Gilbert v. Reynoso

917 So. 2d 503, 2005 La. App. LEXIS 2289, 2005 WL 2864586
CourtLouisiana Court of Appeal
DecidedNovember 2, 2005
DocketNo. 2005-418
StatusPublished
Cited by1 cases

This text of 917 So. 2d 503 (Gilbert v. Reynoso) 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
Gilbert v. Reynoso, 917 So. 2d 503, 2005 La. App. LEXIS 2289, 2005 WL 2864586 (La. Ct. App. 2005).

Opinion

PAINTER, Judge.

| plaintiffs, Billie Jean Gilbert and Joseph Gilbert, appeal the trial court’s judg-[504]*504merit granting a motion for summary judgment in favor of Defendant, Progressive County Mutual Insurance Company. Finding that there is no genuine issue of material fact with respect to the Progressive policy’s exclusion of Marlow S. Reyno-so from coverage, we affirm the ruling of the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

On April 23, 2002, Gladys Hernandez (“Hernandez”), a Texas resident, submitted an application for automobile insurance with Progressive County Mutual Insurance Company (“Progressive”) with respect to a 1989 Honda Accord DX and a 1995 Lincoln Towncar EX. Hernandez and her boyfriend/common law husband, Marlow S. Reynoso (“Reynoso”) were listed as drivers on the policy. However, on May 1, 2002, Hernandez, as the policy owner, deleted the Lincoln Towncar from the policy and executed a form to exclude Reynoso as a driver under the policy. The form executed by Hernandez was approved and authorized by the Texas Department of Insurance and provided as follows:

515A. EXCLUSION OF NAMED DRIVER AND PARTIAL REJECTION OF COVERAGES.

This endorsement forms a part of Policy No. 38010526-0 issued to Gladys V. Hernandez by the Oscars Ins. Agency (Name of Insurance Company) at its Agency located (city and state) Houston Texas and is effective from 2:20 p.m. (12:01 A.M. Standard Time). (The information above is required only when this endorsement is issued subsequent to preparation of the policy.) This endorsement forms a part of the policy to which attached, effective from its date of issue unless otherwise stated herein.
WARNING
READ THIS ENDORSEMENT CAREFULLY!
This acknowledgment and rejection is applicable to all renewals issued by us or any affiliated insurer. However, we must provide a notice with each renewal as follows: “This policy contains a named driver exclusion.”
|2You agree that none of the insurance coverages afforded by this policy shall apply while Marlon Reynoso (The Excluded Driver) is operating your covered auto or any other motor vehicle. You further agree that this endorsement will also serve as a rejection of Uninsured/Underinsured Motorists Coverage and Personal Injury Protection Coverage while your covered auto or any other motor vehicle is operated by the excluded driver. Acknowledged by (s) Gladys Hernandez (Your signature). By (s) Oscar A. Rivas (Duly Authorized Representative).
FORM 515A — EXCLUSION OF NAMED DRIVER AND PARTIAL REJECTION OF COVERAGES Texas Standard Automobile Endorsement Prescribed March 18,1992.

Hernandez’s insurance agent communicated this information to Progressive on May 1, 2002 and Progressive issued the changed policy reflecting the deletion of the Lincoln Towncar and excluding Reyno-so as a driver effective May 2, 2002. Attached and made a part of that policy was Form 515A, as it appears above.

On July 4, 2002, Reynoso drove the Honda Accord to Calcasieu Parish, Louisiana, and was involved in an automobile accident with Billie Jean Gilbert and Joseph Gilbert (“the Gilberts”). Ms. Gilbert was driving and Mr. Gilbert was a passenger. The Gilberts filed suit in the Fourteenth Judicial District Court for personal [505]*505injuries and property damages allegedly sustained in the accident. Reynoso and Progressive were named as defendants. Progressive answered the suit and asserted that it did not provide coverage for this accident based on the exclusion of Reynoso as a driver executed by the policy owner, Hernandez. Progressive then moved for summary judgment and said motion was granted by the trial court. Plaintiffs lodged this appeal, asserting that the trial court erred in finding that Reynoso was an excluded driver under the terms and conditions of the policy since the exclusion form signed by Hernandez was not dated. Plaintiffs further contend that Louisiana law rather than Texas law applies and that parol evidence cannot be used to alter the written document. For the following reasons, we disagree with Plaintiffs hand affirm the ruling of the trial court granting summary judgment in favor of Progressive.

DISCUSSION

At the outset, we note that Appellate courts review summary judgments de novo, under the same criteria which govern the district court’s consideration of the appropriateness of summary judgment. Jones v. Estate of Santiago, 03-1424 (La.04/14/04), 870 So.2d 1002; Glod v. Baker, 04-1483 (La.App. 3 Cir. 3/23/05), 899 So.2d 642. Thus, we must determine whether any genuine issues of material fact exist and whether the movant is entitled to judgment as a matter of law. La. Code Civ.P. art. 966(B) and (C). If the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show a lack of factual support for an essential element of the opposing party’s claim and the opposing party cannot produce any evidence to suggest that it will be able to meet its evidentiary burden at trial, judgment should be rendered in favor of movant. Palm v. Stewart, 03-594 (La. App. 3 Cir. 11/5/03), 858 So.2d 790.

In this case, the inquiry on de novo review involves four questions: (1) whether Texas or Louisiana law governs; (2) whether the exclusion is valid; (3) whether the exclusion applies to the facts of this case; and (4) whether there are any genuine issues of material fact precluding summary judgment.

Turning first to the issue of whether Louisiana or Texas law applies, we note that the critical first test is whether there is, in fact, a difference in the law of the two jurisdictions and whether any such difference affects the outcome of the case. Palm, 858 So.2d 790. Plaintiffs contend, without citation to authority or giving any other reason, that Louisiana law applies but further contend that even if Texas law applies, it recognizes that parol evidence cannot be used and that its standards governing 14summary judgments are similar to those of Louisiana law. Defendants, on the other hand, contend that Texas law applies because the insurance policy at issue was issued and delivered to Hernandez, a Texas resident, for a vehicle registered and garaged in Texas. See Beasley v. Butler, 499 So.2d 543 (La.App. 2 Cir. 1986) and Gates v. Claret, 945 F.2d 102 (5th Cir.1991).

In both Louisiana and Texas, a named insured, such as Hernandez, is free to exclude a specific driver by written agreement. La.R.S. 32:900(L); V.A.T.S. Ins. Code, Art. 5.06. In Texas, that exclusion must be executed on a form approved by the State Board of Insurance and made a part of the policy. Y.A.T.S. Ins.Code, Art. 5.06, Safeway Managing Gen. Agency for State and County Mut. Fire Ins. Co. v. Cooper, 952 S.W.2d 861 (Tex.App.-Amarillo 1997). Neither state requires that the form be dated and neither state requires that the excluded driver sign the agree[506]*506ment. La.R.S. 32:900(L); V.A.T.S. Ins. Code, Art. 5.06. Plaintiffs also contend that the exclusion is problematic in that Reynoso was the owner of the vehicle which he was excluded from driving.

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917 So. 2d 503, 2005 La. App. LEXIS 2289, 2005 WL 2864586, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gilbert-v-reynoso-lactapp-2005.