Badeaux v. Cook

537 So. 2d 725, 1988 La. App. LEXIS 2754, 1988 WL 136765
CourtLouisiana Court of Appeal
DecidedDecember 14, 1988
DocketNo. 88-CA-116
StatusPublished
Cited by3 cases

This text of 537 So. 2d 725 (Badeaux v. Cook) 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
Badeaux v. Cook, 537 So. 2d 725, 1988 La. App. LEXIS 2754, 1988 WL 136765 (La. Ct. App. 1988).

Opinions

WICKER, Judge.

Defendant, Employers Insurance of Wausau (WAUSAU), appeals a judgment against it in the amount of $400,000.00, contending that this amount is in excess of its policy limits. The issue is the effect of a waiver reducing uninsured-underinsured motorist (UM) coverage which was only belatedly reflected in an endorsement to the policy. We reverse and render.

Plaintiff, Ralph E. Badeaux, on December 23, 1983, was driving a pick-up truck owned by Mid-South Bottling Company (MID-SOUTH). Defendant, Durel Cook, rear-ended him. Badeaux sued Cook and his liability insurer, settling for the policy limits prior to trial and dismissing these defendants. Badeaux also sued Wausau, Mid-South’s UM carrier.

Badeaux sought a copy of the insurance contract between Wausau and Mid-South. In response to his November 5, 1985, request for production of documents, Wau-sau provided a copy of the policy showing UM coverage of $500,000.00. Wausau supplemented its response on the date of trial, May 6, 1986, by introducing an endorsement reducing UM coverage on the vehicle to $50,000.00. The trial judge continued [726]*726the matter, and it was eventually tried over a three-day period in November 1987.

The jury found that Wausau’s policy limit was $500,000.00 and awarded Badeaux $400,000.00 in damages. Wausau complains that (1) the jury erred in not finding there had been an effective waiver of the higher limits, (2) the judge submitted an incorrect jury verdict form to the jury, (3) the judge allowed prejudicial opening and closing statements by Badeaux’s counsel, (4) the jury’s verdict was not supported by law or evidence, and (5) the findings on loss of wages were not based on the evidence.

Wausau’s policy was in effect from February 1, 1983, to February 1, 1984. An endorsement dated April 27, 1983, established UM limits for commercial vehicles of $5,000.00/$10,000.00 and for private passenger cars, pick-up trucks, and vans of $500,000.00. Dillon Schickli, Mid-South’s vice-president, executed on September 9, 1983, a waiver of the $500,000.00 in UM coverage; and he selected a limit of $50,-000.00 for all Mid-South vehicles, raising limits on some and lowering them on others. Wausau received the waiver on September 30, 1983, but, because of a clerical oversight, did not issue an endorsement to the policy reflecting this change until December 17, 1985. Both Wausau and Mid-South testified that a $50,000.00 limit was intended.

Wausau argues that this waiver deprives Badeaux of no vested rights, since his accident occurred after the waiver was signed. Badeaux contends that the amount of coverage was a factual issue which was properly resolved by the trier of fact.

The burden of proving the selection of lower UM limits is on the insurer. Demolle v. Horace Mann Ins. Co., 491 So.2d 695 (La.App. 5th Cir.1986). We believe that Wausau has proved by a preponderance of evidence that Mid-South selected the lower limits, and a factual finding to the contrary is clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The Insurance Code in effect at the time of these events, prior to its 1987 amendments, required only that a rejection of higher UM limits be in writing.

No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, is not less than the limits of bodily injury liability provided by the policy, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom; provided, however, that the coverage required under this Subsection shall not be applicable where any insured named in the policy shall reject in writing the coverage or selects lower limits. Such coverage need not be provided in or supplemental to a renewal or substitute policy where the named insured has rejected the coverage or selected lower limits in connection with a policy previously issued to him by the same insurer. Any document signed by the named insured or his legal representative which initially rejects such coverage or selects lower limits shall be conclusively presumed to become a part of the policy or contract when issued and delivered, irrespective of whether physically attached thereto.

La.R.S. 22:1406D(1)(a) (Emphasis added.) There was no requirement that such rejection be attached to the policy; that the insurer act on the rejection by issuing an endorsement; or that, prior to the 1987 amendments, the rejection be on any special form.

The Second Circuit has considered a similar issue in the case of Alexander v. Allstate Ins. Co., 493 So.2d 677 (La.App.1986). The policy was issued on April 1, 1982; a rejection of UM coverage was signed July 23, 1982; and the accident occurred on October 17, 1982. The plaintiff [727]*727argued that the insurer was required to endorse the policy to delete UM coverage even “where the insured later rejected the coverage in writing as the statute contemplates.”

Plaintiff concedes that the written rejection of UM coverage is all that is required by the statute, but argues that the written rejection is ineffective because Hartford did not do what its policy requires, that is, endorse the policy. The policy provision upon which plaintiff relies states:
[The terms of this policy] may not be changed or waived except by endorsement issued by [the insurer].1
UM coverage is a creation of the statute, not of the policy. The statute contemplates a rejection or selection of lower limits by the insured and does not contemplate any action or approval of the insurer. The policy provision, tracking Section 628, requires the insurer, and not the insured, to effect, by endorsement, a change or waiver in the terms of the policy. To reach the result that plaintiff would have us reach we would have to insert the underlined words in the policy provision:
The terms of this policy and of any coverage afforded the insured at any time by any statute that is applicable to this policy may not be changed or waived except by endorsement issued by the insurer.
We interpret the phrase the terms [of this policy], to mean the written terms of the policy. The terms of the policy do not provide UM coverage and the later rejection of UM coverage by the insured did not change, waive, or delete a single word of the policy. The statute (Section 1406) does not envision a change, a waiver, or a deletion of the policy as the privilege of the insurer, but provides that the insured alone may reject, or select lower limits of, that which is statutorily provided him.
The law of the statute imposes the UM coverage notwithstanding the policy language, the intent of the parties, or the presence or absence of a premium charge or payment.... The law of the statute provides a means by which the insured, unilaterally and without approval of the insurer, may elect to either reject or select lower limits of the statutory UM coverage.

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Cite This Page — Counsel Stack

Bluebook (online)
537 So. 2d 725, 1988 La. App. LEXIS 2754, 1988 WL 136765, Counsel Stack Legal Research, https://law.counselstack.com/opinion/badeaux-v-cook-lactapp-1988.