Esteve v. US Agencies Cas. Ins. Co., Inc.

818 So. 2d 998, 2002 WL 960310
CourtLouisiana Court of Appeal
DecidedMay 10, 2002
Docket2001 CA 1009
StatusPublished
Cited by4 cases

This text of 818 So. 2d 998 (Esteve v. US Agencies Cas. Ins. Co., Inc.) 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
Esteve v. US Agencies Cas. Ins. Co., Inc., 818 So. 2d 998, 2002 WL 960310 (La. Ct. App. 2002).

Opinion

818 So.2d 998 (2002)

Gilbert ESTEVE, Husband of/and Miriam Esteve
v.
U.S. AGENCIES CASUALTY INSURANCE COMPANY, INC., Kerry James Thibodaux, State Farm Automobile Insurance Company, and Mike Bednarz.

No. 2001 CA 1009.

Court of Appeal of Louisiana, First Circuit.

May 10, 2002.

*1000 John H. Denenea, Jr., Karl Wiedemann, New Orleans, for Plaintiffs/Appellants Gilbert Esteve and Miriam Esteve.

Mauri A. Agosta, Labadieville, Of Counsel for Plaintiffs/Appellants Gilbert Esteve and Miriam Esteve.

Steven J. Pusateri, Baton Rouge, for Defendants/Appellees U.S. Agencies Casualty Insurance Company, Inc. and Kerry James Thibodaux.

Gregory J. Schwab, Houma, for Defendants/Appellees State Farm Mutual Automobile Insurance Company and Mike Bednarz.

Lloyd T. Bourgeois, Thibodaux, for Defendant-Appellee Mike Bednarz.

Before: FITZSIMMONS, DOWNING and LANIER,[1] JJ.

DOWNING, J.

Gilbert and Miriam Esteve, plaintiffs in a suit arising out of damages caused when an automobile crashed into their house, appeal the granting of a summary judgment in favor of their underinsured/uninsured (UM) motorist's insurance carrier, State Farm, and its agent, Mike Bednarz. The sole issue before this court is whether the trial court erred in concluding that there was no genuine issue of material fact in finding that Gilbert Esteve made a "meaningful selection" in choosing "economic-only" loss UM coverage. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On January 28, 1999, a vehicle driven by Kerry Thibodaux crashed through the Esteves' living room wall and caused damage to Mr. Esteve, who was sitting on the couch. Mr. Esteve eventually underwent surgery to repair his rotator cuff. The Esteves' home and vehicles are insured with State Farm and Mike Bednarz (Bednarz) is State Farm's agent. On August 18, 1998, Mr. Esteve changed the UM policy on his 1992 Dodge Dynasty from traditional UM coverage in the amount of $10,000/$20,000 to a $50,000/$100,000 "economic-only" loss policy; on December 10, 1998, he did the same on his 1989 Ford Ranger pick-up. These changes increased plaintiffs' premiums approximately $94 per year.

On January 27, 2000, the Esteves filed suit alleging tort claims against Thibodaux, his insurer, U.S. Agencies Casualty Insurance Company, Inc.,[2] and the Esteves' UM insurer, State Farm. The petition alleges that the UM rejection form failed to meet the informed rejection standard outlined in Tugwell v. State Farm Insurance Company, 609 So.2d 195 (La.1992). The petition also alleges that State Farm agent, Mike Bednarz, was negligent in failing to properly inform them that selecting "economic-only" loss coverage would essentially cause them to reject UM coverage since Bednarz knew or should have known that they were both retired and maintained adequate coverage for economic loss.[3]

*1001 On September 1, 2000, State Farm filed a motion for summary judgment stating that there were no genuine issues of fact as to Bednarz's negligence and that the UM forms did meet the informed rejection standard as outlined in Tugwell. The matter was heard on March 16, 2001. The trial court granted the motion and dismissed plaintiffs' case against those defendants. From that judgment, plaintiffs appealed.

STANDARD OF REVIEW

Appellate courts review the granting of summary judgment de novo and use the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. Under LSA-C.C.P. art. 966, a motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show there is no genuine issue of material fact and mover is entitled to judgment as a matter of law. Tugwell v. State Farm Insurance Co., 609 So.2d at 197. Summary judgment is favored and is designed to secure the just, speedy, and inexpensive determination of every action. LSA-C.C.P. art. 966 A(2).

The initial burden of proof is on the mover to show that no genuine issue of material facts exists, LSA-C.C.P. art. 966 C(2). However, once the mover has made a prima facie showing that the motion should be granted, if the adverse party bears the burden of proof at trial on the issue before the court, the burden shifts to him to present evidence demonstrating that material factual issues remain. See LSA-C.C.P. art. 966 C(2). Material facts are those that potentially ensure or preclude recovery, affect the litigant's success or determine the outcome of a legal dispute. Because it is the applicable substantive law that determines materiality, whether or not a particular fact in dispute is material can be seen only in the light of the substantive law applicable to the case. Croker v. Reliance National Indemnity Company, 00-0474, p. 4 (La.App. 1 Cir. 5/11/01), 800 So.2d 4, 8.

DISCUSSION

Legal Sufficiency of UM Waiver/Rejection-Selection Form

Plaintiffs allege that the District Court erred in granting defendants' motion for summary judgment as there was a genuine issue of material fact as to whether or not the Esteves intended to select "economic-only" UM coverage. The Esteves specifically allege that the trial court mistakenly ruled that Gilbert Esteve made a "meaningful selection" by selecting "economic-only" loss UM coverage and that this factual issue precludes granting a motion for summary judgment.

In Louisiana, UM coverage is provided for in LSA-R.S. 22:1406. This statute embodies strong public policy and is to be liberally construed such that statutory exceptions to the UM coverage requirements are interpreted strictly. Croker, 00-0474 at p. 4, 800 So.2d at 8.

Louisiana Revised Statute 22:1406 D(1)(a) requires that UM coverage exist in amounts not less than limits of bodily injury liability unless an insured rejects in writing the coverage or selects lower limits. Croker, 00-0474 at p. 5, 800 So.2d at 8. In Tugwell, the Louisiana Supreme Court set forth the requirements for a valid rejection of UM coverage under Louisiana law. The insurer must place the insured in a position to make an informed rejection of UM coverage. The form used by the insurance company must give the insured the opportunity to make a "meaningful selection" from its options *1002 provided by the statute. At the time Tugwell was decided the insured generally had three options regarding UM coverage: (1) UM coverage with limits equal to the policy's bodily injury limits; (2) UM coverage with limits lower than the policy's bodily injury limits; or (3) no UM coverage. Tugwell, 609 So.2d at 197. In order for a rejection or limitation of UM coverage to be valid, the insured or his authorized representative must expressly state in a single document that UM coverage is rejected or limited as of a specific date in a particular policy issued by the insurer. Croker, 00-0474 at p. 5, 800 So.2d at 8. The rejection or limitation must be expressed clearly, unambiguously and unmistakably. Daigle, 96-1662, p. 5 (La.4/8/97), 691 So.2d 1213, 1215. If the rejection is unambiguous, but not in proper form, it is ineffective. Therefore, unless the insured's expression of his desire to reject or select lower limits of UM coverage meets the formal requirements of law, the expression does not constitute a valid rejection. Croker, 00-0474 at p. 6, 800 So.2d at 9.

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Bluebook (online)
818 So. 2d 998, 2002 WL 960310, Counsel Stack Legal Research, https://law.counselstack.com/opinion/esteve-v-us-agencies-cas-ins-co-inc-lactapp-2002.