Partin v. Dolby

652 So. 2d 670, 94 La.App. 1 Cir. 1418
CourtLouisiana Court of Appeal
DecidedMarch 3, 1995
Docket94 CW 1418
StatusPublished
Cited by4 cases

This text of 652 So. 2d 670 (Partin v. Dolby) 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
Partin v. Dolby, 652 So. 2d 670, 94 La.App. 1 Cir. 1418 (La. Ct. App. 1995).

Opinion

652 So.2d 670 (1995)

Juanita H. PARTIN, et al.
v.
Marjorie V. DOLBY, et al.

No. 94 CW 1418.

Court of Appeal of Louisiana, First Circuit.

March 3, 1995.

Michael C. Palmintier, Baton Rouge, for Juanita H. Partin, et al.

Donald R. Smith, Baton Rouge, for Allstate Ins. Co.

Before GONZALES and PARRO, JJ., and REDMANN, J. Pro Tem.[1]

*671 GONZALES, Judge.

A writ of certiorari was granted herein to address a trial court ruling denying a motion for summary judgment.

FACTS

On August 10, 1988, plaintiff, Juanita Partin, a Louisiana citizen residing in Delaware, was driving a vehicle which was owned by Freddie A. Sobers, a Louisiana resident, and which was registered in Louisiana. Partin was rear-ended by a vehicle owned and driven by defendant, Marjorie V. Dolby, a Delaware resident. The accident occurred in Glasgow, Delaware. Prior to the accident, Partin and her husband, Charles, had worked in Georgia, and while living there, had purchased automobile insurance on their own Louisiana-registered vehicle. Allstate Insurance Company (Allstate) issued the policy to the Partins in Georgia and the policy lists Waynesboro, Georgia as the Partins' address.

On August 10, 1990, the Partins filed this action for damages in Louisiana.[2] The petition alleged that, as a result of the accident, Juanita Partin sustained severe personal injuries and residual disabilities for which she would require extensive medical care and that Charles Partin suffered damages for loss of consortium. The petition named the following defendants: Marjorie V. Dolby; State Farm Mutual Automobile Insurance Company (State Farm) as Dolby's automobile liability insurer; Sentry Insurance A Mutual Company (Sentry) as Sobers' automobile liability insurer; and Allstate as the Partins' uninsured motorist insurer.[3]

On July 29, 1991, the Partins settled with Dolby and State Farm for $100,000.00, the limit of the State Farm policy. On March 30, 1992, settlement was also reached with Sentry for $100,000.00, the limit of its uninsured motorist coverage on Sobers' vehicle. The Partins maintained the suit against Allstate on the issue of uninsured motorist coverage.

On February 22, 1994, Allstate filed a motion for summary judgment, contending that plaintiffs were not entitled to coverage under the Allstate policy because Dolby did not qualify as an "uninsured motorist" under the terms of the policy and under applicable Georgia law (where the policy was issued) or Delaware law (where the accident occurred).

On May 31, 1994, the trial court denied Allstate's motion for summary judgment, finding that the interpretation of Allstate's policy was governed by Louisiana law, and that Louisiana has a strong interest in protecting and providing for uninsured motorist coverage when a vehicle is licensed and garaged in Louisiana.

Upon Allstate's application, this court granted a writ of certiorari to consider the correctness of the trial court's denial of summary judgment. Allstate contends that the trial court erred in applying Louisiana law to the interpretation of the Allstate policy.

SUMMARY JUDGMENT

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. Guedry v. Fromenthal, 633 So.2d 287, 288 (La.App. 1st Cir.1993). The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, 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.

The burden is upon the mover for summary judgment to show that no genuine issue of material fact exists, and only when reasonable minds must inevitably conclude that the mover is entitled to judgment as a matter of law is summary judgment warranted. Kosmala v. Paul, 93-2117 (La.App. 1st Cir. *672 10/7/94), 644 So.2d 856, 857. Appellate courts review summary judgments de novo, using the same criteria applied by the trial courts in determining whether summary judgment is appropriate. Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342, 345 (La.1991); Kosmala v. Paul, 644 So.2d at 857.

After reviewing the record before us, we find no issues of fact that are material to the applicability of the uninsured motorist coverage. Accordingly, we need only consider whether Allstate is entitled to judgment as a matter of law. La.C.C.P. art. 966.

ALLSTATE'S POLICY

The Partins' policy with Allstate provides for uninsured motorist coverage of $50,000.00 each person/$100,000.00 each accident. Under Part IV, "Uninsured Motorists Insurance Coverage SS," of the policy, the definition of "uninsured auto" includes "an underinsured motor vehicle which has liability protection in effect and applicable at the time of the accident, but in an amount less than the applicable limit of liability for this coverage shown on the declarations page." Further, under Part IV(C), "Limits of Liability" of an amendatory endorsement affecting policies issued in Georgia, damages payable under the policy "will be reduced by ... all amounts paid by the owner or operator of the uninsured auto or anyone else responsible. This includes all sums paid under the bodily injury liability coverage or property damage liability coverage of this or any other auto policy."

Thus, under the terms of the policy, it is clear that Allstate and the Partins agreed that uninsured coverage would not be available to the Partins if they recovered from anyone else who may be liable to them in an amount in excess of the coverage provided by the policy, $50,000.00/$100,000.00. Because the Partins have already recovered a total of $200,000.00, no uninsured motorist coverage is available to them under the terms of the Allstate policy unless the applicable state law mandates a contrary conclusion.

RELEVANT STATE LAW

Georgia Law

The above limitations contained in Allstate's policy permit an insured to invoke uninsured motorist coverage only where the bodily injury liability limits of the vehicle at fault are less than the uninsured motorist limits of the Allstate policy. Allstate contends that this limitation is allowed under Georgia law and that Georgia law applies in this case because the Partins' policy was issued to them in Georgia while they were residents of Georgia.

Georgia Statutes, Section 33-7-11(b)(1)(D)(ii), states:

"Uninsured motor vehicle" means a motor vehicle, other than a motor vehicle owned by or furnished for the regular use of the named insured ... as to which there is ... [b]odily injury liability insurance and property damage liability insurance with available coverages which are less than the limits of the uninsured motorist coverage provided under the insured's insurance policy, but the motor vehicle shall only be considered to be uninsured for the amount of the difference between the available coverages under the bodily injury liability insurance and property damage liability insurance coverages on such motor vehicle and the limits of the uninsured motorist coverage provided under the insured's motor vehicle insurance policy[.]

Thus, under Georgia law, the vehicle driven by Dolby is an uninsured motor vehicle only if the liability coverage on the policy insuring that vehicle (State Farm's policy) is less than the uninsured motorist coverage contained in the Partins' Allstate policy.

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652 So. 2d 670, 94 La.App. 1 Cir. 1418, Counsel Stack Legal Research, https://law.counselstack.com/opinion/partin-v-dolby-lactapp-1995.