Draayer v. Allen

195 So. 3d 78, 2015 La.App. 1 Cir. 1150, 2016 WL 1545125, 2016 La. App. LEXIS 727
CourtLouisiana Court of Appeal
DecidedApril 15, 2016
DocketNo. 2015 CA 1150
StatusPublished
Cited by2 cases

This text of 195 So. 3d 78 (Draayer v. Allen) 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
Draayer v. Allen, 195 So. 3d 78, 2015 La.App. 1 Cir. 1150, 2016 WL 1545125, 2016 La. App. LEXIS 727 (La. Ct. App. 2016).

Opinions

WELCH, J.

laThis matter is before us again on appeal from a summary judgment granted in favor 'of the defendant, State Farm Fire and Casualty Company (“State Farm”), which dismissed the plaintiffs’" uninsured/underinsured motorist (“UM”) claims against State Farm. For reasons that follow, we reverse the judgment bf the trial court and remand for further proceedings.

FACTUAL AND PROCEDURAL HISTORY

This suit arises out of a fatal automobile accident, and the underlying facts were set forth in our earlier opinion in this matter, Draayer v. Allen, 2013-0051 (La.App. 1st Cir.4/9/14), 2014 WL 1396649 (unpublished ) (“Draayer (I) ”) as follows:

On November 19, 20Ó9, an automobile accident occurred involving a 2007 Dodge Caravan owned by Jerry Draayer and driven by his wife, Lois V. Draayer, and ,a 2006 Yukon Denali owned by Melvin D. Allen and driven- by Russell G. [80]*80Allen. The accident occurred when the Allen vehicle, which was traveling northbound on Interstate 55 in Pike County, Mississippi, crossed the median and collided head-on with the Draayer vehicle, which was traveling southbound on the interstate. As a result of the injuries sustained in this accident, Lois Draayer died.
The plaintiffs are Jerry Draayer, the surviving spouse of Lois Draayer, and Leah D. McDowell, Sarah D. Milligan, and Martha D. Duncan, the surviving children of Lois Draayer. On November 17, 2010, the plaintiffs filed a petition for damages, naming as defendants: Russell Allen; Progressive Insurance Company, Russell Allen’s automobile liability insurer; and State Farm, which allegedly provided UM coverage to Lois Draayer through their personal liability umbrella policy (“PLUP”).
On April 11, 2011, State Farm filed a motion for summary judgment, contending that it was entitled to be dismissed from the plaintiffs’ lawsuit, because Lois Draayer had rejected UM coverage under the PLUP. After a hearing, the trial court granted the motion and dismissed the plaintiffs’ claims against State Farm.

On appeal, this court reversed the judgment of the trial court because there were genuine issues of material fact as to whether there was a lawful and valid rejection of UM coverage and whether Louis Draayer knowingly made an informed, meaningful rejection of UM coverage. Draayer (I), 2013-0051 at p. 10. lain reaching this conclusion, this court determined that State Farm had met its initial burden of proving that the UM selection form for the PLUP, which was signed by Lois Draayer on March 23, 2009, was properly completed and signed in accordance with the requirements of Duncan v. U.S.A.A. Insurance Company, 2006-363 (La.11/29/06), 950 So.2d 544, 547,1 thereby creating a rebuttable presumption that Lois Draayer knowingly rejected UM coverage. Draayer (I), 2013-0051 at p. 8. However, this court further determined that the plaintiffs offered evidence sufficient to establish that they could rebut the presumption that Lois Draayer knowingly rejected UM coverage when she signed the March 23, 2009 UM selection form and initialed her selection. Id. Specifically, the evidence offered by the plaintiffs established that State Farm breached its affirmative duty to place the insured in a position to make an informed decision regarding UM coverage by requiring Lois Draayer to sign the March 23, 2009 UM selection form as a condition of maintaining coverage under the PLUP, thereby depriving her of her statutory right to have UM coverage equal to the bodily injury limits in her insurance policy. Draayer (I), 2013-0051 at pp. 8-9. Accordingly, this court determined that summary judgment was inappropriate and remanded the matter for further proceedings. Draayer (I), 2013-0051 at pp. 10.

[81]*81Following this court’s decision in Draayer (I) that there were unresolved issues of material fact with respect to the validity of the March 23, 2009 UM selection form rejecting UM coverage, on remand, State Farm filed another motion |4for summary judgment, arguing that it was entitled to be dismissed from the plaintiffs’ lawsuit on the basis of an earlier UM selection form rejecting UM coverage, which was signed by Lois Draayer and dated June 8, 2004. The plaintiffs opposed the motion for summary judgment, and after a hearing on February 9, 2015, the trial court granted the motion for summary judgment, and dismissed the plaintiffs’ claims against State Farm. A judgment in conformity with the trial court’s ruling was signed on February 20, 2015, and it is from this judgment that the plaintiffs have appealed.2

LAW AND DISCUSSION

Summary Judgment

A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, and admissions, together with any affidavits admitted for purposes of the motion for summary judgment, show there is no genuine issue of material fact and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B)(2).3 On a motion for summary judgment, if the issue before the court is one on which the party bringing the motion will bear the burden of proof at trial, the burden of showing that there is no genuine issue of Material fact is on the party bringing the motion. La. C.C.P. art. 966(C)(2); Buck’s Run Enterprises Inc. v. MAPP Construction, Inc., 99-3054 (La.App. 1st Cir.2/16/01), 808 So.2d 428, 431. On appeal, in determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that governs the trial court’s determination of whether summary judgment |fiis appropriate. Green v. State Farm Mutual Automobile Insurance Company, 2007-0094 (La.App. 1st Cir.11/2/07), 978 So.2d 912, 914, writ denied, 2008-0074 (La.3/7/08), 977 So.2d 917.

An insurer seeking- to avoid coverage through summary judgment bears the burden of proving that some provision or exclusion applies to preclude- coverage. Halphen v. Borja, 2006-1465 (La.App. 1st Cir.5/4/07), 961 So.2d 1201, 1204, writ denied, 2007-1198 (La.9/21/07), 964 So.2d 338. The issue of whether an insurance policy, as a matter of law, provides or precludes coverage is a dispute that can be resolved properly within the framework of a motion for summary judgment. Green, 978 So.2d at-914. Summary judgment declaring a lack of coverage under an insurance policy.may not be rendered unless-there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion, under which coverage could be afforded. Id.

[82]*82 Rejection of UM Coverage

Louisiana Revised Statutes 22:1295(l)(a)(i), provides that no policy of automobile liability insurance “shall be delivered or issued for delivery in this state” without UM coverage; however, UM coverage “is not applicable when any insured named in the policy either rejects coverage, selects lower limits, or selects economic-only coverage in the manner provided in [La. R.S. 22:1295(1)(a)(ii) ].” Louisiana Revised Statutes 22:1295(1)(a)(ii) provides that the “rejection, selection of lower limits, or selection of economic-only [UM] coverage shall be made only on a form prescribed by the commissioner of insurance” and that “[a] properly completed and signed form creates a rebuttable presumption that the insured knowingly rejected [UM] coverage.” In addition, La.

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195 So. 3d 78, 2015 La.App. 1 Cir. 1150, 2016 WL 1545125, 2016 La. App. LEXIS 727, Counsel Stack Legal Research, https://law.counselstack.com/opinion/draayer-v-allen-lactapp-2016.