Dozier v. Okoorkwo

82 So. 3d 516, 2011 WL 6412042
CourtLouisiana Court of Appeal
DecidedDecember 21, 2011
DocketNos. 2011 CA 0939, 2011 CW 0407
StatusPublished

This text of 82 So. 3d 516 (Dozier v. Okoorkwo) 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
Dozier v. Okoorkwo, 82 So. 3d 516, 2011 WL 6412042 (La. Ct. App. 2011).

Opinion

McCLENDON, J.

12This appeal concerns the validity of an uninsured/underinsured motorist (UM) waiver. State Farm Mutual Automobile Insurance Company (State Farm) seeks review of partial summary judgment granted in favor of plaintiff, Kymberli Dozier, and the denial of its cross-motion for summary judgment. The judgment afforded plaintiff UM coverage for the accident at issue. For the following reasons, we conclude that the UM coverage form was “properly completed” under LSA-R.S. 22:1295(1) (a) (ii), and we reverse the trial court’s judgment, grant State Farm’s motion for summary judgment, and dismiss plaintiffs action against State Farm.

FACTS AND PROCEDURAL HISTORY

Kymberli Dozier was involved in an automobile accident with Gabriel Okoorkwo on November 4, 2009. On January 12, 2010, Ms. Dozier filed suit for alleged injuries she sustained in the accident, naming Mr. Okoorkwo, his liability insurer, Progressive Casualty Insurance Company, and her UM insurer, State Farm, as defendants.1 With regard to State Farm, Ms. Dozier alleged that it had issued a policy of UM coverage that insured the vehicle she was operating at the time of the accident.

State Farm answered, alleging that Ms. Dozier had rejected UM coverage under the policy it had issued to her. In October 2010, Ms. Dozier filed a motion for partial summary judgment seeking a declaration that UM coverage was available under the policy because the UM coverage form was “improperly completed” insofar as the number entered on the UM coverage form in the space marked “Policy Number” did not match the number on the application. In November 2010, State Farm filed a cross motion for summary judgment, urging that there was no UM coverage under its policy and seeking a judgment dismissing plaintiffs suit against it.

|aIn support of its motion for summary judgment, State Farm submitted a copy of its policy (# 155 5044-E25-18B), the UM coverage form at issue, and the affidavit of Travis Keiser, an underwriting team manager for State Farm.

On the UM coverage form at issue, Ms. Dozier placed her initials by the following option: “I do not want [Uninsured/Un-derinsured Motorists Bodily Injury] Coverage. I understand that I will not be compensated through [Uninsured/Un-derinsured Motorists Bodily Injury] coverage for losses arising from an accident caused by an uninsured/underinsured motorist.” The UM coverage form was dated May 22, 2006, and signed by Ms. Dozier, and “18-2019-F31” was placed in the blank designated for the “Policy Number.”

In his affidavit, Mr. Keiser attested, in pertinent part:

At the time of Ms. Dozier’s May 22, 2006, application for automobile insurance with State Farm, she did not have any automobile policies with State Farm.
At the time Ms. Dozier initially began her application for insurance, a temporary electronic (“E-application”), number, 18-2019-F31, was assigned to her application. The first two numbers, 18, are the code for the State of Louisiana. The next four numbers, 2019, refer to [518]*518the agent receiving the application, David Hoffman. The last three digits, FBI, refer to the next sequential application submitted by the particular agent ■with numbers running from A01 to Z99. This E-application number appears on the uninsured/underinsured motorist Bodily Injury Coverage Form signed by Ms. Dozier on May 22, 2006, and it was the only number assigned to her application at that time.
On May 24, 2006, Ms. Dozier’s electronic application was received by State Farm. Upon receipt, State Farm’s computer system assigned the number “5” to the “18” prefix, which is a unique digit used to designate a specific division within Louisiana. Thus, on the auto application documentation produced to Ms. Dozier by State Farm in this litigation, the E-application number reads 185-2019-F31, and that is how the application number appeared after it was received by State Farm in Columbia, Missouri. The temporary application number was later replaced with the policy number, 115 5044-E25-18, when the policy issued on June 6, 2006. The policy number could not be placed on the UM/UIM selection Form, because the policy had not been issued, and a policy number did not yet exist or had been assigned. Following a hearing on February 7,

2011, on the cross motions for summary judgment, the trial court found that the UM waiver was ineffective |4because the number written on the waiver “is missing a digit in it.” It then granted Ms. Dozier’s motion for partial summary judgment and denied State Farm’s cross-motion. The trial court, finding “no just reason for delay of an appeal thereof,” designated the grant of Ms. Dozier’s motion for partial summary judgment as a final judgment under LSA-C.C.P. art. 1915.2

State Farm filed a writ application to seek review of the denial of its motion for summary judgment. State Farm also filed an appeal of the trial court’s grant of Ms. Dozier’s motion for partial summary judgment.3 State Farm asserts that the trial court erred in finding that Ms. Dozier’s rejection of UM coverage was invalid.

DISCUSSION

When an appellate court reviews a trial court judgment on a motion for summary judgment, it applies the de novo standard of review, “using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, i.e., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law.” Gray v. American Nat’l Property & Cas. Co., 07-1670, p. 6 (La.2/26/08), 977 So.2d 839, 844; See La. C.C.P. art. 966(B).

Pursuant to LSA-C.C.P. art. 966(C)(2), the burden of proof remains with the mov-ant. However, if the moving party will not bear the burden of proof on the issue at trial and points out that there is an absence of factual support for one or more [519]*519elements essential to the adverse party’s claim, action, or defense, then the non-moving party must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the | opponent of the motion fails to do so, there is no genuine issue of material fact and summary judgment will be granted.

In Louisiana, UM coverage is provided for by statute and embodies a strong public policy. Duncan v. U.S.A.A. Ins. Co., 06-363, p. 4 (La.11/29/06), 950 So.2d 544, 547. UM coverage is determined not only by contractual provisions, but also by applicable statutes. Id. Thus, under the UM statute,4 the requirement of UM coverage is an implied amendment to any automobile liability policy, even when not expressly addressed, as UM coverage will be read into the policy unless validly rejected. Id. Because of the strict construction requirement, an insurer has the burden of proving by clear and unmistakable evidence that a UM selection form is valid. See Gray, 07-1670 at pp. 8-9, 977 So.2d at 845.

In Duncan,

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Bluebook (online)
82 So. 3d 516, 2011 WL 6412042, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dozier-v-okoorkwo-lactapp-2011.