McGee v. Allstate Ins. Co.

259 So. 3d 1161
Louisiana Court of Appeal·Decided November 14, 2018·No. No. 52,299-CA·Published·Cited by 4 cases

Opinion

GARRETT, J.

*1163The plaintiff, Easter McGee, appeals from a summary judgment granted in favor of the defendant, Allstate Insurance Company ("Allstate"), that dismissed her uninsured/underinsured motorist ("UM") claim against Allstate. Allstate answers the appeal, claims that McGee's appeal is frivolous, and requests an award of costs and attorney fees. For the following reasons, we affirm the trial court judgment but deny Allstate's claim for costs and attorney fees.

FACTS

The facts are not in dispute. McGee was a passenger in a 1981 Corvette owned and driven by her nephew, Walter Perry. A wheel came off, Perry lost control of the vehicle and crashed into a tree. No other vehicles were involved in the accident. McGee was injured. Perry had liability and UM coverage with Allstate. Allstate paid the liability policy limits to McGee, who released Perry, but reserved her rights to pursue UM coverage. She sued Allstate, alleging that her damages exceeded the liability coverage limits and seeking recovery under the UM coverage of the policy.1

Allstate filed a motion for summary judgment, claiming that McGee could not recover under both the liability and the UM provisions of the policy under the circumstances presented here. McGee was injured in a one-car accident, the host driver was at fault, his liability insurance provided coverage and the policy excluded from UM coverage vehicles with liability coverage under the policy.

A hearing was held on August 14, 2017. The trial court granted summary judgment in favor of Allstate and dismissed McGee's claims. McGee appealed in November 2017. Allstate answered the appeal, arguing that McGee's appeal is frivolous because the exact issue, raised by the same lawyer, was rejected by this court in January 2018, in Mills v. Mills , 51,509 (La. App. 2 Cir. 1/10/18), 243 So.3d 1245.

UM COVERAGE

McGee argues that the trial court erred in granting summary judgment in favor of Allstate, dismissing her claims for UM coverage. This argument is without merit.

Legal Principles

Appellate courts review motions for summary judgment de novo , using the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Peironnet v. Matador Res. Co. , 12-2292 (La. 6/28/13), 144 So.3d 791 ; Bank of Am., N.A. v. Green , 52,044 (La. App. 2 Cir. 5/23/18), 249 So.3d 219.

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Schultz v. Guoth , 10-0343 (La. 1/19/11), 57 So.3d 1002. Summary judgment procedure is favored and is designed to secure the just, speedy and inexpensive determination of actions. La. C.C.P. art. 966(A)(2). A *1164motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3).

The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. C.C.P. art. 966(D)(1).

In the matter before us, there are no factual issues in dispute. We are presented with a legal issue - does McGee have the right to recover under the UM provisions of the Allstate policy?

Discussion

McGee maintains that the trial court erred in ruling that she could not recover under both the liability and UM coverage of the same insurance policy where the host driver was solely at fault. She claims this result is contrary to the purpose of the UM statute and violates certain provisions of it. She argues that any exclusions of UM coverage in the insurance policy violate the purpose of the statute and cannot be given effect. She contends that the insurance policy contains contradictory provisions creating ambiguity which should be construed against Allstate. She asks us to disregard or overrule well-settled jurisprudence because she contends it is wrong.

McGee argues that the intent of the UM statute is to provide full coverage to persons injured in collisions through no fault of their own. She cites La. R.S. 22:1295(1)(a)(i) which provides:

The following provisions shall govern the issuance of uninsured motorist coverage in this state:

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McGee v. Allstate Ins. Co., 259 So. 3d 1161 (La. Ct. App. 2018).

259 So. 3d 1161 (McGee v. Allstate Ins. Co.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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