Francis v. Travelers Prop. Cas. Co. of Am.

349 So.3d 132

Randall FRANCIS

v.TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA, et al.

22-124 21-816

Court of Appeal of Louisiana, Third Circuit.

September 28, 2022

Gregory P. Marceaux, Marceaux Law Firm, 2901 Hodges Street, Lake Charles, Louisiana 70601, (337) 310-2233, COUNSEL FOR PLAINTIFF/APPELLEE: Randall Francis

Charles B. Cappel, Law Office of Charles B. Cappel, LLC, 712 Division Street, Lake Charles, Louisiana 70601, (337) 491-6996, COUNSEL FOR PLAINTIFF/APPELLEE: Randall Francis

Brian T. Butler, Collin J. LeBlanc, Keogh, Cox & Wilson, Ltd., Post Office Box 1151, Baton Rouge, Louisiana 70821, (225) 383-3796, COUNSEL FOR DEFENDANT/APPELLANT: Travelers Property Casualty Company of America

Jacinda L. Denison, Plauché, Smith & Nieset, LLC, Post Office Drawer 1705, Lake Charles, Louisiana 70602, (337) 436-0522, COUNSEL FOR DEFENDANT/APPELLEE: Shelter Mutual Insurance Company

Court composed of Sylvia R. Cooks, Chief Judge, John E. Conery, and Charles G. Fitzgerald, Judges.

JOHN E. CONERY JUDGE

Plaintiff Randall Francis sought recovery under his employer's underinsured/uninsured motorist coverage policy on the company truck he was driving after he was involved in a collision in Calcasieu Parish between the company truck and a vehicle driven by Billy Cornes. The trial court considered cross motions for summary judgment filed by Plaintiff and the insurer of the company truck, Travelers Property Casualty Company of America (Travelers), on the issue of whether Travelers obtained a valid UM coverage waiver from its insured, Plaintiff's employer. Following a hearing, the trial court granted judgment in favor of Plaintiff finding UM coverage under the policy. Travelers filed an appeal from the trial court's granting of the motion for partial summary judgment and an application for supervisory writ from the denial of Travelers’ motion for summary judgment. For the following reasons, we maintain the trial court's judgments in favor of Plaintiff.

FACTS AND PROCEDURAL HISTORY

This UM coverage dispute arises from a September 12, 2019 motor vehicle accident between Plaintiff and Billy Cornes, the opposing driver. The Ford F-150 truck driven by Plaintiff was owned by his employer, Targa Downstream Services, LLC (Targa), and insured by a commercial liability policy issued by Travelers. As a result of the accident, Plaintiff sustained serious bodily injury, including injuries requiring leg amputation. Plaintiff filed suit in February 2020, naming Travelers as a defendant in its alleged capacity as Targa's UM insurer.¹

In August 2021, Plaintiff filed a Motion for Partial Summary Judgment, asserting that Targa's $3 million policy provided UM coverage for his injuries due to Travelers’ failure to obtain a valid UM rejection form. Plaintiff noted that the UM selection form corresponding to the "10/31/18 to 10/31/19" policy year for the Targa Policy bears the signature of Julie Jackson, Targa's Vice-President of Risk Management in Insurance and its designee for insurance selection. Plaintiff asserted, however, that the purported 2018 UM waiver produced by Travelers is not valid as it does not bear Ms. Jackson's initials by the selection indicating: "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 Duncan v. U.S.A.A. Ins. Co. , 06-363 (La. 11/29/06), 950 So.2d 544.²

Rather, the subject 2018 UM selection form produced by Travelers includes a check mark by the selection box for a waiver of coverage, not Ms. Jackson's initials. Moreover, Ms. Jackson confirmed by deposition that she did not even place the check mark on the form, but that Targa's insurance broker did so before it was sent to Ms. Jackson for signature, initialing, and dating. Plaintiff submitted email correspondence from the broker to Ms. Jackson confirming Ms. Jackson's account.³ Travelers conceded that the 2018 form is invalid for purposes of a waiver.⁴

Travelers thereafter filed a cross Motion for Summary Judgment, also maintaining that no genuine issues of material fact remain and further seeking a dismissal of Plaintiff's claim against it. While Travelers conceded that the uninitialed 2018 selection form is invalid for purposes of waiver, it instead relied on the original, 2011 UM waiver form, which bears Ms. Jackson's initials by the waiver selection and otherwise satisfies the Duncan requirements. Travelers contended that from 2011 to the date of the subject accident, Travelers did not issue a new policy to Targa nor did Targa change the liability limits. Rather, according to Travelers, the policies after 2011 were merely renewals and, thus, "the 2011 waiver defeats plaintiff's claim for UMBI benefits against Travelers by dictate of La.R.S. 22:1295(1)(a)(ii) [.]" That provision indicates that changes in a policy, other than changes in the limits of liability, "do not create a new policy and do not require the completion of new uninsured motorist selection forms." La.R.S. 22:1295(1)(a)(ii). Travelers also relied on appellate court jurisprudence indicating that resort may be made to an earlier, valid waiver if a subsequent waiver is deficient. See, e.g., Doyle v. Allstate Ins. Co. , 10-1020 (La.App. 3 Cir. 3/2/11), 58 So.3d 606, writ denied , 11-0677 (La. 5/20/11), 63 So.3d 980.

Plaintiff challenged Travelers’ reliance on the waiver contained in the 2011 UM selection form, citing the supreme court's recent opinion in Baack v. McIntosh , 20-1054 (La. 6/30/21), 333 So.3d 1206. In Baack , as discussed in more detail below, the insured, JBS, increased the liability limits of its pre-existing liability policy with its insurer, Zurich, in 2011 and validly rejected UM coverage at that time. On annual renewal, Zurich provided new UM selection forms. JBS's representative signed and dated the UM selection forms, but, as in this case, failed to initial the waiver selection to select UM coverage with limits lower than the policy's bodily injury limits. Id.

While Zurich argued that it could rely on the earlier, 2011 waiver, the supreme court rejected that position. Baack , 333 So.3d 1206. The supreme court pointed out that although no new UM selection form was required to be completed at the time of renewal, in fact, Zurich sent new forms to JBS upon renewal and, in turn, TBS submitted new UM forms. While TBS's representative signed and dated the forms, she did not initial them. Id . The supreme court explained that the "plain language" of La.R.S. 22:1295 dictates that such a "failure to initial any of the options available on the UM form necessarily results in statutory UM coverage." Id. at 1213-14. Given that mandate, Zurich could not rest on JBS's earlier, valid waiver or JBS's intent to thereafter maintain the waiver of UM coverage. Rather, had Zurich suspected that "the failure to make a selection on the forms was a mistake, it was incumbent on Zurich to follow up with JBS to make any necessary corrections." Id. at 1213. As Zurich did not do so, the supreme court maintained the court of appeal's determination that UM coverage existed at the time of the subject accident. Id.

In response to Plaintiff's position, Travelers argued that Baack is inapplicable to the present situation. It noted that the supreme court specifically remarked that the Baack case did not involve a matter of "minor mistake or omission." See Baack , 333 So.3d at 1214. Travelers argues that this case does involve such a minor mistake or omission. Travelers pointed to the fact that JBS failed to initial the UM selection form on three consecutive renewals in Baack . However, in this case, on the single UM selection form returned after 2011, Targa expressed an affirmative desire to maintain the waiver. In particular, Travelers noted that the box to reject UM coverage was checked and, furthermore, Ms. Jackson explained by deposition and affidavit that Targa never sought UM coverage. Given those circumstances, Travelers argued "there are no facts which would support any finding by a trier of fact that the insured intended UMBI coverage."

Plaintiff and Travelers presented their cross motions for summary judgment to the trial court with a substantial evidentiary record, including the subject policies and UM waiver forms. Following a hearing, the trial court ruled in favor of Plaintiff, rejecting Travelers’ attempt to factually distinguish Baack on the basis of the single "check mark on the UM rejection line in the 2018" UM selection form. Rather, the trial court remarked that it was not a distinction that makes a legal difference under the reasoning of Baack . Accordingly, the trial court granted Plaintiff's motion for partial summary judgment, finding that the Travelers policy provides up to $3 million of UM coverage. The trial court denied Travelers’ cross motion for summary judgment. The trial court designated the judgment as final for purposes of La.Code Civ.P. art. 1915.

Travelers appealed the granting of the partial summary judgment in favor of Plaintiff and filed an application for supervisory writ from the denial of its cross motion for summary judgment. This court thereafter granted Travelers’ motion to consolidate the matters for consideration. We discuss both collectively herein and render dispositive language in the writ application under separate cover. See Francis v. Travelers Prop. Cas. Co. of Am. , 21-816 (La.App. 3 Cir. 9/28/22), 348 So.3d 268.

ASSIGNMENTS OF ERROR

By its appeal, Travelers assigns the following as error:

1. The Trial Court's ruling failed to adhere to the express language of La. R.S. 22:1295(1)(a)(ii).

2. The Trial Court's ruling misapplied or disregarded the rules of statutory construction set forth by the Civil Code and the governing law of Louisiana.

3. The Trial Court erred when it established a new legal rule in Louisiana that even minor mistakes or omissions in a Louisiana UM waiver form negates all prior, valid UM waivers in contravention of La.R.S.

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