Bourgeois v. Allstate Insurance Co.

182 So. 3d 1177, 15 La.App. 5 Cir. 451, 2015 La. App. LEXIS 2674, 2015 WL 9434396
CourtLouisiana Court of Appeal
DecidedDecember 23, 2015
DocketNo. 15-CA-451
StatusPublished
Cited by14 cases

This text of 182 So. 3d 1177 (Bourgeois v. Allstate 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
Bourgeois v. Allstate Insurance Co., 182 So. 3d 1177, 15 La.App. 5 Cir. 451, 2015 La. App. LEXIS 2674, 2015 WL 9434396 (La. Ct. App. 2015).

Opinion

ROBERT A. CHAISSON, Judge.

|2Max and Bridget Bourgeois filed suit against their insurance agent, Bruce Cuc-cia, and his errors and omissions insurance carrier, American Automobile Insurance Company (“American Auto”), for damages resulting. from Mr. Cuccia’s negligent and/or fraudulent failure to procure UM insurance as allegedly requested by the Bourgeois.1 The Bourgeois now appeal a judgment of the trial court granting the defendants’ motion for summary judgment and sustaining their exception of no right of action.

FACTS AND PROCEDURAL HISTORY

On October 25, 2005, Max Bourgeois obtained automobile liability insurance with Allstate Insurance ■ Company (“Allstate”) through Bruce Cuccia, an independent insurance agent. At that time, Mr. Bourgeois was given and signed an únder-insured/uninsured motorist (“UM”) coverage waiver by which he declined all UM Coverage. Max Bourgeois and Bridget Bourgeois married in January of 2007. In February of 2007, Mrs. Bourgeois went to Mr. Cuccia’s office to make changes to her husband’s policy, including adding her own vehicle to the policy. At that time, Mrs. Bourgeois did not meet with Mr. Cuccia, but 'she claims that she ^requested that Mr. Cuccia’s staff add the “maximum” UM coverage to their policy. Mrs. Bourgeois does not recall signing any documents during this meeting. A few days later, Mr. Bourgeois called Mr. Cuccia and confirmed the addition of his wife’s automobile to his policy and that changes had been made to her liking, although he does not specifically recall discussing any specific limit or type of coverage, including UM coverage, with Mr. Cuccia.

In July of 2007, the Bourgeois received a letter from Allstate indicating changes had been made to their policy, to wit: the addition of a new vehicle to the policy, a change in insurance coverage for the existing vehicle on the policy, the addition of one or more operators, and changes to the operators. The letter also included instructions to review the enclosed amended policy declarations page which detailed the coverage and limits carried for each vehicle and the costs of those coverages. The Bourgeois continually renewed their automobile policy on a bi-annual basis and admit to receiving a copy of the policy, which contained declarations pages detailing the coverage provided, every six months. Mrs. Bourgeois testified that she does not read- through -the declarations [1179]*1179pages and has never read through the policy. Mr. Bourgeois testified that he reads through'the declarations pages to make sure that vehicle coverages are correct because the Bourgeois have changed vehicles several times in the last three or four years. Other than substituting new vehicles on the policy, the Bourgeois requested' no changes to the- policy coverage after February of 2007.

On March 28, 2012, Mr. and Mrs. Bourgeois and their two children were involved in a multi-vehicle automobile accident wherein they suffered personal injury and property damage. A few days after the accident, the Bourgeois approached Mr. Cuccia with regard to filing a claim under their Allstate policy, at which time they were informed that their policy did not include UM coverage. 14Records from Allstate indicate that there was no change in the liability coverage to the policy to include UM coverage since its inception on October 25, 2005, up to the date of the accident on March 28,2012.

On March 28, 2013, the Bourgeois filed a petition for damages against Mr. Cuccia and Allstate, alleging negligence for Mr. Cuccia’s purported failure to add UM accident coverage to their automobile policy as requested by them in February of 2007. Mr. Cuccia filed a motion for summary judgment in which he argued that the Bourgeois’ negligence cause of action was perempted pursuant to La. R.S. 9:5606, which subjects all causes of action based in tort of breach of contract against an insurance agent to' a one or three year peremp-tive period.2 As to the claims of Mr. Bourgeois, the trial court granted Mr. Cuccia’s motion for' summary judgment and dismissed Mr. Cuccia from the lawsuit.3 The Bourgeois subsequently Supplemented and amended their petition to include claims for insurance fraud against Mr. Cuccia, and added American Auto, Mr. Cuccia’s errors and omissions , insurance carrier, as a direct defendant in the case. On December 3, 2014, Mr. Cuccia and American Auto filed a motion for summary judgment and an exception of no right of action as to the remaining claims of the Bourgeois. Following a hearing on January 9, 2015, both the motion for summary judgment and the exception of no right of action were granted by the trial court, dismissing Rwith prejudice the .Bourgeois’, claims against Mr. Cuccia and American Auto. It is from this judgment Rhat. the Bourgeois appeal.4

[1180]*1180On appeal, the Bourgeois make three arguments to this Court: first, that the trial court erred granting the motion for summary judgment because the claim for fraud involves factual considerations which must be determined by a trial on the merits; second, that the trial court erred when it held that fraud was not an exception to the one and three year peremptive periods set forth in La. R.S. 9:5606; and finally, that the trial court erred in granting the motion for summary judgment on their fraud claims because there exist genuine issues of material fact that preclude judgment in favor of Mr. Cuccia and American Auto as a matter of law.

LAW & ANALYSIS

In their second supplemental and amending petition, the Bourgeois allege that Mr. Cuccia committed fraud by failing to add the maximum amount of UM coverage to the Allstate liability policy, by failing to ensure that the maximum amount of UM coverage was added to the policy, and by failing to forward the request for additional UM coverage to Allstate.

On appeal, the Bourgeois first argue that the trial court erred in granting the motion for'summary judgment because the claim for fraud involves factual considerations which must be determined by a trial on the merits. Specifically, the Bourgeois argue that it is inappropriate to make credibility determinations or .to weigh- the evidence in resolving a motion for summary judgment, and that issues pertaining to subjective facts such as intent, knowledge, motive, malice, or good faith are usually not appropriate for summary judgment. We acknowledge thése well-established principles of summary judgment practice. However, none of the Leases cited by the Bourgeois stand for the proposition, and we find no jurisprudence that stands for the proposition, that summary judgment is precluded on a fraud claim. To the contrary, the Louisiana Supreme Court has recognized that although summary judgment is seldom appropriate for determinations based on subjective facts of motive, intent, good faith, knowledge, or malice, “summary judgment may be granted on subjective intent issues when no issue of material fact exists concerning the pertinent intent.” Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 751.

The Bourgeois also cite a number of cases in which Louisiana Courts of Appeal have reversed the grant of summary judgment op a fraud claim. However, each of those cases, as do all summary judgments, were decided based upon the particular facts of the case, wherein the court determined that genuine issues of material fact remained on the fraud claims.. Those cases do not stand for the proposition that summary judgment is precluded on a fraud claim.

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Bluebook (online)
182 So. 3d 1177, 15 La.App. 5 Cir. 451, 2015 La. App. LEXIS 2674, 2015 WL 9434396, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bourgeois-v-allstate-insurance-co-lactapp-2015.