Bieller v. Atl. Specialty Ins. Co.

232 F.Supp.3d 928

Adrianne L. BIELLER

v.ATLANTIC SPECIALTY INSURANCE COMPANY

CIVIL ACTION NO. 16–512

United States District Court, E.D. Louisiana.

Signed February 7, 2017

George Brian Recile, Barry William Sartin, Jr., Matthew Arthur Sherman, Chehardy, Sherman, Ellis, Murray, Recile, Stakelum & Hayes, LLP, Metairie, LA, for Adrianne L. Bieller.

Thomas P. Anzelmo, Rachel S. Guttmann, McCranie, Sistrunk, Anzelmo, Hardy, New Orleans, LA, for Atlantic Specialty Insurance Company.

AMENDED ORDER AND REASONS

Ivan L.R. Lemelle, SENIOR UNITED STATES DISTRICT JUDGE

Before the Court is Defendant Atlantic Specialty Insurance Company's motion for summary judgment, seeking dismissal of all claims against it on the grounds that there are no genuine issues of material fact concerning Plaintiff Adrianne L. Bieller's ability to rebut the presumed validity of the uninsured motorist waiver executed by Defendant's insured, St. Tammany Parish Sheriff's Office. Rec. Doc. 22. Plaintiff timely filed an opposition memorandum. Rec. Doc. 26. Defendant then requested (see Rec. Doc. 29), and this Court granted (see Rec. Doc. 30), leave to file a reply memorandum (Rec. Doc. 31). For the reasons enumerated below,

IT IS ORDERED that the motion is DENIED.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

This case arises out of a September 15, 2014 motor vehicle accident. Rec. Doc. 14–3 at 1. On that date, Adrianne L. Bieller ("Plaintiff") was traveling south on U.S. Highway 21 in St. Tammany Parish and, while stopped in traffic, was rear-ended by a vehicle driven by Ashley E. Miller. Id. At the time of the accident, Plaintiff was on duty and in a marked patrol car for the St. Tammany Parish Sheriff's Office ("STPSO"). Id. Plaintiff alleges that Ms. Miller was an uninsured or underinsured motorist ("UM"), but that Atlantic Specialty Insurance Company ("Defendant") had previously issued automobile insurance to the STPSO that covered Plaintiff's vehicle for the negligence of an owner and/or operator of an uninsured or underinsured vehicle. Id. at 1–2. Consequently, on December 7, 2015 Plaintiff filed suit against Defendant in the 22nd Judicial District Court for the Parish of St. Tammany. Id. at 1–2.

On January 21, 2016, Defendant filed a notice of removal pursuant to 28 U.S.C. § 1332. Rec. Doc. 1 at 1. Thereafter, on January 28, 2016, Defendant filed a motion to dismiss for failure to state a claim upon which relief could be granted, alleging that the STPSO waived UM coverage. Rec. Doc. 5. Plaintiff argued that the waiver was invalid, because it was not signed by the named insured or anyone with authorization to act as the insured's legal representative. Rec. Doc. 9.¹ Defendant replied that the documents attached to its motion to dismiss supported the claim of a valid UM waiver. Rec. Doc. 12. On March 9, 2016, this Court found that only the insurance policy, not the UM waiver, was mentioned in the original petition. Rec. Doc. 16 at 3–4.² Plus, the UM waiver was central to Atlantic's defense, not to Plaintiff's claims, so it was not appropriate to consider in the context of a motion to dismiss. Id. at 4. Accordingly, we denied the motion to dismiss, but explicitly informed the parties that they could revisit the issue on a motion for summary judgment once further discovery was conducted. Id. at 5.

II. THE PARTIES' CONTENTIONS

In the memorandum in support of its motion for summary judgment, Defendant explains that Plaintiff deposed Debbie Jo Taylor, a former employee of the STPSO who completed and signed the UM waiver, on August 4, 2016. Rec. Doc. 22–1 at 3 (citing Rec. Doc. 22–2 at 12–13).³ During the deposition, Ms. Taylor testified that she signed the UM waiver form. Rec. Doc. 22–2 at 3. "Following the deposition, Ms. Taylor reviewed the [STPSO] file for the Atlantic policy at issue, and executed an affidavit affirmatively stating ‘that the policy number and the name of the insurance company were included on the form ... when she filled out and signed the form on June 30, 2014.’ " Rec. Doc. 22–1 at 3 (quoting Rec. Doc. 22–3). Further, Defendant argues that former Sheriff Jack Strain authorized Ms. Taylor to execute the waiver on behalf of the STPSO. Id. at 4 (citing Rec. Docs. 5–7 at ¶ 7, affidavit of R. Jack Strain, Jr.; 22–2 at 7–12). Thus, Defendant concludes that "Plaintiff has conducted discovery involving Atlantic regarding the rebuttable presumption of validity for the UM waiver and is unable to present any facts or evidence that would rebut said presumption of validity." Id.

In response, Plaintiff argues that there exists a genuine issue of material fact as to whether Ms. Taylor had the legal authority to execute the UM waiver on behalf of former Sheriff Jack Strain. Rec. Doc. 26 at 2.

In its reply, Defendant asserts that Plaintiff did not dispute that the UM waiver complied in form and substance with the requirements of Louisiana law. Rec. Doc. 31 at 1. Defendant then argues that Terrell v. Fontenot , 11-1472 (La.App. 4 Cir. 6/27/12); 96 So.3d 658 is controlling authority. Id. at 2.

III. LAW AND ANALYSIS

Under Federal Rule of Civil Procedure 56, summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting FED. R. CIV. P. 56(c) ). See also TIG Ins. Co. v. Sedgwick James of Washington , 276 F.3d 754, 759 (5th Cir. 2002). A genuine issue exists if the evidence would allow a reasonable jury to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The movant must point to "portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact." Celotex , 477 U.S. at 323, 106 S.Ct. 2548. If and when the movant carries this burden, the non-movant must then go beyond the pleadings and present other evidence to establish a genuine issue. Matsushita Elec. Indus. Co., Ltd. v . Zenith Radio Corp. , 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

However, "where the non-movant bears the burden of proof at trial, the movant may merely point to an absence of evidence, thus shifting to the non-movant the burden of demonstrating by competent summary judgment proof that there is an issue of material fact warranting trial."Lindsey v. Sears Roebuck & Co. , 16 F.3d 616, 618 (5th Cir. 1994). Conclusory rebuttals of the pleadings are insufficient to avoid summary judgment. Travelers Ins. Co. v. Liljeberg Enter., Inc. , 7 F.3d 1203, 1207 (5th Cir. 1993). Furthermore, at the summary judgment stage, this Court is prohibited from weighing the evidence. Deville v. Marcantel , 567 F.3d 156, 164 (5th Cir. 2009) (noting that district courts must "refrain from making credibility determinations or weighing the evidence" when deciding a motion for summary judgment) (quoting Turner v. Baylor Richardson Med. Ctr. , 476 F.3d 337, 343 (5th Cir. 2007) ).

In our earlier Order denying Defendant's motion to dismiss, we stated that the UM waiver created a "rebuttable" presumption that the insured knowingly rejected coverage. Rec. Doc. 16 at 4 (citing LA. REV. STAT. Ann. § 22:1295(1)(a)(ii) ). At the time, Plaintiff had not presented evidence to rebut that presumption, but we felt constrained out of fairness to offer her the opportunity to develop and subsequently present such evidence. Id. at 5. Nonetheless, we found that the majority opinion in Terrell v. Fontenot , 11-1472 (La.App. 4 Cir. 6/27/12); 96 So.3d 658 was controlling authority. Id.

In Terrell , the Louisiana Fourth Circuit explained that "Louisiana has a strong public policy favoring UM coverage." 11–1472, p. 4; 96 So.3d at 661 (citing Duncan v. U.S.A.A. Ins. Co. , 06-363, p. 4 (La. 11/29/06); 950 So.2d 544, 547 ). Consequently, "UM coverage is an implied amendment to an automobile liability policy, even when not specifically addressed therein, and it will be read into a policy unless validly rejected." Id. (citing Kurz v. Milano , 08-1090, p. 4 (La.App. 4 Cir. 2/18/09); 6 So.3d 916, 919 (quoting Duncan , 06–363, p. 4; 950 So.2d at 548 )). In a similar vein, the rejection of such coverage must be "clear and unambiguous," the insurer bears the burden of proving that the insured rejected such coverage in writing, and the rejection must be made upon a form prescribed by the Louisiana commissioner of insurance. Id. (citing Daigle v. Authement , 96-1662, p. 2 (La. 4/8/97); 691 So.2d 1213, 1214 ; Kurz , p. 5; 6 So.3d at 919 ; Duncan , 06–363, p. 5; 950 So.2d at 547 ; LA. REV. STAT. Ann. § 22:1295(1)(a)(ii) ). A properly completed form creates a rebuttable presumption that the insured knowingly rejected such coverage. Id. (citing § 22:1295(1)(a)(ii) ). In Duncan , the Louisiana Supreme Court outlined what is required to properly complete a form rejecting UM coverage:

Essentially, the prescribed form involves six tasks: (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 , 06–363, pp. 11–12; 950 So.2d at 551 ; see also § 22:1295(1)(a)(ii).

Here, the "UNINSURED/UNDERINSURED MOTORISTS BODILY INJURY COVERAGE FORM" contains the initials "DJT" next to a statement that "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." Rec. Doc. 5–6 ...