Dunham-Price, Inc. v. Mouton

558 So. 2d 330, 1990 La. App. LEXIS 530, 1990 WL 27740
CourtLouisiana Court of Appeal
DecidedMarch 14, 1990
DocketNo. 88-1201
StatusPublished
Cited by1 cases

This text of 558 So. 2d 330 (Dunham-Price, Inc. v. Mouton) 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
Dunham-Price, Inc. v. Mouton, 558 So. 2d 330, 1990 La. App. LEXIS 530, 1990 WL 27740 (La. Ct. App. 1990).

Opinion

DOUCET, Judge.

This litigation arises out of the cancellation of an automobile liability policy pursuant to La.R.S. 9:3550 and involves a determination of the rights and the liabilities of the parties as a consequence of the cancellation.

On July 14, 1986, Edgar Mouton, Jr. applied for automobile liability insurance through Underwriters, Inc. The policy was provided by Louisiana Indemnity Company. The policy provided coverage to a 1985 Chrysler Fifth Avenue and was to be effective for a six month period through January 14, 1987. The automobile was subject to a chattel mortgage in favor of Olin Employers Credit Union (Olin). Mouton financed the premium through Surety Finance Services (SFS). The finance agreement contained the standard power of attorney allowing SFS to cancel the policy in the event of non-payment of premiums. The premium finance agreement form did not reflect that Olin was a loss payee as SFS was apparently not aware of this fact.

On November 19, 1986, SFS sent Mouton a ten day notice .of termination for non-payment of his premium installments. On November 29, 1986, the ten day notice mailed to Mouton became effective. On December 8, 1986, SFS mailed a memorandum to Louisiana Indemnity requesting cancellation of the Mouton policy effective November 29, 1986. The memorandum stated that all parties with interest in the insurance policy had been notified pursuant to La.R.S. 9:3550. However, as previously stated, notice was not mailed by SFS to Olin because its name had been erroneously omitted on the premium finance agreement. Louisiana Indemnity mailed a separate ten day cancellation notice to Olin on December 10, 1986, with cancellation to be effective on December 20, 1986.

On December 13, 1986, the vehicle listed on Louisiana Indemnity’s policy was involved in an accident when the named insured’s son, Lauren Mouton, crossed the center line and struck a cement truck owned by plaintiff-appellant, Dunham-Price, Inc. (Dunham). Because the accident occurred prior to Olin’s effective cancellation date, Louisiana Indemnity paid them as a lien holder for its interest in the vehicle.

Subsequently, Dunham made a claim against Louisiana Indemnity for damage to its truck, which was denied on the basis that the policy was cancelled as to the insured effective November 29,1986. Dun-ham filed this suit asserting its claim, to which Louisiana Indemnity filed the instant motion for summary judgment. The district court granted the motion and dismissed Dunham’s petition with prejudice. It is from this judgment that Dunham has appealed. We affirm.

The sole issue on appeal is whether a financed automobile liability policy can be regarded as terminated on two different dates, based respectively on notice to the insured (Mouton) and notice to the mortgage lien holder (Olin), and if so, which date governs the rights of a damaged third party (Dunham).

La.R.S. 9:3550(G), enacted in 1980, is the statutory means and authority allowing insurance premium finance companies to cancel insurance policies for non-payment of premiums pursuant to the power of attorney contained in the finance agreement. That statute, in pertinent part, provides:

“(2) Upon default of insurance premium contract by the debtor, the premium finance company may mail a notice of cancellation to the insured, at his last known address as shown on the records of the insurance premium finance company. A copy of the notice of cancellation of the insurance contract shall also be mailed to the insurance agent negotiating the re[332]*332lated insurance contract whose name and place of business appears on the premium finance agreement. Such notice of cancellation shall show the name of any governmental agency, mortgagee or third party also requiring notice of cancellation as shown on the insurance premium finance contract.
(3) Ten days after notice of cancellation has been mailed to the insured, if the default has not been cured, the insurance premium finance company may thereafter effect cancellation of such insurance contract or contracts by mailing to the insurer a copy of the notice of cancellation together with a statement certifying that:
(a) The premium finance agreement contains a valid power of attorney as provided in paragraph (1) above;
(b) The premium finance agreement is in default and the default has not been timely cured;
(c) Upon default, a notice of cancellation was mailed to the insured as provided in paragraph (2) above, specifying the date of mailing by the premium finance company to the insured; and
(d) Copies of the notice of cancellation were mailed to all persons shown by the premium finance agreement to have an interest in any loss which may occur thereunder, specifying the names and addresses of any governmental agencies, mortgagees or third parties to whom the insurance premium finance company has sent notice of cancellation.
Upon receipt of such notice of cancellation and statement from the premium finance company, the insurer shall be entitled to consider that cancellation of the insurance contract or contracts has been requested by the insured but without requiring the return of the insurance contract or contracts and the insurer may proceed to cancel such contract or contracts as provided in R.S. 22:637. The effective date of cancellation shall be as of 12:01 A.M. on the tenth day after the date of mailing of the notice of cancellation as shown in said statement furnished to the insurer by the premium finance company.” (Emphasis added.)

Thus, pursuant to the above provisions, a premium finance company may exercise a power of attorney to cancel an insurance policy only after it has mailed notice of cancellation to the insured, the insurance agent through whom the policy was written and any other person shown on the premium finance agreement to have an interest in any loss which may occur thereunder. Ten days after notice of cancellation has been mailed to the insured, if the default has not been cured, the finance company may effect cancellation by forwarding to the insurer a copy of the notice of cancellation and a statement certifying that it is authorized under a valid power of attorney, that the insured is in default and that notice has been given to all persons entitled thereto.

La.R.S. 9:3550(G) further provides that the insurer, upon receipt of a copy of the notice and statement may proceed to cancel the insurance on the tenth day after the date of mailing of the cancellation notice as shown in the finance company’s statement.

Applying the foregoing provisions to the instant case, once the insured (Mouton), the insurer (Louisiana Indemnity), and all listed on the premium finance agreement were notified by the premium finance company (SFS), the effective date of cancellation was on the tenth day after the date of mailing of the notice of cancellation. As previously stated, Olin was not notified by SFS since its name was not listed on the premium finance agreement. SFS sent notice of cancellation to Mouton on November 19, 1986. Thus, pursuant to the foregoing provisions, the effective cancellation date as to the insured was on November 29, 1986.

While La.R.S. 9:3550(G)(3) clearly sets out the effective date of cancellation when the premium finance company makes notification to the required parties, La.R.S. 9:3550(G)(4) sets out yet another effective date of cancellation. That provision provides:

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673 So. 2d 220 (Louisiana Court of Appeal, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
558 So. 2d 330, 1990 La. App. LEXIS 530, 1990 WL 27740, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dunham-price-inc-v-mouton-lactapp-1990.