Dyess v. AMERICAN NAT. PROPER. AND CAS. CO.

886 So. 2d 448, 2004 WL 1418158
CourtLouisiana Court of Appeal
DecidedJune 25, 2004
Docket2003 CA 1971
StatusPublished
Cited by21 cases

This text of 886 So. 2d 448 (Dyess v. AMERICAN NAT. PROPER. AND CAS. CO.) 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
Dyess v. AMERICAN NAT. PROPER. AND CAS. CO., 886 So. 2d 448, 2004 WL 1418158 (La. Ct. App. 2004).

Opinion

886 So.2d 448 (2004)

Rhonda Dyess, Wife of/and Cecil D. DYESS
v.
AMERICAN NATIONAL PROPERTY AND CASUALTY COMPANY.

No. 2003 CA 1971.

Court of Appeal of Louisiana, First Circuit.

June 25, 2004.
Writ Denied October 29, 2004.

*449 Clifford E. Cardone, New Orleans, Counsel for Plaintiffs/Appellees Rhonda Dyess, wife of/and Cecil D. Dyess.

Arthur H. Andrews, Baton Rouge, Counsel for Defendant/Appellant American National Property and Casualty Company.

Before: WHIPPLE, KUHN, and McDONALD, JJ.

KUHN, J.

In this appeal, we consider whether an uninsured/underinsured motorist bodily injury ("UM") coverage form, which is in the format prescribed by the Louisiana Commissioner of Insurance pursuant to Louisiana Revised Statutes 22:1406 D(1)(a)(ii) and is signed by the insured, validly rejects UM coverage where the selection rejecting such coverage is not marked with the insured's initials but is marked with *450 only an "X." Our learned brother, trial judge Robert H. Morrison, III, granted the insured's motion for summary judgment, finding the purported rejection to be insufficient to reject UM coverage. We affirm.

I. PROCEDURAL AND FACTUAL BACKGROUND

Plaintiffs, Rhonda and Cecil Dyess, filed suit against their alleged UM insurer, American National Property and Casualty Co. ("ANPAC"), seeking to recover damages for Ms. Dyess' bodily injuries. Ms. Dyess alleged that she sustained serious injuries as the result of a motor vehicle accident that occurred on March 7, 2001.[1] She asserted that while operating her 2000 Plymouth Voyager, she was struck by a vehicle that crossed the centerline of the highway upon which she was traveling. The vehicle in question was operated by Brett Starns, owned by Melvin T. Allday, and insured by State Farm Mutual Automobile Insurance ("State Farm"). State Farm has paid the Dyesses the limits of its liability policy in settlement of their claims against Allday, and the record further establishes that Ms. Dyess' injuries exceeded the amount of the policy limits. ANPAC's answer also concedes that Starns was an underinsured motorist. ANPAC maintained, however, that the Dyesses' claims should be dismissed because Ms. Dyess had rejected UM coverage before the accident by signing a form that indicated she did not want to purchase such coverage.

ANPAC and the Dyesses filed cross-motions for summary judgment on the issue of whether ANPAC's policy provided UM benefits at the time of the accident. By judgment dated April 14, 2003, the trial court signed a judgment in favor of the Dyesses and against ANPAC, granting the Dyesses' motion for summary of judgment and imputing UM coverage to ANPAC's policy of insurance in limits equal to the policy's liability limits. The judgment further decreed that "after an express determination that there is no reason for delay," the judgment was designated final and appealable pursuant to Louisiana Code of Civil Procedure Article 1915(B).[2] ANPAC has appealed, urging *451 the trial court erred, as a matter of law, in finding that the rejection of UM coverage by the use of an "X" rather than the initials of the signer was legally insufficient.

II. ANALYSIS

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of actions, and is favored. La. C.C.P. art. 966 A(2). A motion for summary judgment will be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law." La. C.C.P. art. 966 B. The movant bears the burden of proving that he is entitled to a summary judgment. La. C.C.P. art. 966 C(2). Whether an insurance policy, as a matter of law, provides or precludes coverage is a dispute that can properly be resolved within the framework of a motion for summary judgment. Reno v. Travelers Home and Marine Ins. Co., 2002-2637, p. 3 (La.App. 1st Cir.11/7/03), 867 So.2d 751, 753.

Appellate review of a summary judgment is on a de novo basis. Jones v. Estate of Santiago, XXXX-XXXX, p. 5 (La.4/14/04), 870 So.2d 1002, 1006. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to this case. Cressionnie v. Intrepid, Inc., XXXX-XXXX, p. 3 (La.App. 1st Cir.5/14/04), 879 So.2d 736, 738-39.

When interpreting an insurance contract, the court must attempt to discern the common intent of the insured and insurer. Reno v. Travelers Home and Marine Ins. Co., 2002-2637 at p. 3, 867 So.2d at 753. Analysis should begin with a review of the words in the insurance contract, and the contract must be enforced as written when the words are clear and explicit and lead to no absurd consequences. Id. The validity of a waiver or rejection of a UM coverage form is determined by the law in effect at the time the waiver was executed. Id.

At the time of the accident, Louisiana Revised Statutes 22:1406 D provided as follows in pertinent part:

(1)(a)(i) No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state ... unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability provided by the policy, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover nonpunitive damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness, or disease, including death resulting therefrom; however, the coverage required under this Section 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 Item D(1)(a)(ii) of this Section....
(ii) ... such rejection, selection of lower limits, or selection of economic-only coverage shall be made only on a form prescribed by the commissioner of insurance. The prescribed form shall be provided by the insurer and signed by the named insured or his legal representative.... A properly completed and *452 signed form creates a rebuttable presumption that the insured knowingly rejected coverage, selected a lower limit, or selected economic-only coverage....

(Emphasis added.)[3]

Pursuant to this statutory authority, the Commissioner promulgated a form for the rejection or selection of UM coverage on April 28, 1998, in La. Bulletin LIRC 98-01.

In the present case, Ms. Dyess purchased the applicable ANPAC policy on March 5, 2001. On that date, she met with ANPAC agent, Doug Jones, to discuss insurance coverage for her Plymouth Voyager and to sign the paperwork necessary to bind coverage. One of the documents she signed was the UM coverage form promulgated by the Commissioner, which we include herein:

*453 Based on the evidence presented by the parties, it is unclear whether Ms. Dyess or someone else marked the "X" on the UM form. Ms. Dyess submitted an affidavit, in which she stated that: 1) she signed and dated a blank UM form, 2) she did not put the "X" on the form, and 3) she did not know who placed the "X" on the form. Additionally, in her deposition testimony, Ms.

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886 So. 2d 448, 2004 WL 1418158, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dyess-v-american-nat-proper-and-cas-co-lactapp-2004.