Lockwood v. Allstate Insurance Co.

109 So. 3d 931, 2013 WL 163821, 2013 La. App. LEXIS 32
CourtLouisiana Court of Appeal
DecidedJanuary 16, 2013
DocketNo. 47,746-CA
StatusPublished
Cited by1 cases

This text of 109 So. 3d 931 (Lockwood v. Allstate Insurance Co.) 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
Lockwood v. Allstate Insurance Co., 109 So. 3d 931, 2013 WL 163821, 2013 La. App. LEXIS 32 (La. Ct. App. 2013).

Opinion

MOORE, J.

| ,Daniel Lockwood appeals a summary judgment that dismissed his auto liability claim against American International Insurance Company (“AIIC”). For the reasons expressed, we affirm.

Factual and Procedural Background

Shortly before 1 a.m. on November 29, 2009, Lockwood was riding as a passenger in a Chevy Impala driven by 17-year-old Korey Albritton and owned by Korey’s mother, Debra Albritton. Korey lost control, ran off the road and crashed in a ditch, badly injuring Lockwood. Since Ko-rey was a minor, Lockwood filed this suit against his divorced parents, Debra and Scott Albritton, who had joint custody of Korey, and against Debra’s liability carrier, Allstate. Allstate ultimately settled for policy limits and was, with Debra, dismissed.

Through discovery, Lockwood learned that Korey’s father, Scott, had an auto policy with AIIC, which he joined as defendant. AIIC immediately answered that Scott’s policy had expired at 12:01 on November 29, 2009, less than an hour before the accident occurred, because Scott had failed to pay his renewal premium.

AIIC moved for summary judgment on this basis. It argued, in essence, that the statutory rules for expiration of a policy, and not for cancellation, applied. In support, it attached the affidavit of its regulatory analyst, Michael Alexander, stating that AIIC had issued Scott a policy for the period May 29 to November 29, 2009, but that the last monthly premium payment ever received from him, an EFT on August 28, 2009, was denied for insufficient funds, and the company never received any further payment |2despite monthly premium notices. Nevertheless, AIIC had tendered Scott a' renewal offer on September 30, 2009, to activate coverage for the period November 29, 2009, to May 29, 2010, even though his current premium was unpaid; the company also sent him an invoice on December 3, 2009, advising that coverage had expired, but offering to reinstate coverage retroactively if he would send the stated premium by December 22. However, AIIC never received any payment or response, so in the company’s view, Scott failed to renew his policy and had no coverage for the accident. AIIC also attached a copy of Scott’s automobile policy.

Lockwood filed a cross-motion for partial summary judgment, conceding that AIIC complied with the nonrenewal provisions of Title 22, but arguing that because it issued a new policy, it then had to comply with the cancellation provisions, which it failed to do. In support, he attached the affidavit of a private investigator in Baton Rouge, Thomas J. Cashio, who stated that he searched the records of OMV and found a certificate issued by AIIC to Scott for a policy effective November 29, 2009; he called this “an apparent renewal of the same policy which had expired[.]” Attached to the affidavit was an uncertified copy of the OMV insurance record.

AIIC objected that the affidavit did not show sufficient personal knowledge and the insurance record was uncertified; hence they could not be considered under La. C.C.P. art. 967.

After a hearing in November 2011, the district court denied both sides’ motions for summary judgment.

[933]*933|sIn April 2012, AIIC re-urged its motion, this time attaching the deposition of its compliance director, Jeannie McLar-non. She testified that she signed a certification of “the renewal offer” made by AIIC to Scott for the period November 29, 2009, to May 29, 2010, but that it would take effect only if Scott complied with it. She admitted not knowing anything about OMV’s reporting requirements. AIIC argued that her use of the word “effective” was purely conditional, if Scott paid the premium; he did not, so there was no policy.

After a hearing in May 2012, the district court granted AIIC’s motion and denied Lockwood’s. Lockwood now appeals.

Discussion

By two assignments of error, Lockwood urges the district court erred in granting AIIC’s motion for summary judgment and denying his own. He frames the issue as whether “this insurer can rely on compliance with nonrenewal provisions after actually renewing the policy or, rather, would it then have to comply with cancellation provisions.” He contends that AIIC (1) actually issued and delivered a renewal policy to Scott, (2) reported to the state that it had done so, and (3) sent Scott proof of insurance cards. In short, AIIC did “everything required to renew the policy” and cannot now argue that it was not renewed. Thus AIIC was required to cancel the policy, but it did not follow the cancellation procedure, particularly the 10-day notice to cancel a binder required by La. R.S. 22:1266 D(l). Payne v. Old Hickory Ins. Co., 532 So.2d 956 (La.App. 5 Cir.1988), writ denied, 536 So.2d 1241 (1989); Henderson v. GEICO Gen’l Ins. Co., 36,696 (La.App. 2 Cir. 1/29/03), 837 So.2d 736; Taylor v. MFA Mutual Ins. Co., 322 So.2d 842 (La.App. 2 Cir.1975), aff'd, 334 So.2d 402 (1976). He concludes that this court should reverse the judgment and render partial summary judgment declaring coverage under AIIC’s policy.

AIIC responds that it only offered to renew the policy but Scott never accepted the offer. Citing the “Automatic Termination” clause of the policy, it argues that after 12:01 a.m. on November 29, 2009, there was no policy to cancel. When a policy expires from the running of its term, the statutory requirements for cancellation do not apply. Dominique v. Rodriguez, 06-578 (La.App. 5 Cir. 11/28/06), 947 So.2d 63. Issuing provisional ID cards in such circumstances does not constitute a renewal of the policy. Adamson v. State Farm, 95-2450 (La.App. 1 Cir. 6/28/96), 676 So.2d 227. AIIC also argues that all the cases cited by Lockwood involved true cancellations, not nonrenewals, and do not apply. Finally, AIIC argues that Cashio’s affidavit did not evidence any personal knowledge of how the OMV record was created, and the document itself is uncerti-fied; without these items, Lockwood has no admissible summary judgment evidence to rebut AIIC’s showing. It concludes the judgment should be affirmed.

Cancellation of an automobile policy is regulated by La. R.S. 22:1266, which provides in pertinent part, with emphasis added:

B. (1) A notice of cancellation of a policy shall be effective only if it is based on one or more of the following reasons:
(a) Nonpayment of premium.
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|fi(2) This Subsection shall not apply to nonrenewal or to any policy or coverage which has been in effect less than sixty days at the time notice of cancellation is mailed or delivered by the insurer unless it is a renewal policy. * * *
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[934]*934D. (1) No notice of cancellation of a policy to which Subsection B or C of this Section applies shall be effective unless mailed by certified mail or delivered by the insurer to the named insured at least thirty days prior to the effective date of cancellation; however, when cancellation is for nonpayment of premium at least ten days notice of cancellation accompanied by the reason shall be given. * * * This Subsection shall not apply to nonrenewal.

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Bluebook (online)
109 So. 3d 931, 2013 WL 163821, 2013 La. App. LEXIS 32, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lockwood-v-allstate-insurance-co-lactapp-2013.