Hebert v. Williams

526 So. 2d 835, 1988 WL 45796
CourtLouisiana Court of Appeal
DecidedMay 11, 1988
Docket87-389
StatusPublished
Cited by9 cases

This text of 526 So. 2d 835 (Hebert v. Williams) 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
Hebert v. Williams, 526 So. 2d 835, 1988 WL 45796 (La. Ct. App. 1988).

Opinion

526 So.2d 835 (1988)

Hazel HEBERT, et al., Plaintiffs-Appellants,
v.
Floyd WILLIAMS, et al., Defendants-Appellees.

No. 87-389.

Court of Appeal of Louisiana, Third Circuit.

May 11, 1988.
Rehearing Denied June 21, 1988.

*836 Domengeaux & Wright, Anthony Moroux, Lafayette, for plaintiff-appellee.

Hawley & Schexnayder, W. Paul Hawley, Lafayette, for plaintiffs-appellants.

Gibbens & Blackwell, J. Louis Gibbens, New Iberia, Preis, Kraft, Laborde & Daigle, P.C., Chris R. Phillip, Allen, Gooch, Bourgeois, Breaux, Robison & Theunissen, P.C., Joel E. Gooch, Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, James L. Pate, Lafayette, for defendants-appellees.

Christovich & Kearney, Lawrence Ernst, New Orleans, for defendant-appellant.

Before LABORDE, YELVERTON and KNOLL, JJ.

LABORDE, Judge.

This suit arises from a fatal automobile accident that took the life of plaintiffs' decedent, Carlton G. Hebert. Plaintiffs in this case are the widow, Hazel S. Hebert, and four major children of the deceased, Didier G. Hebert, Rene Jude Hebert, Carla Ann Hebert, and Cassie Lynn Hebert.

Plaintiffs' original suit named three defendants: Floyd Williams, Sr., his liability insurer, Travelers Insurance Company (Travelers), and General Motors Corporation. In a supplemental and amending petition, plaintiffs added as defendants Southern Pacific Transportation Company (Southern Pacific), GELCO Corporation, its primary liability and uninsured motorist carrier, Home Indemnity Company, and First State Insurance Company, its excess carrier. In their second supplemental and amending petition, plaintiffs added International Surplus Lines Insurance Company (International Surplus), the excess carrier for Southern Pacific.

This appeal is limited to the review of two summary judgments granted in favor of Southern Pacific and International Surplus. The trial court found that Southern Pacific, as a certified self-insurer, owed no uninsured motorist coverage to plaintiffs; and that International Surplus, as an excess carrier, did not provide uninsured motorist coverage to plaintiffs from the first dollar of plaintiffs' claim, but only for any excess over $8,000,000.00 to their $12,000,000.00 limits. Plaintiffs devolutively appealed these judgments. First State Insurance Company failed to perfect its appeal; therefore, its position cannot be considered. After a thorough review of the record and reflection upon current jurisprudence, we find that as a matter of law, Southern Pacific and International Surplus are entitled to judgment. The summary judgments granted by the trial court are affirmed.

FACTS

On September 25, 1982, after rerailing a railroad car for their employer, Southern Pacific, Carlton Hebert and his helper, Larry Huval, attempted to return to Lafayette, Louisiana. Mr. Hebert drove and Mr. Huval sat in the passenger seat of the 1982 GM pick-up truck owned by GELCO and leased to Southern Pacific. The pair proceeded westward on U.S. 90. The truck was in the right lane of traffic as it approached the intersection of Highway 90 and Darnell Rd. Highway 90 is clearly the dominant route with four lanes of traffic. The east and westbound lanes of Highway 90 are divided by a neutral ground almost 500 feet wide. Darnell Road is regulated by stop signs and flashing red lights.

As the Southern Pacific truck reached the middle of the intersection at Darnell Road, it was broadsided by a vehicle owned and operated by Floyd Williams, Sr. Mr. Williams ran the stop sign controlling Darnell Road on the neutral ground side. The Williams car struck the Southern Pacific truck on the driver's side. The driver, Mr. Hebert, was killed. The passenger, Mr. Huval, was severely injured. Several lawsuits have arisen from this accident; however, as mentioned above, only plaintiffs' claims for uninsured motorist benefits from Southern Pacific and International Surplus are at issue in this appeal.

*837 UNINSURED MOTORIST PROTECTION: SOUTHERN PACIFIC

Southern Pacific leased the truck involved in the accident from GELCO. The lease agreement gave Southern Pacific the option to either provide insurance on the truck or to be self-insured. It is undisputed that Southern Pacific was a qualified self-insurer in Louisiana at the time of the accident and that the vehicles it leased from GELCO were included under the self-insurance certificate issued by the State of Louisiana. Southern Pacific was self-insured up to $8,000,000.00, beyond which Southern Pacific carried excess insurance with International Surplus up to $12,000,000.00.

Plaintiffs assert that a self-insurer (Southern Pacific) which does not expressly waive uninsured motorist protection is obligated under LSA-R.S. 22:1406(D) to provide uninsured motorist coverage up to the liability limits of the self-insurance certificate. The trial court found, and defendant reurges on appeal, that as a self-insurer Southern Pacific does not fall within the confines of LSA-R.S. 22:1406(D). We find that a self-insurer is not obligated to express in writing a rejection of uninsured motorist insurance.

The Compulsory Motor Vehicle Liability Security Law, LSA-R.S. 32:861 et seq., allows vehicle owners several means of establishing financial responsibility. These include: 1) a motor vehicle liability policy as defined by LSA-R.S. 32:900; 2) a motor vehicle liability bond; 3) a certification of the State Treasurer stating that cash or securities have been deposited with the Treasurer; or 4) a certification of self-insurance as provided by LSA-R.S. 32:1042. Only one method, number 1 above, contemplates the use of insurance; therefore, it is the only method controlled by our insurance code, specifically LSA-R.S. 22:1406(D).

In their attempt to assert uninsured motorist coverage, plaintiffs graft the written waiver requirement of LSA-R.S. 22:1406(D)(1)(a)[1] to the provisions of self-insurance certification of LSA-R.S. 32:1042.[2] However, Louisiana Courts have already rejected plaintiffs' position.

The bellwether case addressing this issue in Louisiana is Jordan v. Honea, 407 So.2d 503 (La.App. 1st Cir.1981), writ denied, 409 So.2d 654 (La.1982). The court noted that LSA-R.S. 22:1406(D) uses the words "delivered or issued" in its requirement that there be uninsured motorist coverage unless *838 properly rejected. The court opined that by using that language, "the statute contemplates that there be a policy of insurance, as self-insurance can neither be `delivered' nor `issued' but rather, simply, exists apart from any issuance or delivery. Thus, it was not intended by the legislature that self-insurance should entail UM coverage." Id. at 504. The court held that a certified self-insured does not afford uninsured motorist coverage.

"Were we to hold that the UM coverage requirements of LSA-R.S. 22:1406(D) are applicable to a self-insured, the UM rejection provision of the statute would become impracticable for the reason that there is no person, office, agency, or other legal entity provided for by statute to whom rejection could be communicated. Thus, if we were to accept plaintiff's position, UM coverage would become mandatory and thereby even broader if there were self-insurance than if there were a basic automobile liability insurance policy. Such an anomalous result could not have been intended by the legislature."

Id. at 505.

In Harrison v. Petri, 468 So.2d 666, (La. App. 4th Cir.1985), the appellate court correctly refused to disapprove of the well-reasoned holding of

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Bluebook (online)
526 So. 2d 835, 1988 WL 45796, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hebert-v-williams-lactapp-1988.