New Hampshire Ins. Co. v. Gowen

699 So. 2d 1169, 1997 La. App. LEXIS 2305, 1997 WL 594351
CourtLouisiana Court of Appeal
DecidedSeptember 24, 1997
Docket29842-CA
StatusPublished
Cited by5 cases

This text of 699 So. 2d 1169 (New Hampshire Ins. Co. v. Gowen) 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
New Hampshire Ins. Co. v. Gowen, 699 So. 2d 1169, 1997 La. App. LEXIS 2305, 1997 WL 594351 (La. Ct. App. 1997).

Opinion

699 So.2d 1169 (1997)

NEW HAMPSHIRE INS. CO., Plaintiff-Appellee,
v.
Jeffrey R. GOWEN, et al., Defendants-Appellants.

No. 29842-CA.

Court of Appeal of Louisiana, Second Circuit.

September 24, 1997.

*1171 Cook, Yancey, King & Galloway by Timothy B. Burnham, Shreveport, for Defendant-Appellant Hartford Underwriters Ins. Co.

Francis M. Gowen, Jr., Shreveport, for Defendants-Appellants Jeffrey R. Gowen, et al.

D. Brennan Hussey, Shreveport, for Defendant-Appellant American Employers Ins. Co.

Lunn, Irion, Johnson, Salley & Carlisle by Charles W. Salley, Shreveport, James A. Mijalis, for Plaintiff-Appellee.

Before NORRIS, STEWART and PEATROSS, JJ.

STEWART, Judge.

Jeffrey R. Gowen and David G. Cooper appeal the judgment of the trial court finding that only $20,000 of uninsured/underinsured motorist coverage was available on the insurance policy issued by New Hampshire Insurance Company to Chem-Air, Inc. and that Hartford Underwriters Insurance Company was entitled to the full $20,000 deposited in the registry of the court. New Hampshire answered the appeal. For the following reasons, we affirm.

FACTS

Gowen and Cooper were seriously injured in an automobile accident while occupying in a vehicle owned by their employer, Chem-Air, a Louisiana corporation, and insured by New Hampshire. Gowen and Cooper, both residents of Louisiana, were in the course and scope of their employment when the accident occurred in Alabama on August 25, 1990. The commercial automobile insurance policy was issued in Louisiana, and the vehicle involved was principally garaged in Louisiana. The other vehicle involved in the accident was underinsured.

On January 25, 1990, Chem-Air's president signed a form selecting lower UM limits of coverage for the insurance policy issued on December 16, 1989 for a term expiring on December 16, 1990. Two of three vehicles added to the policy after the inception date were added prior to the accident.

Gowen and Cooper sued New Hampshire for UM coverage. In response, New Hampshire filed a concursus proceeding in district court and deposited $20,000 in the registry of the court. The trial court ruled that only $20,000 of UM coverage was available on the commercial fleet insurance policy and that Hartford, the worker's compensation insurer, was entitled to the whole amount on deposit. Gowen and Cooper assign five errors on appeal. In their answer, New Hampshire assigns one error.

DISCUSSION

Addition and Deletion of Vehicles

In their first assignment of error, appellants assert that the trial court erred in finding that a separate rejection or selection of lower limits of UM coverage was not required by the addition of an vehicle to an automobile insurance policy during its initial term. Appellants contend that the addition of a vehicle is not a renewal, reinstatement or substitute policy as contemplated by La. R.S. 22:1406 D(1)(a)(i) and that, therefore, a separate waiver or selection of lower UM limits is necessary. Appellants heavily rely on Perkins v. Guaranty Ins. Co., 95-229 (La.App. 3d Cir. 11/2/95), 667 So.2d 559.

Recognizing strong public policy in favor of protecting innocent victims from uninsured or under insured motorists, UM coverage is deemed to exist in all automobile polices unless the insured expressly rejects or selects lower limits of UM coverage. The Louisiana UM statute is liberally construed to promote "fully recovery of damages by innocent automobile accident victims by making UM coverage available for their benefit as primary protection when the negligent motorist is without insurance." Bullock v. Homestead Ins. Co., 29,536 (La.App.2d Cir. 6/20/97), 697 So.2d 712. See also Roger v. *1172 Estate of Moulton, 513 So.2d 1126 (La.1987); Hoefly v. Government Employees Ins. Co., 418 So.2d 575 (La.1982); and Tapia v. Ham, 480 So.2d 855 (La.App. 2d Cir.1985). Statutory exceptions to the coverage requirement must be interpreted strictly. Carter v. Baham, 94-2809 (La.1/27/95), 649 So.2d 967; Tugwell v. State Farm Ins. Co., 609 So.2d 195 (La.1992); Washington v. Imperial Fire and Cas. Ins. Co., 28,434 (La. App.2d Cir. 6/26/96), 677 So.2d 599.

However, a distinction has been drawn between individual automobile liability policies and business automobile fleet policies. Although this court has not addressed the issue presented by the instant case, other appellate courts have discussed the distinction and have resolved that issue. In Bordelon v. Jackson, 499 So.2d 392 (La.App. 4th Cir. 1986), writ denied, 500 So.2d 412 (La.1987), the court determined that a new insurance policy did not result each time a vehicle was added to or deleted from an existing fleet policy. Relying on Bordelon, the court held that "neither public policy nor strict interpretation of La. R.S. 22:1406(D)(1)(a)(i) require us to insist that such rejections must be executed each time a vehicle is added to an existing fleet policy." Latiolais v. Liberty Mut. Ins. Co., 93-579, p. 3 (La.App. 3d Cir. 5/4/94), 640 So.2d 448, 450. In Chevalier v. Ream, 94-741 (La.App. 3d Cir. 12/7/94), 649 So.2d 746, the court found that the addition and deletion of vehicles was contemplated by the parties to a business fleet insurance policy and that, therefore, the insured was not required to execute a separate rejection or selection of lower UM limits when vehicles were added to or deleted from an existing fleet policy. Agreeing with Latiolais, the court concluded that such a "requirement would be unduly burdensome and impractical." Chevalier v. Ream, 94-741 (La.App. 3d Cir. 5), 649 So.2d at 748.

In Perkins v. Guaranty Ins. Co., supra, the court found that, under the circumstances of that case, "the addition of a vehicle to a commercial insurance policy ... is tantamount to issuing a new policy, which requires a new rejection of uninsured motorist coverage." 95-229 (La.App. 3d Cir. 4-5), 667 So.2d at 563. In that case, the court determined that the insured did not substitute vehicles regularly nor did the policy include a provision stating that the decision to accept or reject UM coverage would apply to any additions to the policy unless a change was requested in writing as did the insurance policy at issue in Chevalier.

In both Latiolais and Chevalier, the insured contemplated the addition and deletion of vehicles during the term of the commercial policy. However, in Perkins, the insured testified that he did not regularly substitute vehicles and, in fact, added only one vehicle. In all cases cited, the courts have focused primarily on whether the insured contemplated additions or deletions of vehicles to the existing commercial policy in determining whether a separate rejection or selection UM coverage would be required.

In the instant case, the record reflects that three vehicles were added and two were deleted during the term of the policy from December 16, 1989 to December 16, 1990. William Alexander, Chem-Air's president, testified that substitutions and replacements of vehicles would be required during the policy period. Dana Wood, the agent who handled the insurance coverage for Chem-Air, testified that the fleet policy issued by New Hampshire envisioned additions and deletions of vehicles during the term of the policy and that such additions and deletions were common for Chem-Air. Further, section 1(B) of the "Business Auto Coverage Form" discusses coverage for vehicles acquired after inception of the insurance policy.

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Bluebook (online)
699 So. 2d 1169, 1997 La. App. LEXIS 2305, 1997 WL 594351, Counsel Stack Legal Research, https://law.counselstack.com/opinion/new-hampshire-ins-co-v-gowen-lactapp-1997.