Alexander v. Terra Nova Insurance Co.

953 So. 2d 152, 6 La.App. 3 Cir. 1348, 2007 La. App. LEXIS 385, 2007 WL 675840
CourtLouisiana Court of Appeal
DecidedMarch 7, 2007
DocketNo. 2006-1348
StatusPublished
Cited by1 cases

This text of 953 So. 2d 152 (Alexander v. Terra Nova Insurance Co.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Alexander v. Terra Nova Insurance Co., 953 So. 2d 152, 6 La.App. 3 Cir. 1348, 2007 La. App. LEXIS 385, 2007 WL 675840 (La. Ct. App. 2007).

Opinion

PETERS, J.

h Terr a Nova Insurance Company, Ltd. (Terra Nova), and Winchester General Agency, Inc. (Winchester), two of the defendants in this litigation, appeal the trial court grant of a partial summary judgment in favor of the plaintiff, Rachel Alexander, holding that Terra Nova provided Ms. Alexander a policy of homeowner’s insurance, issued through Winchester, which was in full force and effect on October 3, 2002. For the following reasons, we affirm the trial court judgment.

DISCUSSION OF THE RECORD

The facts giving rise to this litigation are not in dispute. In March of 2000, Ms. Alexander purchased a home in Lafayette, Louisiana, and financed the purchase price through Cendant Mortgage Corporation (Cendant Mortgage). The financing arrangement with Cendant Mortgage included an escrow account for her insurance premiums. Ms. Alexander contacted Metro Insurance Agency, Inc. and its agent, Clayton Williams (hereinafter collectively referred to as “Metro/Williams”),1 to obtain a policy of homeowner’s insurance to cover her new home. Metro/Williams applied for and obtained coverage for Ms. Alexander from Terra Nova through Winchester, Terra Nova’s authorized agent.2

[154]*154Thereafter, the collection of insurance premiums due by Ms. Alexander to Terra Nova followed the usual custom for mortgaged property with an escrow account for such premiums: Metro/Williams invoiced Cendant Mortgage when a premium was due; Cendant Mortgage then took funds from the escrow account and paid the premium to Terra Nova.

| ¿This routine continued without incident until the premium for the policy year ending on March 26, 2003 became due. On January 25, 2002, Winchester reminded Metro/Williams that the policy was up for renewal. Metro/Williams then contacted Ms. Alexander for her approval of the renewal. On March 11, 2002, Ms. Alexander responded in writing that she wished to renew the policy at the stated annual premium of $505.05. On that same day, having received Ms. Alexander’s approval, Metro/Williams faxed Winchester requesting that a binder, or temporary policy, for the renewal of the policy be issued. Immediately on receipt of the request, Winchester faxed the requested binder to Metro/Williams. Winchester then forwarded Metro/Williams the policy, which provided insurance through March 26, 2003.

This litigation arises because payment of the premium from the escrow account did not immediately follow. Winchester forwarded Metro/Williams a notice or reminder that the premium was due and, when it received no response, forwarded a second notice to the effect that the premium was past due.3 When this second notice received no response, on April 17, 2002, Terra Nova sent a notice of cancellation of the policy effective May 18, 2002. The specific reason for cancellation was non-payment of the premium.

On April 19, 2002, Metro/Williams responded to the cancellation notice by notifying Cendant Mortgage of Terra Nova’s action. Five days later, on April 24, 2002, Cendant Mortgage issued a $505.05 check to Metro/Williams from Ms. Alexander’s escrow account. Metro/Williams deposited the check in one of its accounts, but never forwarded the premium to Terra Nova or Winchester.

1 p,0n October 3, 2002, Ms. Alexander’s home sustained damage when a storm struck the Lafayette, Louisiana area. When Terra Nova denied her claim for property damage under the policy, Ms. Alexander filed the instant suit against several defendants, including Terra Nova, Winchester, Metro/Williams, and Cendant Mortgage. Terra Nova and Winchester responded to the suit by filing, among other pleadings, motions for summary judgment asserting that, because there were no genuine issues of material fact in the litigation, they were entitled, as a matter of law, to a judgment finding the policy cancellation effective and dismissing the suit as to them. These motions were supported by the affidavit of John Smith, president of Winchester. This affidavit narrated the early 2002 chronology of events, declared that Winchester was an authorized agent of Terra Nova, and asserted that Metro/Williams was acting as Ms. Alexander’s agent in the procurement of the homeowner’s policy at issue.

In opposition to these motions, Ms. Alexander offered her affidavit, stating in essence that she had always timely paid her insurance premium, which was included in her house note paid to Cendant Mortgage; that she depended on Mr. Williams and Cendant Mortgage to timely forward the payments to Terra Nova; and that she thought she was insured when her house was damaged in the October 2002 storm. Ms. Alexander also introduced the [155]*155deposition of Mr. Williams wherein he stated that Metro/Williams was not an authorized agent for Terra Nova and that he had received the premium check from Cendant Mortgage and deposited it in a Metro/Williams account. Ms. Alexander then filed a cross-motion for partial summary judgment seeking a declaration that the Terra Nova policy afforded coverage for her damages.

After a hearing, the trial court denied the defendants’ motions for summary | ¿judgment and granted Ms. Alexander’s cross-motion for summary judgment. Specifically, the trial court found, as a matter of law, that Metro/Williams was Terra Nova’s agent, and that Terra Nova did not have the right to cancel the policy at issue. After the trial court rejected their motion to reconsider the ruling, Terra Nova and Winchester perfected this appeal.

OPINION

Appellate courts review grants of summary judgment de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, that is, whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. Ocean Energy, Inc. v. Plaquemines Parish Gov’t, 04-66 (La.7/6/04), 880 So.2d 1. In the present case, because there are no disputed factual issues, our review is simply whether, as a matter of law, the cancellation was effective. Louisiana Code of Civil Procedure Article 966(C)(2) states:

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’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 that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

The burden of proving that an insurance policy has been cancelled for nonpayment of premium prior to the date of a loss giving rise to the denied claim is on the insurer. Chapman v. Leger, 405 So.2d 604 (La.App. 3 Cir.1981).

|fiIn rendering its decision, the trial court concluded that the issues were controlled by the provisions of La.R.S. 22:1150, which reads in pertinent part as follows:

A. (1) Any insurer which issues or delivers a policy or contract of insurance pursuant to the application or request of a producer who is not authorized to represent said insurer as a producer shall be deemed to have authorized such producer as producer of record to act on the insurer’s behalf.

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Cite This Page — Counsel Stack

Bluebook (online)
953 So. 2d 152, 6 La.App. 3 Cir. 1348, 2007 La. App. LEXIS 385, 2007 WL 675840, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alexander-v-terra-nova-insurance-co-lactapp-2007.