Higginbotham v. USAgencies Cas. Ins. Co.
Higginbotham v. USAgencies Cas. Ins. Co.
Opinion of the Court
An employee of the insured transportation company was injured in an automobile accident and sought recovery under the uninsured/underinsured (UM) provisions of his employer's trucker's liability policy. The insurer denied the plaintiff's claims, alleging that its insured waived UM coverage. The plaintiff challenged the validity of the UM waiver. The issue of UM coverage was presented to the trial court in cross-motions for summary judgment. The trial court granted the motion for partial summary judgment filed by the plaintiff and denied the motion for summary judgment filed by the insurer, finding that the policy provided UM coverage for the plaintiff's damages. The insurer filed an appeal and an application for supervisory writs challenging that judgment, which this court consolidated. For the following reasons, we affirm.
Factual and Procedural History
The plaintiff, Joey Higginbotham, was employed as a truck driver for Dupre Logistics, LLC (Dupre), when he was involved in a January 25, 2013 on-the-job automobile accident. He filed the underlying *918action for damages against the other driver involved in the accident, as well as his insurer, USAgencies Casualty Insurance Company. Later, the plaintiff filed a supplemental and amending petition naming Dupre's trucker's liability insurer, Zurich American Insurance Company (Zurich) as a defendant, seeking UM coverage under the policy it issued to Dupre. In its answer to the amended petition, Zurich admitted that it issued trucker's liability insurance to Dupre, but denied coverage for the plaintiff's claims based upon its assertion that Dupre waived UM coverage.
Zurich filed a motion for summary judgment seeking dismissal of the plaintiff's claims against it, alleging that Dupre waived UM coverage in the initial policy Zurich issued to it in October 2005, TRK 5916139-00, and in the renewal policies issued to it over the next six years. Thereafter, the plaintiff moved for partial summary judgment seeking a declaration that the Zurich policy afforded UM coverage for his claims because the purported waiver did not comply with Louisiana law.
At the close of a contradictory hearing, the trial court issued a ruling from the bench denying Zurich's motion for summary judgment and granting the motion for partial summary judgment filed by the plaintiff. In oral reasons for ruling given at that time, the trial court concluded that the 2005 UM form and the subsequent UM forms executed in conjunction with the renewal policies issued by Zurich
[T]he policy of insurance issued by Zurich American Insurance Company to Dupre Logistics, LLC, policy number TRK 5916139-07, for the period of October 1, 2012 to October 1, 2013 provides uninsured/underinsured motorist coverage for damages sustained by Joey Higginbotham arising out of the accident occurring on or about 25 January, 2013 giving rise to claims in the captioned and numbered cause.
The trial court designated the judgment as final and appealable pursuant to La.Code Civ.P. art. 1915.
Zurich now appeals, asserting that:
A. The Court Erred in Granting Plaintiff Summary Judgment And Declaring UM Coverage Exists When Dupre Executed Six UM Waivers And Verified It Did Not Want UM Coverage.
B. The Court Erred In Holding An Incomplete Waiver For A Seventh Renewal Voids Six Prior UM Waivers As Limits Did Not Change[.]
C. If The Judgment Is Improperly Designated A "Final Judgment" Under Art. 1915 It Is Reviewable By Supervisory Writ.
Zurich makes similar arguments in the corresponding writ application it filed regarding *919the denial of its motion for summary judgment.
Discussion
"The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action .... The procedure is favored and shall be construed to accomplish these ends." La.Code Civ.P. art. 966(A)(2).
The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.
La.Code Civ.P. art. 966(D)(1). "A dispute as to the issue of whether, as a matter of law, the language of an insurance policy provides coverage to a party, can be properly resolved within the framework of a motion for summary judgment." Pridgen v. Jones ,
While all automobile liability policies delivered or issued for delivery in Louisiana include UM coverage, see La.R.S. 22:1295(1)(a), that statute provides the following caveat:
(i) [H]owever, the coverage required under this Section is not applicable when any insured named in the policy either rejects coverage, selects lower limits, or selects economic-only coverage, in the manner provided in Item (1)(a)(ii) of this Section....
(ii) Such rejection, selection of lower limits, or selection of economic-only coverage shall be made only on a form prescribed by the commissioner of insurance. The prescribed form shall be provided by the insurer and signed by the named insured or his legal representative. The form signed by the named insured or his legal representative which initially rejects such coverage, selects lower limits, or selects economic-only coverage shall be conclusively presumed to become a part of the policy or contract when issued and delivered, irrespective of whether physically attached thereto. A properly completed and signed form creates a rebuttable presumption that the insured knowingly rejected coverage, selected a lower limit, or selected economic-only coverage....
The supreme court has explained that the object of UM coverage is to provide full recovery for automobile accident victims who sustain damages by a tortfeasor who lacks adequate liability insurance.
*920Duncan v. U.S.A.A. Ins. Co. , 06-363 (La. 11/29/06),
Reviewing the UM form created by the Louisiana Commissioner of Insurance for an insured's waiver of UM coverage, the supreme court explained that the following six tasks must occur:
(1) initialing the selection or rejection of coverage chosen ; (2) if limits lower than the policy limits are chosen ..., then filling in the amount of coverage selected for each person and each accident; (3) printing the name of the named insured or legal representative; (4) signing the name of the named insured or legal representative; (5) filling in the policy number; and (6) filling in the date.
Duncan ,
In Johnson v. Government Employees Insurance Co. ,
Duncan [,950 So.2d 544 ,] and Gray [v. American National Property & Casualty Co. , 07-1670 (La. 2/26/08),977 So.2d 839 ,] mandate that the form must be properly completed prior to any discussion regarding whether the insured knowingly and consciously waived UM coverage . The formalities mandated by statute and jurisprudence are not merely procedural exercises or "rote" tasks, but rather are substantive requirements which must be properly completed in order to effectuate a valid waiver of UM coverage. Gray at p. 9,977 So.2d at 845 . In Gray , the supreme court stated:
[T]his court distinguished failures to comply with the UM selection form requirement established by the Insurance Commissioner from other types of clerical errors in insurance contracts that might be subject to reform. The failure to comply with the requirements for confecting a valid UM selection form are not subject to reformation.
Gray at p. 15,977 So.2d at 849 .
[W]e find the insurer failed to comply with the first formality which requires that the insured chose between types of UM coverage and outright rejection of all UM coverage. Compliance with this formality ensures that the insured by his own volition read and reviewed each available selection and consciously *921and knowingly made a decision by the placement of his initials on the blank reflecting his choice. Mr. Johnson was not given any choice or option because the form had only one available selection when it was presented to him. The only blank which was left open, which Mr. Johnson was asked to initial, was the selection which stated: "I do not want UMBI Coverage." All other blanks for the selection of UM coverage were pre-filled and marked "N/A" by Ms. Bass prior to the presentation of the form to Mr. Johnson. He initialed the only blank left open and signed the form.... The "N/A" designation was typed into the blanks which proves the blanks were filled in ahead of time and printed out in anticipation of Mr. Johnson's arrival shortly after closing. There is not a scintilla of evidence to suggest the insured had access to the form before it was presented to him or otherwise placed the computer generated "N/A" in the blank spaces before the form was signed. This evidence supports Mr. Johnson's testimony that he arrived at the agency with his check and was handed a pre-printed form to sign which left him with no option except to reject UM coverage. He also testified there was no discussion between him and Ms. Bass regarding his selection. He did testify, which testimony was not refuted, that he told Ms. Bass over the telephone he wanted "full coverage." We have examined the evidence presented and find there is nothing to indicate Mr. Johnson made a conscious choice among several options. While in Gray a post-filled form was found defective, we find in this case, a form which is pre-filled by the agent leaving the insured with no choice but to reject UM coverage is equally defective .
Prior to considering the parties' arguments, we note that although both parties reference the UM forms completed in relation to the renewals, the parties' arguments chiefly pertain to the foundational consideration of the waiver completed at the time of the issuance of the original policy in 2005 and that form was focused on by the trial court. We, too, consider this the relevant point of inquiry as La.R.S. 22:1295(1)(a)(ii) provides, in part:
The form signed by the insured or his legal representative which initially rejects coverage, selects lower limits, or selects economic-only coverage shall remain valid for the life of the policy and shall not require the completion of a new selection form when a renewal, reinstatement, substitute, or amended policy is issued to the same named insured by the same insurer or any of its affiliates.
Accordingly, we turn to consideration of that original UM form pretermitting consideration of the parties' arguments regarding the relevance and validity of the subsequent UM forms.
Does the Zurich Policy Provide UM Coverage?
In support of its argument that its policy did not provide UM coverage for the plaintiff's accident, Zurich attached to its motion for summary judgment the affidavits of its Underwriting Manager, Jeffrey Benzin, and Dupre's Administrative Manager, Mr. Coussan.
In opposition to Zurich's motion and support of its motion for partial summary judgment, the plaintiff asserted that the initial UM form and all of the forms signed by Dupre in the renewal policies covering the time periods applicable to this case are facially defective because of this court's holding in Johnson ,
[T]he mental or express intent or desire of Dupre to select or reject coverage, of Gallagher to facilitate UM coverage, and of Zurich to provide UM coverage, is of absolutely no relevance, no materiality and can not be considered by this Court until and unless Zurich shows by "clear and unmistakable" evidence that the UM form of such policy is valid. Then, and only then, can Zurich avail itself to the "rebuttable presumption" afforded by La.R.S. 22:1295.
In its oral reasons for ruling, the trial court in this matter concluded that the 2005 form was invalid based on this court's holding in Johnson ,
Again, I can't speculate or read the minds of those judges that rendered those decisions in the First Circuit. But I believe that they are not properly addressing the significance of the insertion of the letters "N/A" into the blanks. Rather, they are immediately going to the supporting documents, affidavits, depositions, et cetera, and discerning the parties' intent to then explain the "N/A" rather than following the clear mandates of Gray and Duncan and cases like Johnson that say, "Don't look past the form, look at the form first." On the form, the very first requirement-the first of the six (6) that were given to us by Duncan and Gray is that number one, the insured must initial the selection or rejection chosen, chosen, to indicate that the decision was made by the insured. As I said earlier, I feel that the approach or the analysis by the Third Circuit was correct.
After having completed a de novo review of the parties' cross-motions for summary judgment, we are convinced that the plaintiff met his burden of proving entitlement to partial summary judgment in his favor. The most telling evidence that supports our finding is the following pre-printed language on the original UM form, part of which we bold for emphasis: "(Economic-only UMBI Coverage may not be available from your insurance company. In this case, your company will have marked options 3 and 4 below as "Not Available .")." Thereafter, "N/A" was typed on the four blanks that include some type of UM coverage. Thus, it is preposterous for Zurich to suggest that the pre-printed UM form that it presented to Dupre made Dupre aware of coverage options that the form said were not available. Moreover, as the plaintiff correctly points out, the 2005 UM form is facially invalid, and Dupre's intent to waive UM coverage is irrelevant and cannot cure any defect in that form. Zurich's attempts to distinguish this matter from Johnson,
DECREE
For the foregoing reasons, the trial court's judgment is affirmed in its entirety.
*924Costs of this proceeding are assessed to the defendant-appellant.
AFFIRMED. WRIT DENIED.
Amy, J., dissents and assigns reasons.
Gremillion, J., dissents for the reasons provided by Judge Amy.
While there are some workers' compensation aspects to this case, none are relevant to this appeal and writ.
Zurich does not rely on the UM form dated August 13, 2012, which was signed in conjunction with the policy in effect at the time of the January 25, 2013 accident. That UM form is dated and contains the signature of Dupre's Administrative Manager, Robert Coussan. Zurich does not contest, however, that Mr. Coussan did not initial the rejection selection at the time of its completion.
We note that while the dates when the opposing motions for summary judgment were filed requires reference to successive versions of La.Code Civ.P. art. 966, the result of this appeal remains the same regardless of which version is applicable.
Zurich filed a Motion to Supplement and/or Amend its motion for summary judgment in which it attached the 1442 deposition transcripts of Dupre and of Arthur J. Gallagher & Company, Dupre's insurance broker, as well as copies of discovery Zurich sent to the plaintiff and his answers thereto. Because we hold that the intent of the parties is irrelevant to resolution of this matter, such evidence need not be addressed herein.
In his affidavit, Mr. Coussan abbreviated "Uninsured/Underinsured Motorist Bodily Injury to "UMBI."
Exhibit A to Mr. Coussan's affidavit was the initial UM form which bore policy number TRK 5916139-00 with a policy period of October 1, 2005 to October 1, 2006. Exhibits B, C, D, E, F, and G were the successive renewal policies that covered the time periods applicable to this case.
In the policies, that option provided, "I do not want UMBI Coverage. I understand that I will not be compensated through UMBI coverage for losses arising from an accident caused by an uninsured/underinsured motorist."
See Hughes ,
Dissenting Opinion
In my opinion, the trial court erred in basing its ruling on Johnson v. Gov't Emps. Ins. Co. ,
First, and although not addressed by either the trial court or the parties, I note that Johnson ,
Additionally, I find this matter factually distinguishable from Johnson ,
The form contained a list of five options. Each option was preceded by a blank space for selecting the type of uninsured motorist coverage to be purchased. Of the five options, the only blank which was left open, which [the insured] was asked to initial, was the option which stated: "I do not want the UMBI Coverage." All other blanks for the selection of UM coverage were pre-filled and marked "N/A" by [the agent] prior to presentation of the form to [the insured].
In this case, affidavit and deposition testimony provide the background details regarding Dupré's communication with Zurich. For example, Mr. Coussan explained in his affidavit that he was "aware that Dupré had the choice and option to select UMBI insurance coverage at the same limits as liability coverage, at lesser limits, at minimum limits, or to reject UMBI insurance coverage altogether." He explained that he had "discussed and communicated with the agents and brokers for Dupré since he became primarily responsible for obtaining the policies of insurance" and that "[h]e ha[d] consistently and repeatedly communicated to the agents and brokers that Dupré does not want UMBI insurance coverage in Louisiana." Mr. Coussan thereafter specifically stated that: "In response to his communications to the agents and brokers that Dupré does not want UMBI insurance coverage in Louisiana he received the attached Louisiana UMBI Coverage Forms with the "N/A" and/or "Not Available" inserted from the insurer ...." Thus, contrary to the situation in Johnson ,
Furthermore, the plaintiff argues broadly as to the holding of Johnson ,
Thus, in my opinion, the facts of the present case differ, and, in fact, evidence indicates that the insurer's inscription on the form came at the direction of the insured. Thereafter, the insured, via Mr. Coussan, initialed the rejection clause. Given that sequence of events, I find no merit in the plaintiff's contention that Zurich's placement of "N/A" onto certain selections of the initial, 2005 form indicates that it did not give Dupré a choice other than to select the rejection clause.
Instead, the UM form of October 1, 2005, completed in conjunction with the issuance of the original policy, indicates that the tasks described in Duncan ,
*9265916139-00-is also included as is the date of "10-1-05". See
Thus, under the facts of this case, I find that the subject form indicates an adequate waiver of UM coverage and that, in turn, the trial court erred in entering summary judgment in favor of the plaintiff and rejecting the entry of summary judgment in favor of Zurich. I find that a reversal of each of those rulings is required. For these reasons, I respectfully dissent.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.