Dardar v. Prudential Property & Casualty Insurance Co.

672 So. 2d 298, 95 La.App. 1 Cir. 1574, 1996 La. App. LEXIS 798, 1996 WL 155287
CourtLouisiana Court of Appeal
DecidedApril 4, 1996
DocketNo. 95 CA 1574
StatusPublished
Cited by1 cases

This text of 672 So. 2d 298 (Dardar v. Prudential Property & Casualty 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
Dardar v. Prudential Property & Casualty Insurance Co., 672 So. 2d 298, 95 La.App. 1 Cir. 1574, 1996 La. App. LEXIS 798, 1996 WL 155287 (La. Ct. App. 1996).

Opinion

|2CARTER, Judge.

This is an appeal from a trial court judgment following a “Joint Motion To Submit Issues Of Insurance Coverage For Separate Trial.”

FACTS

On October 7, 1991, Terry Dardar was operating a 1987 Isuzu truck, owned by his employer, Master Electric Service, Inc., in a northerly direction on Fifth Street near its intersection with Duke Street in Morgan City, Louisiana. Simultaneously, a vehicle owned and operated by Nelwyn G. Robinson was westbound on Duke Street near its intersection with Fifth Street. At the intersection of Fifth and Duke Streets, Fifth is favored, and Duke is controlled by a stop sign. The Robinson vehicle failed to obey the stop sign and entered the intersection in the path of Dardar, resulting in a collision wherein Dardar sustained serious injuries.

At all times pertinent hereto, Allstate Insurance Company (Allstate) had in effect a policy of automobile liability insurance issued to Robinson with policy limits of $50,000.00. State Farm Insurance Company (State Farm) had in effect a policy of uninsured/un-derinsured motorist (UM) insurance on the 1987 Isuzu truck operated by Dardar. The State Farm policy had liability limits of $500,000.00, but the insured executed an “Acknowledgment of Coverage Selection or Rejection,” wherein the insured purported to select UM coverage with lower limits of $100,000.00. Sometime after the accident, Dardar and his wife, Sharon, entered into a compromise with Robinson, Allstate, and State Farm. The Dardars settled their claims against Robinson and Allstate for the $50,000.00 policy limits and their claims against State Farm for the sum of $90,000.00. However, the settlement proceeds were insufficient to cover all of the damages suffered by the Dardars.

On August 11, 1992, the Dardars filed an action for damages against their own UM insurer, Prudential Property and Casualty Insurance Company. The Prudential policy [300]*300did not list, as an insured vehicle, the 1987 Isuzu which Dardar was driving at the time of the accident. In answering the petition, Prudential asserted that its policy of insurance specifically excluded coverage for bodily injury or property damage to an insured while using a non-owned vehicle which was not insured under its policy andjjwhich was regularly used by the insured. Prudential indicated that, at the time of the accident, Dardar was operating a vehicle which was owned by his employer, furnished for his regular use, and used with his employer’s permission. Thus, Prudential reasoned that, under its policy, UM coverage was unavailable to Dardar.

On December 29, 1994, the parties filed a “Joint Pre-Trial Stipulation,” which provided that an accident occurred on October 7,1991, involving Dardar and Robinson, and that the Dardars settled their claims against Robinson and Allstate for $50,000.00 and against State Farm for $90,000.00. The parties also stipulated (1) that Prudential issued a policy of insurance to Dardar, providing coverage for his 1988 Toyota Camry and his 1989 Mercury Tracer, with liability and UM policy limits in the amount of $100,000.00;. (2) that should the court find State Farm’s selection of lower UM limits form to be valid and enforceable and that the Prudential policy does not exclude UM coverage, then Dardar is entitled to recover the $100,000.00 UM limits of the Prudential policy; and (3) that, in return, Dardar agreed to forego any claim for penalties and attorney’s fees for Prudential’s failure to have made a UM tender.

On January 17, 1995, Prudential filed a motion for summary judgment, contending that, while operating his employer’s vehicle, Dardar was not an insured under its policy and that its policy clearly and unambiguously excluded UM coverage. In the alternative, Prudential contended that, as a matter of law, the State Farm rejeetion/selection of lower UM limits document is ambiguous and, thus, invalid under Louisiana law. Prudential argued that, because the UM form is ambiguous and invalid, the State Farm policy has UM limits equal to the liability limits of $500,000.00, rather than the lower limits of $100,000.00 selected on the form. According to Prudential, Dardar cannot recover under the Prudential policy unless his damages exceed $550,000.00 (the $50,000.00 liability limits of the Allstate policy, plus the $500,000.00 UM limits of the State Farm policy).

On February 22, 1995, the trial court denied Prudential’s motion for summary judgment, without assigning reasons. Thereafter, on April 5, 1995, the Dardars and Prudential filed a “Joint Motion To Submit Issues Of Insurance Coverage For Separate Trial,” setting forth the following stipulation:

|4(a) Plaintiffs, Terry and Sharon Dardar, would waive any claim for penalties and attorneys fees arising out of Prudential’s failure to make a tender of payment under the provisions of the UM policy;
(b) Defendant, Prudential, stipulated that Nelwyn Robinson was the cause of the subject accident, that such accident caused injury to the plaintiffs and that the said damages were at least $250,000. Defendant stipulated that should a Judgment be rendered holding State Farm’s selection of lower UM limits document to be valid and enforceable and that Prudential’s UM policy does not exclude UM coverage, then Prudential would pay to the plaintiffs the limits of the UM policy of $100,000.
(e) Both plaintiffs and defendant reserved their right to appeal the Trial Court’s holding on the issues set forth in paragraph Kb).

For the purpose of resolving the issue of insurance coverage, the parties agreed that all documents attached to any memoranda submitted in conjunction with the motion for summary judgment and/or any document filed into the record would be stipulated as having been submitted and accepted by the parties as evidence in the final judgment on the coverage issue.2

[301]*301On April 5, 1995, the trial court rendered judgment, finding that State Farm’s selection of lower limits document is valid and enforceable and that Prudential’s policy does not exclude UM coverage. In accordance with the stipulations of the parties, the trial court ordered that Prudential pay the Dardars the $100,000.00 limits of its UM policy, together with interest from the date of judicial demand.

Prudential appealed, assigning the following specifications of error:

I. The Trial Court erred in finding that Prudential’s policy provided uninsured motorist coverage to Terry Dardar. More particularly, the Trial Judge erred in finding that plaintiff met the definition of an insured under the policy and that the policy did not exclude coverage to plaintiff while operating the 1987 Isuzu pickup truck which was available for his regular use and regularly used by him. Alternatively, the Trial Court erred in holding that Prudential’s definition of an insured and its coverage exclusion, which excludes coverage while a policy holder is operating a vehicle available for his regular use and/or regularly used by him, to be invalid and unenforceable.
II. The Trial Court erred in failing to follow this Honorable Court’s holding in Anderson v. Allstate Insurance Company, 642 So.2d 208 (La.App. 1st Cir.1994) and in holding that State Farm’s Selection of UM limits form was not ambiguous and was valid and enforceable.

IsWe find that we are unable to consider these arguments at this time.

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Related

Dardar v. Prudential Property & Cas. Ins. Co.
739 So. 2d 330 (Louisiana Court of Appeal, 1999)

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Bluebook (online)
672 So. 2d 298, 95 La.App. 1 Cir. 1574, 1996 La. App. LEXIS 798, 1996 WL 155287, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dardar-v-prudential-property-casualty-insurance-co-lactapp-1996.