David Briggs Enterprises, Inc. v. Britamco Underwriters, Inc.

588 So. 2d 187, 1991 La. App. LEXIS 2778, 1991 WL 223851
CourtLouisiana Court of Appeal
DecidedOctober 16, 1991
DocketNo. 91-CA-202
StatusPublished
Cited by2 cases

This text of 588 So. 2d 187 (David Briggs Enterprises, Inc. v. Britamco Underwriters, Inc.) 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
David Briggs Enterprises, Inc. v. Britamco Underwriters, Inc., 588 So. 2d 187, 1991 La. App. LEXIS 2778, 1991 WL 223851 (La. Ct. App. 1991).

Opinion

ELORA C. FINK, Judge Pro Tem.

Plaintiffs — David Briggs Enterprises, Inc.; Brash Enterprises, Inc.; Daiquiri’s Acadiana, a Louisiana Partnership in Com-mendam; Tab-Cat, Inc.; DAB Interest, Inc.; and Las Brisas Highland Partnership, a Partnership in Commendam — appeal the dismissal of their suit for the return of unearned premiums following premature cancellation of two insurance policies.1 The defendants are Britamco Underwriters, Inc., Forest Insurance Facilities, Inc., and Christy Luquet, d/b/a Luquet Insurance Agency.

The plaintiffs own and operate numerous liquor beverage outlets in the New Orleans area and also own a partnership interest in a Baton Rouge restaurant. Their common denominator is that David Briggs is a stockholder or partner in all of the companies and also their president. To secure liability protection, Briggs ordered his staff to search for various insurance coverages, including liquor liability. According to the testimony, at the time Briggs sought the insurance such coverage was difficult to find: no standard or admitted insurance carrier in Louisiana provided liquor liability coverage.

Briggs’ Director of Administration, Danny Drago, seeking bids for placement of the policies, contacted Christy Luquet, owner of Luquet Insurance Agency. She had dealt with the Briggs companies for several years as an employee of other insurance agencies and had kept the account with her when she opened her own agency.

Luquet contacted Forest Insurance Facilities, Inc., a broker for excess and surplus line insurers. Excess and surplus line carriers are not admitted carriers in Louisiana; they are permitted to write insurance coverage in this state only when the desired coverage cannot be obtained through an admitted carrier. See LSA-R.S. 22:1251-1270. Forest contacted Britamco Underwriters, Inc., which agreed to bind the policies.

The policies were bound in April 1986. The Briggs companies paid the premiums to Luquet, who deducted her commission and sent the remainder to Forest. Forest deducted its commission and sent a check to Britamco for the premium due.

In August 1986, as a result of a favorable change in the law regarding liquor sellers, Briggs requested that Luquet cancel the liquor liability portions of the policies and return the unearned premium. She sent the request to Forest, which forwarded it to Britamco.

Britamco cancelled the liquor liability policies effective August 16, 1986. It then sent a check for the unearned premiums to Forest, which added back its unearned commission and forwarded a check for the amount to Luquet, who was expected to add her unearned commissions before sending the total refund to the plaintiffs.

Luquet deposited the check and wrote a check for the full refund to Briggs. Lu-quet’s bank account had been frozen, however, due to a criminal investigation for bank fraud. The plaintiffs never received the refund.

[189]*189On July 15, 1987, the Briggs Companies filed suit against Britamco for breach of contract, against Forest and Luquet for breach of fiduciary duty and conversion, and against all of the defendants for violation of the Unfair Trade Practices and Consumer Protection Law, LSA-R.S. 51:1401, et seq. The defendants filed a reconven-tional demand related to the unfair trade practices claim; in addition, Britamco and Forest filed a cross-claim against Luquet and her agency.

The trial was held on October 4, 1989, after which the case was held open for the production of additional evidence related to the amount of the refund due to the plaintiffs. On December 5, 1989, the district court rendered a partial judgment dismissing the unfair trade practices claims against the defendants. On October 6, 1990, the court rendered judgment in favor of the plaintiffs against Luquet and her agency for $30,542.40, but dismissed the plaintiffs’ actions against the other defendants. In addition, the court dismissed the plaintiffs’ rule to show cause regarding satisfaction of a subpoena duces tecum and for permission to submit further evidence on their damages.

The plaintiffs appealed. Britamco and Forest appeared in this court in response to the appeal, but Luquet did not. Accordingly, the judgment is final as to her liability.

On appeal, the plaintiffs raise five specifications of error.

SPECIFICATION OF ERROR NO. 1

First, the plaintiffs contend the trial court erred in failing to find that Britamco, pursuant to its contract of insurance and La.R.S. 22:637, is liable to the plaintiffs for failing to pay the unearned premium directly to them. The plaintiffs assert the insurer is required to pay the unearned premiums directly to the insured under the provisions of the insurance contract and of LSA-R.S. 22:637, so that Britamco’s failure to remit the unearned premiums directly to them was a breach of the contract and a violation of the statute.

In response, Britamco and Forest contend the policy provision at issue either is inapplicable or does not delineate the method by which such refunds are to be made. Further, they assert that R.S. 22:637 applies only to admitted carriers, not to surplus line insurers. Next, they assert the refund was necessarily made in the reverse order the premiums were paid because Forest and Luquet had to add their unearned premiums and state tax, which Britamco was not in a position to do.

In his reasons for judgment, the trial judge stated he found it unnecessary to reach the question of whether this statutory section applies to excess and surplus lines carriers because he found that Bri-tamco and Forest followed the statute by forwarding the premium refund to Luquet. He held,

“The method of reimbursement used here offered the only practical way in which the insured could ultimately receive a full reimbursement. Britamco did not have in its possession all funds owed to the plaintiffs. It forwarded its portion to Forest. Forest added its portion to the premium amount and then forwarded that amount to Luquet. Lu-quet was to add her- unearned commission and then forward a full reimbursement to plaintiffs. This is the same procedure which was followed when the premium was paid.”

Thus, he concluded, the only defendant liable for the loss was Luquet.

The provision of the insurance policy on which the plaintiffs rely is found under Section VII of the policy, “Conditions”:

1. PREMIUM: All premiums for this policy shall be computed in accordance with the company’s rules, rates, rating plans, premiums, and minimum premiums applicable to the insurance afforded herein.
Premium designated in this policy as “advance premium is a deposit premium only which shall be credited to the amount of the earned premium due at the end of the policy period. At the close of each period (or part thereof terminating with the end of the policy period) designated in the declarations as the audit period the earned premium shall be computed for such period and, upon no[190]*190tice thereof to the named insured, shall become due and payable. If the total earned premium for the policy period is less than the premium previously paid, the company shall return to the named insured the unearned portion paid by the named insured, however in no case shall the company retain less than the amount designated as “Minimum Premium” on the declarations of this policy. [Emphasis added.]

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Related

David Briggs Enterprises, Inc. v. Britamco Underwriters, Inc.
590 So. 2d 1190 (Supreme Court of Louisiana, 1992)

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Bluebook (online)
588 So. 2d 187, 1991 La. App. LEXIS 2778, 1991 WL 223851, Counsel Stack Legal Research, https://law.counselstack.com/opinion/david-briggs-enterprises-inc-v-britamco-underwriters-inc-lactapp-1991.