Dunlap v. Hartford Ins. Co. of Midwest

907 So. 2d 122, 2005 WL 676395
CourtLouisiana Court of Appeal
DecidedMarch 24, 2005
Docket2004 CA 0725
StatusPublished
Cited by12 cases

This text of 907 So. 2d 122 (Dunlap v. Hartford Ins. Co. of Midwest) 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
Dunlap v. Hartford Ins. Co. of Midwest, 907 So. 2d 122, 2005 WL 676395 (La. Ct. App. 2005).

Opinion

907 So.2d 122 (2005)

Austin Dwayne DUNLAP
v.
HARTFORD INSURANCE COMPANY OF THE MIDWEST and Zurich American Insurance Company.

No. 2004 CA 0725.

Court of Appeal of Louisiana, First Circuit.

March 24, 2005.

T. Carey Wicker, III, Capitelli & Wicker, New Orleans, for Plaintiff-Appellee Austin Dwayne Dunlap.

Todd L. Lacoste, John J. Erny, III, Metairie, for Defendant-Appellee Hartford Ins. Co. of the Midwest.

Donna Bramlett Wood, Kyle P. Kirsch, Lynda A. Tafaro, McCranie, Sistrunk, Anzelmo, Hardy, Maxwell & McDaniel, Metairie, for Defendant-Appellant Zurich American Ins. Co.

Before: PARRO, KUHN, and WELCH, JJ.

PARRO, J.

Zurich American Insurance Company (Zurich) appeals a judgment denying its request for a declaratory judgment, granting a motion for partial summary judgment in favor of Austin Dwayne Dunlap, and holding that Louisiana law, rather than Michigan law, applies to the business automobile insurance policy at issue, which therefore must provide uninsured/underinsured motorist coverage equal to the liability limits of the policy. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Austin Dwayne Dunlap, a Louisiana resident, was injured in an automobile accident *123 when he was run off a road in St. Tammany Parish, Louisiana, by an unidentified "phantom" vehicle while in the course and scope of his employment with Angelo Iafrate Construction, L.L.C. (Iafrate).[1] Iafrate is domiciled in Michigan, and there acquired a business automobile liability and uninsured/underinsured motorist (UM) policy with Zurich; the policy was issued and delivered in Michigan.[2] Iafrate is a construction company with contracts for highway and other major construction projects in thirty-eight states, including Louisiana. Its nationwide fleet of vehicles was covered on the Zurich policy, which had liability limits of $1 million, but UM limits of only $40,000. The policy's provisions comported with Michigan law; however, the UM waiver/rejection form required by Louisiana law had not been executed to select UM limits lower than the liability limits. The vehicle being driven by Dunlap was owned by Iafrate, had liability coverage under the Zurich policy, and was registered, garaged, and licensed in Louisiana. As an Iafrate employee who was driving the vehicle with Iafrate's permission in the course and scope of his employment, Dunlap was an insured under the Zurich policy.

Dunlap filed suit against Zurich for UM coverage and against his own UM insurer, Hartford Insurance Company of the Midwest (Hartford),[3] which, under Louisiana law, would be required to pay only if Zurich's limits were first exhausted.[4] Zurich filed a petition for declaratory judgment, claiming Michigan law should be applied to interpret the policy provisions regarding UM coverage and limits. Dunlap then filed a motion for partial summary judgment, claiming Louisiana law should be applied and that, since no valid selection of lower UM limits had been made under Louisiana law, UM coverage had to be provided in an amount equal to the liability limits of the Zurich policy.[5] After a hearing, the court denied Zurich's request for declaratory judgment and granted Dunlap's motion for partial summary judgment, ruling that Louisiana law applied and the Zurich policy had to provide UM coverage equal to the $1 million liability limits. The judgment was designated as final for purposes of appeal. The only issue on appeal is whether Michigan law or Louisiana law should apply to the UM provisions and limits of the Zurich policy under the factual circumstances of this case.

ANALYSIS

In all automobile liability insurance policies delivered in this state covering vehicles registered in this state, Louisiana law requires UM coverage in the same amount as the bodily injury liability coverage, unless the insured or his authorized representative expressly rejects the coverage or selects lower limits on a specific *124 form designated for that purpose. See LSA-R.S. 22:1406(D). Louisiana Revised Statute 22:1406(D)(1) clearly states that its provisions concerning UM insurance are applicable to auto liability policies "delivered or issued for delivery in this state. . . ." Therefore, although Louisiana's UM law can be applied to foreign insurance policies in multistate cases when the accident occurs in Louisiana and involves a Louisiana resident, the provisions of LSA-R.S. 22:1406(D) do not apply automatically; rather, the court must conduct a choice-of-law analysis to determine which state's law should be applied. Champagne v. Ward, 03-3211 (La.1/19/05), 893 So.2d 773, 777; Dreisel v. Metropolitan Prop. & Cas. Ins. Co., 01-2705 (La.App. 1st Cir.12/20/02), 836 So.2d 347, 350, writ denied, 03-0199 (La.3/28/03), 840 So.2d 575; Zuviceh v. Nationwide Ins. Co., 00-0773 (La.App. 1st Cir.5/11/01), 786 So.2d 340, 345, writ denied, 01-2141 (La.11/9/01), 801 So.2d 373.

In conducting that analysis, the provisions of Louisiana Civil Code articles 3515 and 3537 are used, both of which confirm in introductory paragraphs that the objective of the choice-of-law process is to identify the state whose policies would be most seriously impaired if its law were not applied to the particular issue involved in the lawsuit. According to the general provisions of LSA-C.C. art. 3515:

That state is determined by evaluating the strength and pertinence of the relevant policies of all involved states in the light of: (1) the relationship of each state to the parties and the dispute; and (2) the policies and needs of the interstate and international systems, including the policies of upholding the justified expectations of parties and of minimizing the adverse consequences that might follow from subjecting a party to the law of more than one state.

Additionally, LSA-C.C. art. 3537 provides that for conventional obligations:

That state is determined by evaluating the strength and pertinence of the relevant policies of the involved states in the light of: (1) the pertinent contacts of each state to the parties and the transaction, including the place of negotiation, formation, and performance of the contract, the location of the object of the contract, and the place of domicile, habitual residence, or business of the parties; (2) the nature, type, and purpose of the contract; and (3) the policies referred to in Article 3515, as well as the policies of facilitating the orderly planning of transactions, of promoting multistate commercial intercourse, and of protecting one party from undue imposition by the other.

Zurich contends the focus of the court's analysis should be on the parties to the contract, Zurich and Iafrate, rather than the parties to the lawsuit or occurrence, which would include Dunlap. We disagree with this contention, noting first that Article 3515 instructs the court to examine the relationship of each state to the parties and the dispute, and Article 3537 invites analysis of the nature, type, and purpose of the contract, as well as the policies referred to in Article 3515. In this case, we are examining an automobile liability insurance contract, the purpose of which is the protection of one of the contracting parties, Iafrate, from economic loss as a result of automobile accidents involving its vehicles. But another purpose of the contract is to protect all insureds under the policy from those losses, including Iafrate's employees while using Iafrate's vehicles with Iafrate's permission.

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Cite This Page — Counsel Stack

Bluebook (online)
907 So. 2d 122, 2005 WL 676395, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dunlap-v-hartford-ins-co-of-midwest-lactapp-2005.