Dempsey v. Automotive Cas. Ins.

680 So. 2d 675, 1996 WL 375019
CourtLouisiana Court of Appeal
DecidedJune 28, 1996
Docket95 CW 2108
StatusPublished
Cited by17 cases

This text of 680 So. 2d 675 (Dempsey v. Automotive Cas. Ins.) 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
Dempsey v. Automotive Cas. Ins., 680 So. 2d 675, 1996 WL 375019 (La. Ct. App. 1996).

Opinion

680 So.2d 675 (1996)

Nancy Waller, Wife of/and Patrick DEMPSEY
v.
AUTOMOTIVE CASUALTY INSURANCE, Allstate Insurance Company, Denise Wagner and Don Hillidge.

No. 95 CW 2108.

Court of Appeal of Louisiana, First Circuit.

June 28, 1996.
Rehearing Denied October 9, 1996.

*676 George H. Troxell, III, New Orleans, for Plaintiffs/Appellants, Nancy Waller Dempsey, wife of/and Patrick Dempsey.

James S. Rees, III, Covington, for Defendant/Appellee, Allstate Insurance Company.

Before CARTER, PITCHER and KLINE[1], JJ.

CARTER, Judge.

This issue presented in this writ application is whether the addition of an insured driver to a policy falls outside the scope of a renewal, reinstatement, or substitute insurance policy, rendering the previous uninsured/underinsured motorist (UM) selection/rejection form invalid and requiring the execution of a new UM selection/rejection form.

FACTS

On November 30, 1988, Patrick and Nancy Waller Dempsey obtained a policy of automobile liability insurance, policy number 0 85 743095, from Allstate Insurance Company (Allstate). The liability limits under the Allstate policy were $50,000/$100,000. On that same day, Nancy executed a selection/rejection form regarding UM coverage. On the selection/rejection form, Nancy selected UM limits of $10,000/$20,000, which were lower than the liability limits provided for in the Allstate policy.

Thereafter, two changes were made to the Allstate policy. Nicole Marino was added as an additional driver on the policy, effective June 27, 1991. As a result of the addition of Nicole Marino, the insurance premium for the six-month policy period was increased. Thereafter, on August 13, 1991, a 1991 Nissan was substituted for a 1986 Nissan. No other changes to the policy were made, nor was a new UM selection/rejection form executed by the Dempseys.

On April 8, 1992, plaintiff, Patrick Dempsey, was operating a 1987 Mazda automobile owned by his wife, Nancy. At the time, Nancy was a passenger in the automobile. The Dempsey vehicle was travelling east on La. Highway 190 in St. Tammany Parish, Louisiana, and was following a vehicle owned and operated by Percy Broyard.

Broyard brought his vehicle to a stop, and Dempsey stopped his vehicle behind the Broyard vehicle. Thereafter, the Dempsey vehicle was struck from the rear by a vehicle owned by Denise Wagner and operated by Don Hillidge. As a result of the collision, Patrick and Nancy Dempsey sustained injuries.

*677 On June 1, 1992, the Dempseys filed the instant action for damages against Don Hillidge and Denise Wagner, the operator and owner, respectively, of the Wagner vehicle; Automotive Casualty Insurance Company (ACIC), the liability insurer of the Wagner vehicle; and Allstate Insurance Company (Allstate), plaintiffs' automobile liability and UM insurer.

On July 2, 1992, ACIC filed an answer on its behalf and on behalf of Hillidge and Wagner. The answer generally denied the allegations contained in plaintiffs' petition. Allstate also answered plaintiffs' petition, generally denying the allegations and alleging that Patrick Dempsey was at fault in causing the accident. In its answer, Allstate asserted a cross-claim against Hillidge, Wagner, and ACIC, seeking indemnity and/or contribution.

During the pendency of the proceedings, ACIC was placed into liquidation. Thereafter, by supplemental and amending petition, plaintiffs added, as a defendant, the Louisiana Insurance Guaranty Association (LIGA).

On March 29, 1995, plaintiffs filed a motion for partial summary judgment on the issue of coverage under the Allstate UM policy, contending that there were no genuine issues of material fact in dispute and that they were entitled to judgment as a matter of law. Plaintiffs urged that the addition of Nicole Marino as an insured under the Allstate policy was a change in the policy, which required the execution of a new UM selection/rejection form. Plaintiffs reasoned that, because the Dempseys had not executed a new UM selection/rejection form after the addition of Nicole Marino to the policy, the UM limits under the Allstate policy were equal to the bodily injury liability limits of $50,000/$100,000.

In opposition to plaintiffs' motion for summary judgment, Allstate argued that the addition of an additional insured does not require the execution of a new UM selection/rejection form and that the initial selection/rejection of UM coverage was valid. As a result, Allstate reasoned that the UM limits under its policy were $10,000/$20,000.

On September 11, 1995, a hearing was held on the motion for summary judgment. On September 14, 1995, the trial court signed the judgment, denying plaintiffs' motion for partial summary judgment.[2] The judgment provided as follows:

IT IS ORDERED, ADJUDGED AND DECREED that the plaintiffs' motion for partial summary judgment on the issue of coverage against Allstate Insurance Company be and the same is hereby denied and that Allstate's policy will not be reformed to increase its uninsured motorist coverage from $10,000.00 to $50,000.00 but said policy will remain in effect with a limit of $10,000.00 per person and $20,000.00 per occurrence for uninsured motorist coverage.

From this adverse judgment, plaintiffs filed an application for supervisory writs with this court and a motion and order for devolutive appeal. By judgment, dated March 7, 1996, this court, under docket number 96 CA 0105, dismissed plaintiffs' appeal on the grounds that the judgment, denying a motion for summary judgment, is a non-appealable, interlocutory judgment.

The issue before us in this supervisory writ is whether the trial court properly denied plaintiffs' motion for summary judgment in determining that the addition of an insured driver to a policy fell within the scope of a renewal or substitute insurance policy such that the initial UM selection/rejection form was valid.

SUMMARY JUDGMENT

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine factual dispute. Kidd v. Logan M. Killen, Inc., 93-1322 p. 4 (La.App. 1st Cir. 5/20/94); 640 So.2d 616, 618; Jarrell v. Carter, 632 So.2d 321, 323 (La.App. 1st Cir.1993), writ denied, 94-0700 (La. 4/29/94); 637 So.2d 467; Ouachita National Bank in Monroe v. Gulf States Land & Development, Inc., 579 So.2d *678 1115, 1120 (La.App. 2nd Cir.), writ denied, 587 So.2d 695 (La.1991). The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966;[3]Potter v. First Federal Savings and Loan Association of Scotlandville, 615 So.2d 318, 325 (La.1993); Kidd v. Logan M. Killen, Inc., 640 So.2d at 618-19.

A fact is material if its existence is essential to the plaintiff's cause of action under the applicable theory of recovery and without which the plaintiff could not prevail. Material facts are those that potentially insure or preclude recovery, affect the litigant's ultimate success, or determine the outcome of a legal dispute. Penalber v. Blount, 550 So.2d 577, 583 (La.1989); Kidd v. Logan M. Killen, Inc., 640 So.2d at 619; Miramon v. Woods, 25,850 p. 10 (La.App. 2nd Cir. 6/22/94); 639 So.2d 353, 359; Jarrell v. Carter, 632 So.2d at 323.

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Bluebook (online)
680 So. 2d 675, 1996 WL 375019, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dempsey-v-automotive-cas-ins-lactapp-1996.