Austin v. Western World Ins. Co.

765 So. 2d 390, 2000 WL 722564
CourtLouisiana Court of Appeal
DecidedMay 17, 2000
Docket99-CA-2541
StatusPublished
Cited by7 cases

This text of 765 So. 2d 390 (Austin v. Western World Ins. 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
Austin v. Western World Ins. Co., 765 So. 2d 390, 2000 WL 722564 (La. Ct. App. 2000).

Opinion

765 So.2d 390 (2000)

Richard E. AUSTIN and Lisa M. Farago
v.
WESTERN WORLD INSURANCE COMPANY, et al.

No. 99-CA-2541.

Court of Appeal of Louisiana, Fourth Circuit.

May 17, 2000.
Writ Denied September 22, 2000.

*391 Irving J. Warshauer, Gary B. Roth, Gainsburgh, Benjamin, David, Meunier & Warshauer, New Orleans, LA, Counsel for Plaintiffs/Appellees.

John W. Waters, Jr., Bienvenu, Foster, Ryan & O'Bannon, New Orleans, LA, Counsel for Defendant/Appellant P.G. Insurance Company of New York.

Court composed of Chief Judge ROBERT J. KLEES, Judge WILLIAM H. BYRNES, III, Judge MICHAEL E. KIRBY.

KIRBY, Judge.

P.G. Insurance Company appeals a partial summary judgment that was designated as final. That Judgment held that LSA-R.S. 22:1406 D(1)(a)(iii) obliges the court to apply Louisiana law to a foreign insurance contract that covers an accident in Louisiana that involves Louisiana residents.

The standard of review for a summary judgment on appeal is de novo. The appellate court asks whether there is any genuine issue of material fact and whether movant is entitled to judgment as a matter of law. Walker v. Kroop, 96-0618 (La. App. 4 Cir. 7/24/96), 678 So.2d 580.

STATEMENT OF FACTS

On February 6, 1997, Richard Austin and Lisa Farago, residents of the State of New York, traveled to New Orleans, Louisiana to attend Mardi Gras. When they arrived at New Orleans International Airport, they hailed a taxicab to take them to a downtown hotel. The taxicab was owned and operated by Roschelle Francis, a Louisiana resident, and Ms. Francis drove the taxicab from the airport toward downtown New Orleans via Interstate 10. As the taxicab approached the I-10/610 split, a flatbed tow truck operated by Phillip Melerine, a resident of Louisiana, veered into the taxicab's lane of travel. Ms. Francis failed to avoid the tow truck, and a violent and life threatening collision occurred due to the joint fault of Mr. Melerine and Ms. Francis.

As a consequence of the collision, Richard Austin sustained a severe head injury. At Charity Hospital he was treated and *392 diagnosed with a massive epidural hematoma. This condition caused cranial bleeding, and Mr. Austin was required to undergo an emergency craniotomy to relieve the pressure on his brain and to implant cranial plates. Following surgery, he suffered a possible seizure, continued cranial bleeding, and severe headaches. Mr. Austin was also diagnosed with a TMJ disorder, for which he has undergone splint therapy, and a herniated disc in his lower back. Approximately four months post-accident, Mr. Austin underwent a second cranial surgery to remove bone fragments, the cranial plates and screws, and to address a postoperative infection of the skull. Mr. Austin experiences right side weakness, including his arm, hand and leg, a diminished ability to focus and to concentrate, blurred vision, and slurred/stuttered speech.

Richard Austin and Lisa Farago filed suit in the Civil District Court for the Parish of Orleans to recover damages they sustained in the collision. Named as defendants in the lawsuit were: (1) Roschelle Francis; (2) North American Fire and Casualty Insurance Company, the liability insurer of the taxicab; (3) Phillip Melerine; (4) Western World Insurance Company, Mr. Melerine's liability insurer; (5) GEICO, Mr. Austin's supplementary underinsured motorist (hereinafter "UM") insurer; (6) P.G. Insurance Company of New York (hereinafter "P.G. Insurance"), which provided additional UM coverage in favor of Mr. Austin through a policy issued to Mr. Austin's parents; (7) Integon Insurance Company, Ms. Farago's personal UM carrier; (8) the State of Louisiana, through the Department of Transportation and Development (hereinafter "DOTD"); and, (9) LeBlanc Metairie, d/b/a LeBlanc Autoplex, a Louisiana limited corporation.

In response to Mr. Austin's lawsuit, GEICO filed a Motion for Summary Judgment, arguing that, under New York law, GEICO was entitled to an "offset"for the amount of liability insurance held by the tortfeasor, thereby reducing the limits of the GEICO UM policy.[1] Since the Louisiana tortfeasor had liability coverage which exceeded the GEICO UM limits, GEICO asserted that, under New York law, it did not owe any UM benefits to its insured, Richard Austin. Mr. Austin opposed the Motion, pointing out that because the accident arose in Louisiana and involved at least two Louisiana residents, Louisiana law should be applied to the interpretation of the GEICO UM policy; pursuant to Louisiana law, GEICO owed coverage to the full extent of its policy limits and was not permitted to apply the New York "offset clause." The district court denied GEICO's Motion for Summary Judgment.

In the wake of the district court's denial of GEICO's Motion for Summary Judgment, plaintiffs moved for summary judgment against the New York UM insurers —GEICO, P.G. Insurance, and Integon Insurance Company—asserting that Louisiana law should be applied in interpreting the UM policies. Plaintiffs' motion was supported by the applicable choice of law rule, La.Rev.Stat. § 22:1406 D(1)(a)(iii), which provides:

"This subparagraph and its requirements for uninsured motorist coverage shall apply to any liability insurance covering any accident which occurs in this state and involves a resident of this state."

LEGAL ANALYSIS

Automotive insurance coverage requires a coherent system or network of regulations. That is why all fifty States and the District of Columbia have their own insurance codes or regulations. To juxtapose provisions from noncongruous automotive insurance codes results in anomaly. The central issue in this case is whether Louisiana should disregard a provision of its UM *393 Statute, so as to insert a reduction, or offset clause that is noncongruous with its UM statute. As stated in the Louisiana Civil Law Treatise on Insurance Law and Practice § 119:

Any credit reducing the UM limits by the amount of liability insurance of the adverse driver is clearly contrary to the underinsured motorist protection required by statute. The insured is entitled to recover, subject to the limits of his policy, the difference between his damages and liability insurance of the negligent motorist.[2]

P.G. Insurance Co. advances three arguments as to why the Louisiana Statute should not apply and New York law, i.e. the reduction clause, should apply. They are: (1) a conflict of laws argument; (2) a United States Constitutional law Due Process argument; and (3) a United States Constitutional law Contract Clause argument. They will be addressed in this order.

P.G. Insurance argues that Civil Code Articles 3515 and 3537 require an application of New York law, making LSA-R.S. 22:1406 D(1)(a)(iii) nugatory.

LSA-C.C. art. 14 dealing with multistate cases states:

Unless otherwise expressly provided by the law of this state, cases having contacts with other states are governed by the law selected in accordance with the provisions of Book IV of this Code.

Moreover, Comment (b) to LSA-C.C. art. 14 states:

... The residual nature of the provisions of Book IV is established by the introduction phrase of this Article "[u]nless otherwise expressly provided by the laws of this state".

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Cite This Page — Counsel Stack

Bluebook (online)
765 So. 2d 390, 2000 WL 722564, Counsel Stack Legal Research, https://law.counselstack.com/opinion/austin-v-western-world-ins-co-lactapp-2000.