Columbus Bradford and Mikiya Bradford, Individually and as Husband and Wife v. Great American Assurance Group, Progressive Direct Insurance Company, and Progressive Paloverde Insurance Company

• Court: Louisiana Court of Appeal
• Decided: December 18, 2024
• Docket: 55,893-CW
• Status: Published

Opinion

Judgment rendered December 18, 2024. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.

No. 55,893-CW

COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA

*****

COLUMBUS BRADFORD AND Respondents MIKIYA BRADFORD, INDIVIDUALLY AND AS HUSBAND AND WIFE

versus

GREAT AMERICAN ASSURANCE Applicants GROUP, PROGRESSIVE DIRECT INSURANCE COMPANY, AND PROGRESSIVE PALOVERDE INSURANCE COMPANY

On Application for Writs from the Twenty-Sixth Judicial District Court for the Parish of Bossier, Louisiana Trial Court No. 164,328

Honorable Charles A. Smith, Judge

NEUNER PATE Counsel for Applicants, By: Kenneth W. Jones, Jr. Ace American Insurance Gregory W. Beasley Company and UV Risk Sarah S. Sonnier Retention Group, Inc.

STRAUSS MASSEY DINNEEN, LLC Counsel for Respondent, By: Brock L. Wimberley Progressive Paloverde Insurance Company

JACK BAILEY LAW CORPORATION Counsel for Respondents, By: Jack M. Bailey, III Columbus Bradford and Mikiya Bradford

Before PITMAN, COX, and STEPHENS, JJ. STEPHENS, J.,

This writ grant to docket arises from the 26th Judicial District Court,

Parish of Bossier, the Honorable Charles A. Smith, Judge, presiding. The

defendant, UV Insurance Risk Retention Group, Inc. (“UV Insurance”),

seeks review of the trial court’s judgment denying its motion for summary

judgment. For the following reasons, we grant UV Insurance’s writ

application, reverse the trial court’s judgment, and grant summary judgment

in favor of UV Insurance.

FACTS AND PROCEDURAL HISTORY

On March 10, 2020, the plaintiff, Columbus Bradford (“Mr.

Bradford”), was driving south in a truck owned by his employer, James &

JOC Trucking, L.L.C., while towing a second vehicle. Another vehicle

crossed into Mr. Bradford’s lane of travel, and in order to avoid striking this

vehicle, Mr. Bradford exited the road, but his truck and trailer overturned.

Mr. Bradford sustained injuries as a result of the accident. Unfortunately,

the other driver did not stop and is unknown.

On March 15, 2021, the plaintiffs, Mr. Bradford and his spouse,

Mikiya Bradford, (“the Bradfords”) filed suit in state court seeking, inter

alia, damages under uninsured and underinsured motorist (“UM/UIM”)

coverage applicable to insurance policies1 issued by the defendants, Great

1 La. R.S. 22:1295, in pertinent part, mandates insurance coverage for nonpunitive damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness, or disease, including death resulting therefrom, provided that the insured did not reject coverage, elect lower limits, or select economic-only coverage. La. R.S. 22:1295(1)(f) provides for UM coverage where the injured party can show, by an independent and disinterested witness, that the injury was the result of the actions of the driver of another vehicle whose identity is unknown or who is uninsured or underinsured. American Assurance Company, Progressive Direct Insurance Company, and

Progressive Paloverde Insurance Company. In response, the defendants

filed a notice of removal to federal court on April 20, 2021. Great American

Assurance Group and Progressive Direct Insurance Company were

dismissed from the litigation in April 2021, leaving only Progressive

Paloverde in the suit. However, on December 8, 2021, the plaintiffs filed an

amended complaint in federal court adding UV Insurance and Ace American

Insurance Company (“ACE Insurance”) as defendants.2 On June 13, 2022,

the federal court remanded the action to the 26th Judicial District Court in

Bossier Parish due to lack of federal subject matter jurisdiction.

On June 27, 2022, UV Insurance and ACE Insurance filed a motion

for summary judgment in which they contended that UV Acquisition

Holdings, LLC (“UVL”), validly rejected UM/UIM coverage through

UVL’s prior CFO and current president, Colby Domingue. According to UV

Insurance and ACE Insurance, Mr. Domingue signed the UM/UIM rejection

form for the UV Insurance policy on January 31, 2020, and a rejection of the

ACE Insurance UM/UIM coverage form on February 11, 2020. In the

memorandum in support of the motion for summary judgment, UV

Insurance and ACE Insurance claimed that the rejection forms were not only

provided by the Louisiana Department of Insurance, but they: 1) were

initialed by Colby Domingue, a representative of the insured who rejected

2 The Bradfords’ suit alleged damages under UM/UIM coverage applicable to insurance policies allegedly issued by UV Insurance and ACE Insurance to UVL Acquisition Holding, LLC, as successor to UVL Logistics Holding Corp. and as the parent company of its subsidiary, UV Logistics, LLC d/b/a United Vision Logistics (collectively UVL) as provided in La. R.S. 22:1295.

The federal court minutes reflect that UV Insurance and ACE Insurance both identified its corporate parents when they each filed a “Corporate Disclosure Statement” before the lawsuit was remanded to the 26th Judicial District Court. 2 the UM/UIM coverage; 2) showed no lower limits were selected; 3) printed

the name of Colby Domingue as legal representative of the insured; 4)

included the signature of the legal representative (Mr. Domingue) which

appeared electronically; 5) showed the policy number written on each form;

and 6) displayed the dates January 31, 2020, and February 11, 2020,

respectively.

In response, the Bradfords argued that UV Insurance and ACE

Insurance’s motion for summary judgment should be denied because the

rejections were not in proper form. More specifically, nothing attached to

the defendants’ motion set forth the proper legal authority Mr. Domingue

had in order to make the UM/UIM rejections valid. The trial court, in its

reasons for judgment filed on February 28, 2023, stated that the affidavits

indicated that the CFO of UVL was the individual authorized to execute

UM/UIM waivers. Because the affidavits attached to the motion for

summary judgment failed to indicate that Mr. Domingue was in fact CFO of

UVL and not the President at the time the waivers were signed, a genuine

issue of material fact existed as to Mr. Domingue’s authority to waive

UM/UIM coverage on behalf of UVL. The order denying the summary

judgment motion was signed on February 27, 2023. The defendants sought

supervisory review of the ruling, but this Court denied the writ application

on May 24, 2023.

Following this Court’s denial of the applications for supervisory

review, UV Insurance and ACE Insurance obtained several affidavits

intended to clarify the authority of Mr. Domingue to act as UVL’s legal

representative. In an affidavit signed by Mr. Domingue on October 19,

2023, he stated that on August 14, 2017, he became the CFO of UVL, and 3 on October 19, 2020, he became President of UVL. Mr. Domingue further

indicated that, from October 19, 2020, through April 22, 2021, he served as

both the CFO and President of UVL. Mr. Domingue specified that on

January 31, 2020, he personally wrote or included the initials, signature,

printed name, date, policy number, and company name on the UM/UIM

rejection form provided by UV Insurance, and it was his intention on

January 31, 2020, to reject any UM/UIM coverage under the insurance

policy issued by UV Insurance. Mr. Domingue stated that he is to-date the

President of UVL, a legal representative of UVL, and he has had the

authority to make decisions regarding insurance coverage for UVL since

August 14, 2017.

The defendants also included an affidavit signed by Jo Helen Eaton on

August 10, 2023. In her affidavit, Ms. Eaton stated that she currently holds

the position of CFO for UVL, a position she has held since April 22, 2021.

Ms. Eaton confirmed that she has been employed with UVL since 2011, and

that prior to serving as UVL’s CFO, she served as UVL’s Corporate

Comptroller and VP of Finance. Ms. Eaton stated that Mr. Domingue served

as CFO from August 14, 2017, through April 22, 2021, and that as CFO or

President, Mr. Domingue would have had the authority to waive UM/UIM

insurance on behalf of UVL. Ms. Eaton indicated that the signature on the

UM/UIM rejection forms pertaining to UV Insurance and ACE belonged to

Mr. Domingue.

The third affidavit was signed by Rusty Guilbeau on August 10, 2023.

Mr. Guilbeau stated in his affidavit that he was currently the CEO for UVL,

and he has been an employee of UVL since 2012. Prior to being named

CEO, Mr. Guilbeau acknowledged that he served as UVL’s COO from 4 August 2012 to June 2014, and as President and CEO of UVL from June

2014 through October 2020. Mr. Guilbeau indicated in his affidavit that Mr.

Domingue, as the President and/or CFO, had the authority on January 31,

2020, to reject insurance coverage on behalf of UVL. Mr. Guilbeau stated

that the signature on the UM/UIM rejection forms pertaining to UV

Insurance and ACE Insurance belonged to Mr. Domingue.

On October 26, 2023, UV Insurance and ACE Insurance filed a

“Renewed Motion for Summary Judgment.” In this motion, UV Insurance

and ACE Insurance alleged that their initial motion for summary judgment

had been denied because the trial court believed that there were genuine

issues of material fact as to whether Mr. Domingue had the authority to sign

and execute UM/UIM waivers on behalf of UVL. As a result, UV Insurance

and ACE Insurance provided additional affidavits from officers of UVL

attesting to Mr. Domingue’s authority to execute waivers rejecting UM/UIM

coverage on behalf of UVL. UV Insurance and ACE Insurance asserted

that, because they clarified Mr. Domingue’s authority with Mr. Domingue,

Ms. Eaton, and Mr. Guilbeau’s affidavits, they were entitled to summary

judgment as a matter of law. The defendants then asked the trial court to

dismiss with prejudice the claims against UV Insurance and ACE Insurance.

In response to the renewed motion for summary judgment, the

Bradfords argued that UV Insurance and ACE Insurance failed to present

adequate evidence of valid rejections of the UM/UIM coverage as required

by La. C.C.P. art. 966(A)(4), and even if they did present adequate evidence,

it fails to show that a valid and proper rejection form was signed and

executed. The Bradfords maintained that UVL’s Corporate Delegation of

Authority required approval from both the CEO and CFO of UVL for either 5 officer to enter into an agreement for corporate insurance. The Bradfords

argued that UV Insurance and ACE Insurance provided no evidence to show

that UVL’s CEO and CFO agreed to waive UM/UIM coverage, only that

UVL’s CFO executed the UM/UIM rejection forms, making any waivers

done by the CFO unilaterally invalid. The Bradfords also suggested that

even if Mr. Domingue had authority, the forms signed by him were invalid

and could not serve as proper rejections of UM/UIM coverage because the

forms in question were altered from those originally promulgated by the

Louisiana Insurance Commissioner. However, the Bradfords did

acknowledge that the modifications to the UM/UIM rejection form were

only present on the UV Insurance form. ACE Insurance’s UM/UIM

rejection form appeared to be unaltered.

UV Insurance and ACE Insurance filed a reply to the Bradfords’

opposition and argued that UVL’s rejection of UM/UIM coverage was valid

on the face of both waivers, UV Insurance and ACE Insurance produced

affidavits and corporate records establishing that Mr. Domingue was

authorized to reject UM/UIM coverage on behalf of UVL, and the UM/UIM

rejection forms were valid.

At the hearing on the insurers’ motion for summary judgment held on

January 10, 2024, the trial court found that ACE Insurance’s UM/UIM

rejection form met the insurance commissioner’s requirements, granted the

motion for summary judgment as to ACE Insurance, and dismissed all

claims against ACE Insurance. However, as to UV Insurance’s UM/UIM

rejection form, the trial court found that it was invalid because Mr.

Domingue’s signature indicated that the rejection was effective on a certain

date. According to the trial court, the addition of “Eff” to the date line was a 6 substantive modification of the form which created a genuine issue of

material fact. Based on this finding, the trial court reasoned that it could not

determine when Mr. Domingue actually signed the rejection form. Because

the trial court did not know when Mr. Domingue signed the rejection form, it

could not determine whether Mr. Domingue had authority at the time that he

signed the waiver of coverage. Therefore, the trial court denied the motion

for summary judgment as to UV Insurance and issued its written reasons for

judgment on February 15, 2024. On March 22, 2024, UV Insurance filed its

notice of intent to seek supervisory review of the adverse ruling and filed a

writ application. UV Insurance’s writ was granted to docket by this Court.

DISCUSSION

In its sole assignment of error, UV Insurance contends that the trial

court erred in denying its motion for summary judgment. In support, UV

Insurance suggests that the trial court incorrectly applied a hypertechnical

standard to invalidate the UM/UIM waiver instead of applying the standard

set forth in Berkley Assurance Co. v. Willis, 21-0155 (La. 12/09/22), 355 So.

3d 591. UV Insurance maintains that the only change on its form is the date

line which reads “Eff Date.” According to UV Insurance, the alteration

should not be considered a substantial change to the Louisiana Insurance

Commissioner’s form because the “Eff Date” change did not affect Mr.

Domingue’s ability to knowingly waive UM/UIM coverage.

However, the Bradfords suggest that this change from “Date” to “Eff

Date” is a substantive deviation from the given form because the date of the

insured’s signature is a required element, and strict compliance is required of

every element. The Bradfords argue that the purpose of the “Eff date,” or

the effective date, is to identify a point in time when the policy takes effect, 7 whereas the signing date relates to when the insured agreed to waive the

coverage. The signing date, not the effective date, is essential to the

waiver’s validity as it indicates the exact moment the insured made the

choice to reject the coverage. The Bradfords maintain that by removing the

mandatory signing date element, UV Insurance substantively altered the

waiver form in a way that directly contravenes statutory requirements, and

this created a genuine issue of material fact concerning the validity of the

waiver.

Summary judgment is favored and will be granted if the evidence is

sufficient to show that there are no genuine issues of material fact and the

movant is entitled to judgment as a matter of law. La. C.C.P. art. 966; Bank

of Am., N.A. v. Green, 52,044 (La. App. 2 Cir. 5/23/18), 249 So. 3d 219. A

fact is material if it potentially ensures or precludes recovery, affects a

litigant’s ultimate success, or determines the outcome of the legal dispute.

Hines v. Garrett, 04-0806 (La. 6/25/04), 876 So. 2d 764; Chanler v.

Jamestown Ins. Co., 51,320 (La. App. 2 Cir. 5/17/17), 223 So. 3d 614, writ

denied, 17-01251 (La. 10/27/17), 228 So. 3d 1230. A genuine issue is one

as to which reasonable persons could disagree; if reasonable persons could

reach only one conclusion, there is no need for trial on that issue and

summary judgment is appropriate. All doubts should be resolved in the non-

moving party’s favor. Hines, supra.

Prior to its amendment in 2023, La. C.C.P. art. 966(A)(4) provided

that the only documents which may be filed in support of or in opposition to

a motion for summary judgment are pleadings, memoranda, affidavits,

depositions, answers to interrogatories, certified medical records, written

stipulations, and admissions. La. C.C.P. art. 966(D)(2) provides in part that 8 the court may consider only those documents filed or referenced in support

of or in opposition to the motion for summary judgment but shall not

consider any document that is excluded pursuant to a timely filed objection.

Appellate courts review the grant or denial of a motion for summary

judgment de novo, using the same criteria as trial courts. Smith v. Robinson,

18-0728 (La. 12/5/18), 265 So. 3d 740; Franklin v. Dick, 51,479 (La. App. 2

Cir. 6/21/17), 224 So. 3d 1130. On review, an appellate court shall not

reverse a trial court’s denial of a motion for summary judgment and grant a

summary judgment dismissing a case or a party without assigning the case

for briefing and permitting the parties an opportunity to request oral

argument. La. C.C.P. art. 966(H).

In Louisiana, UM/UIM coverage is provided for by the UM/UIM

statute, La. R.S. 22:1295, and embodies a strong public policy. Duncan v.

U.S.A.A. Ins. Co., 06-363 (La. 11/29/06), 950 So. 2d 544. The UM/UIM

statute provides that the requirement of UM/UIM coverage is an implied

amendment to any automobile liability policy, even when not expressly

addressed, as UM/UIM coverage will be read into the policy unless validly

rejected. Id. However, the named insured on the policy may reject

coverage, select lower limits, or select economic-only coverage, in the

manner provided by La. R.S. 22:1295. Rejections shall be made on a form

prescribed by the commissioner of insurance, provided by the insurer, and

signed by the named insured or his legal representative. La. R.S.

22:1295(1)(a)(ii); Baack v. McIntosh, 20-01054 (La. 6/30/21), 333 So. 3d

1206.

The existence of UM/UIM coverage for a particular policy is

determined by compliance with the UM/UIM statute and contractual 9 provisions. Berkley Assurance Co., supra. Interpretation of the UM/UIM

statute and the insurance policy are questions of law subject to de novo

review. Id.

The Louisiana Supreme Court has held that it is well-settled that the

UM/UIM statute is to be liberally construed; therefore, any exceptions to

coverage are to be interpreted strictly. Berkley Assurance Co., supra; Baack,

supra; Duncan, supra. In accordance with this strict construction

requirement, the insurer bears the burden of proving that any insured named

in the policy rejected UM/UIM coverage in writing, in compliance with the

statute. Id.

According to Berkley Assurance Co., supra, the following tasks are

mandated by Louisiana Department of Insurance (“LDOI”) Bulletin 08-02:

(1) initialing the selection or rejection of coverage chosen; (2) if limits lower than the policy limits are chosen, 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 insurer’s name, the group name, or the insurer’s logo; and (6) filling in the date.

Failure to properly complete the UM/UIM form results in an invalid

rejection or selection of lower limits of UM/UIM coverage. A properly

completed UM/UIM form waiving or rejecting coverage creates a rebuttable

presumption that the insured knowingly rejected uninsured motorist

coverage. La. R.S. 22:1295(1)(a)(ii).

10 A corporate insured must act through its legal representative. Havard

v. Jeanlouis, 21-00810 (La. 6/29/22), 345 So. 3d 1005. When a corporation

is insured and wishes to reject UM/UIM coverage, an authorized agent may

execute the rejection form. Tapia v. Ham, 480 So. 2d 855, 859 (La. App. 2

Cir. 1985), writ denied, 484 So. 2d 138 (La. 1986). No legal requirement

exists regarding the proof of authority for a legal representative to sign any

UM/UIM rejection/selection form. Stewart v. Edwards, 34,435 (La. App. 2

Cir. 4/4/01), 784 So. 2d 740. In circumstances where a party challenges the

authority of the person who signed the UM/UIM waiver, the insurer may

provide an affidavit to substantiate the authenticity of the person’s signature

on the rejection/waiver form and the person’s authority as the legal

representative of the named insured to execute the form. Gunter v. State

Farm Mut. Auto. Ins. Co., 12-0562 (La. 5/4/12), 88 So. 3d 444; Stewart,

supra.

According to the Louisiana Supreme Court, whether a UM/UIM form

is valid depends on whether the six tasks set out in Duncan and again

affirmed in Berkley are completed. UV Insurance maintains that these six

requirements are met. However, the Bradfords suggest that Mr. Domingue

lacked authority as UVL’s legal representative to sign the form, and the

alteration of “Eff” in front of the word “Date” in the lower left quadrant of

the form creates a genuine issue of material fact as to the validity of the

waiver form.

First, the three affidavits submitted in support of the motion for

summary judgment make clear that Mr. Domingue served as CFO of UVL

from August 14, 2017, through April 22, 2021. In Mr. Domingue’s

affidavit, he confirmed that he affixed his signature to the rejection form on 11 January 31, 2020, and he established he understood he was waiving

UM/UIM coverage offered by UV Insurance. This clearly occurred during

the time he served as CFO of UVL, meaning Mr. Domingue had the

authority to reject UM/UIM coverage on behalf of UVL on January 31,

2020. We find no merit in the Bradfords’ argument that Mr. Domingue

could not reject UM/UIM coverage on behalf of UVL.

While the record is unclear as to the actual value of the alteration on

UV Insurance’s UM/UIM waiver form as provided by the Louisiana

Insurance Commissioner, we cannot say that the addition of “Eff”

completely negates Mr. Domingue’s rejection of UM/UIM coverage on

behalf of UVL. The Duncan and Berkley decisions clearly outline the

requirements courts consider when assessing whether UM/UIM coverage is

validly rejected, and the record reflects that UV Insurance’s rejection form

meets these six requirements. UV Insurance’s rejection form: 1) is initialed

in the areas indicated on the form by Mr. Domingue, the designated legal

representative of UVL; 2) shows that no other limits were selected; 3)

displays the printed name of UVL; 4) includes the signature of Mr.

Domingue, the legal representative of UVL; 5) includes UV Insurance’s

name as the insurer; and 6) displays the date on which the waiver was

executed, January 31, 2020.

In Berkley, the Louisiana Supreme Court stated, “a requirement

mandated on the face of the UM form itself can never be hyper-technical nor

its absence considered a minor deviation.” 355 So. 3d 595-96. In this case,

Mr. Domingue dated the form and swore to that fact in his affidavit, and he

exercised his authority and completed each task required of him to make the

12 waiver form effective. Bulletin No. 08-02 from the Louisiana Department of

Insurance includes the following on page 3:

“A policy effective date is not explicitly stated on the revised UM form because the form is conclusively presumed to become part of the insurance contract. The date on the insurance contract is sufficient for identifying the effective date of the revised UM form.”

The above language clearly defines that the UM form is effective when the

insurance contract is effective. To say that the mere existence of “Eff”

under the date line on the UM/UIM waiver form invalidates the waiver form,

despite each requirement being met on UV Insurance’s waiver form, is

hypertechnical and contravenes the clearly defined requirements of

executing a valid waiver form for UM/UIM coverage. Whether the line is

labeled “Date,” “Eff Date,” or blank, the waiver form is signed and dated,

clearly showing that Mr. Domingue executed the waiver form on January 31,

2020. This fact is also supported by Mr. Domingue’s affidavit. A simple

“Eff” fails to create a genuine issue of material fact as it relates to the

validity of the rejection form. As such, the trial court incorrectly denied UV

Insurance’s motion for summary judgment.

CONCLUSION

For the reasons set forth above, the writ application filed by UV

Insurance is granted. The judgment of the trial court is reversed, and

summary judgment is hereby granted in favor of the defendant, UV

Insurance Risk Retention Group, Inc. Costs of this appeal are assessed to

the plaintiffs, Columbus Bradford and Mikiya Bradford.

WRIT GRANTED; JUDGMENT REVERSED.