Fontenot v. State Farm Mutual Automobile Insurance Co.

436 So. 2d 747, 1983 La. App. LEXIS 9060
CourtLouisiana Court of Appeal
DecidedAugust 10, 1983
DocketNo. 83-144
StatusPublished
Cited by1 cases

This text of 436 So. 2d 747 (Fontenot v. State Farm Mutual Automobile Insurance 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
Fontenot v. State Farm Mutual Automobile Insurance Co., 436 So. 2d 747, 1983 La. App. LEXIS 9060 (La. Ct. App. 1983).

Opinion

FORET, Judge.

Clayton J. Fontenot (plaintiff), after being involved in an automobile accident, brought this action to recover damages under the terms of an automobile insurance policy issued him by defendant, State Farm Mutual Automobile Insurance Company. In addition, plaintiff sought to recover the statutory penalties and attorney’s fees. Defendant denied coverage, asserting that the policy had been cancelled for non-payment of the premium prior to the date of plaintiff’s accident.

The trial court, after trial on the merits, rendered judgment in favor of plaintiff, ordering defendant to pay him the sum of $8,907.85, together with legal interest thereon from date of judicial demand until paid1.

Defendant appeals and raises the following issues:

(1) Whether the trial court committed manifest error in finding that plain[748]*748tiff had paid the full premium due on the policy; and, if so,
(2) Whether the trial court committed manifest error in finding that the policy afforded plaintiff coverage on the date of the accident.

FACTS

Plaintiff was the owner of a 1980 Ford Mustang that had been insured by defendant under the policy. On June 18, 1981, plaintiff was involved in an automobile accident in which he suffered personal injury, and which resulted in the total destruction of his vehicle. In his petition, plaintiff alleged that he incurred medical expenses totaling $1,407.85 for treatment of his injuries, and that his vehicle was worth $7,500.00. He further alleged that defendant had issued him the policy, which was in full force and effect on the date of the accident. Among other things, the policy provided for comprehensive, collision, and medical payments coverages. However, defendant refused to pay plaintiff any sums whatsoever (for the reason noted above), although he made demand and filed proof of loss with it. Because of defendant’s refusal to pay, plaintiff instituted the present action.

ALLEGED NON-PAYMENT OF PREMIUM

Defendant contends that the trial court erred in finding that plaintiff had paid the full premium due on the policy. It argues that plaintiff failed to prove that he had made full payment, and further, that the evidence shows that he did not do so.

Plaintiff testified that he initially purchased the policy from defendant in August of 1979, when he bought the vehicle destroyed in the accident2. Because he failed to pay the entire premium, that policy was cancelled in January of 1981. Plaintiff stated that he then “renewed” the policy on February 26, 1981, with Randall LaFleur (one of defendant’s agents). According to plaintiff, on that date, he paid LaFleur the entire premium in cash and obtained a receipt from him. However, the receipt was in his vehicle at the time of the accident and was never recovered.

Randall LaFleur testified that plaintiff initially purchased the policy on July 21, 1980, and that it was up for renewal on January 21, 1981. However, plaintiff took no action and the policy lapsed. On February 26, 1981, plaintiff came to his office to make an application for reinstatement of the lapsed policy. LaFleur stated that plaintiff financed the policy premium under a plan offered by defendant that is known as “fifty-fifty”.

Under that plan, LaFleur explained that an insured pays fifty percent of the premium, when he initially purchases a policy or makes an application for reinstatement of a policy (in either case, the policy will be written for a minimum of six months), and the balance is due within sixty days thereof. If no payment is made within sixty days, the insured is sent a cancellation notice. However, the policy coverage is extended for another thirty days because the insured has, in effect, paid for ninety days of coverage.

LaFleur testified that on February 26, 1981, he received $269.83 in cash from plaintiff which represented a payment of fifty percent of the policy premium. Defendant then introduced in evidence a document sent in by LaFleur. This document indicates that LaFleur received $269.83 from plaintiff on February 26, 1981, in payment of the policy premium under the “50/50” plan, and that the payment was being transmitted to defendant. LaFleur testified that he received no other payments from plaintiff on the premium.

[749]*749LaFleur then identified a cancellation notice, received by his office, which states that plaintiff’s policy, “... IS HEREBY CANCELLED EFFECTIVE 12:01 A.M. STANDARD TIME May-14-81 DUE TO NONPAYMENT OF THE PREMIUM”. His office usually receives such notices about a week before the cancellation date. His next action, taken with respect to the policy, occurred on June 19, 1981, when someone came to his office and made a reinstatement application for the policy. This was one day after the date on which the accident occurred. Plaintiff’s loss was reported to him three days later. LaFleur was unable to obtain a copy of the receipt he had given plaintiff because his office destroyed all receipt books after keeping them for one year.

The trial court, in its written opinion, stated:

“The court is of the opinion that Mr. Fontenot should be afforded coverage under the policy due to the fact that the policy was issued for a six-month period and Mr. Fontenot testified that he did in fact pay the premium in full. In support of his contention is the fact that the loss payee, Ford Motor Credit Co., did not receive notice of cancellation of the policy. The policy on its face shows six months coverage through August 1981, and does not provide for installment payments of the premium.”

We conclude that the trial court overlooked a crucial portion of the evidence.

Sandra Otman, an employee of Ford Motor Credit Company (FMCC), was called as a witness by plaintiff. FMCC had a chattel mortgage on plaintiff’s vehicle at the time of the accident. As noted by the trial court, Mrs. Otman testified that FMCC had received no cancellation notice from defendant regarding plaintiff’s policy. However, under cross-examination, she was asked if she knew the reason why the Standard Guaranty Insurance Company (Standard) had paid FMCC the sums of $5,147.34 and $387.03 for plaintiff’s account. She replied:

“Yes, sir, we added the insurance when we were advised that Mr. Fontenot did not have coverage by Mr. Fontenot.”

Mrs. Otman went on to explain that, under its master policy with Standard, FMCC could place insurance on an account when, “... we don’t receive a cancellation notice and the unit is totaled out, ... ”. FMCC placed this insurance with Standard on August 20, 1981. An examination of the declarations section of plaintiff’s policy states that the policy period is from February 26, 1981, to August 26,1981. Thus, prior to the expiration date stated in his policy, plaintiff went to FMCC and admitted that he had no insurance coverage on his vehicle. This admission by plaintiff is completely contradictory to his testimony that he paid the policy premium in full on February 26, 1981, and that he never received a cancellation notice from defendant.

It is our opinion that the trial court’s finding, that plaintiff paid the policy premium in full, is clearly wrong.

NOTICE OF CANCELLATION

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Bluebook (online)
436 So. 2d 747, 1983 La. App. LEXIS 9060, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fontenot-v-state-farm-mutual-automobile-insurance-co-lactapp-1983.