Reid v. Fall

329 So.3d 373

Virgil "Buz" REID and Elizabeth Guidry

v.Valerie Dawn FALL, et al.

21-165

Court of Appeal of Louisiana, Third Circuit.

October 6, 2021

Katherine P. Martin, Gretchen Heider Mayard, Martin Mayard, LLC, P. O. Box 81338, Lafayette, LA 70598-1338, (337) 291-2440, COUNSEL FOR DEFENDANT-APPELLANT: State Farm Mutual Automobile Insurance Co.

James H. Domengeaux, Domengeaux Wright Roy & Edwards, P. O. Box 3668, Lafayette, LA 70502-3668, (337) 233-3033, COUNSEL FOR PLAINTIFFS-APPELLEES: Virgil "Buz" Reid, Elizabeth Guidry

Patricia J. Delpit, Johnson, Rahman & Thomas, P. O. Box 98001, Baton Rouge, LA 70898-8001, (225) 231-0899, COUNSEL FOR INTERVENOR-APPELLEE: Louisiana Workers’ Compensation Corp.

James T. Rivera, Bryan D. Scofield, Jessica W. Marchard, Scofield & Rivera, LLC, P. O. Box 4422, Lafayette, LA 70502, (337) 235-5353, COUNSEL FOR DEFENDANT-APPELLEE: Imperium Insurance Company

Thomas Richard Temple, Jr., Druit G. Gremillion, Jr., Breazeale, Sachse & Wilson, LLP, P. O. Box 3197, Baton Rouge, LA 70821, (225) 387-4000, COUNSEL FOR DEFENDANT-APPELLEE: McGriff Insurance Services, Inc.

Court composed of Elizabeth A. Pickett, John E. Conery, and Candyce G. Perret, Judges.

PICKETT, Judge.

State Farm Mutual Automobile Insurance Company appeals a judgment of the trial court finding an Uninsured/Underinsured Motorist Bodily Injury (UMBI) Coverage Form (UM waiver) executed by Glenn Stokes on behalf of Mosquito Control Contractors, Inc. was valid and limited coverage to UMBI economic only (UEO) damages up to the limits of the automobile insurance policy issued by Imperium Insurance Company.

FACTS

On June 29, 2017, a Kia Forte driven by Valerie Fall collided with a Ford Ranger driven by Virgil Reid. Ms. Fall's vehicle was insured by State Farm. The vehicle driven by Mr. Reid was owned by his employer, Mosquito Control Contractors, Inc. Imperium Insurance Company issued two insurance policies to Mosquito Control on March 17, 2017. The first was an automobile policy with $1,000,000 limits covering the fleet of vehicles owned by Mosquito Control, including the Ford Ranger driven by Mr. Reid. The second was a commercial excess liability policy with $1,000,000 coverage limits.

Mr. Reid and his wife, Elizabeth Guidry, filed a petition for damages naming Ms. Fall, State Farm, and Imperium as defendants. The petition alleges that Ms. Fall was charged with operating her vehicle while intoxicated and was at fault for the collision. It further alleges that Mr. Reid and his wife suffered damages. State Farm was named as defendant both as the insurer of Ms. Fall and as Mr. Reid's UM insurer, based on an automobile liability policy purchased by Mr. Reid personally. Upon State Farm's tendering of the policy limits of Ms. Fall's liability coverage, the trial court signed an order dismissing Ms. Fall and State Farm as liability insurer of Ms. Fall from the suit. The plaintiffs, though, specifically reserved the right to proceed against State Farm for UM coverage afforded by the insurance policy issued by State Farm to the plaintiffs.

Imperium subsequently filed a third-party demand against the insurance agency who issued the policy to Mosquito Control, McGriff Regions Insurance, Inc. The third-party demand alleges that if the UM waiver form electing UEO damages is held to be invalid, McGriff is liable for the consequences per the agency agreement between McGriff and Imperium. Louisiana Workers' Compensation Commission intervened as the workers' compensation insurer of Mosquito Control to recover benefits paid to Mr. Reid as a result of his on-the-job accident.

Following discovery, State Farm filed a Motion for Partial Summary Judgment alleging that the form executed by Mr. Stokes purporting to select UEO coverage capped at the policy limits of $1,000,000 did not comply with the law. Thus, State Farm argued, both the automobile policy and the excess liability policy issued by Imperium included UM coverage up to $1,000,000 without limitation as to the type of damages, for a total potential exposure of $2,000,000 for Imperium. State Farm argued that the waiver did not comply with the Insurance Department's requirement that all UM waiver forms include the name of the insurer or their logo on the face of the form. State Farm further argues that only one UM waiver form was executed, so that even if it is valid, it cannot serve to waive or alter UM coverage on both Imperium policies.

McGriff filed an Exception of Peremption alleging the claims against it by Imperium were untimely. McGriff also filed a Cross-Motion for Summary Judgment, alleging the UM waiver form executed by Mr. Stokes is valid and effective to select UEO coverage. Imperium likewise filed a Cross-Motion for Summary Judgment, adopting the same arguments as McGriff's summary judgment motion. In its memorandum in support of the motion for summary judgment, Imperium specifically limits its argument to the automobile policy issued to Mosquito Control.

Following a hearing, the trial court granted the motion for summary judgment filed by McGriff and Imperium, finding the UM waiver form selecting UEO coverage valid with respect to the commercial automobile policy. The trial court denied the motion for summary judgment of State Farm to the extent that is sought to have that form ruled invalid. The trial court deferred a decision on whether a UM waiver form was validly executed on the excess liability policy issued by Imperium. The trial court further sustained the exception of peremption filed by McGriff. The trial court further found that "there is no just reason for delay of any review or appeal of the granting of the Cross Motions for Summary Judgment filed by Imperium Insurance Company and McGriff Insurance Services, Inc. f/k/a Regions Insurance, Inc., THEREFORE, IT IS FURTHER ORDERED, ADJUDGED AND DECREED that this judgment is designated as a final judgment as authorized by La. Code of Civil Procedure Art. 1915."

State Farm now appeals the judgment of the trial court.

ASSIGNMENTS OF ERROR

State Farm asserts three assignments of error:

1. The Trial Court erred in finding the UM selection form valid despite the fact:

(1) it violated the Insurance Commissioner's mandate that a UM form "must" contain either the individual company name, the group name or the insurer's logo; and

(2) it did not contain any way to identify the policy to which it was intended to apply, despite the fact that there were two Imperium policies going into effect the following day.

2. The Trial Court erred in finding a UM selection form which purportedly selected Economic-Only UMBI (UEO) Coverage equal to the liability limits ($1,000,000) applied to the Imperium Auto Policy when:

a. The Auto Declarations page does not reflect the policy provides UEO benefits;

b. The Auto Declarations page does not reflect the policy provides UM limits equal to the liability limits;

c. The Auto Declarations page reflects the policy affords $100,000 in UM coverage; d. The only form in the Auto policy regarding UM Coverage is entitled "Louisiana Uninsured Motorists Coverage-Bodily Injury" and indicates the policy affords UM Bodily Injury coverage and does not even reference UEO coverage.

3. The trial court erred in failing to hold the Imperium Commercial policy, for which Imperium has admitted no UM form was secured, affords UM benefits equal to the $1 million in liability benefits.

DISCUSSION

Pursuant to La.Code Civ.P. art. 966(A)(2), the summary judgment procedure is favored and must be construed to accomplish its purpose of "the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969." Article 966(A)(3) further provides that the "motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." When the issue presented by the motion for summary judgment is one on which the movant will bear the burden of proof at trial, the burden of showing that there is no genuine issue of material fact is on the moving party. La.Code Civ.P. art. 966(D)(1). The adverse party must then "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." Id. A court of appeal reviews summary judgments de novo, using the same standard used by the trial court. Higgins v. La. Farm Bureau Cas. Ins. Co. , 20-1094 (La. 3/24/2021), 315 So.3d 838.

In this case, Imperium bears the burden of proving that Mosquito Control executed a valid form selecting lower UM limits. Gray v. American Nat'l Prop. & Cas. Co. , 07-1670 (La. 2/26/08), 977 So.2d 839. Every policy of automobile liability insurance issued in Louisiana includes coverage for uninsured motorist coverage equal to the policy limits of the liability policy. La.R.S. 22:1295. A purchaser of insurance may reject UM coverage, choose lower limits of coverage, or select economic-only coverage. "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...