Blandino v. Pierre

230 So. 3d 697
CourtLouisiana Court of Appeal
DecidedNovember 15, 2017
DocketNO. 16-CA-150
StatusPublished
Cited by1 cases

This text of 230 So. 3d 697 (Blandino v. Pierre) 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
Blandino v. Pierre, 230 So. 3d 697 (La. Ct. App. 2017).

Opinion

GRAVOIS, J.

_JjPlaintiffs/appellants, Miriam Blandino and Fausto Mercedes, individually and on behalf of their minor children, Jared Mercedes and Yeriannis Mercedes, appeal the trial court’s June 18, 2015 judgment that granted defendant/appellee,' USAgencies Casualty Insurance Company, now known as Affirmative Casualty Insurance Company’s (“USAgencies”), motion for summary judgment, dismissing all of plaintiffs’ claims against USAgencies with prejudice. For the following reasons, we affirm this trial court judgment.

FACTS AND PROCEDURAL BACKGROUND

Plaintiffs, Miriam Blandino and Fausto Mercedes, individually and on behalf of their minor children, Jared Mercedes and Yeriannis Mercedes, filed suit on August 12,2012 for damages allegedly sustained in an automobile accident that occurred on August 12, 2011. Plaintiffs alleged in their petition for damages that Ms. Blandino was operating a vehicle, owned by Fausto Mercedes and occupied by their children, Jared and Yeriannis Mercedes, which .was stopped at a stop sign in Jefferson Parish, when a 1998 Chevrolet Blazer driven by Kendra Pierre or “John Doe” struck their vehicle, causing personal injuries and property damages. They named as defendants Ms. Pierre and “John Doe,” GEICO Indemnity Company and USAgencies, as automobile liability insurers for either Ms. Pierre or “John Doe,” and USAgencies, as plaintiffs’ uninsured/underinsured motorist carrier.

On April 9, 2015, USAgencies filed a motion for summary judgment seeking dismissal of plaintiffs’ claims against it on the basis there was no valid automobile liability insurance policy issued by USAgencies in effect on the date of the subject accident. Specifically, USAgencies maintained that although Ms. Pierre attempted to purchase an automobile liability insurance policy from USAgencies on February 9, 2011, she failed to submit adequate funds to USAgencies to obtain coverage, and thus, the policy never became effective.

lain support of its motion for summary judgment, USAgencies submitted several exhibits, including the policy’s declaration page, policy transaction information, non-sufficient funds (“NSF”) notification from Capital One, N.A., correspondence sent to Ms. Pierre, and affidavits of Margaret Shoemaker and Jose Sergio Vidal, authorized representatives of USAgencies. These exhibits showed that Ms. Pierre attempted to purchase an automobile liability insurance policy from USAgencies on February 9, 2011, with an effective policy period from February 9, 2011 through August 11, 2011; however, the initial payment made by Ms. Pierre was returned by Capital One, N.A., to USAgencies for insufficient funds on February 16, 2011. Correspondence dated February 17, 2011 sent by certified mail by USAgencies to Ms. Pierre at the address shown in the policy advised her that her policy “never became effective” and she had “no coverage” due to her failure to make the initial premium payment. The correspondence also advised Ms. Pierre that she could reinstate the policy, which would apply retroactively to the original premium due date, by submitting adequate payment, including a fifteen dollar fee for the NSF check, within ten days of February 17,2011. USAgencies did not receive any subsequent payment from Ms. Pierre. Plaintiffs filed an opposition to the motion for summary judgment, which did not include any supporting documents or attachments. After a heáring, the trial court granted the motion for summary judgment. Plaintiffs’ appeal of that judgment follows.

ASSIGNMENTS OF ERROR AND ARGUMENT

On appeal, plaintiffs contend that the trial court erred in granting USAgencies motion for summary judgment because USAgencies failed to satisfy the requirements for proper cancellation of an automobile insurance policy for nonpayment of premium. Specifically, plaintiffs urge that the notice provided to Ms. Pierre did not comply with La. R.S. 22:1266 because it did not advise that the policy was “can-celled.” Plaintiffs also argue that the notice was ineffective | .¡because it advised Ms. Pierre that she would need to pay a fifteen dollar fee for her NSF check in addition to paying the initial premium amount in order to reinstate her insurance policy. Plaintiffs contend that by requiring more than the premium amount, USAgencies did not comply with the law.for the proper cancellation of a policy for non-payment of premium. Plaintiffs further argue that the notice was not properly delivered and that ■there was inadequate evidence of delivery of the notice of cancellation to the insured.

ANALYSIS

The summary judgment procedure is a procedural device used to secure the just, speedy, and inexpensive determination of actions by avoiding a full-scale trial where there is no genuine factual dispute. La. C.C.P. art. 966(A)(2); Pouncy v. Winn-Dixie La., Inc., 15-189 (La. App. 5 Cir. 10/28/15), 178 So.3d 603, 605. Summary judgment should be granted if the motion and supporting documents, including the pleadings, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations and admissions, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A).

The initial burden is on the mover to show that no genuine issue of material fact exists. If the moving party will not bear the burden of proof at trial, the moving party must only point out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action or defense. The non-moving party must then produce factual support to establish that he will be able to satisfy his evidentiary burden at trial. La. C.C.P. art. 966(D). If the non-moving party fails to do so, there is no genuine issue of material fact, and summary judgment should be granted. Pouncy, supra.

Appellate courts review the granting or denial of a motion for summary judgment de novo under the same criteria that governs the trial court’s ^determination of whether a summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Bernard v. Ellis, 11-2377 (La. 7/2/12), 111 So.3d 995, 1002.

Louisiana jurisprudence provides that where an automobile liability insurer defends on the ground that the policy was cancelled prior to the date giving rise to a claim under the policy, the insurer bears the burden of establishing facts which will relieve it of liability. Accardo v. Clarendon Nat’l Ins. Co., 99-393 (La. App. 5 Cir. 1/4/00), 751 So.2d 975, 977, writ denied, 00-0369 (La. 4/7/00), 759 So.2d 761; Direct Gen. Ins. Co. v. Mongrue, 04-248 (La. App. 5 Cir. 8/31/04), 882 So.2d 620, 623. The insurer must show facts which constitute positive and unambiguous proof of an understanding of the cancellation of the policy. Id. La. R.S. 22:1266 sets forth the notice requirements that must be followed by an insurance company in order to effect a cancellation of an insurance policy. La. R.S. 22:1266 mandates. strict compliance, with its statutory provisions for a valid notice of cancellation of an insurance policy. Direct Gen. Ins. Co., supra. Notice is required to make the insured aware that his policy is being terminated and to afford, him time to obtain.other insurance, protection, Id.

La. R.S. 22:1266 governs the cancellation of insurance policies and provides,, in pertinent part: , .

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Bluebook (online)
230 So. 3d 697, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blandino-v-pierre-lactapp-2017.