Faucheaux v. Boston Old Colony Ins. Co.

633 So. 2d 959, 1994 WL 80207
CourtLouisiana Court of Appeal
DecidedMarch 16, 1994
Docket93-CA-384
StatusPublished
Cited by8 cases

This text of 633 So. 2d 959 (Faucheaux v. Boston Old Colony Ins. 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
Faucheaux v. Boston Old Colony Ins. Co., 633 So. 2d 959, 1994 WL 80207 (La. Ct. App. 1994).

Opinion

633 So.2d 959 (1994)

Katherine Louque, Wife of/and Charles J. FAUCHEAUX
v.
BOSTON OLD COLONY INSURANCE COMPANY, Champion Insurance Company and Gizel Marie Gray.

No. 93-CA-384.

Court of Appeal of Louisiana, Fifth Circuit.

March 16, 1994.
Rehearing Denied April 18, 1994.

*961 Steven F. Griffith, Destrehan, for plaintiffs-appellants.

Edward A. Rodrigue, Terry B. Deffes, New Orleans, for defendants-appellees.

Before KLIEBERT, C.J., and BOWES, DUFRESNE, GOTHARD and CANNELLA, JJ.

GOTHARD, Judge.

This is an appeal of a trial court decision, granting summary judgment in favor of a defendant-insurer and dismissing them from the lawsuit. The issue on appeal is whether uninsured/underinsured motorist (UM) coverage was validly rejected on a policy mistakenly issued for $350,000 and later amended by endorsement to reflect the required $500,000, when the accident from which the UM coverage relief is sought occurred subsequent to the endorsement.

FACTS

In June of 1986, the St. Charles Parish Sheriff's office sought competitive bids from insurance agencies for liability coverage of their vehicles. The sheriff's office was required by law to carry a minimum $500,000 liability policy. The Rodrigue Agency submitted a quote for a policy issued through the Louisiana Automobile Insurance Plan (LAIP), the state's assigned risk pool. The sheriff's office found the quote acceptable, and on June 27, 1986, Chief Hebert LeRay[1] applied for a $500,000 liability policy through the Rodrigue Agency. Chief LeRay also executed a written rejection of UM coverage on the policy application.

The application was forwarded to the LAIP, where it was assigned to Commercial Union Insurance Company. At that time, the maximum liability coverage under the LAIP for commercial coverage was $350,000. In order to write a policy with higher limits, Commercial Union needed documentation that the applicant was required by law to carry higher coverage. Although the sheriff's office application was for the required $500,000, Commercial Union, without requesting the necessary documentation or informing the sheriff's office of the discrepancy, instead wrote the policy for $350,000. The policy was effective July 1, 1986 through July 1, 1987.

Upon receiving a copy of the policy, the sheriff's office notified the Rodrigue Agency, which in turn notified Commercial Union, that the policy was inadequate and written in error. After receiving the requisite documentation, in March of 1987, Commercial Union issued an endorsement, effective March 1, 1987, amending the limits to $500,000. Commercial Union also billed the sheriff's office for the difference of the four month (March-June) increase in the policy limits. The $500,000 policy was renewed for another one year period on July 1, 1987.

On December 2, 1987, plaintiff, Charles J. Faucheux and his minor son, Chad, while traveling along La. 48 in a vehicle owned by the St. Charles Parish Sheriff's office, were involved in an accident with Gezel Marie Gray. Plaintiff timely filed suit in the 29th Judicial District Court for the Parish of St. Charles against Ms. Gray, her liability insurer, Champion Insurance Company[2], and plaintiff's UM motorist insurer, Boston Old Colony Insurance Company. Plaintiff later amended his petition to include Commercial Union as UM carrier of the sheriff's office vehicle.

Plaintiff settled with Ms. Gray and her insurer (who were dismissed on April 24, *962 1991) for the policy limits of $10,000. Boston Old Colony (holding a UM policy in favor of plaintiff for $300,000) and Commercial Union remained as defendants.

On November 13, 1991, Commercial Union filed a motion for Summary Judgment, arguing that Chief LeRay's rejection of UM coverage on the June 26, 1986 application was valid for the subsequent endorsement which increased the policy limits to $500,000, and that Commercial Union was entitled to judgment as a matter of law. On March 23, 1993, the trial court granted Commercial Union's motion, holding that no additional rejections were required by the endorsement, and Commercial Union was dismissed from the lawsuit.

On appeal, plaintiff asserts two assignments of error: 1) that the trial court erred when it ruled that a non-retroactive endorsement issued March 1, 1987, increasing liability limits to $500,000 did not require a new waiver; and 2) that the trial court erred when it retroactively applied Act 203 of the 1988 Louisiana Legislature (effective September 9, 1988) to rule that the reinstatement letter of September 3, 1987 did not require a new waiver.[3]

Because we find that the trial court erred when it held that no additional UM rejection was required after the March 1987 endorsement, we need only address plaintiff's first assignment of error.

SUMMARY JUDGMENT

Prior to deciding any substantive issue on an appeal taken as a result of a summary judgment, we must first analyze the applicable law on summary judgments.

Pursuant to La.Code Civ.Proc. art. 966(B), a motion for summary judgment should be granted if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any, show there is no genuine issue as to material fact and the mover is entitled to judgment as a matter of law. By Act No. 71 of the 1992 Legislative Session, La.Code Civ.Proc. art. 966(D) was enacted to specifically allow a summary judgment to be rendered on the issue of insurance coverage alone, as took place in the matter before us. However, the same Act also amended La. Code Civ.Proc. art. 1915(A)(3) to provide that a judgment rendered pursuant to art. 966(D) is not a final judgment.

Act No. 71 took effect on August 21, 1992. The summary judgment appealed from was granted on March 23, 1993. La.Code Civ. Proc. art. 2083(A) states that:

[a]n appeal may be taken from a final judgment rendered in causes in which appeals are given by law whether rendered after hearing or by default, from an interlocutory judgment which may cause irreparable injury, and from a judgment reformed in accordance with a remittitur or additur under Article 1814.

Pursuant to art. 1915(A)(3), the March 23, 1993 summary judgment is not a final judgment. However, we find that the dismissal of Commercial Union through summary judgment is an interlocutory judgment that, without appellate review, may cause irreparable injury to plaintiff/appellant. This appeal, therefore, is properly before us.

LAW

In Louisiana, uninsured motorist coverage is provided for by LSA-R.S. 22:1406. During the period relevant to the instant case (1986-1987), 22:1406 provided in pertinent part:

D. The following provisions shall govern the issuance of uninsured motorist coverage in this state:
(1)(a) 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 with respect to any motor vehicle registered or principally garaged 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 *963

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Cite This Page — Counsel Stack

Bluebook (online)
633 So. 2d 959, 1994 WL 80207, Counsel Stack Legal Research, https://law.counselstack.com/opinion/faucheaux-v-boston-old-colony-ins-co-lactapp-1994.