Melton v. Miley

754 So. 2d 1088, 1999 WL 791568
CourtLouisiana Court of Appeal
DecidedSeptember 24, 1999
Docket98 CA 1437
StatusPublished
Cited by23 cases

This text of 754 So. 2d 1088 (Melton v. Miley) 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
Melton v. Miley, 754 So. 2d 1088, 1999 WL 791568 (La. Ct. App. 1999).

Opinion

754 So.2d 1088 (1999)

Michael MELTON and Renea White Melton
v.
James MILEY, J. Miley, Inc., and Credit General Insurance Company.

No. 98 CA 1437.

Court of Appeal of Louisiana, First Circuit.

September 24, 1999.
Writ Denied January 7, 2000.

George R. Covert, Sean D. Fagan, Baton Rouge, Counsel for Plaintiffs/Appellants Michael Melton and Renea White Melton.

Vincent P. Fornias, and C. William Belsom, Jr., Baton Rouge, Counsel for Defendant/Appellee ITT Hartford Ins. Group.

Before: SHORTESS, PARRO, and KUHN, JJ.

*1089 KUHN, J.

This is an appeal by plaintiffs-appellants, Michael and Renea Melton, from the dismissal of their claims by summary judgment against defendant-appellee, ITT Hartford Group ("Hartford"), who is alleged to provide uninsured/under-insured motorist ("UM") coverage of the vehicle being driven by Michael Melton when he was injured in an automobile accident. We affirm.

I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

This dispute arises out of multi-party litigation after a vehicular accident on Bluebonnet Blvd in Baton Rouge on April 15, 1995. According to the allegations of plaintiffs' first amending and supplemental petition, at the time of the accident, Michael Melton was driving a vehicle for which UM coverage was provided by Hartford. The parties apparently do not dispute that Melton was driving a vehicle owned by American Remedial Technology, Inc. ("ART") and for which he was an authorized driver. In its answer, Hartford admitted that it provided a liability policy covering the ART vehicle but averred that UM coverage had been contractually rejected by ART.

On June 10, 1997, Hartford filed a motion for summary judgment, urging entitlement to dismissal from the plaintiffs' lawsuit as a matter of law. After a hearing, the trial court denied the motion. On February 6, 1998, Hartford filed another motion for summary judgment, again maintaining that because the insured had rejected UM coverage, it was entitled to be dismissed from plaintiffs' lawsuit. After a hearing on March 9, 1998, the trial court granted Hartford's second motion and dismissed the Meltons' claims against the insurer. A judgment, in conformity with the trial court's ruling, was signed on April 7, 1998. From that judgment, plaintiffs appeal, suggesting the trial court erred in its conclusion that ART had "legally perfect" the UM waiver.

II. SUMMARY JUDGMENT

A. ALLEGED PROCEDURAL DEFECTS

Preliminarily, we address the contentions of procedural defects in Hartford's motion for summary judgment. We note La. C.C.P. art. 966 provides:

A. (1) The plaintiff or defendant in the principal or any incidental action, with or without supporting affidavits, may move for a summary judgment in his favor for all or part of the relief for which he has prayed. The plaintiffs motion may be made at any time after the answer has been filed. The defendant's motion may be made at any time.
(2) The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969. The procedure is favored and shall be construed to accomplish these ends.
B. The motion for summary judgment and supporting affidavits shall be served at least ten days before the time specified for the hearing. The adverse party may serve opposing affidavits prior to the date of the hearing. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.
C. (1) After adequate discovery or after a case is set for trial, a motion which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted.
(2) The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the *1090 movant'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 that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.
D. The court shall hear and render judgment on the motion for summary judgment within a reasonable time, but in any event judgment on the motion shall be rendered at least ten days prior to trial.
E. A summary judgment may be rendered dispositive of a particular issue, theory of recovery, cause of action, or defense, in favor of one or more parties, even though the granting of the summary judgment does not dispose of the entire case.

Summary judgments are favored, and the documents submitted by both parties are to be equally scrutinized. Berzas v. OXY USA, Inc ., 29,835, pp. 4-5 (La.App.2d Cir.9/24/97), 699 So.2d 1149, 1152. Appellate courts review summary judgments de novo under the same criteria that govern the trial court's determination of whether is appropriate. Sanders v. Ashland Oil, Inc., 96-1751 at p. 7, 696 So.2d 1031, 1035.

1. Second Filing of Motion for Summary Judgment

Plaintiffs contend Hartford should have been prevented from re-urging a second motion for summary judgment after the first motion for summary judgment had been denied.

Although plaintiffs urge that it is inappropriate for the trial court to rehear a motion for summary judgment which has previously been denied, we find no authority supporting this argument. In both Francioni v. Rault, 570 So.2d 36 (La.App. 4th Cir.1990), writ denied, 575 So.2d 371 (La.1991) and Efferson v. Link Belt Corp., 476 So.2d 528 (La.App. 1st Cir.1985), it was held not to be error for the trial court to hear the re-urging of a motion for summary judgment. "Since there is no case or statute to the contrary, this court holds that it was not error for the trial judge to hear the motion for summary judgment a second time." Metz v. Nichols Constr. Corp., 615 So.2d 967, 969 (La.App. 1st Cir.1993) (citing Efferson, 476 So.2d at 529). See also Young v. Dupre Transport Co., 97-0591, pp.1-2 (La.App. 4th Cir.10/1/97), 700 So.2d 1156, 1159 (wherein the court found no error with mover, having been denied summary judgment, later re-urging motion because such denial was not an adjudication and had no res judicata effect) Accordingly, we find no error in the trial court's consideration of Hartford's second motion for summary judgment.

2. Filing of Affidavits into the Record

Plaintiffs maintain the trial court erred procedurally in granting summary judgment because it relied on affidavits filed into the record with Hartford's motion and memorandum, but not independently introduced into evidence at the hearing. We note the supreme court in Aydell v. Sterns,

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Bluebook (online)
754 So. 2d 1088, 1999 WL 791568, Counsel Stack Legal Research, https://law.counselstack.com/opinion/melton-v-miley-lactapp-1999.