Johnson v. Bass

340 So.3d 28

Dana Landry JOHNSON and Justin Pellerin

v.Jessica BASS, GEICO General Insurance Company, and GoAuto Management Services LLC

2021 CA 0139

Court of Appeal of Louisiana, First Circuit.

Judgment Rendered: DECEMBER 22, 2021

Charlotte C. McDaniel, Baton Rouge, Louisiana, Counsel for Plaintiffs/Appellants, Dana Landry Johnson and Justin Pellerin

Chase Tettleton, Baton Rouge, Louisiana, Counsel for Defendant/Appellee, GoAuto Insurance Company

BEFORE: LANIER, WOLFE, AND BURRIS,¹ JJ.

LANIER, J.

This matter is before us on appeal by plaintiffs, Dana Landry Johnson and her husband Justin Pellerin, from the district court's grant of summary judgment, dismissing their claims against defendant, GoAuto Insurance Company ("GoAuto"), with prejudice. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL BACKGROUND

This case arises out of a vehicular collision that occurred on November 26, 2019. Ms. Johnson was driving southbound on Airline Highway in Ascension Parish and entered the right-turn only lane. At the same time, Jessica Bass was driving northbound on the same highway and attempted to cross the highway. Ms. Bass failed to yield to Ms. Johnson's vehicle, striking Ms. Johnson's vehicle broadside. Mr. Pellerin was a passenger in Ms. Johnson's vehicle at the time of the accident.

Ms. Johnson and Mr. Pellerin (hereinafter sometimes referred to collectively as "plaintiffs") filed suit seeking to recover damages for their injuries, naming as defendants Ms. Bass, her alleged liability insurer, GEICO Casualty Company ("GEICO"),² and plaintiffs' underinsured/uninsured ("UM") insurer, GoAuto. Plaintiffs alleged that GoAuto "had in force and effect a policy of insurance providing ... [UM] coverage to Dana Landry Johnson to cover damages incurred by Plaintiffs) ...."

GoAuto filed an answer, generally denying plaintiffs' allegations and further denying that GoAuto ever provided UM coverage in favor of plaintiffs. GoAuto noted that Ms. Johnson had rejected UM coverage under Policy Number 380150 by completing a UM selection form on July 17, 2015, and that Ms. Johnson renewed the policy at least eight times between the time she initially rejected UM coverage and the date of the accident at issue. GoAuto asserted that at no time between Ms. Johnson's initial rejection and the accident in question did Ms. Johnson submit a UM selection form affirmatively selecting UM coverage, nor had the limits of liability on the policy changed.

Thereafter, Go Auto filed a motion for summary judgment asserting that there was no genuine issue as to any material fact in dispute and that GoAuto was entitled to summary judgment as a matter of law because the policy in question did not provide UM coverage for plaintiffs' claims. GoAuto argued that the undisputed evidence demonstrated that Ms. Johnson validly rejected UM coverage.

Plaintiffs opposed the motion for summary judgment, arguing that there were genuine issues of material fact remaining that precluded summary judgment in this case. Plaintiffs argued that although the original GoAuto policy issued to Ms. Johnson in 2015 contained a valid UM selection form signed on July 17, 2015, this original policy was not renewed in 2018. Rather, plaintiffs asserted, on February 23, 2018, GoAuto required Ms. Johnson to sign and submit an "Application for Personal Automobile Insurance." Thus, plaintiffs maintained, the 2018 policy was not a renewal policy, but rather a new policy, and a new UM selection form was required.

Following a hearing on the motion for summary judgment, the district court signed a judgment on October 15, 2020, granting summary judgment in favor of GoAuto and dismissing, with prejudice, all claims filed by plaintiffs against GoAuto. This appeal by plaintiffs followed. The sole issue before us is whether the district court erred in granting summary judgment in favor of GoAuto and finding that the July 17, 2015 UM selection form was valid.

SUMMARY JUDGMENT

A motion for summary judgment is a procedural device used to avoid a fullscale trial when there is no genuine issue of material fact. Georgia-Pacific Consumer Operations, LLC v. City of Baton Rouge, 2017-1553 (La. App. 1 Cir. 7/18/18), 255 So.3d 16, 21, writ denied, 2018-1397 (La. 12/3/18), 257 So.3d 194. The Code of Civil Procedure places the burden of proof on the party filing a motion for summary judgment. La. C.C.P. art. 966(D)(1). The mover can meet its burden by filing supporting documentary evidence consisting of pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions with its motion for summary judgment. La. C.C.P. art. 966(A)(4). Because the applicable substantive law determines materiality, whether a particular fact in dispute is material must be viewed in light of the substantive law applicable to the case. Bryant v. Premium Food Concepts, Inc., 2016-0770 (La. App. 1 Cir. 4/26/17), 220 So.3d 79, 82, writ denied, 2017-0873 (La. 9/29/17), 227 So.3d 288.

Once the mover properly establishes the material facts by its supporting documents, the mover does not have to negate all of the essential elements of the adverse party's claims, actions, or defenses if he will not bear the burden of proof at trial. La. C.C.P. art. 966(D)(1) ; Horrell v. Alltmont, 2019-0945 (La. App. 1 Cir. 7/31/20), 309 So.3d 754, 758. The moving party must only 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. C.C.P. art. 966(D)(1) ; Celotex Corp. v. Catrett, 477 U.S. 317, 332, 106 S.Ct. 2548, 2557, 91 L.Ed.2d 265 (1986) ; Mercadel v. State Through Department of Public Safety and Corrections, 2018-0415 (La. App. 1 Cir. 5/15/19), 2019 WL 2234404, at *5-6 (unpublished).

The burden then shifts to the non-moving party to produce factual support, through the use of proper documentary evidence attached to its opposition, which establishes the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. C.C.P. art. 966(D)(1) ; see also La. C.C.P. art. 966, comments-2015, comment (j). If the non-moving party fails to produce sufficient factual support in its opposition which proves the existence of a genuine issue of material fact, article 966(D)(1) mandates the granting of the motion for summary judgment. Babin v. Winn-Dixie Louisiana, Inc., 2000-0078 (La. 6/30/00), 764 So.2d 37, 40.

In reviewing the district court's decision on a motion for summary judgment, this court applies a de novo standard of review using the same criteria applied by the trial courts to determine whether summary judgment is appropriate. Jackson v. Wise, 2017-1062 (La. App. 1 Cir. 4/13/18), 249 So.3d 845, 850, writ denied. 2018-0785 (La. 9/21/18), 252 So.3d 914. Factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing a motion for summary judgment, and all doubt must be resolved in the opponent's favor.

Thompson v. Center for Pediatric and Adolescent Medicine, L.L.C., 2017-1088 (La. App. 1 Cir. 3/15/18), 244 So.3d 441, 445, writ denied, 2018-0583 (La. 6/1/18), 243 So.3d 1062.

The issue of whether an insurance policy, as a matter of law, provides or precludes coverage is a dispute that can be resolved properly within the framework of a motion for summary judgment. Draayer v. Allen, 2015-1150 (La. App. 1 Cir. 4/15/16), 195 So.3d 78, 81 (citing Green v. State Farm Mut. Auto. Ins. Co., 2007-0094 (La. App. 1 Cir. 11/2/07), 978 So.2d 912, 914, writ denied, 2008-0074 (La. 3/7/08), 977 So.2d 917. As an insurer seeking to avoid coverage through summary judgment, Go Auto bears the burden of proving that some provision or exclusion applies to preclude coverage. Draayer, 195 So.3d at 81 (citing Halphen v. Borja, 2006-1465 (La. App. 1 Cir. 5/4/07), 961 So.2d 1201, 1204, writ denied, 2007-1198 (La. 9/21/07), 964 So.2d 338.

As the mover, Go Auto had the burden of proof on summary judgment; however, because GoAuto would not bear the burden of proof at trial, GoAuto was only required to point out to the district court the absence of factual support for one or more elements of plaintiffs' claim. See La. Code Civ. P. art. 966(D)(1). Citing Louisiana's UM law and the jurisprudence interpreting same, GoAuto argued that although the GoAuto policy was in effect at the time of the accident, there was no UM coverage available as Ms. Johnson had validly rejected UM coverage when she applied for her policy with GoAuto.

In all automobile liability insurance policies delivered in this state covering vehicles registered in this state, Louisiana law requires UM coverage in the same amount as the bodily injury liability coverage, unless "any insured named in the policy either rejects coverage, selects lower limits, or selects economic-only coverage." La. R.S. 22:1295(l)(a)(i).³ "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" for that purpose and be "signed by the named insured or his legal representative." La. R.S. 22:1295(1)(a)(ii). "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." Id.

The provisions governing UM coverage further provide:

Any changes to an existing policy, regardless of whether these changes create new coverage, except changes in the limits of liability, do not create a new policy and do not require the completion of new uninsured motorist selection forms. For the purpose of this Section, a new policy shall mean an original contract of insurance which an insured enters into through the completion of an application on the form required by the insurer.

La. R.S. 22:1295(1)(a)(ii) (Emphasis added.).⁴

In support of the motion for summary judgment, GoAuto submitted a copy of the petition and the affidavit...