Chandler v. Jones

532 So. 2d 402, 1988 WL 103208
CourtLouisiana Court of Appeal
DecidedOctober 5, 1988
Docket87-681
StatusPublished
Cited by15 cases

This text of 532 So. 2d 402 (Chandler v. Jones) 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
Chandler v. Jones, 532 So. 2d 402, 1988 WL 103208 (La. Ct. App. 1988).

Opinion

532 So.2d 402 (1988)

Rudolph CHANDLER, Plaintiff-Appellant-Appellee,
v.
Otis JONES, et al., Defendants-Appellees-Appellants.

No. 87-681.

Court of Appeal of Louisiana, Third Circuit.

October 5, 1988.

*403 Rudolph Chandler, Alexandria, pro se.

Gachassin & Capretz, Nicholas Gachassin, Jr., Lafayette, for plaintiff/appellee/appellant.

Jeansonne & Briney, Charles J. Foret, Lafayette, Roy, Forrest & Lopresto, L. Albert Forrest, New Iberia, Martin, Taulbee, Rowe, Bares & Oliver, Howard W. Martin, Lafayette, for defendants/appellees/appellants.

Stockwell, Sievert, Viccellio, Clements & Shaddock, Robert W. Clements, Lake Charles, Due, Smith & Caballero, Paul Due, Baton Rouge, David Kaufman, Lafayette, for defendant/appellee.

Before DOMENGEAUX, KNOLL and KING, JJ.

KNOLL, Judge.

This appeal addresses the question of tort liability as it pertains to the responsibility for a gap in insurance coverage between the primary and excess carriers.

Rudolph Chandler (hereafter Chandler), as original plaintiff and as the assignee of some of the original defendants and third-party plaintiffs, Otis Jones (hereafter Jones), and his employer, Statewide Supply Corporation (hereafter Statewide), appeals the jury's verdict regarding third-party defendants, State Farm Mutual Automobile Insurance Company (hereafter State Farm), its agent, Walter J. Romero (hereafter Romero), David Billeaudeaux (hereafter Billeaudeaux), and his employer, Employers Insurance of Wausau (hereafter Wausau). The jury rendered a verdict: (1) in favor of plaintiff, Chandler, on the main demand for $369,960.93 and in solido against Jones, Statewide, and its primary insurer, State Farm, but limited State Farm's liability to its coverage limit of $250,000; (2) denying reformation of the State Farm policy to provide $500,000 single limit coverage; (3) allocating 80% of the fault to third-party defendant, Billeaudeaux, and his employer, Wausau, for failing to have Statewide's primary motor vehicle liability coverage increased to $500,000 single limits coverage, thereby making them liable to Statewide for 80% of the amount of plaintiff's damages above $250,000 *404 but below $500,000; (4) absolving Romero and State Farm of any fault for failing to raise Statewide's primary motor vehicle liability insurance to $500,000; and (5) fixing Statewide's fault at 20% for failing to raise its primary motor vehicle liability coverage, thereby making it liable for 20% of the amount of the plaintiff's damages above $250,000 but below $500,000.

Chandler and his assignors, Jones and Statewide, contend on appeal that the jury verdict should be modified: (1) to hold State Farm, Romero, Billeaudeaux and Wausau solidarily liable to Statewide on its third-party demand; and, in the alternative, (2) to at least hold Billeaudeaux and Wausau 100% at fault in failing to raise Statewide's primary motor vehicle coverage to a minimum of $500,000.

Billeaudeaux and Wausau also appeal, contending: (1) the jury was manifestly erroneous in finding Billeaudeaux at fault and/or contributed to the gap in coverage between the State Farm policy and the Wausau excess liability policy; (2) in the alternative, the jury's percentage assessment of fault to Billeaudeaux was manifestly erroneous; and (3) the trial court erred in finding Billeaudeaux and Wausau owed interest from the date of Chandler's original judicial demand, March 31, 1982.

FACTS

A detailed account of the underlying negligence of Statewide and its employee, Jones, in causing the accident which injured Chandler is not necessary for a determination of this appeal. The only pertinent fact in that regard is that on April 24,1981, Chandler was injured when his automobile was rear-ended by a Statewide automobile operated by Jones.

The following facts relative to Statewide's procurement of excess liability insurance are essential to the resolution of the issues raised in this appeal. State Farm was Statewide's primary automobile liability insurer which provided $250,000 single limit coverage.

In January 1978 Billeaudeaux became a salaried insurance agent for Wausau. During the first part of 1981 he received an inquiry from Statewide concerning the procurement of excess liability insurance. On March 6, 1981, Billeaudeaux prepared an application for Statewide's excess coverage with Wausau indicating therein that Statewide had underlying primary fleet motor vehicle liability insurance with State Farm with $500,000 single limit coverage. Wausau's $1,000,000 excess coverage was contracted to commence once Statewide's liability exceeded the $500,000 single limit coverage. When Billeaudeaux executed this application he knew that Statewide's single limit coverage with State Farm was only $250,000. Despite this knowledge, Billeaudeaux issued Statewide a binder on March 9, 1981, and though he brought Statewide's attention to the gap in coverage between $250,000 and $500,000 single limit coverage, he never again inquired from Statewide or its office personnel whether State Farm's policy limits on single limit coverage had been increased to eliminate this gap.

As stated hereinabove, on April 24, 1981, Jones, Statewide's employee, rear-ended Chandler, causing him damages later determined by the jury to be $369,962.93, and exposing Statewide to $119,960.93 damages in excess of its primary liability coverage with State Farm, but less than the $500,000 threshold of coverage provided by Wausau.

LIABILITY

Chandler, individually and as assignee of Jones and Statewide, contends that the jury erred in failing to find Romero, State Farm, Billeaudeaux and Wausau solidarily liable to him; in the alternative, he argues that on Statewide's third party demand the jury should have found Billeaudeaux and his employer, Wausau, as third party defendants, 100% liable to Statewide. Billeaudeaux and Wausau also contend that the jury's determination of liability on the third-party demand was manifestly erroneous, and argue that they should be completely absolved from liability to third-party plaintiff, Statewide.

It is well established that an insurance agent or broker who undertakes to *405 procure insurance for a client owes an obligation to use reasonable diligence in attempting to place or obtain the requested insurance and has a duty to notify the client promptly if it has failed to obtain the requested insurance. The client may recover from the broker or agent the loss sustained as a result of the failure to procure the desired coverage if the actions of the broker or agent warranted an assumption by the client that he was properly insured in the amount of the desired coverage. Karam v. St. Paul Fire & Marine Insurance Company, 281 So.2d 728 (La. 1973).

In Beam v. Intercontinental Life Ins. Co., 447 So.2d 12, at 14 (La.App. 2nd Cir. 1984), the court held that in order for a client to recover from an insurance agent for not obtaining the requested insurance coverage, the client must prove: "(1) an undertaking or agreement by the insurance agent to procure insurance; (2) failure of the agent to use reasonable diligence in attempting to place the insurance and failure to notify the client promptly if he has failed to obtain the insurance; and (3) the actions of the agent warranted an assumption by the client that he was properly insured."

The determination and apportionment of fault are factual matters and the trier of fact's findings in this regard should not be disturbed by a reviewing court unless they are manifestly erroneous. Finley v. Bass, 478 So.2d 608 (La.App. 2nd Cir. 1985).

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Cite This Page — Counsel Stack

Bluebook (online)
532 So. 2d 402, 1988 WL 103208, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chandler-v-jones-lactapp-1988.