Henderson v. Geico General Ins. Co.

837 So. 2d 736, 2003 La. App. LEXIS 98, 2003 WL 183779
Louisiana Court of Appeal·Decided January 29, 2003·No. 36,696-CA·Published·Cited by 5 cases

Opinion

837 So.2d 736 (2003)

Alice Seymour HENDERSON, Plaintiff-Appellant,
v.
GEICO GENERAL INSURANCE COMPANY, et al., Defendants-Appellees.

No. 36,696-CA.

Court of Appeal of Louisiana, Second Circuit.

January 29, 2003.

*737 Bruscato, Tramontana & Wolleson by Anthony J. Bruscato, Monroe, for Appellant.

Voorhies & Labbè by Cyd Sheree Page, Monroe, for Appellees.

Before STEWART, GASKINS and PEATROSS, JJ.

PEATROSS, J.

Plaintiff, Alice Henderson, appeals from a judgment denying her recovery of damages she sustained in an automobile accident. For the reasons stated herein, we reverse and render judgment in favor of Ms. Henderson.

FACTS

This case involves La. R.S. 32:866, also known as the "no pay, no play" statute. The issue before us is whether the trial court erred in finding that Ms. Henderson had no automobile liability insurance at the time of her accident. On January 2, 2001, *738 a truck driven by Harry Statham struck the vehicle Ms. Henderson was driving; the crash injured Ms. Henderson and damaged her vehicle. Ms. Henderson sued Mr. Statham and his insurer, GEICO General Insurance Company ("GEICO"). At trial, Defendants stipulated liability; therefore, the only issues for the trial court were Ms. Henderson's coverage and damages.

At the time of the accident, Ms. Henderson was married, but she had physically separated from her husband in February 2000. She remained in the matrimonial home on Oregon Trail in Monroe while her husband lived elsewhere. Ms. Henderson was driving a 1995 Honda Accord at the time of the accident. She testified that the car was titled in her husband's name, but the registration, included as an exhibit in the record, indicated that both she and her husband were listed as owners. The car was financed through Bank One. While the Hendersons lived together, Ms. Henderson took care of the family's business, including securing automobile insurance for the vehicles. In January 1999, Ms. Henderson placed comprehensive insurance on the vehicle through Advanced Insurance Planning ("AIP"), a Monroe insurance broker. The policy was with Continental Insurance Company ("CNA") and named both of the Hendersons and their son as drivers; the address on the policy was the Oregon Trail matrimonial address. The policy renewed in 2000 and was scheduled to expire on January 29, 2001.

Initially, the premium payments were drafted from the couple's joint checking account. On May 18, 2000, however, Mr. Henderson terminated the automatic drafting of the insurance premiums from the bank account, and the insurer began directly billing the Hendersons. According to AIP, no further payments were made on the policy.

On June 30, 2000, AIP received a notice from CNA dated June 19, 2000, stating that the Hendersons' insurance was to be cancelled on July 6, 2000, due to non-payment of premiums. This notice, filed into evidence, was in the nature of a courtesy copy to AIP and contains a notation that the notice was also sent to Michael Henderson and Bank One. Ms. Henderson denied that she received a copy of this notice. Shannon Brown, an AIP representative, testified that, typically, the insurer would send a copy to the insured and copies to the broker and the lienholder. On July 25, 2000, after the policy had purportedly been cancelled, AIP received another document from CNA seeking payment from the Hendersons for an additional $104.25 owed on their policy. The bill states that it is a "closing bill" and that the Hendersons' insurance with CNA was terminated on July 6, 2000. By its language, it appears that the bill was intended for the Hendersons, but there is nothing in the record which indicates it was actually mailed to either Mr. or Ms. Henderson. Ms. Henderson testified that she did not receive the bill.

On June 23, 2000, Ms. Henderson purchased a comprehensive insurance policy on the Honda from U.S. Agencies. Ms. Henderson testified that she secured this insurance when she was unable to learn from AIP whether the Honda still had insurance through CNA, and she and her husband were not communicating. Ms. Brown testified that she sent a letter addressed to Mr. Henderson at the Oregon Trail address in August 2000 informing him that CNA had cancelled the policy effective July 6, 2000; a copy of that letter is included in the record as an exhibit. Mr. Henderson denied receiving this letter.

*739 Subsequently, CNA sent another notice, dated November 28, 2000, to the Hendersons and to AIP. Ms. Henderson testified that she received this notice, which provides, in part:

NOTICE OF NONRENEWAL OF INSURANCE Named Insured & Mailing Address Producer: ... MICHAEL W. HENDERSON ADVANCED INS PLANNING, INC. 604 OREGON TRAIL PO BOX 2334 MONROE LA 71202 MONROE LA 72017 Policy No.: US198827222 Type of Policy: AUTO LIABILITY AND PHYSICAL DAMAGE Date of Expiration: 01/29/2001; 12:01 A.M. Local time at the mailing address of the named insured. We will not renew this policy when it expires. Your insurance will cease on the Expiration Date shown above. The reason for nonrenewal is YOUR AGENT NO LONGER REPRESENTS CNA PERSONAL INSURANCE FOR PERSONAL INSURANCE PRODUCTS. This policy provides auto liability coverage. You should contact your agent, or any licensed agent about your possible eligibility for coverage through the Louisiana Automobile Insurance Plan.

The copy of this notice in evidence is the copy from AIP's records and is file stamped as received by AIP on December 6, 2000. Obviously, this notice was erroneously generated by CNA as it had already purportedly cancelled the Hendersons' policy for nonpayment on July 6, 2000. Ms. Brown testified that CNA sent similar notices to other CNA policy holders around the same time. AIP then sent Ms. Henderson a letter on December 7, 2000, restating what the CNA notice said and offering to replace her CNA coverage with other insurance.

Ms. Henderson stopped paying the premium on the U.S. Agencies policy in late 2000 and that policy was terminated for nonpayment. According to her testimony, and over the objection of opposing counsel, Ms. Henderson said that her agent told her "that I have two insurance policies. They said it was against the law to have two insurance policy (sic) on a car. That's when I quit paying it." The record contains a November 13, 2000 notice to Ms. Henderson from U.S. Agencies stating that her policy would expire on November 24, 2000, if she did not pay her premium.

The Hendersons' finance agreement with Bank One required the owners to carry comprehensive insurance. Irven Wright, a Bank One branch manager in Monroe, testified that his records did not contain any notice of cancellation from any insurance carrier. He said that Bank One had numerous addresses where these records were sometimes sent and that "there's always a problem" in getting the right documents to the right location for the right file.

Mr. Henderson testified that he did not notify AIP of his change of address after he moved out of the matrimonial residence. He further testified that he did not receive, nor had he seen, any of the described *740 notices or correspondence prior to his deposition in this case.

After hearing all of this evidence, the court took the case under advisement and subsequently awarded damages to Ms. Henderson in the amount of $8,883.66. The court, however, further ordered that La. R.S.

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Henderson v. Geico General Ins. Co., 837 So. 2d 736, 2003 La. App. LEXIS 98, 2003 WL 183779 (La. Ct. App. 2003).

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