Dupree v. Hill

530 So. 2d 1226, 1988 La. App. LEXIS 1395, 1988 WL 58221
CourtLouisiana Court of Appeal
DecidedJune 1, 1988
DocketNo. 19714-CW
StatusPublished
Cited by4 cases

This text of 530 So. 2d 1226 (Dupree v. Hill) 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
Dupree v. Hill, 530 So. 2d 1226, 1988 La. App. LEXIS 1395, 1988 WL 58221 (La. Ct. App. 1988).

Opinion

LINDSAY, Judge.

We granted this writ to test the correctness of the trial court’s action in denying a motion for summary judgment. Defendant Chicago Insurance Company (hereinafter “Chicago”) filed the motion seeking summary judgment on its reconventional demand for a declaratory judgment. Because we conclude that there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law, we make the writ peremptory, grant the motion, and remand the case for further proceedings.

BACKGROUND FACTS

The plaintiff, D.I. Dupree, was injured on December 15, 1984, when his leg was pinned between the bumper of a car operated by the defendant, Lucille Hill, and the bumper of a stationary trailer owned by Morgan Express, Inc. (hereinafter “Morgan”), which contained parcels for Morgan. The accident occurred in Coushatta, Louisiana, on the premises of the plaintiff’s business, Dupree Tractor Company, Inc. Mrs. Hill had dropped off a package, which the plaintiff was placing in Morgan’s trailer at the time of the accident.

The plaintiff filed suit against Mrs. Hill, Morgan, and Liberty Mutual Insurance Company, which he erroneously believed to be Morgan’s insurer. The plaintiff initially sought damages of $1,475,000; by supplemental petition he increased the sum to $1,875,000. Inasmuch as Mrs. Hill’s insurance coverage was only $10,000, the plaintiff also sued his own uninsured/underin-sured motorist (UM) insurers, South State Insurance Company (now known as First Horizon Insurance Company and hereinafter referred to as “First Horizon”), and Chicago. The plaintiff subsequently settled with Mrs. Hill’s liability insurer, State Farm Insurance Company, for the full policy limits of $10,000. The plaintiff dismissed Mrs. Hill and Liberty Mutual from the suit.

The insurance policies involved this case are the liability and UM policy issued by [1228]*1228First Horizon and the commercial umbrella policy issued by Chicago. The First Horizon policy is a group policy issued to the La-Miss Equipment Dealers to cover the period from August 11, 1982 to August 11, 1985. Plaintiff is a member of the insured group. The First Horizon policy provided automobile liability insurance of $500,000. Consequently, the initial UM coverage under this policy was also $500,000. See LSA-R.S. 22:1406(D)(l)(a). However, a representative of the group executed an endorsement on April 5, 1983, which lowered the UM coverage to $25,000, effective August 11, 1982. Mr. Dupree, d/b/a Du-pree Tractor Company, Inc., was added as a named insured by a later endorsement with an effective date of September 12, 1983.

The Chicago umbrella policy was issued to D.I. Dupree, d/b/a Dupree Tractor Company, Inc., for a period extending from August 11, 1984 to August 11, 1985. The comprehensive automobile liability portion of the policy provided for current and aggregate limits in the amount of $1,000,-000 after exhaustion of the limits of its underlying insurance. In the Schedule of Underlying Insurance in the Chicago policy, the First Horizon policy is listed as the plaintiffs underlying insurance with a combined single limit of $500,000. The last page of the Chicago policy is a UM option form signed in blank by the plaintiff. Although the form contains three options from which to select, none of these was designated by the plaintiff.

On October 24, 1986, Chicago filed a re-conventional demand against the plaintiff seeking a declaratory judgment that its umbrella policy provides coverage for any judgment only to the extent that the judgment exceeds $500,000, and then only up to the policy’s $1,000,000 occurrence limit. Chicago contends that its coverage begins only when plaintiff’s damages exceed the limits of the underlying First Horizon auto liability policy, as those underlying limits are set forth in the Schedule of Underlying Insurance.

The plaintiff opposed the motion for summary judgment claiming that the liability limit of its underlying policy from First Horizon was $500,000, and the UM coverage limit was $25,000. The plaintiff contended that Chicago's policy was to pick up where the underlying policy left off, (i.e., $25,000). He argued that the UM option form he signed in connection with the Chicago policy was ambiguous, and, consequently, it should be construed against Chicago. The plaintiff stated in his affidavit, which was submitted in opposition to the motion for summary judgment, that he intended to have the umbrella coverage pick up where primary coverage left off.

On February 12, 1987, the trial court signed a judgment dismissing Chicago’s motion for summary judgment. It found that the UM coverage existed and that the UM coverage under Chicago’s policy was triggered at the exhaustion of the $25,000 UM limits of the First Horizon policy. The trial court accepted the plaintiffs argument that the limits of the UM coverage of the umbrella policy were lowered due to the failure of the policy to specifically list the amount of the underlying UM limits. Chicago filed a motion for reconsideration of the decision on the motion for summary judgment. The trial court again denied the motion for summary judgment on March 18, 1987.

Chicago took writs to this court. The writ was granted. We directed the trial court to reconsider its ruling in light of the Louisiana Supreme Court’s decision in Washam v. Chancellor, 507 So.2d 806 (La.1987). On remand, the trial court again dismissed Chicago’s motion by a judgment signed on October 22, 1987. In its written reasons, the trial court distinguished the facts of the present case from those in Washam, supra, on the grounds that Mr. Dupree did not voluntarily reduce the underlying UM limits and that the reduction was made before the umbrella policy was issued.

On January 21, 1988, this court again granted Chicago’s writ application. Chicago maintains that the Supreme Court’s decision in Washam dictates that its motion for summary judgment be granted and that the trial court’s ruling to the contrary was [1229]*1229error. According to Chicago, the relevant provisions of the policies in the Washam case and the present case are virtually identical.

LAW

The only issue before this court is whether the UM coverage under Chicago’s policy is available to the plaintiff before the uninsured motorist’s liability reaches $500,000. The identical issue was presented to the Supreme Court in Washam, supra.

In the Washam case, a truck driver was injured in a collision between two dump trucks and, consequently, sued his employer’s underlying automobile liability insurer, USF & G. The limit of the USF & G automobile liability policy was $500,000, but the employer had elected, by written waiver, to carry only $10,000 in UM coverage. Twin City Fire Insurance Company had issued an umbrella policy which also provided coverage for the plaintiff’s employer with limits of $5,000,000, with an underlying coverage threshold of $500,000 as listed in the Schedule of Underlying Insurance. After settling with USF & G for its $10,000 UM limit, Washam sued Twin City under the employer’s umbrella policy. In the umbrella policy’s Schedule of Underlying Insurance,* the underlying policy was listed as “$500,000 combined single limit for bodily injury and/or property damage.”

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Mosley v. Dairyland Ins. Co.
614 So. 2d 792 (Louisiana Court of Appeal, 1993)
Lindsey v. Poole
579 So. 2d 1145 (Louisiana Court of Appeal, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
530 So. 2d 1226, 1988 La. App. LEXIS 1395, 1988 WL 58221, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dupree-v-hill-lactapp-1988.