Breaux v. Béné

664 So. 2d 1377, 1995 WL 750331
CourtLouisiana Court of Appeal
DecidedDecember 15, 1995
Docket95 CA 1004
StatusPublished
Cited by5 cases

This text of 664 So. 2d 1377 (Breaux v. Béné) 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
Breaux v. Béné, 664 So. 2d 1377, 1995 WL 750331 (La. Ct. App. 1995).

Opinion

664 So.2d 1377 (1995)

Melissa R. BREAUX, et al.
v.
Donald A. BENE, Sr., et al.

No. 95 CA 1004.

Court of Appeal of Louisiana, First Circuit.

December 15, 1995.

*1378 Christopher H. Riviere, Thibodaux, for Plaintiffs-1st Appellants, Melissa Breaux & Kent J. Breaux.

Eugene G. Gouaux, Jr., Lockport, for Defendant-2nd Appellant, Donald A. Bene, Sr.

William P. Golden, Jr., LaPlace, for Cross-Claimant ANA Insurance Group and Louisiana Insurance Guaranty Association.

Before CARTER and PITCHER, JJ., and CRAIN[1], J. Pro Tem.

HILLARY J. CRAIN, Judge Pro Tem.

This is an appeal from a summary judgment in favor of the Louisiana Insurance Guaranty Association (LIGA) dismissing LIGA from this action.

FACTS

On January 17, 1992, an automobile liability insurance application was completed on behalf of Donald Bene, Sr. The insurance application was taken by A.J. Rabalais, a licensed insurance broker, through the CLI Insurance Agency which represented, among others, the ANA Insurance Group.

Listed as operators of the two Bene vehicles in the application were Donald Bene, Sr. and his wife, Linda Bene. Included in the application was the question: "Are any persons age 25 or under who live in your household not listed above?" The "No" response was checked off. The application also contained a section which read as follows:

"APPLICANT'S STATEMENT-READ BEFORE SIGNING

The applicant hereto states that he has read this application and attests that the above information is accurate and truthful to the best of his knowledge and belief and that said information was made available as inducement to the Carrier to issue an *1379 insurance policy. The Applicant also states that all operators of the above vehicles are listed on this application and that all household members under Twenty-Five (25) years of age are also listed on this application. The Applicant also understands that any policy issued as a result of this information may be declared NULL and VOID and of no benefit or effect whatsoever in the event the attestations or statements in this application are found to be false or fraudulent in nature."

The policy period was from January 17, 1992, to July 17, 1992, effective January 16, 1992.

On January 27, 1992, Donald Bene, Jr., age 17, was driving his father's 1977 Chevrolet Impala and struck a vehicle, driven by Melissa Breaux, from the rear. Donald Bene, Jr. was a resident of his parents household all of his life, including the time of the insurance application and the time of the accident. He was a high school student at the time of the accident and had obtained his driver's license approximately six months prior to the completion of the insurance application of January 17, 1992. It is undisputed that at the time of the accident, Donald, Jr. was driving his father's car with his father's permission. It is also undisputed that Mr. Bene, Sr. allowed his son to drive the car occasionally prior to and subsequent to the insurance application.

Mrs. Breaux and her husband Kent J. Breaux filed this personal injury action against Donald Bene, Sr., individually, and on behalf of his minor son, Donald Bene, Jr. Additional defendants were ANA Insurance Group, the Benes' insurer and Allstate Insurance Company, the UM insurer of the Breauxs. Allstate filed a cross-claim against Donald Bene, Jr. and Donald Bene, Sr., as well as ANA Insurance Group. ANA subsequently went into receivership and LIGA was substituted as a party defendant. LIGA filed a motion for summary judgment, seeking dismissal of LIGA from this action because of the alleged misrepresentation in the insurance application that there were only two drivers in the household. After a hearing on the motion, the trial court rendered summary judgment in favor of LIGA, dismissing LIGA from this action. Plaintiffs and Donald Bene, Sr. have appealed, each alleging two assignments of error: (1) the trial court's choice between the competing public policies underlying La.R.S. 22:619 and 32:900; and (2) the existence of a material issue of fact in the trial court's determination that Mr. Bene intended to deceive the insurer in omitting to list Donald Bene, Jr. in the insurance application as an occasional operator of the vehicle.

SUMMARY JUDGMENT

A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, admissions on file and affidavits show there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. La.C.C.P. art. 966. A fact is material if it may potentially ensure or preclude recovery, affect the litigant's ultimate success, or determine the outcome of the legal dispute. Penalber v. Blount, 550 So.2d 577 (La.1989). The mover has the burden of proving the absence of a genuine issue of material fact, and only when reasonable minds must inevitably conclude that the mover is entitled to judgment as a matter of law is summary judgment warranted. Robertson v. Our Lady of the Lake Regional Medical Center, 574 So.2d 381 (La.App. 1st Cir.1990), writ denied, 573 So.2d 1136 (La.1991). Any doubt regarding the existence of a genuine issue of material fact should result in denial of the motion for summary judgment and in favor of trial on the merits, regardless of doubt of the opponent's ability to establish the disputed facts at trial. Equipment, Inc. v. Anderson Petroleum, Inc., 471 So.2d 1068 (La.App. 3d Cir.1985).

The standard of review for a summary judgment is de novo review using the same criteria which the trial court must use to determine whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La. 7/5/94), 639 So.2d 730.

*1380 ANALYSIS

Subsection A of section 619 of Title 22 of the Louisiana Revised Statutes governing warranties and misrepresentations in negotiations or applications of insurance contracts provides in part:

"[N]o oral or written misrepresentation or warranty made in the negotiation of an insurance contract, by the insured or in his behalf, shall be deemed material or defeat or void the contract or prevent it attaching, unless the misrepresentation or warranty is made with the intent to deceive."

Pursuant to the statutory language, a false statement or misrepresentation voids the contract only if the insurer proves it is made with the intent to deceive or if it materially affects the risk. In interpreting this statute, the jurisprudence has placed the burden of proof on the insurer, and both factors (materiality and intent to deceive) must be proved. Coleman v. Occidental Life Insurance Co. of North Carolina, 418 So.2d 645 (La.1982); Perault v. Time Insurance Co., 633 So.2d 263 (La.App. 1st Cir.1993), writs denied, 93-3133 (La. 2/11/94), 634 So.2d 833 and 93-3156 (La. 2/11/94), 634 So.2d 834.

In determining the applicant's intent to deceive, "the courts look to the surrounding circumstances indicating the insured's knowledge of the falsity of the representation made in the application and his recognition of the materiality of his misrepresentations, or to circumstances which create a reasonable assumption that the insured recognized the materiality." Perault v. Time Insurance Co., 633 So.2d at 266. Intent to deceive is a factual determination which should not be set aside absent manifest error. Id.

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Cite This Page — Counsel Stack

Bluebook (online)
664 So. 2d 1377, 1995 WL 750331, Counsel Stack Legal Research, https://law.counselstack.com/opinion/breaux-v-bene-lactapp-1995.