Hale v. Corley

839 So. 2d 1056, 2003 La. App. LEXIS 553, 2003 WL 731398
CourtLouisiana Court of Appeal
DecidedMarch 5, 2003
DocketNos. 36,911-CA, 36,912-CA
StatusPublished
Cited by2 cases

This text of 839 So. 2d 1056 (Hale v. Corley) 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
Hale v. Corley, 839 So. 2d 1056, 2003 La. App. LEXIS 553, 2003 WL 731398 (La. Ct. App. 2003).

Opinion

hKOSTELKA, Judge Pro Tempore.

Gary D. Hale, Erica Hudson, and Tava Hudson (collectively, the “appellants”) appeal a judgment of the First Judicial District Court in favor of Financial Indemnity Company (“Financial”), determining that a policy of insurance previously issued by Financial had been properly canceled. For the following reasons, we affirm.

Facts

These cases stem from a motor vehicle accident which occurred on January 31, 1997 involving vehicles driven by Casey Corley (“Casey”), Gary Hale (“Hale”), and Erica Hudson. Tava Hudson was a passenger in Erica Hudson’s vehicle. As claimed in the consolidated lawsuits of Hale and the Hudsons, the accident was caused by Casey’s negligent operation of a 1992 Ford F-150 pickup truck allegedly covered by a policy of insurance (the “policy”) issued by Financial in favor of Casey’s father, Michael Corley (“Michael”). Financial answered the lawsuit and denied coverage, stating that the policy had been canceled as a result of nonpayment of premium at a date previous to the accident.

The policy had an effective period of August 5, 1996 through February 5, 1997; however, a cancellation notice for nonpayment of premium was mailed by Financial to Michael at the address listed on the application which was stated to be P.O. Box 296, Sibley, Louisiana 71073. The notice stated that in the event the premium was not remitted by January 4, 1997, the policy would be canceled effective January 5, 1997. Payment was not made as requested, and the policy was canceled; thus, the vehicle | ^listed on the policy and driven by Casey was uninsured on the date of the accident.

A bifurcated trial on the issue of insurance coverage was held. Testimony was given by three witnesses: Casey, Michael, and Janet Hanson (“Hanson”), the general manager of Webster Insurance Agency, which sold the policy to Michael. After considering the evidence, the trial court granted judgment in favor of Financial [1058]*1058finding that no insurance coverage applied. This appeal by Hale and the Hudsons ensued.

Discussion

The sole assignment of error raised by the appellants is whether the trial court erred in its determination that there was no insurance coverage on the date of the accident as a result of the policy being canceled for nonpayment of premium. Specifically, the appellants argue that the Proof of Service by Mail prepared by Financial stating that the notice of cancellation was mailed does not include a zip code, although it sets forth the street address, city and state to which the notice of cancellation was mailed. Appellants maintain that this omission on the certificate of mailing is fatal and is not sufficient proof that the notice of cancellation was properly mailed to either Michael or Casey. We disagree.

Louisiana R.S. 22:636.1 provides, in pertinent part, as follows:

B.(l) A notice of cancellation of a policy shall be effective only if it is based on one or more of the following reasons: (a) Nonpayment of premium.
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|aD.(l) ... when cancellation is for nonpayment of premium at least ten days notice of cancellation accompanied by the reason therefor shall be given.... Notice of cancellation for nonpayment of premiums shall not be required to be sent by certified mail....
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F. Proof of mailing of notice of cancellation, or of intention not to renew or of reasons for cancellation, to the named insured at the address shown in the policy, shall be sufficient proof of notice.

The burden of proving that an insurance policy has been canceled for nonpayment of premium prior to the date of a loss giving rise to the denied claim is on the insurer. Folds v. Protective Cas. Ins. Co., 26,323 (La.App.2d Cir.12/07/94), 647 So.2d 1215; Burge v. Allstate Ins. Co., 97-1087 (La.App. 5th Cir.04/15/98), 710 So.2d 1196, citing, Chapman v. Leger, 405 So.2d 604 (La.App. 3d Cir.1981). Where the evidence is sufficient to establish a prima facie case that the insurer mailed the cancellation notice in compliance with the relevant statute, the burden shifts to the insured to establish non-delivery of the notice. Burge, supra, citing, Gooden v. McMorris, 588 So.2d 783 (La.App. 4th Cir.1991), writ denied, 590 So.2d 1202 (La.1992).

Following the trial on the issue of insurance coverage, written Reasons for Judgment in favor of Financial were entered by the trial court, wherein the following factual determinations were made:

... Casey Corley received and ignored the notices mailed by Financial Indemnity [Company] ... thus, no coverage existed on the date of the accident, January 31, 1997 (cancellation having been made on January 5, 1997), because of nonpayment of premiums and cancellation — a fact which Casey Corley probably knew in light of his alleged flight from the accident scene, on January 31, 1997.

4 Although Financial’s Proof of Service by Mail failed to list the zip code as part of the mailing address, this one omission does not serve to invalidate the effectiveness of the policy’s cancellation in light of all of the evidence at trial.1 The statute does not mandate that proof of proper mailing of a notice of cancellation be only [1059]*1059by sworn affidavit that such was mailed. In this case, the trial court had other documentary evidence before it (in addition to the disputed Proof of Service by Mail), as well as the testimony of witnesses that the notice of cancellation was mailed to “the named insured at the address shown on the policy....” Based on that, the trial court made a factual determination that the insured, i.e., Michael, had been properly notified of the cancellation of his insurance.

A court of appeal may not set aside a trial court’s findings of fact unless there is manifest error or the trial court is clearly wrong. Stobart v. State, through Dept. of Transp. and Development, 617 So.2d 880 (La.1993). In applying this standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the fact-finder’s conclusion was a reasonable one. If the fact-finder’s findings are reasonable in fight of the record, viewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Reasonable evaluations of credibility and inferences of fact should not be disturbed upon review where conflict exists in the testimony. Absent a finding of | .^manifest error, the judgment should be upheld. Peterson Contractors, Inc. v. Herd Producing Co., 35,567 (La.App.2d Cir.02/27/02), 811 So.2d 130.

Here, the trial court’s factual determination was entirely reasonable and not clearly wrong in fight of all the evidence before it. Although the Proof of Service by Mail prepared by Financial fists the address to which the Notice of Cancellation was allegedly mailed without the zip code, such an omission in fight of the other documentary evidence and testimony at trial is not critical. In other words, Financial was able to establish a prima facia case that the notice of cancellation was properly mailed to the mailing address made part of the policy and as required by statute.

The copy of the application of insurance produced at trial indicated a mailing address for the insured of P.O.

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Bluebook (online)
839 So. 2d 1056, 2003 La. App. LEXIS 553, 2003 WL 731398, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hale-v-corley-lactapp-2003.