Galata v. Turner

602 So. 2d 794, 1992 La. App. LEXIS 2367, 1992 WL 163944
CourtLouisiana Court of Appeal
DecidedJuly 16, 1992
DocketNo. 91-CA-1580
StatusPublished
Cited by2 cases

This text of 602 So. 2d 794 (Galata v. Turner) 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
Galata v. Turner, 602 So. 2d 794, 1992 La. App. LEXIS 2367, 1992 WL 163944 (La. Ct. App. 1992).

Opinion

ARMSTRONG, Judge.

Plaintiff, Jeannine Galata (“Galata”), appeals from the trial court’s granting summary judgment in favor of her uninsured motorist coverage carrier, Colonial Insurance Company of California (“Colonial”). For the reasons that follow, we affirm.1

Jeannine Galata, a resident of Pearling-ton, Mississippi, was injured as a result of an automobile accident which occurred on October 18, 1988 in Hancock County, Mississippi. She filed suit in Civil District Court, New Orleans, naming as defendants Donald Turner, Jr. (“Turner”), the owner and operator of the vehicle which struck her vehicle and a resident of Orleans Parish; Old Hickory Casualty Insurance Company (Automotive Casualty Insurance Company), Turner’s insurer; and Colonial.

Colonial moved for a declaratory judgment requesting the trial court confirm that Mississippi law governs the interpretation of its insurance contract with Galata. A certified copy of the declaration sheet and policy attached to the motion indicates that the insurance policy was written in Waveland, Mississippi, and insured Vincent 0. Galata, husband of plaintiff and resident of Pearlington, Mississippi. By consent judgment dated December 6, 1990, the trial court granted the motion declaring that, Mississippi law would apply as concerning the contract of insurance issued by Colonial to Jeannine Galata’s husband and, further, that Mississippi law would apply as concerning uninsured motorist claims and/or coverage.

Colonial subsequently filed a motion for summary judgment contending that Galata is not entitled to recover benefits under the uninsured or underinsured motorist provisions of the policy. Colonial argued that due to the amounts of insurance involved, Mississippi law does not consider Turner’s vehicle uninsured as to Galata. In its attached statement of uncontested material facts, Colonial stated that, at the time of the accident, 1) it had in full force and effect a policy of insurance issued to Vincent 0. Galata with uninsured motorist coverage in the amount of $10,000 per person or $20,000 per occurrence and liability coverage in the amount of $10,000 per person or $20,000 per occurrence; and 2) Automotive Casualty had in full force and effect a policy of liability insurance insuring Donald Turner with limits in the amount of $10,000 per person or $20,000 per occurrence for bodily injury and $10,000 per person or $20,000 per occurrence for uninsured motorist coverage. Therefore, as Miss.Code Ann. § 83 — 11—103(c)(iii) (Supp.1990), defines an “uninsured vehicle” as “an insured motor vehicle, when the liability insurer of such vehicle has provided limits of bodily injury liability for its insured which are less than the limits applicable to the injured person provided under his uninsured motor[796]*796ist coverage ... ”, Colonial claimed Turner’s vehicle is not an uninsured vehicle as to Galata because it has bodily injury liability coverage equal to Galata’s uninsured motorist coverage.

In her opposition to the motion Galata argued that summary judgment should be denied because the record contained no evidence of payment to Galata by Turner’s insurer. After due proceedings, the trial court granted Colonial’s motion for summary judgment. Galata filed this appeal.

Appellate courts review summary judgments de novo, under the same criteria that governs the district court’s consideration of the appropriateness of summary judgment. Schroeder v. Board of Sup’rs of Louisiana State University, 591 So.2d 342 (La.1991). The criteria set forth in the Code of Civil Procedure directs that a plaintiff or a defendant in the principal or any incidental actioh, with or without supporting affidavits, may move for summary judgment in his favor for all or a part of the relief for which he has prayed. LSA-C.C.P. art. 966(A). The mover is entitled to judgment if the pleadings, depositions, answers to interrogatories and admissions on file, together with supporting affidavits, if any, show there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B). Osborne v. Vulcan Foundry, Inc., 577 So.2d 318 (La.App. 4th Cir.1991). Because the mover has the burden of establishing that no material factual issue exists, inferences to be drawn from the underlying facts contained in the record must be viewed in the light most favorable to the party opposing the motion. Schroeder v. Board of Sup’rs of Louisiana State University, supra.

On appeal, Galata contends that the trial court erred in finding that, under Mississippi law, Turner’s vehicle is not an uninsured vehicle. Galata estimates her damages as totalling $25,000 to $30,000. She argues that she is entitled to aggregate her uninsured motorist coverage in the amount of $10,000 to Turner’s injury liability coverage limits of $10,000 so that her insurance coverage will total $20,000. Galata contends that if she is precluded from aggregating the insurance coverage, a substantial portion of her damages will not be covered by insurance. Galata also contends that the summary judgment is improper because Turner’s insurance company has not yet paid her claim.

In response, Colonial argues that LSA-C.C. art. 15 provides that, “the form and effect of public and private instruments are governed by the laws and usages of the places where they are cast and executed.” Thus, it asserts that the trial court’s consent judgment accorded with Louisiana law when it resolved that Mississippi law governs both the interpretation of the Galata-Colonial insurance policy and the issue of uninsured motorist coverage. Colonial also asserts the trial court accurately concluded Galata is not legally entitled to recover under the policy because Miss.Code Ann. § 83 — 11—103(c)(iii) (Supp.1990) does not define Turner’s vehicle as an uninsured motor vehicle as to Galata. We agree.

Under Mississippi law, for Galata to recover under the uninsured motorist provision of her policy of insurance, the tort-feasor’s automobile “must be ‘an uninsured motor vehicle’ as defined by the Mississippi Uninsured Motorist Act.” Cossitt v. Federated Guar. Mut. Ins. Co., 541 So.2d 436 (Miss.1989); Wickline v. U.S. Fidelity & Guar. Co., 530 So.2d 708 (Miss.1988). Mississippi’s Uninsured Motorist Act, Miss. Code Ann. § 83-11-103 (Supp.1990), does not use the term “underinsured.” St. Paul Property & Liability Co. v. Nance, 577 So.2d 1238 (Miss.1991). Rather, it incorporates the underinsured motor vehicle concept in its definition of the term “uninsured motor vehicle”:

[A]n insured motor vehicle, when the liability insurer of such vehicle has provided limits of bodily injury liability for its insured which are less than the limits applicable to the injured person provided under his uninsured motorist coverage ...

(emphasis by Mississippi Supreme Court)

Miss.Code Ann. § 83-11-103(c)(iii) (Supp.1990); Thiac v. State Farm Mut. Auto. [797]*797Ins. Co., 569 So.2d 1217, 1219 (Miss.1990).2

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Bluebook (online)
602 So. 2d 794, 1992 La. App. LEXIS 2367, 1992 WL 163944, Counsel Stack Legal Research, https://law.counselstack.com/opinion/galata-v-turner-lactapp-1992.