Franklin & Moore v. Gilsbar, Inc.

673 So. 2d 658, 95 La.App. 1 Cir. 1520, 1996 La. App. LEXIS 984, 1996 WL 242925
CourtLouisiana Court of Appeal
DecidedMay 10, 1996
Docket95 CA 1520
StatusPublished
Cited by7 cases

This text of 673 So. 2d 658 (Franklin & Moore v. Gilsbar, 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
Franklin & Moore v. Gilsbar, Inc., 673 So. 2d 658, 95 La.App. 1 Cir. 1520, 1996 La. App. LEXIS 984, 1996 WL 242925 (La. Ct. App. 1996).

Opinion

673 So.2d 658 (1996)

FRANKLIN & MOORE
v.
GILSBAR, INC.

No. 95 CA 1520.

Court of Appeal of Louisiana, First Circuit.

May 10, 1996.

*659 Charles A. O'Brien, Baton Rouge, for Plaintiff-Appellee Franklin & Moore.

Fritz B. Ziegler, Monroe & Lemann, Covington, for Defendant-Appellant Gilsbar, Inc.

Before SHORTESS, PARRO and KUHN, JJ.

PARRO, Judge.

This case involves a miscalculation of the premium for the purchase of an optional extended reporting period endorsement on a legal malpractice insurance policy. The trial court ordered a portion of the premium returned to the law firm and denied the insurance broker's motion for a new trial. This appeal followed. We affirm.

FACTS AND PROCEDURAL HISTORY

On October 1, 1986, the law firm of Franklin & Moore ("F & M") became an insured under a legal malpractice insurance policy underwritten by The Home Insurance Company and written through Gilsbar, Inc. ("Gilsbar"). The policy included an option to purchase an extended reporting period endorsement ("ERP"—also commonly referred to as a "tail") at the end of the policy term, which would allow an insured firm to report claims made after the termination of its claims-made policy. The premium for a 36-month ERP was described in the policy as 185% of the last annual premium. On April 26, 1994, F & M sent Gilsbar a letter stating it was dissolving and asking for information on the ERP option. The letter explained Mr. Moore was retiring from the practice of law, the remaining three lawyers (Mr. Clary, Mr. O'Brien, and Mr. Reed) would continue practicing, and Mr. Reed was joining another firm and would be picked up on that firm's policy.

On May 17, 1994, Beth Curtis ("Ms. Curtis"), a Gilsbar customer service representative, responded to F & M in writing. Her letter described the premiums applicable to ERP's of varying time periods, including a 36-month tail for a premium of $33,602 which would cover the entire firm, including Mr. *660 Moore.[1] She recommended as an alternative Mr. Moore purchase a separate "Non-Practicing Extended Reporting Period" endorsement for $5,213, in which case the firm's premium would be only $18,766. F & M responded on June 2, 1994, stating the firm wanted to purchase the extended reporting period option effective July 1, 1994, for the indicated premium cost of $18,766, and Mr. Moore would be purchasing a separate tail. The letter also asked for invoices from Gilsbar. In a written response, Ms. Curtis advised Gilsbar did not invoice for such purchases, but confirmed the previously quoted $18,766 premium for the firm and $5,213 premium for Mr. Moore. On June 15, 1994, the firm and Mr. Moore sent checks for these amounts to Gilsbar.

Two days before the policy cancellation date, Gilsbar personnel discovered an apparent miscalculation in the firm's premium and communicated to F & M by telephone and fax the correct premium was $33,602 and therefore an additional payment of $14,836 was due.[2] The Gilsbar representative, Jeffrey Fields ("Mr. Fields") further stated that unless the full premium was paid immediately, the firm's tail coverage would not be put into place when the policy terminated. He warned tail coverage could not be picked up at a later date and emphasized if a gap in coverage occurred, it could never be remedied. Additionally, the applications of two of the individual attorneys for continuing legal malpractice insurance could not be processed until their status with reference to the firm's tail coverage was ascertained. Faced with the impending loss of coverage, F & M paid the $14,836 difference in the premium under protest and filed suit in Baton Rouge City Court to recover this amount.

The trial court found Gilsbar's two written quotations constituted an offer to provide the option at the specified premium of $18,766 and F & M had accepted the offer by remitting payment. At that point a contract was formed, obligating Gilsbar to provide the extended reporting coverage to the firm for 36 months. The judge also found the miscalculation in premium was an error concerning a principal cause of the contract, but he did not rescind the contract. The court's oral reasons for judgment were incompletely transcribed, so it is impossible to determine from the record his precise reasoning on the application of the pertinent Louisiana Civil Code articles on vitiation of consent due to error in the cause. However, he did not rescind the contract, but enforced it by ordering the return of $14,836 to F & M, with legal interest from date of demand. That conclusion, plus the portion of his oral reasons which was transcribed, indicates he must have determined the evidence did not establish F & M knew or should have known the specific premium was a principal cause of the contract. The court denied Gilsbar's motion for a new trial.

STANDARD OF REVIEW

The Louisiana Constitution states the appellate jurisdiction of a court of appeal extends to law and facts. LSA-Const. Art. V, § 10(B). As the facts in this case are not disputed, the doctrine of manifest error is not applicable in appellate review of the trial court's decision. Maryland Casualty Co. v. Dixie Ins. Co., 622 So.2d 698, 701 (La.App. 1st Cir.), writ denied, 629 So.2d 1138 (La. 1993). On legal issues, the appellate court gives no special weight to the findings of the trial court, but exercises its constitutional duty to review questions of law and renders judgment on the record. Gonzales v. Xerox Corp., 320 So.2d 163, 165 (La.1975); Jaffarzad v. Jones Truck Lines, Inc., 561 So.2d 144, 152 (La.App. 3rd Cir.), writ denied, 565 So.2d 450 (La.1990).

FIRST ASSIGNMENT OF ERROR

Gilsbar contends on appeal the trial court erred in upholding the contract. It argues the premium amount enforced by the court was lower than the rates filed and approved by the Louisiana Insurance Rating *661 Commission ("Commission"); therefore the contract did not have a lawful cause and should not have been enforced. The Louisiana Civil Code requires a "lawful cause" for an obligation to exist. LSA-C.C. art. 1966. "The cause of an obligation is unlawful when the enforcement of the obligation would produce a result prohibited by law or against public policy." LSA-C.C. art. 1968. All casualty insurance companies are required to adhere to rates approved by the Commission. LSA-R.S. 22:1406(A). Although it is not an insurance company, Gilsbar asserts because it is the agent of the insurance company, it is bound by the same rate filings and could not lawfully quote a discounted premium.

The trial judge did not directly address this issue in his oral reasons for judgment. However, it is obvious he did not find merit in this argument, as he upheld the validity of the contract formed on the basis of the lower premium. This is a legally correct result for several reasons. First, the record is devoid of any evidence from which the court could determine what was filed and approved by the Commission. Gilsbar initially argued the filed and approved rate was the policy provision which stated a 36-month ERP could be purchased for 185% of the firm's last annual premium. But the quoted premiums were all less than 185% of the last annual premium paid by the firm. The policy contained no definition of "annual premium" and Gilsbar's employees and internal documents illustrated how various mathematical adjustments were made to arrive at the "annual premium" upon which the ERP premium was actually based.

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Cite This Page — Counsel Stack

Bluebook (online)
673 So. 2d 658, 95 La.App. 1 Cir. 1520, 1996 La. App. LEXIS 984, 1996 WL 242925, Counsel Stack Legal Research, https://law.counselstack.com/opinion/franklin-moore-v-gilsbar-inc-lactapp-1996.