, in its capacity as workmen’s compensation insurer for Ardoin’s of Mamou, claiming the right to be reimbursed by any parties found liable in tort for workmen’s compensation benefits paid by it, and claiming priority over the tort claims of the widow and children.
      As noted in the text of the opinion, the trial court found only Molitor, his insurer (Allstate) and Lafleur’s insurer (Zurich) liable in the principal action, and granted Allstate and Molitor a right of contribution against third-party defendant Lafleur and his insurer, Zurich. The court awarded damages totalling $156,400.86, and assigned priority to INA for reimbursement of workmen’s compensation benefits it had paid. (As noted in the text, the court of appeal upheld the trial court judgment in all respects, except insofar as it found Zurich liable for Lafleur’s negligence. The court of appeal found that the Zurich policy did not provide coverage to Lafleur for this collision.)

      . The trial court’s denial of recovery against the insurer was based respectively upon (a) the non-liability of the general employer for the tortious acts of its employee borrowed by the special employer and (b) a “fellow employee” exclusion clause in the special employer’s coverage.

      . The court of appeal held that the funeral hearse was not a “private passenger automobile” so as to be within Lafleur’s non-owned automobile coverage. See 356 So.2d 547-48. The court of appeal correctly decided this issue, for the reasons stated by it. We need discuss no further the plaintiffs’ assignment of error concerning this issue.

      . At this point, we note without further discussion, rejecting contrary contentions of the parties, that the following issues were correctly decided by the court of appeal, for the reasons indicated by its judgment: (a) The negligence of both drivers, Lafleur and Molitor, contributed to the accident; (b) Molitor’s mother, who had loaned him her car, is not responsible for his negligent use of it; (c) Lafleur’s personal automobile liability policy did not cover his negligence while driving the hearse (see footnote 3 above); (d) Mamou’s compensation insurer (INA) is entitled under the terms of La. R.S. 23:1203 to priority payment from the judgment against the tortfeasors, in the amount of compensation actually paid by it (i. e., even though such preference primes the tort claims of the major children who received no workmen’s compensation benefits).

      . La.R.S. 33:1433 provides:
      “No sheriff of any parish of this state, nor his sureties, shall be liable for any act or tort committed by one of his deputies ... beyond the amount of the bond or limits of liability insurance furnished by said deputy sheriff, unless said deputy sheriff in the commission of the said act or tort, acts in compliance with a direct order of, and in the personal presence of, the said sheriff . .

      . See Foster at 352 So.2d 197:
      “The statute contemplates personal liability of the sheriff for those acts he personally controls; for such acts the legislature had determined that the sheriff should be answerable. The sheriff is subject to liability up to the limits of the bond or liability insurance furnished by the deputy for the official acts of the deputy which he does not directly control.”

      . In a suit for illegal arrest, for instance, the exclusion clause would not apply, if the deputy unlawfully arrested an individual and had incidentally used an automobile to make the arrest. The victim’s damage arose out of the unlawful arrest, not out of the use of the automobile.

      . The decisions cited below at 356 So.2d 546 are: Vincent v. Ryder Enterprises Inc. et al., 353 So.2d 1061 (La.App.3d Cir.1977); Highlands Ins. Co. v. L. J. Denny & Son, 328 So.2d 779 (La.App.3d Cir.1976); Universal Engineers and Buildings, Inc. v. Lafayette Steel Erector Corp., 235 So.2d 612 (La.App.3d Cir. 1970); Kezerle v. Hardware Mutual Casualty Co., 198 So.2d 119 (La.App.3d Cir. 1967); McCutchen v. Fruge, 132 So.2d 917 (La.App.3d Cir.1961).
      All but the last of these decisions in fact held the general employer liable for his employee’s tort, although the employee was ostensibly borrowed for a special purpose by another (allegedly special) employer.

      . This decision pointed out, for instance, that the borrowing employer’s personnel “would tell Blackhard [the employee] what to weld, they wouldn’t tell him how to weld”, and that although they could remove a welder from the job, they couldn’t fire him from his general employment. 352 So.2d 1066.

      . See also: Benoit v. Hunt Tool Co., 219 La. 380, 53 So.2d 137 (1951) (employee of a welding company engaged to do welding for a drilling company was not a borrowed employee of the drilling company, and employees of the drilling company could maintain an action in tort against the welding company); Lowenburg v. Labor Pool of America, Inc., 296 So.2d 846 (La.App.4th Cir.1974), (action in tort was maintained against both the general employer (who had assigned its employee to a truck-owner for that person to use in his business of leasing trucks) and the special employer, i. e., the truck-owner; since the employee was always subject to the direct orders of his general employer who had assigned him to work for the truck-owner, and since the truck-owner also directed the employee in his work); Berry Bothers General Contractors v. Air Marine, Inc., 328 So.2d 771 (La.App.2d Cir.1976 (pilot supplied by defendant to fly the plaintiff’s plane was not a borrowed employee of the plaintiff, since the only control exercised by the plaintiff was to tell the pilot where to fly; therefore, the defendant was liable to the plaintiff for the pilot’s negligence); Stafford v. Gilmer, 98 So.2d 522 (La.App.2d Cir.1957) (sanitarium orderly who was directed by his superiors to go to hospital next door to lift a patient from the floor, where she had fallen out of bed, who was supervised by hospital employees, could not recover in workmen’s compensation against the hospital as a borrowed employer).

      . See, e. g., Miller v. B. Lewis Contractors, Inc., 103 So.2d 592 (La.App.1st Cir.1958); Dixon v. Herrin Transportation Co., 81 So.2d 159 (La.App.2d Cir.1955).

      . See, e. g., B & G Crane Service v. Thomas W. Hooley & Sons, 227 La. 677, 80 So.2d 369 (1955); Hislop Plumbing Company, Inc. v. Pgue-Atkins, Inc., 283 So.2d 808 (La.App.2d Cir.1973); Lambert v. Austin Bridge Company, 189 So.2d 752 (La.App.1st Cir.1966).

      . See, e. g., Commercial Union Insurance Co. v. Bringol, 262 So.2d 532 (La.App.4th Cir.1972); McCutchen v. Fruge, 132 So.2d 917 (La.App.3d Cir.1961).

      . See, e. g., Strait v. Hall Construction Co., 26 Cal.App.3d 941, 103 Cal.Rptr. 487 (1972) (in excellent discussion, court relied on workmen’s compensation case, similar to Humphreys, cited above, to hold borrowing and lending employers liable for the tort of the borrowed servant); Keitz v. National Paving & Contracting Co., 214 Md. 479, 134 A.2d 296 (1957) (“A person may be the servant of two masters, not joint employers, at one time as to one act, provided that the service to one does not involve abandonment of the service to the other.”); Lindenmuth v. Steffy, 173 Pa.Super. 509, 98 A.2d 242 (1953) (“[I]t was proper for the jury to conclude that Steffy was acting in the interests of both Krick and Motor Cargo, and was the agent of both. . . . It is entirely possible, under existing social and economic conditions, for two masters to have control over one servant so as to render both liable.”); Gordon v. S. M. Byers Motor Car Co., 309 Pa. 453, 164 A. 334 (1932) (borrowed employee, working for special employer at the direction of his general employer, was acting for both, in that he was performing duties of benefit to his general employer, while complying with specific instructions of the special employer in that latter’s work); Vance Trucking Co. v. Canal Insurance Co., 249 F.Supp. 33 (D.S.C.1966) (test is right to control, which may be mutual, especially where employee is transferred to carry on work to the mutual interest of both employers).
      See also; 57 C.J.S. “Master and Servant” § 566 at p. 290, footnotes 32 and 33 and pocket-parts, in which a number of other decisions from several other jurisdictions are cited to the same effect; 57 Am.Jur.2d “Master and Servant”, Section 415 at p. 428, footnotes 1 and 2, decisions cited as to same effect.
      See also: Power, It’s Time to Bury the Borrowed Servant Doctrine, 17 St. Louis L.J. 464 (1973); Skogland, Borrowed Servants, 76 Commercial L.J. 307, 308--09 (1971); Note, Borrowed Servant Doctrine — Allocation of Risk, 5 St. Mary’s L.J. 196 (1973).