Billingsley v. Mitchell

676 So. 2d 208, 95 La.App. 1 Cir. 2118, 1996 La. App. LEXIS 1411, 1996 WL 374048
Louisiana Court of Appeal·Decided June 28, 1996·No. No. 95 CA 2118·Published·Cited by 2 cases

Opinion

IzPITCHER, Judge.

Louisiana Insurance Guaranty Association appeals from the trial court’s granting of a motion for summary judgment, finding that plaintiffs, Nancy and Paul Billingsley, must first exhaust the insurance coverage of Presidential Fire and Casualty Company, the tort-feasor’s insurer, and that there is no liability exposure under State Farm Mutual Automobile Insurance Company’s uninsured motorist policy. We affirm.

FACTS AND PROCEDURAL HISTORY

On July 31, 1986, Nancy Billingsley was injured when the vehicle she was driving was struck by an 18-wheel tractor trailer driven by Percy Mitchell and owned by Henry Jacobson.

On May 21,1987, Nancy and Paul Billings-ley, filed a petition for damages, naming as [210] defendants Percy Mitchell, Henry Jacobson, and Presidential Fire and Casualty Company (Presidential), the insurer of the 18-wheel tractor trailer. Presidential was ordered into liquidation in November, 1991. On January 29, 1992, the Billingsleys filed an amended petition, adding Louisiana Insurance Guaranty Association (LIGA) as a defendant. In the petition, the Billingsleys alleged that Presidential had been declared insolvent.

On March 31, 1993, the Billingsleys filed a second amending petition, naming their uninsured/underinsured motorists (UM) insurer, State Farm Mutual Automobile Insurance Company (State Farm), as a defendant. State Farm filed a motion for summary judgment on March 22, 1993. In the motion for summary judgment, State Farm alleged that because Presidential did not become insolvent within one year of the alleged accident, the 18-wheel tractor trailer was not an uninsured motor vehicle pursuant to LSA-R.S. 22:1406(D)(3) and was not entitled to insurance coverage through State Farm’s UM policy. State Farm alleged that the Billingsleys should first recover from Presidential’s insurance policy.

After a hearing, the trial court granted State Farm’s motion for summary judgment. The trial court held that the Billingsleys must first exhaust the $500,000.00 policy limits of the ^Presidential policy, because State Farm’s policy only supplied UM coverage.

Thereafter, State Farm filed a second motion for summary judgment. In this motion for summary judgment, State Farm argued that, because the trial court ruled that the Presidential’s policy was primary, State Farm was subject to no exposure under its UM policy and should be dismissed from the suit. State Farm attached to the motion for summary judgment a stipulation from the Billingsleys that the damages claimed did not exceed the $500,000.00 policy limits of the Presidential policy. After a hearing on the motion for summary judgment, the trial court granted State Farm’s motion for summary judgment and dismissed State Farm from the suit. LIGA now appeals the trial court’s granting of both motions for summary judgment.2

SUMMARY JUDGMENT

In its single assignment of error, LIGA contends that the trial court erred in granting State Farm’s motions for summary judgment.

It is well settled that the granting of a summary judgment is proper only when the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 9663; Lewis v. Diamond [211] Services Corporation, 93-1150, p. 5 (La.App. 1st Cir. 5/20/94); 637 So.2d 825, 828, writ denied, 94-1638 (La. 10/14/94); 643 So.2d 159. The burden is upon the mover for summary judgment to show that no genuine issues of material fact exist, and only when reasonable minds must inevitably conclude that mover is entitled to judgment as a matter of law is summary judgment warranted. Ledet v. Quality Shipyards, Inc., 615 So.2d 990, 992 (La.App. 1st Cir.1993).

The jurisprudence has traditionally held that summary judgments are not favored, and any reasonable doubt should be resolved against the mover. In determining whether material issues have in fact been disposed of, any doubt was to be resolved against granting the summary judgment and in favor of trial on the merits. O’Quinn v. Power House Services, Inc., 633 So.2d 707, 710 (La.App. 1st Cir.1993). See, however, Footnote 3 supra.

Specifically, LIGA argues that, because the Louisiana Supreme Court held that the 1990 and 1992 amendments to LSA-R.S. 22:1386(A) are retroactive, then, for consistency, the 1990 repeal of LSA-R.S. 22:1406(D)(3) should also be considered retroactive.

[5Prior to the 1990 amendment, LSA-R.S. 22:1386(A) was contained in LSA-R.S. 22:1386(1) and read as follows:

(1) Any person having a claim against an insurer under any provision in an insurance policy other than a policy of an insolvent insurer which is also a covered claim, shall be required to exhaust first his right under such policy. Any amount payable on a covered claim under this Act shall be reduced by the amount of any recovery under such insurance policy.

Under this provision, the claimant was to recover first from LIGA before proceeding against his UM coverages. See Hickerson v. Protective National Insurance Company of Omaha, 383 So.2d 377 (La.1980). However, in 1990, LSA-R.S. 22:1386(1) was amended by Act 130 of 1990, effective September 7, 1990, by the legislature, to provide as follows:

(1) Any person having a claim against an insurer under any provision in an insurance policy, other than a policy of an insolvent insurer which is also a covered claim, shall be required first to exhaust his rights under such policy. Such other policies of insurance shall include but shall not be limited to liability coverage, uninsured or underinsured motorist liability coverage, or both, hospitalization, and other medical expense coverage. Any amounts payable by such other insurance shall act as a dollar-for-dollar credit against any liability of the association under this Part.4

This amendment changed the order in which a claimant was to proceed before proceeding against LIGA. This 1990 amendment required a claimant to exhaust his or her UM coverages before recovering from LIGA. Subsequently, this 1990 amendment was reenacted with minor changes in § 2 of Act 237 of 1992.5 In addition, § 3 of Act 237 of 1992 [212] provided that “This Act shall apply to all covered claims, as defined in R.S. 22:1379, pending on or arising on or after the | (¡effective date of this Act.”6

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Billingsley v. Mitchell, 676 So. 2d 208, 95 La.App. 1 Cir. 2118, 1996 La. App. LEXIS 1411, 1996 WL 374048 (La. Ct. App. 1996).

676 So. 2d 208 (Billingsley v. Mitchell) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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