NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
09-363
BRANDY L. MOLBERT, ET AL.
VERSUS
BRANDON L. THOMAS, ET AL.
**********
APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF IBERIA, NO. 110418-A HONORABLE GERARD B. WATTIGNY, DISTRICT JUDGE
JOHN D. SAUNDERS JUDGE
Court composed of John D. Saunders, Jimmie C. Peters, and James T. Genovese, Judges.
AFFIRMED IN PART, REVERSED IN PART.
Thomas Reginald Hightower, Jr. Wade Kee A Professional Law Corporation P. O. Drawer 51288 Lafayette, LA 70505 (337) 233-0555 Counsel for Defendant/Appellant: Shelter Mutual Ins. Co.
Kathy Ireland Attorney at Law P. O. Box 2187 Lafayette, LA 70502 (337) 231-1955 Counsel for Defendant/Appellee: Brandon L. Thomas Barton Willis Bernard Bernard & Hart 345 Doucet Road, Suite 103-B Lafayette, LA 70503-3407 (337) 593-1123 Counsel for Plaintiffs/Appellees: Brandy L. Molbert Ross Molbert SAUNDERS, Judge.
This case addresses whether uninsured motorist (UM) coverage was validly
rejected when the date line was not properly filled in on a form prescribed by the
commissioner of insurance.
For the following reasons, we affirm the trial court’s denial of summary
judgment.
FACTS AND PROCEDURAL HISTORY
On March 2, 2007, Brandy Molbert was involved in an automobile accident
with Brandon Thomas. Mr. Thomas was not covered by liability insurance on the
vehicle he was driving because he was doing so without permission. The Molberts’
(hereinafter “Appellees”) vehicle had liability insurance coverage issued by Shelter
Mutual Insurance Company (hereinafter “Appellant”).
In May of 2005, Appellees filled out a form rejecting UM coverage. The form
was completely and accurately filled out with the exception that the date line on the
form was not filled in. When the form was subsequently forwarded to and printed by
Shelter Mutual, the printer added a line of text to the bottom of the form that showed
the date upon which the form was printed. This printed date sits a little more than an
inch below the line where the date was supposed to be filled in by Appellees.
Appellees filed suit in August of 2007. On August 29, 2007, Appellant filed
for summary judgment, alleging that it was free from liability since Appellees had
rejected UM coverage. In December of 2008, Appellant’s motion for summary
judgment was denied by the trial court based on the empty date line discussed above.
Appellant has appealed the trial court’s denial of summary judgment and
alleges the following assignment of error:
APPELLANT’S ASSIGNMENT OF ERROR:
The trial court erred in denying summary judgment filed on behalf of Shelter Mutual Insurance Company in light of the fact that the selection form rejecting uninsured motorist coverage was in conformity with the statutorily mandated requirements and served to properly reject uninsured motorist coverage. LAW AND DISCUSSION ON THE MERITS
The current matter has arrived before this court under unusual circumstances.
Appellant was denied its motion for summary judgment by the trial court. Such a
denial is not ordinarily an appealable judgment. However, as a result of the following
language used by the trial court in its denial of summary judgment, we have decided
to consider this appeal because of an improper granting of summary judgment to a
nonmoving party.
IT IS FURTHER HEREBY ORDERED, ADJUDGED AND DECREED that the Underinsured/Uninsured Motorist Rejection Form attached to the Defendant’s Motion for Summary Judgment does not comply with the requirements of Louisiana law to effectively reject underinsured/uninsured motorist insurance coverage, and is therefore an invalid rejection of underinsured/uninsured insurance coverage.
Whether there was a valid rejection of UM coverage by the Appellee was not
an issue for the trial court to decide. “The Code of Civil Procedure does not authorize
the trial court to render a judgment on the merits in favor of the nonmoving party
upon denial of the moving party’s motion for summary judgment.” Smith v. Brooks,
96-1085, p. 5 (La.App. 3 Cir. 2/05/97), 689 So.2d 544, 547. Because of this, and the
foregoing discussion, we affirm the trial court’s denial of summary judgment to the
Appellant and reverse the ruling that there was a not valid rejection of UM coverage
by the Appellees.
Standard of Review
Appellate courts review summary judgments de novo under the same criteria
that govern the trial court’s consideration of whether summary judgment is
appropriate. Schroeder v. Bd. of Supervisors of La. State Univ., 591 So.2d 342
(La.1991). A motion for summary judgment shall be granted “if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with
affidavits, if any, show that there is no genuine issue of material fact, and that the
mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966.
2 Discussion
Appellant argues that Appellees validly rejected UM coverage when they
completed the UM coverage form provided by Appellant. On the form Appellees
initialed the line indicating that they did not desire UM coverage, and they filled out
all the relevant blanks with the exception of the date line–the purpose of which is to
indicate the date upon which the waiver would become effective.
“Under Louisiana law, [UM] coverage is provided for by statute and embodies
a strong public policy.” A.I.U. Ins. Co. v. Roberts, 404 So.2d 948 (La.1981). “[T]he
requirement of UM coverage is an implied amendment to any automobile liability
policy... as UM coverage will be read into the policy unless validly rejected.”
Duncan v. U.S.A.A. Ins. Co., 06-363 (La. 11/29/06), 950 So.2d 544, 547. Louisiana
Revised Statutes 22:1295(1)(a)(ii) sets out the requirements for effectuating a valid
rejection of such coverage:
Such rejection, selection of lower limits, or selection of economic- only coverage shall be made only on a form prescribed by the commissioner of insurance. The prescribed form shall be provided by the insurer and signed by the named insured or his legal representative. . . . A properly completed and signed form creates a rebuttable presumption that the insured knowingly rejected coverage, selected a lower limit, or selected economic-only coverage.
The Supreme Court of Louisiana in Duncan took the requirements a step
further. It stated that the insurance commissioner’s form requires six tasks, which are
pertinent in rejecting UM coverage. Duncan, 950 So.2d 544.
Essentially, the prescribed form involves six tasks: (1) initialing the selection or rejection of coverage chosen; (2) if limits lower than the policy limits are chosen (available in options 2 and 4), then filling in the amount of coverage selected for each person and each accident; (3) printing the name of the named insured or legal representative; (4) signing the name of the named insured or legal representative; (5) filling in the policy number; and (6) filling in the date.
Id. at 551. (emphasis added.)
According to Duncan, not only must the date line be filled in, it must be done
3 by the insured. Id. at 552. In the present matter, the date line is left blank. Appellant
claims that although the line is empty, the requirement is still satisfied. It argues that
the date listed near the bottom of the form, indicating when the form was printed, is
enough to satisfy the above requirement. This argument ignores the purpose behind
Free access — add to your briefcase to read the full text and ask questions with AI
NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
09-363
BRANDY L. MOLBERT, ET AL.
VERSUS
BRANDON L. THOMAS, ET AL.
**********
APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF IBERIA, NO. 110418-A HONORABLE GERARD B. WATTIGNY, DISTRICT JUDGE
JOHN D. SAUNDERS JUDGE
Court composed of John D. Saunders, Jimmie C. Peters, and James T. Genovese, Judges.
AFFIRMED IN PART, REVERSED IN PART.
Thomas Reginald Hightower, Jr. Wade Kee A Professional Law Corporation P. O. Drawer 51288 Lafayette, LA 70505 (337) 233-0555 Counsel for Defendant/Appellant: Shelter Mutual Ins. Co.
Kathy Ireland Attorney at Law P. O. Box 2187 Lafayette, LA 70502 (337) 231-1955 Counsel for Defendant/Appellee: Brandon L. Thomas Barton Willis Bernard Bernard & Hart 345 Doucet Road, Suite 103-B Lafayette, LA 70503-3407 (337) 593-1123 Counsel for Plaintiffs/Appellees: Brandy L. Molbert Ross Molbert SAUNDERS, Judge.
This case addresses whether uninsured motorist (UM) coverage was validly
rejected when the date line was not properly filled in on a form prescribed by the
commissioner of insurance.
For the following reasons, we affirm the trial court’s denial of summary
judgment.
FACTS AND PROCEDURAL HISTORY
On March 2, 2007, Brandy Molbert was involved in an automobile accident
with Brandon Thomas. Mr. Thomas was not covered by liability insurance on the
vehicle he was driving because he was doing so without permission. The Molberts’
(hereinafter “Appellees”) vehicle had liability insurance coverage issued by Shelter
Mutual Insurance Company (hereinafter “Appellant”).
In May of 2005, Appellees filled out a form rejecting UM coverage. The form
was completely and accurately filled out with the exception that the date line on the
form was not filled in. When the form was subsequently forwarded to and printed by
Shelter Mutual, the printer added a line of text to the bottom of the form that showed
the date upon which the form was printed. This printed date sits a little more than an
inch below the line where the date was supposed to be filled in by Appellees.
Appellees filed suit in August of 2007. On August 29, 2007, Appellant filed
for summary judgment, alleging that it was free from liability since Appellees had
rejected UM coverage. In December of 2008, Appellant’s motion for summary
judgment was denied by the trial court based on the empty date line discussed above.
Appellant has appealed the trial court’s denial of summary judgment and
alleges the following assignment of error:
APPELLANT’S ASSIGNMENT OF ERROR:
The trial court erred in denying summary judgment filed on behalf of Shelter Mutual Insurance Company in light of the fact that the selection form rejecting uninsured motorist coverage was in conformity with the statutorily mandated requirements and served to properly reject uninsured motorist coverage. LAW AND DISCUSSION ON THE MERITS
The current matter has arrived before this court under unusual circumstances.
Appellant was denied its motion for summary judgment by the trial court. Such a
denial is not ordinarily an appealable judgment. However, as a result of the following
language used by the trial court in its denial of summary judgment, we have decided
to consider this appeal because of an improper granting of summary judgment to a
nonmoving party.
IT IS FURTHER HEREBY ORDERED, ADJUDGED AND DECREED that the Underinsured/Uninsured Motorist Rejection Form attached to the Defendant’s Motion for Summary Judgment does not comply with the requirements of Louisiana law to effectively reject underinsured/uninsured motorist insurance coverage, and is therefore an invalid rejection of underinsured/uninsured insurance coverage.
Whether there was a valid rejection of UM coverage by the Appellee was not
an issue for the trial court to decide. “The Code of Civil Procedure does not authorize
the trial court to render a judgment on the merits in favor of the nonmoving party
upon denial of the moving party’s motion for summary judgment.” Smith v. Brooks,
96-1085, p. 5 (La.App. 3 Cir. 2/05/97), 689 So.2d 544, 547. Because of this, and the
foregoing discussion, we affirm the trial court’s denial of summary judgment to the
Appellant and reverse the ruling that there was a not valid rejection of UM coverage
by the Appellees.
Standard of Review
Appellate courts review summary judgments de novo under the same criteria
that govern the trial court’s consideration of whether summary judgment is
appropriate. Schroeder v. Bd. of Supervisors of La. State Univ., 591 So.2d 342
(La.1991). A motion for summary judgment shall be granted “if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with
affidavits, if any, show that there is no genuine issue of material fact, and that the
mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966.
2 Discussion
Appellant argues that Appellees validly rejected UM coverage when they
completed the UM coverage form provided by Appellant. On the form Appellees
initialed the line indicating that they did not desire UM coverage, and they filled out
all the relevant blanks with the exception of the date line–the purpose of which is to
indicate the date upon which the waiver would become effective.
“Under Louisiana law, [UM] coverage is provided for by statute and embodies
a strong public policy.” A.I.U. Ins. Co. v. Roberts, 404 So.2d 948 (La.1981). “[T]he
requirement of UM coverage is an implied amendment to any automobile liability
policy... as UM coverage will be read into the policy unless validly rejected.”
Duncan v. U.S.A.A. Ins. Co., 06-363 (La. 11/29/06), 950 So.2d 544, 547. Louisiana
Revised Statutes 22:1295(1)(a)(ii) sets out the requirements for effectuating a valid
rejection of such coverage:
Such rejection, selection of lower limits, or selection of economic- only coverage shall be made only on a form prescribed by the commissioner of insurance. The prescribed form shall be provided by the insurer and signed by the named insured or his legal representative. . . . A properly completed and signed form creates a rebuttable presumption that the insured knowingly rejected coverage, selected a lower limit, or selected economic-only coverage.
The Supreme Court of Louisiana in Duncan took the requirements a step
further. It stated that the insurance commissioner’s form requires six tasks, which are
pertinent in rejecting UM coverage. Duncan, 950 So.2d 544.
Essentially, the prescribed form involves six tasks: (1) initialing the selection or rejection of coverage chosen; (2) if limits lower than the policy limits are chosen (available in options 2 and 4), then filling in the amount of coverage selected for each person and each accident; (3) printing the name of the named insured or legal representative; (4) signing the name of the named insured or legal representative; (5) filling in the policy number; and (6) filling in the date.
Id. at 551. (emphasis added.)
According to Duncan, not only must the date line be filled in, it must be done
3 by the insured. Id. at 552. In the present matter, the date line is left blank. Appellant
claims that although the line is empty, the requirement is still satisfied. It argues that
the date listed near the bottom of the form, indicating when the form was printed, is
enough to satisfy the above requirement. This argument ignores the purpose behind
the need for the date–to signify when the waiver of coverage is to become effective,
not a marker of the day the form was brought into tangible existence. Even had the
date been printed by Appellant in the proper place, the requirement from Duncan
would still not be satisfied as it was not the named insured, i.e. Appellees, who
completed the date line.
The rules from La.R.S. 22:1295 and Duncan are to be applied strictly.
Appellant’s alternative arguments, that common sense and the apparent intentions of
the parties should be persuasive here, are not accepted. “The expression of a desire
not to have UM coverage, however clear, does not necessarily constitute a valid
rejection if the expression of rejection does not meet the formal requirements of law.”
Cohn v. State Farm Mut. Auto. Ins. Co., 03-2820, p. 5 (La.App. 1 Cir. 02/11/05), 895
So.2d 600, 602, writ denied 05-1000 (La. 6/17/05), 904 So.2d 705.
The matter before us demands only that we consider whether the UM rejection
form was completed sufficiently to effect a waiver of UM coverage. We find that it
was not. Whether UM coverage actually existed was not raised in the trial court and,
therefore, is not an issue before this court.
CONCLUSION
Appellant has been unable to show that Appellees validly effectuated a
rejection of UM coverage meeting the requirements of La.R.S. 22:1295 and Duncan.
Appellant is not entitled to judgment as a matter of law, and, therefore, we affirm the
trial court judgment denying summary judgment and reverse the ruling that there was
not a valid rejection of UM coverage by Appellees. All costs of this proceeding are
4 to be paid by Appellant.