Franklin v. Coleman

793 So. 2d 467, 2001 WL 946605
CourtLouisiana Court of Appeal
DecidedAugust 22, 2001
Docket34,908-CA
StatusPublished
Cited by5 cases

This text of 793 So. 2d 467 (Franklin v. Coleman) 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 v. Coleman, 793 So. 2d 467, 2001 WL 946605 (La. Ct. App. 2001).

Opinion

793 So.2d 467 (2001)

Sheila FRANKLIN, Plaintiff-Appellant,
v.
Lucille COLEMAN and Southern Farm Bureau Casualty Insurance Company, Defendants-Appellees.

No. 34,908-CA.

Court of Appeal of Louisiana, Second Circuit.

August 22, 2001.
Rehearing Denied September 20, 2001.

*468 Bruscato, Tramontana & Wolleson, By J. Antonio Tramontana, Anthony J. Bruscato, Monroe, Counsel for Appellant.

Cotton, Bolton, Hoychick & Doughty, L.L.P., By David P. Doughty Mutual Insurance Co., Rayville, Counsel for Appellee, Louisiana Farm Bureau.

Before NORRIS, PEATROSS and DREW, JJ.

PEATROSS, J.

This appeal arises from the trial court's grant of a motion for summary judgment filed by Defendant, Southern Farm Bureau Casualty Insurance Company ("Farm Bureau"), dismissing the claim of Plaintiff, Sheila Franklin, for uninsured/underinsured motorist ("UM") coverage. The trial court determined that Plaintiff had properly rejected such coverage. For the reasons stated herein, we affirm.

FACTS AND PROCEDURAL HISTORY

On October 25, 1996, Plaintiff was involved in an automobile accident when she was struck from behind by a vehicle driven by Defendant, Lucille Coleman. Ms. Coleman was uninsured. Plaintiff, therefore, sought recovery for her damages through her insurer, Farm Bureau, under any UM coverage which might be afforded. Farm Bureau denied coverage, alleging that Plaintiff had properly rejected UM coverage. This lawsuit ensued.

Farm Bureau filed a motion for summary judgment asserting Plaintiff's proper rejection of UM coverage. Plaintiff argued to the contrary that the rejection was not proper because her signature was not dated and the rejection did not make reference to an insurance policy number. In support of its motion, Farm Bureau attached Plaintiffs answers to interrogatories and the affidavit of Agent Ricky Wamsley, who assisted Plaintiff in filling out the application and UM rejection form.

Mr. Wamsley attested in his affidavit that Plaintiff made an application for insurance on June 14, 1996; that Plaintiff requested minimum coverage limits; that Plaintiff did not want UM coverage; that she signed the appropriate form in which she rejected UM coverage on June 14, 1996, in conjunction with her application; and that she was not charged a premium for UM coverage. In Plaintiffs answers to interrogatories, she admitted that the signature on the UM rejection form was hers and she stated that she did not recall requesting UM coverage.

The trial court granted Farm Bureau's motion and dismissed Plaintiffs claim. It is from this judgment that Plaintiff now appeals.

DISCUSSION

Summary Judgment

On appeal, Plaintiff asserts that the trial court erred in placing the burden on her to prove that an undated rejection form, which was also void of an effective date *469 and policy number, was sufficient. We find no merit in this argument.

Summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action allowed by law. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966; Banks v. State Farm Insurance Co., 30,868 (La.App.2d Cir.8/19/98), 717 So.2d 687. Appellate courts review summary judgments de novo under the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Taylor v. Rowell, 98-2865 (La.1999), 736 So.2d 812; Banks, supra; Barron v. Webb, 29,707 (La.App.2d Cir.8/20/97), 698 So.2d 727, writ denied, 97-2357 (La.11/26/97), 703 So.2d 651.

The mover has the burden of establishing an absence of a genuine issue of material fact. A fact is material if its existence or non-existence may be essential to the plaintiffs cause of action under the applicable theory of recovery. Banks, supra; Curtis v. Curtis, 28,698 (La.App.2d Cir.9/25/96), 680 So.2d 1327. Once the party moving for summary judgment meets his or her burden, however, the adverse party must then present evidence demonstrating that material factual issues remain by producing factual support sufficient to establish that the adverse party will satisfy his or her evidentiary burden at trial. La C.C.P. art. 966(C)(2).

The object of the UM legislation is to promote full recovery for innocent automobile accident victims by making UM coverage available for their benefit. Hoefly v. Government Employees Insurance Co., 418 So.2d 575 (La.1982). The statute is to be liberally construed such that the statutory exceptions to the coverage requirement are interpreted strictly. Any exclusion from coverage in an insurance policy must be clear and unmistakable. The insurer bears the burden of proving any insured named in the policy rejected in writing UM coverage equal to bodily injury limits or selected lower limits. Tugwell v. State Farm Insurance Company, 609 So.2d 195 (La.1992); Henson v. Safeco Insurance Companies, 585 So.2d 534 (La.1991); Roger v. Estate of Moulton, 513 So.2d 1126 (La.1987).

In accordance with La. C.C.P. art. 966, however, once the insurer has shown that the UM rejection form is valid, the burden then shifts to the insured to prove otherwise. Plaintiff first complains that the trial court erred in relying on parol evidence outside the four corners of the rejection form in finding that Farm Bureau had carried its burden. Once the validity of the rejection form is questioned, however, it is proper to search beyond the "four corners" of the form to determine when it was signed and to which policy it applied. Tijerina v. Stawecki, 95-1200 (La.App.3d Cir.3/6/96), 670 So.2d 792; Maney v. Bennett, 97-0840 (La.App. 4th Cir.11/19/97), 703 So.2d 152. In addition, although parol evidence may not be introduced to vary the actual terms or provisions of a policy, evidence my be introduced to determine whether a policy is in force. Alford v. Woods, 614 So.2d 1299 (La.App. 3d Cir.1993), writ denied, 617 So.2d 915 (La.1993).

Plaintiff also points specifically to a statement in the trial court's reasons for judgment as being an erroneous shift of the summary judgment burden. That statement is as follows:

Plaintiff failed to produce countervailing affidavits as proof that the rejection form filed in this record was intended to *470 reject UM coverage in a separate insurance policy than the one sub judice. (Emphasis ours).

Plaintiff has taken this statement out of context. In the same paragraph from which the above statement is taken, the trial court addresses the evidence presented by Farm Bureau which tends to prove that the UM rejection form signed by Plaintiff was valid. Further, the use of the word "countervailing" in the extricated statement indicates that the trial court had properly considered the evidence presented by the mover, Farm Bureau, prior to addressing the lack of evidence presented by Plaintiff. We find, therefore, that the trial court properly applied the burden of proof.

Validity of UM Rejection Form

Plaintiff cites Roger, supra, in support of her position that, in order for a rejection of UM coverage to be valid, it must state the date of the rejection and make reference to the specific policy to which it applies. We find her reliance on Roger, supra, to be misplaced.

In Roger, supra,

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Cite This Page — Counsel Stack

Bluebook (online)
793 So. 2d 467, 2001 WL 946605, Counsel Stack Legal Research, https://law.counselstack.com/opinion/franklin-v-coleman-lactapp-2001.