STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
14-49
HATTIE DENISE MCCOY
VERSUS
USAGENCIES CASUALTY INSURANCE CO.
********** APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, DOCKET NO. 2013-142 HONORABLE DAVID A. RITCHIE, DISTRICT JUDGE **********
SYLVIA R. COOKS JUDGE
**********
Court composed of Sylvia R. Cooks, Marc T. Amy, and J. David Painter, Judges.
AFFIRMED.
Somer Brown Cox, Cox, Filo, Camel & Wilson 723 Broad Street Lake Charles, LA 70601 (337) 436-1166 ATTORNEY FOR PLAINTIFF/APPELLANT Hattie Denise McCoy
Anthony Butler 5420 Corporate Boulevard, Suite 103 Baton Rouge, LA 70808 (225) 926-1810 ATTORNEY FOR DEFENDANT/APPELLEE USAgencies Casualty Insurance Co. COOKS, Judge.
FACTS AND PROCEDURAL HISTORY
On July 9, 2012, Plaintiff, Hattie Denise McCoy, was on her way to work at
L’Auberge Du Lac Casino and Resort in Lake Charles. According to Plaintiff, she
was run off the road by an unknown vehicle, which then fled the scene without
stopping. Her vehicle came to rest over the curb on the side of the road. Plaintiff
asserted she suffered bodily injury as a result of the incident.
Corporal Robert Janice, of the Lake Charles Police Department, arrived at
the scene of the incident approximately thirty minutes after it occurred. Corporal
Janice spoke with Plaintiff who informed him she had been run off the road by
another vehicle. There were no witnesses to the incident. Corporal Janice noted
that Plaintiff’s vehicle did not come into contact with any other vehicle. Plaintiff
maintained she suffered injuries as a result of the incident.
At the time of the incident, Plaintiff had a policy of insurance with
USAgencies. Through her uninsured/underinsured motorist coverage, Plaintiff
brought a claim against her policy alleging the driver of another vehicle caused the
accident that resulted in the injuries she sustained.
USAgencies opposed the claim, contending Plaintiff was unable to meet her
statutory requirement of proving the accident was the result of the actions of the
driver of the unknown vehicle. USAgencies filed a Motion for Summary
Judgment asserting Plaintiff was unable to meet that burden. The matter was
briefed and argued before the trial court, which determined that Plaintiff was
unable to satisfy her burden of proving the unwitnessed accident was caused by
another driver. Thus, finding no genuine issue of material fact existed that the
policy of insurance issued by USAgencies did not provide coverage for the
damages alleged by Plaintiff, the trial court granted summary judgment and
Plaintiff’s suit was dismissed with prejudice. This appeal followed.
2 ANALYSIS
When an appellate court reviews a district court’s judgment on a motion for
summary judgment, it applies the de novo standard of review, “using the same
criteria that govern the trial court’s consideration of whether summary judgment is
appropriate, i.e., whether there is a genuine issue of material fact and whether the
mover is entitled to judgment as a matter of law.” Supreme Serv. & Specialty Co.,
Inc. v. Sonny Greer, 06-1827, p. 4 (La. 5/22/07), 958 So.2d 634, 638. Summary
judgment is a favored procedure and is designed to secure the just, speedy, and
inexpensive determination of every action. La.Code Civ.P. art. 966.
It is well settled that liability insurers in Louisiana are required to offer
uninsured/underinsured motorist (UM) coverage in connection with the issuance of
liability coverage. If UM coverage is purchased, it serves to protect the insured
from other drivers who are not covered by liability insurance and also from other
drivers who do not carry sufficient limits of liability insurance to cover the
damages caused. See La.R.S. 22:1295. Additionally, in 1991, the legislature
required uninsured motorist policies to include “miss and run” coverage under
certain circumstances. This coverage provides protection against other drivers who
cause an accident and then flee the scene, even in the situation where the other
vehicle does not physically collide with the insured vehicle.
Louisiana Revised Statutes 22:1295(1)(f) sets forth the burden of proof for
establishing a “miss and run” claim:
Uninsured motorist coverage shall include coverage for bodily injury arising out of a motor vehicle accident caused by an automobile which has no physical contact with the injured party or with a vehicle which the injured party is occupying at the time of the accident, provided that the injured party bears the burden of proving, by an independent and disinterested witness, that the injury was the result of the actions of the driver of another vehicle whose identity is unknown or who is uninsured or underinsured.
3 The language of the USAgencies policy regarding uninsured/underinsured motorist
coverage follows closely the language of La.R.S. 22:1295(1)(f):
PART C - UNINSURED/UNDERINSURED MOTORIST COVERAGE .... Exclusions for part C, all Sections .... 2. We do not provide coverage under any Section of Part C: a. For bodily injury or property damage which arises out of the ownership, maintenance or use of a motor vehicle, when the identity of the owner and operator of such motor vehicle remain unknown and such motor vehicle did not come into physical contact with a covered person or a motor vehicle occupied by a covered person, unless the covered person can prove by an independent and disinterested witness that the actions of the unknown driver were the cause of the bodily injury or property damage.
Thus, under both La.R.S. 22:1295(1)(f) and the policy in question, the two
elements Plaintiff must prove in this case are: (1) the witness must be independent
and disinterested, and (2) the witness must prove that the injury was caused by the
driver of another vehicle.
The law is clear that the injured party bears the burden of proving that the
“miss and run” accident occurred. Snowden v. Voyager Indem. Ins. Co., 01-0359
(La.App. 1 Cir. 5/24/02), 825 So.2d 1223, writ denied, 02-1710 (La. 10/4/02), 826
So.2d 1127; Eudy v. State Farm Mut. Auto. Ins. Co., 620 So.2d 405 (La.App. 1
Cir.), writ denied, 625 So.2d 1041 (La.1993).
Both parties acknowledge the facts in this case are largely undisputed. The
issue on appeal is whether the testimony of Corporal Janice satisfies the burden of
proof required under La.R.S. 22:1295(1)(f) to prove the accident was caused by the
In brief, Plaintiff characterized the sole issue presented for review as
“whether a responding officer, when he is proven to be independent and
disinterested, satisfies the requirement of Louisiana Revised Statute 22:1295(1)(f)
4 of proof ‘by an independent and disinterested witness’’ necessary to invoke
uninsured/underinsured motorist coverage.” We cannot determine from the record
if the trial court made any determination as to whether Officer Janice is an
“independent and disinterested witness.” The trial court took the matter under
advisement after the summary judgment hearing, and the judgment rendered states
only that “the law and evidence [is] in favor of the Defendant” and “there exists no
genuine issue of material fact that the policy of insurance issued . . . does not
provide coverage for the damages alleged by Plaintiff herein.” A determination
that Officer Janice is “independent and disinterested” is only relevant if his
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
14-49
HATTIE DENISE MCCOY
VERSUS
USAGENCIES CASUALTY INSURANCE CO.
********** APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, DOCKET NO. 2013-142 HONORABLE DAVID A. RITCHIE, DISTRICT JUDGE **********
SYLVIA R. COOKS JUDGE
**********
Court composed of Sylvia R. Cooks, Marc T. Amy, and J. David Painter, Judges.
AFFIRMED.
Somer Brown Cox, Cox, Filo, Camel & Wilson 723 Broad Street Lake Charles, LA 70601 (337) 436-1166 ATTORNEY FOR PLAINTIFF/APPELLANT Hattie Denise McCoy
Anthony Butler 5420 Corporate Boulevard, Suite 103 Baton Rouge, LA 70808 (225) 926-1810 ATTORNEY FOR DEFENDANT/APPELLEE USAgencies Casualty Insurance Co. COOKS, Judge.
FACTS AND PROCEDURAL HISTORY
On July 9, 2012, Plaintiff, Hattie Denise McCoy, was on her way to work at
L’Auberge Du Lac Casino and Resort in Lake Charles. According to Plaintiff, she
was run off the road by an unknown vehicle, which then fled the scene without
stopping. Her vehicle came to rest over the curb on the side of the road. Plaintiff
asserted she suffered bodily injury as a result of the incident.
Corporal Robert Janice, of the Lake Charles Police Department, arrived at
the scene of the incident approximately thirty minutes after it occurred. Corporal
Janice spoke with Plaintiff who informed him she had been run off the road by
another vehicle. There were no witnesses to the incident. Corporal Janice noted
that Plaintiff’s vehicle did not come into contact with any other vehicle. Plaintiff
maintained she suffered injuries as a result of the incident.
At the time of the incident, Plaintiff had a policy of insurance with
USAgencies. Through her uninsured/underinsured motorist coverage, Plaintiff
brought a claim against her policy alleging the driver of another vehicle caused the
accident that resulted in the injuries she sustained.
USAgencies opposed the claim, contending Plaintiff was unable to meet her
statutory requirement of proving the accident was the result of the actions of the
driver of the unknown vehicle. USAgencies filed a Motion for Summary
Judgment asserting Plaintiff was unable to meet that burden. The matter was
briefed and argued before the trial court, which determined that Plaintiff was
unable to satisfy her burden of proving the unwitnessed accident was caused by
another driver. Thus, finding no genuine issue of material fact existed that the
policy of insurance issued by USAgencies did not provide coverage for the
damages alleged by Plaintiff, the trial court granted summary judgment and
Plaintiff’s suit was dismissed with prejudice. This appeal followed.
2 ANALYSIS
When an appellate court reviews a district court’s judgment on a motion for
summary judgment, it applies the de novo standard of review, “using the same
criteria that govern the trial court’s consideration of whether summary judgment is
appropriate, i.e., whether there is a genuine issue of material fact and whether the
mover is entitled to judgment as a matter of law.” Supreme Serv. & Specialty Co.,
Inc. v. Sonny Greer, 06-1827, p. 4 (La. 5/22/07), 958 So.2d 634, 638. Summary
judgment is a favored procedure and is designed to secure the just, speedy, and
inexpensive determination of every action. La.Code Civ.P. art. 966.
It is well settled that liability insurers in Louisiana are required to offer
uninsured/underinsured motorist (UM) coverage in connection with the issuance of
liability coverage. If UM coverage is purchased, it serves to protect the insured
from other drivers who are not covered by liability insurance and also from other
drivers who do not carry sufficient limits of liability insurance to cover the
damages caused. See La.R.S. 22:1295. Additionally, in 1991, the legislature
required uninsured motorist policies to include “miss and run” coverage under
certain circumstances. This coverage provides protection against other drivers who
cause an accident and then flee the scene, even in the situation where the other
vehicle does not physically collide with the insured vehicle.
Louisiana Revised Statutes 22:1295(1)(f) sets forth the burden of proof for
establishing a “miss and run” claim:
Uninsured motorist coverage shall include coverage for bodily injury arising out of a motor vehicle accident caused by an automobile which has no physical contact with the injured party or with a vehicle which the injured party is occupying at the time of the accident, provided that the injured party bears the burden of proving, by an independent and disinterested witness, that the injury was the result of the actions of the driver of another vehicle whose identity is unknown or who is uninsured or underinsured.
3 The language of the USAgencies policy regarding uninsured/underinsured motorist
coverage follows closely the language of La.R.S. 22:1295(1)(f):
PART C - UNINSURED/UNDERINSURED MOTORIST COVERAGE .... Exclusions for part C, all Sections .... 2. We do not provide coverage under any Section of Part C: a. For bodily injury or property damage which arises out of the ownership, maintenance or use of a motor vehicle, when the identity of the owner and operator of such motor vehicle remain unknown and such motor vehicle did not come into physical contact with a covered person or a motor vehicle occupied by a covered person, unless the covered person can prove by an independent and disinterested witness that the actions of the unknown driver were the cause of the bodily injury or property damage.
Thus, under both La.R.S. 22:1295(1)(f) and the policy in question, the two
elements Plaintiff must prove in this case are: (1) the witness must be independent
and disinterested, and (2) the witness must prove that the injury was caused by the
driver of another vehicle.
The law is clear that the injured party bears the burden of proving that the
“miss and run” accident occurred. Snowden v. Voyager Indem. Ins. Co., 01-0359
(La.App. 1 Cir. 5/24/02), 825 So.2d 1223, writ denied, 02-1710 (La. 10/4/02), 826
So.2d 1127; Eudy v. State Farm Mut. Auto. Ins. Co., 620 So.2d 405 (La.App. 1
Cir.), writ denied, 625 So.2d 1041 (La.1993).
Both parties acknowledge the facts in this case are largely undisputed. The
issue on appeal is whether the testimony of Corporal Janice satisfies the burden of
proof required under La.R.S. 22:1295(1)(f) to prove the accident was caused by the
In brief, Plaintiff characterized the sole issue presented for review as
“whether a responding officer, when he is proven to be independent and
disinterested, satisfies the requirement of Louisiana Revised Statute 22:1295(1)(f)
4 of proof ‘by an independent and disinterested witness’’ necessary to invoke
uninsured/underinsured motorist coverage.” We cannot determine from the record
if the trial court made any determination as to whether Officer Janice is an
“independent and disinterested witness.” The trial court took the matter under
advisement after the summary judgment hearing, and the judgment rendered states
only that “the law and evidence [is] in favor of the Defendant” and “there exists no
genuine issue of material fact that the policy of insurance issued . . . does not
provide coverage for the damages alleged by Plaintiff herein.” A determination
that Officer Janice is “independent and disinterested” is only relevant if his
testimony furthers Plaintiff’s burden of proving another driver caused the accident.
Plaintiff argues the case of Wheat v. Wheat, 03-173 (La.App. 1 Cir. 11/7/03),
868 So.2d 83, supports her argument that the corroborating testimony of a state
trooper is sufficient to meet her burden of proof under the statute. In Wheat, the
plaintiff argued he struck an object in the roadway, which caused him to lose
control of his vehicle, leave the roadway and sustain injury. The witness supplied
by the plaintiff was an investigating police officer who unequivocally stated “his
investigation revealed that the cause of the accident was a transmission left in the
roadway by another vehicle.” Id. at 86. It was noted by the court in Wheat that the
statute does not require that the independent and disinterested witness actually see
the accident occur, but that “the claimant prove, by an independent and
disinterested witness, that the injury was the result of the actions of the driver of
another vehicle.” Id. at 87.
In the instant case Corporal Janice acknowledged “there was nothing
anywhere else around” to help substantiate Plaintiff’s claim that she was run off
the road by another vehicle. Although Corporal Janice stated in his deposition and
report that he believed Plaintiff’s account that she was run off the road by another
vehicle, he noted he had no personal knowledge, simply what Plaintiff had relayed
5 to him. The investigating officer in Wheat made an independent analysis of the
accident scene to determine that the cause of the accident was the vehicle hitting a
transmission that was left in the roadway. Clearly, there was no indication in the
instant case of any physical proof to support Plaintiff’s version of events, in
contrast to the trooper’s discovery of the transmission in Wheat.
Plaintiff argues there is nothing in Wheat which states that tangible, physical
evidence must exist to corroborate the injured driver’s story. While that may be
true, it is clear the appellate court in Wheat relied on the tangible, physical
evidence discovered to reach its ruling that the trooper’s testimony corroborated
Plaintiff’s allegation of a “miss and run” accident. There is no such corroboration
in the instant case.
We find no error in the trial court’s conclusion that Corporal Janice’s
testimony did not create any genuine issue of material fact that Plaintiff failed to
carry her burden of proving the injuries she suffered were caused by the actions of
another driver. Thus, we affirm the trial court judgment granting summary
judgment in favor of USAgencies. Costs of this appeal are assessed to Plaintiff-
Appellant, Hattie Denise McCoy.