Hollingshead v. White

432 So. 2d 1075, 1983 La. App. LEXIS 8621
CourtLouisiana Court of Appeal
DecidedMay 25, 1983
DocketNo. 82-672
StatusPublished

This text of 432 So. 2d 1075 (Hollingshead v. White) 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
Hollingshead v. White, 432 So. 2d 1075, 1983 La. App. LEXIS 8621 (La. Ct. App. 1983).

Opinion

CUTRER, Judge.

This appeal emanates from Grover T. Hollingshead’s suit seeking damages he incurred in an automobile collision on June 5, 1980. Hollingshead named as defendants: Paul E. White, driver of the other involved automobile, and Travelers Insurance Company (Travelers), Hollingshead’s uninsured motorist carrier. White filed a third party action against Mid-American Indemnity Company (Mid-American) seeking compensation for his own collision loss, indemnification for liability coverage and for attorney’s fees for defense of Hollingshead’s suit. Additionally, Travelers filed a third party action against Mid-American as a subrogee of the sums paid for Hollings-head’s property loss. Travelers also sued for Hollingshead’s deductible. Mid-American denied liability to any of the parties on the ground that its liability and collision coverage, previously issued to White, had been cancelled before the accident in question.

The trial court held that Mid-American’s policy had not been cancelled and rendered judgment against Mid-American on all claims. Mid-American appeals.

. The issue on this appeal is whether White’s insurance policy with Mid-American had been effectively cancelled prior to the accident.

FACTS

Dependable Insurance Agency, Inc. (Dependable) acted as a broker in obtaining the insurance coverage for White. Dependable submitted an application to Mid-American which was accepted. The annual premium to be paid by the insured was $679.76. White was unable to pay the premium in its entirety. At Dependable’s suggestion, White borrowed the premium money from the Bank of Southwest Louisiana. White executed an installment note payable at the rate of $84.79 with the first installment note to become due on November 19, 1979. Dependable, through its owner, endorsed the note. The Bank then transferred the principal sum of $679.76 to Dependable’s checking account and Dependable paid to Mid-American the full annual premium owed by White.

[1077]*1077The policy was issued by Mid-American providing liability and collision coverage for the period of September 25, 1979, to September 25, 1980. The accident occurred on or about June 5, 1980.

The policy was sent to Dependable by Mid-American. It was then delivered to White. Dependable called the Bank and gave them the policy number. The number of the policy was entered upon the note indicating that the Bank intended that the policy was to be a pledge to secure the note. No delivery of the policy was made to the Bank. We will discuss the effect of the non-delivery later in this opinion.

During the early months of 1980, White failed to meet at least two installments. The Bank sent notices of such failure to White and to Dependable. Upon receipt of its notices Dependable sent letters to White requesting that White pay his installments. When White had not made any payments by the middle of March, the Bank began withdrawing money from Dependable’s account and applying them as the payment of White’s delinquent installments.

White had still not paid his overdue installments by the end of March. At this time Dependable requested Mid-American to cancel White’s policy for nonpayment of premiums. On March 31, 1980, Mid-American mailed a notice of cancellation to White and to the mortgage holder of the insured car, Calcasieu Southern Federal Credit Union (Calcasieu Southern). The cancellation was to take effect April 12, 1980.

White maintained that he never received his notice. Calcasieu Southern’s records contained a copy of this notice of cancellation in White’s file, but none of its employees could remember when Calcasieu Southern received the notice.

Dependable received a check from Mid-American for $278.80, the amount of White’s unearned premium. Dependable retained this check in satisfaction of the money withdrawn from its account by the Bank to meet White’s installments.

White paid an installment in early June 1980. A few days later the Hollingshead and White automobile accident occurred. When White contacted Dependable regarding his claim on the accident, White was informed that his policy had been cancelled. Mid-American denied any liability to White and refused to defend the suit against White. The suit for damages was filed and judgment rendered against Mid-American. In his oral reasons for judgment the trial judge stated that “[t]he attempted cancellation of the policy of insurance by Mid-American Indemnity Company was not legally effective...”

As we approach the issues in this case, we must be mindful of the fact that this is not a case where an insured defaults on a premium payment agreement made with the insurer. In case of a default by the insured in such an agreement with the insurer, the nonpayment of premium would give the insurer the right to cancel the insured’s policy.

In the case at hand, the insurer, Mid-American, was paid the full annual premium for White’s insurance out of the proceeds of a bank installment note executed by White and endorsed by the broker, Dependable. Upon default of payment to the Bank, Dependable had to pay the Bank the balance due on the note. Dependable, in seeking to recover the money it paid the Bank, caused Mid-American to issue a notice of cancellation to White and pay to Dependable the unearned premium previously paid to Mid-American.

The question then arises as to whether Dependable, a third party, had the authority to request cancellation of the policy for the failure of White to timely pay his installments at the Bank.

It is undisputed that Dependable was acting only as a broker in this transaction. “The broker ... is he who is empowered to negotiate between two parties and who, for that reason is the mandatory for both.” LSA-C.C. art. 3016. Once the insurance contract was secured by Dependable for White, Dependable’s responsibilities in the transaction ceased. I.C. Realty, Inc. v. Clifton Conduit Company, etc., 291 So.2d 422 (La.App. 4th Cir.1974). Under these princi-[1078]*1078pies, if Dependable had any authority to cancel, it did not arise from its broker relationship with White or Mid-American. We then look to see if Dependable’s authority to cancel could have arisen otherwise.

The procedure for the cancellation of an automobile policy for the nonpayment of a premium is set forth in LSA-R.S. 22:636.1, which provides, in pertinent part, as follows:

“A. As used in this chapter:
(1) ‘Policy’ means an automobile liability, automobile physical damage or automobile collision policy, or any combination thereof, delivered or issued for delivery in this state, insuring a single individual or husband and wife resident of the same household, as named insured, and under which the insured vehicles therein designated are of the following types only:
jj< * * * * *
(6) ‘Nonpayment of premium’ means failure of the named insured to discharge when due any of his obligations in connection with the payment of premiums on a policy, or any installments of such premium, whether the premium is payable directly to the insurer or its agent or indirectly under anv premium finance plan or extension of credit.
“B. A notice of cancellation of a policy shall be effective only if it is based on one or more of the following reasons:
(1) Nonpayment of premium;

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Bluebook (online)
432 So. 2d 1075, 1983 La. App. LEXIS 8621, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hollingshead-v-white-lactapp-1983.