Franques v. Jones

961 So. 2d 1253, 2006 La.App. 4 Cir. 1177, 2007 La. App. LEXIS 1105, 2007 WL 1574970
CourtLouisiana Court of Appeal
DecidedMay 9, 2007
DocketNos. 2006-CA-1177, 2006-C-0694
StatusPublished
Cited by1 cases

This text of 961 So. 2d 1253 (Franques v. Jones) 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.

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Franques v. Jones, 961 So. 2d 1253, 2006 La.App. 4 Cir. 1177, 2007 La. App. LEXIS 1105, 2007 WL 1574970 (La. Ct. App. 2007).

Opinion

JOAN BERNARD ARMSTRONG, Chief Judge.

| T Defendants/appellants, Larry Jones, Gulf States Intermodal, Inc. (“Gulf States”), Boasso America Corp. (“Boasso”), TIG Insurance Company (“TIG”), Reliance National Indemnity Co. (In Receivership) (“Reliance”), and the Louisiana Insurance Guaranty Association (“LIGA”), appeal the May 8, 2006, granting of a summary judgment in favor of Lumbermens Mutual Insurance Company (“Lumbermens”) finding that the commercial automobile policy issued by Lumbermens to Burger King Corporation (“Burger King”) did not provide uninsured motorist coverage for an accident in which the plaintiff, Gene Franques, was injured while riding as a passenger in a vehicle owned and driven by Victor Hogan.1

[1255]*1255The appellants claim that the Lumber-mens policy provides uninsured motorist coverage for the accident. At the time of the accident, Franques was employed by Burger King and in connection with that employment he was training | aemployees of a Burger King franchise owned by RST Investments (“RST”) and was taking part in a training session with Victor Hogan, an employee of RST. At the time of the accident, plaintiff was a guest passenger. in Hogan’s vehicle for the purpose of traveling from one RST Franchise to another for training sessions. It is undisputed that the plaintiff, Franques, was in the course and scope of his employment with Burger King at the time of the accident.

The accident occurred when the Hogan vehicle collided with a truck driven by Larry Jones while in the course and scope of Jones’ employment with Gulf States. Gulf states is owned by Boasso. Reliance was the liability insurer for Gulf States and Boasso and by extension, Larry Jones. TIG is the . excess insurer for Gulf States/Boasso and by extension, Jones. Hogan’s vehicle in which Franques was riding as a passenger was insured by National Union. Franques had personal uninsured/underinsured coverage with State Farm Mutual Automobile Company.

The aforementioned May 8, 2006 judgment also denied cross motions for summary judgment filed by the appellants, Larry Jones, Gulf States, Boasso and LIGA. TIG filed a brief in support of the appeal of Larry Jones, Gulf States, Boasso and Reliance.2

Although the overarching question raised in this appeal is whether the Lum-bermens policy is required to provide UM coverage to the plaintiffs in connection with this accident, the threshold question before this Court is whether Burger King executed a valid Uninsured Motorist rejection form in connection | swith the commercial automobile policy issued by Lumber-mens to Burger King. For the reasons hereinafter set forth we find that it does.

We review summary judgments de novo. Whether an insurance policy provides or precludes coverage, as a matter of law, can be resolved within the framework of a Motion for Summary Judgment. Gautreaux v. Dufrene, 04-970 (La.App. 5 Cir. 1/11/05), 894 So.2d 385. If the rejection of UM coverage is unambiguous, but not in proper form, it is ineffective. Dibos v. Bill Watson Ford, 622 So.2d 677 (La.App. 4 Cir.1993); Moyles v. Cruz, 96-0307 (La.App. 4 Cir. 10/16/96), 682 So.2d 326, 329. The defendants take the position that the expression of the intent to reject UM coverage must meet certain formal requirements which were not met in the instant case. Dyess v. American Nat. Property and Cas. Co., 03-1971, p. 8 (La.App. 1 Cir. 6/25/04), 886 So.2d 448, 453; Richardson v. Lott, 03-0189 at p. 8 (La.App. 1 Cir. 11/7/03), 868 So.2d 64, 71. See also Cohn v. State Farm Mut. Auto. Ins. [1256]*1256Co., 03-2820 (La.App. 1 Cir. 2/11/05), 895 So.2d 600, 602; Lee v. Naquin, 05-606 (La.App. 5 Cir. 2/3/06), 924 So.2d 250, 253.

The appellants contend that the UM rejection form is invalid because it fails to provide accurate information regarding the selection of lower limits, and in particular it fails to specifically list the lowest legally permissible amount of coverage of $10,000.00 per person as well as failing to note a $20,000 minimum per occurrence. The appellants argue that Burger Bang could not make an informed decision on rejecting coverage in the absence of this information. They base this contention on that portion of the Lumber-mens/Burger King UM rejection form which states that:

|4The available limits for Uninsured Motorist Coverage Bodily Injury Liability (including Underinsured Motorist Insurance) are as follows:
$25,000
$50,000
$100,000
$250,000
$350,000
$550,000
$1,000,000 THESE LIMITS ALSO APPLY TO HIRED AND NON-OWNED AUTOMOBILES IF APPLICABLE

However, immediately preceding this portion of the form in compliance with the statutory requirement is the statement:

As required by Louisiana law your policy has been issued with Uninsured Motorists Coverage at limits equal to your bodily injury liability limits. You may choose to select lower or higher limits.

This UM rejection form was signed by the Burger King representative and dated July 1, 1998.

Additionally, the Lumbermens policy contains “UNINSURED AND UNDER-INSURED MOTORIST COVERAGE AMENDATORY ENDORSEMENT # 4”, which provides that:

For all states, where permitted to do so, the Insured has elected to reject Uninsured and/or Underinsured Motorists Coverage. In those states where the rejection of coverage is not permitted, the lowest permissible coverage limit applies.

| ¿Kathleen Davies, the Burger King Director of Insurance and Claims at the time the UM rejection form was executed, testified in her deposition that it had always been the policy of Burger King to reject UM coverage.

Robert Roark, the current Burger King Director of Insurance and Claims testified to the same effect.

The binder which anticipated the Lum-bermens policy in question stated that:

For all states where permitted to do so, the Insured has elected to reject uninsured and/or underinsured motorists coverage.

The defendants do not dispute Lumber-mens’ contention that Burger King intended to reject UM coverage. Indeed, in the face of the evidence described above it is difficult to see any basis to argue otherwise. Instead, as we read the defendants’ arguments they are contending that the failure of the Burger King UM rejection to meet certain technical formalities is fatal to the rejection, regardless of the intentions of either Lumbermens or Burger King. Specifically, the defendants argue that because the above quoted UM rejection form does not include an option to select minimal coverage in the amount of $10,000.00, the minimum allowed by statute, then the form of the rejection is defective, citing La. R.S. 22:680.

[1257]*1257The defendants focus on language from the Louisiana Supreme Court in Tugwell v. State Farm Ins. Co.,

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961 So. 2d 1253, 2006 La.App. 4 Cir. 1177, 2007 La. App. LEXIS 1105, 2007 WL 1574970, Counsel Stack Legal Research, https://law.counselstack.com/opinion/franques-v-jones-lactapp-2007.