Ledbetter v. Myers

438 So. 2d 700
CourtLouisiana Court of Appeal
DecidedSeptember 20, 1983
Docket15654-CA
StatusPublished
Cited by22 cases

This text of 438 So. 2d 700 (Ledbetter v. Myers) 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
Ledbetter v. Myers, 438 So. 2d 700 (La. Ct. App. 1983).

Opinion

438 So.2d 700 (1983)

Roy H. LEDBETTER, Plaintiff-Appellee,
v.
Edmund Tom MYERS, Defendant-Appellant, and
Economy Fire & Casualty Company, Third Party Defendant-Appellee.

No. 15654-CA.

Court of Appeal of Louisiana, Second Circuit.

September 20, 1983.

*701 Brown, Wicker & Amman by R. Douglas Wood, Jr., Monroe, for plaintiff-appellee.

Bruscato, Loomis, Deal & Street by C. Daniel Street, Monroe, for defendant-appellant.

Davenport, Files & Kelly by Mike C. Sanders, Monroe, for third party defendant-appellee.

Before PRICE, FRED W. JONES, Jr., and NORRIS, JJ.

NORRIS, Judge.

On July 14, 1982, an accident involving Roy H. Ledbetter and Edmund Tom Myers occurred on I-20 near Ruston when Myers' car left the eastbound lane, crossed the median of the interstate and struck Ledbetter's vehicle. On October 21, 1982, Ledbetter filed a suit for damages against Myers and Economy Fire and Casualty Co., the alleged liability insurer of the Myers' automobile.[1]*702 Economy thereafter moved for summary judgment seeking dismissal as a party defendant on the ground that Economy did not insure Myers on the date of the accident. The trial court granted the motion and Myers appeals. Finding Economy's affidavits and exhibits insufficient to warrant the granting of a summary judgment, we reverse.

On June 9, 1981, Economy issued policy No. EF-2-242-268 to Edmund Tom Myers to provide six months coverage on his 1976 Pontiac Catalina and another vehicle. The policy was renewed December 9, 1981, and provided coverage through June 9, 1982. No premium was paid by June 9, 1982 to extend coverage through the period including July 14, 1982. According to the insurance company's representatives, a premium notice was mailed to Myers prior to June 9, 1982, indicating a willingness to renew the policy for the renewal period beginning June 9, 1982, and expiring December 9, 1982. Such premium notices are generally mailed 30 to 45 days prior to the expiration of a policy term with an "Automobile Policy Renewal Certificate," and endorsements. It is the general practice of Economy to mail a second pink copy of the premium notice on the due date if the premium is not paid by the due date. This copy purportedly informs the insured that if payment is not received within fifteen days of the due date, the policy will be cancelled. According to the affidavit of Thomas E. Brim, head of the accounting department, he personally prepared for mailing and supervised the mailing of the pink copy of the premium notice which was purportedly mailed to Myers on June 9, 1982. Neither the affidavit of Brim, nor the affidavit of Joseph B. Serafini, the regional claim manager of Economy, states on personal knowledge that either mailed or supervised the mailing of the initial premium notice.

In response to the motion for summary judgment, Myers filed a Memorandum in Opposition and an affidavit in which he stated that "... contrary to the indications submitted by ECONOMY FIRE AND CASUALTY COMPANY, he did not receive any Premium Notice prior to June 9, 1982." In the Memorandum in Opposition, Myers objected to the consideration by the trial court of the affidavits of Serafini and Brim attached to Economy's motion on the basis that they were not based on personal knowledge but rather were based on conclusions and reports from the company's records and contained an outline of procedures customarily followed by the company for cancellation of automobile liability policies. He further objects to Brim's affidavit on the basis that there is nothing contained within the affidavit that states that he or anyone else actually mailed the premium notice.

Myers argues in this court that the trial court was in error in granting the motion for summary judgment and raises three issues:

1. Whether or not the affidavits filed in support of the Motion for Summary Judgment can be considered in view of the fact that they are not made on personal knowledge.
2. Whether or not Defendant-Appellant Edmund Tom Myers was given notice of the willingness of Economy Fire and Casualty Company to renew his policy.
3. Whether or not a genuine issue of material fact exists.

The applicable law is found in La.R.S. 22:636.1 which provides in pertinent part:

A. As used in this chapter:
* * * * * *
(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 installment of such premium, whether the premium is payable directly to the insurer or its agent or *703 indirectly under any 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; or
* * * * * *
D. No notice of cancellation of a policy to which Subsections B or C applies shall be effective unless mailed or delivered by the insurer to the named insured at least twenty days prior to the effective date of cancellation; provided, however, that where cancellation is for nonpayment of premium at least ten days notice of cancellation accompanied by the reason therefor shall be given. Unless the reason accompanies or is included in the notice of cancellation, the notice of cancellation shall state or be accompanied by a statement that upon written request of the named insured, mailed or delivered to the insurer not less than fifteen days prior to the effective date of cancellation, the insurer will specify the reason for such cancellation. This subsection shall not apply to nonrenewal.
E. No insurer shall fail to renew a policy unless it shall mail or deliver to the named insured, at the address shown in the policy, at least twenty days advance notice of its intention not to renew. This subsection shall not apply; (1) if the insurer has manifested its willingness to renew; or (2) in case of nonpayment of premium; provided that, notwithstanding the failure of an insurer to comply with this subsection, the policy shall terminate on the effective date of any other insurance policy with respect to any automobile designated in both policies.
Renewal of a policy shall not constitute a waiver or estoppel with respect to grounds for cancellation which existed before the effective date of such renewal.
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.

* * * * * *

As stated in Ray v. Associated Indem. Corp., 373 So.2d 166 (La.1979):

It is well settled in our jurisprudence that a motion for summary judgment should be granted if, and only if, the pleadings and related filings show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. C.C.P. 966; Employers' Surplus Line Ins. Co. v. City of Baton Rouge, 362 So.2d 561 (La.1978); Andrew Development Corp. v. West Esplanade Corp., 347 So.2d 210 (La.1977); Morgan v. Matlack, Inc., 342 So.2d 167 (La.1977).

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Bluebook (online)
438 So. 2d 700, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ledbetter-v-myers-lactapp-1983.