Hart v. Mabou

323 So.3d 939

Jon HART

v.Ronnie MABOU, GEICO Casualty Company, Technology Insurance Company, Inc, and Shelter Mutual Insurance Company, Inc.

21-28

Court of Appeal of Louisiana, Third Circuit.

June 23, 2021

Rehearing Denied September 15, 2021

Brian M. Caubarreaux, Eugene A. Ledet, Jr., Ethan E. Caubarreaux, Patrick D. Sadler, David A. Johnson, 2204 Macarthur Drive, Alexandria, LA 71303, (318) 442-0900, Attorneys for Appellant, Jon Hart

Ryan M. Malone, Duplass, Zwain, Bourgeois, Pfister, Weinstock, and Bogart, 3838 North Causeway Boulevard, Suite 2900, Metairie, LA 70002, (504) 832-3700, Attorney for Appellee, Technology Insurance Company

Court composed of Sylvia R. Cooks, Chief Judge, Elizabeth A. Pickett, and Shannon J. Gremillion, Judges.

COOKS, Chief Judge.

FACTS AND PROCEDURAL HISTORY

Jon Hart (Hart) was involved in an auto accident on July 11, 2019. It is undisputed that he was a permissive driver of his employer's, Kay Radio & Electronic Service, LLC, (Kay Radio) 2011 Ford Transit. It is also undisputed that Hart was acting within the course and scope of his employment when the accident occurred. Hart sued the offending driver, Ronnie Mabou and his insurers, as well as his employer's commercial liability insurer, Technology Insurance Company, Inc. (Technology). Technology is the only party remaining against whom Hart has not resolved his claim for damages. Technology is an affiliate of AmTrust Insurance Company of Kansas, Inc. (AmTrust).

AmTrust first issued a commercial insurance policy with one million dollars liability coverage to Kay Radio effective June 1, 2016, through July 1, 2017. The policy, bearing policy number KPP1023233 00, included coverage for commercial fire, commercial auto, and LA Emergency Assessment. The insurance application form identifies the policy as "New Business." Kay Radio signed a State of Louisiana Department of Insurance "Uninsured/Underinsured Motorist Bodily Injury Coverage" (UM) waiver form from Bulletin 08-02. This form was promulgated by the Louisiana Commissioner of Insurance as the State's official required form. The form indicates, with the presence of the initials GW on the appropriate line, the insured's rejection of UM coverage. The form is signed by Glenroy Weishuhn, his name is printed below his signature, and it is dated below his signature "6/27/16." In the box provided on the form at the lower right corner appears the words "AmTrust Insurance of Kansas, Inc."

In March of 2017, AmTrust sent an application for commercial insurance to Kay Radio. This policy was to have an effective date of July 1, 2017, through July 1, 2018. The insurance application form indicated there would be changes to the previous policy which included Kay Radio dropping coverage for commercial fire and LA Emergency Assessment in this policy. The application was accompanied by an officially approved State of Louisiana UM waiver form. This form is signed by Glenroy Weishuhn as the representative of Kay Radio indicating rejection of UM coverage. The form is dated "6-23-17" below the signature line but the form does not bear the policy number, name of the insurance company, or the insurance company's logo in the boxes provided or anywhere else on the form. A policy was issued under a new policy number, KPP1047007 00, again with one million dollars in coverage for commercial auto liability insurance.

In May of 2018, Technology sent an insurance application form to Kay Radio accompanied by an official UM waiver form. The UM form is signed by Kay Radio's representative, Glenda Norris (Norris), indicating rejection of UM coverage. It is dated "6/27/18" below Norris’ signature and is stamped at the top "Received Jun 27, 2018." It does not contain a policy number, the name of the insurance company, a group name, or the insurer's logo in the boxes provided or anywhere on the form. Technology issued a policy for commercial auto insurance with one million dollars in liability coverage under a new policy number, TPP1237858 00, with coverage effective July 1, 2018, through July 1, 2019. The "Transaction" is identified on the declarations page as a "renewal."

In July of 2019, Technology sent an insurance application form along with an official Louisiana UM waiver form and an unofficial UM waiver form identified as appropriate for "Louisiana." These documents were provided to Kay Radio through its agent, Brown & Brown of Louisiana, LLC (Brown), after Kay Radio met with Brown to discuss Technology's insurance proposal submitted to Brown. Technology issued a policy for commercial auto liability insurance to Kay Radio covering an effective period of July 1, 2019, through July 1, 2020. The policy number is identified as TPP1237858 01, and the "transaction" is identified on the declarations page as "renewal." The UM waiver form identified as appropriate for "Louisiana" is date stamped "June 27, 2019." This form is signed by Glenda Norris for Kay Radio, but it does not contain the name of an insurance company, a group name, or any insurance company's logo. The officially approved State of Louisiana UM waiver form is also signed by Glenda Norris for Kay Radio on July 3, 2019, indicating rejection of UM coverage. It is date stamped "received July 3, 2019." This UM waiver form does not contain an insurance policy number, and it does not bear the name of the insurance company, a group name, or the insurance company's logo in the boxes provided on the form or anywhere else on the form.

Hart filed a motion for summary judgment asserting there is UM coverage provided to his employer through its policy with Technology. He maintains that the 2017, 2018, and 2019 policies were new policies, none of which contain a valid waiver of UM coverage because each form signed by Kay Radio fails to comply with Louisiana statutory requirements. Technology filed a cross-motion for summary judgment maintaining there is no UM coverage for Kay Radio because it waived such coverage in a form it signed in 2016 attached to the first policy issued by AmTrust. It further maintains that all subsequent policies were renewals and therefore no new UM waiver was required. The trial court denied Hart's motion and granted Technology's motion for summary judgment dismissing it from the suit.

Hart appeals asserting the trial court erred in dismissing his motion and granting Technology's motion for summary judgment. He maintains the trial court committed legal error in finding that the policies issued in 2017, 2018, and 2019 were renewals and thus the original UM waiver signed by Kay Radio in the 2016 application continued to be effective.

Legal Analysis

In Nordstrom v. New York Marine & Gen. Ins. Co. , 19-577 (La.App. 4 Cir. 12/11/19), 287 So.3d 64, writ denied , 20-82 (La. 3/9/20), 294 So.3d 483, the fourth circuit addressed the same issue as presented here, whether there is a genuine issue of material fact that the 2019 policy is a new policy under La.R.S. 22:1295 (1)(a)(i)-(ii)¹ , requiring its own rejection form or is it a renewal of the 2016 policy such that the 2016 UM rejection form is applicable? This court has held that the question of "[w]hether a policy has been renewed or whether a policy has been submitted as a new application is a factual question." Guillory v. Progressive Ins. Co. , 12-1284, p. 5 (La.App. 3 Cir. 7/3/13), 117 So.3d 318, 323. In this case, as in Guillory and Nordstrom , there is evidence that the 2019 insurance policy was a "renewal," as labeled by the insurer, as well as competing evidence that it was a new policy issued through an application for insurance. Our sister circuit in Nordstrom , relying on several decisions by this court, concluded that the factual question of new policy versus renewal of an existing policy could not be decided on summary judgment. Although we conclude the same is true here as to this issue, we find that the undisputed facts compel a legal conclusion dispositive of the case.

It is well-settled that the granting of summary judgment is reviewed de novo .

Summary judgments are reviewed by appellate courts under a de novo standard of review, using the same criteria as the trial court. Gray v. Am. Nat'l Prop. & Cas. Co. , 07-1670, p. 6 (La. 2/26/08), 977 So.2d 839, 844. In order to prevail on a motion for summary judgment, the moving party must show that "there is no genuine issue of material fact and that he is entitled to judgment as a matter of law." La. Code Civ. Proc. art. 966(A)(3). "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. Proc. art. 966 (A)(2).

Documents that may be filed in support of or in opposition to the motion are "pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions." La. Code Civ. Proc. art. 966 (A)(4). Only those documents filed in support of or in opposition to the motion for summary judgment shall be considered, in addition to any documents to which no objection is made. La. Code Civ. Proc. art. 966 (D)(2).

Moreover, the burden of proof on a motion for summary judgment 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." La. Code Civ. Proc. art. 966 (D)(1). The adverse party bears the burden of producing "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. Proc. art. 966 (D)(1).

"Insurance policies are interpreted

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