STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
09-80
PATRICIA ASHMORE
VERSUS
STEPHEN P. MCBRIDE, ET AL.
************
APPEAL FROM THE PINEVILLE CITY COURT PARISH OF RAPIDES, NO. 7-0828 HONORABLE J. PHILLIP TERRELL, JR., CITY JUDGE
MICHAEL G. SULLIVAN JUDGE
Court composed of Oswald A. Decuir, Michael G. Sullivan, Billy Howard Ezell, Judges.
REVERSED AND RENDERED.
Thomas O. Wells Attorney at Law Post Office Box 13438 Alexandria, Louisiana 71315 (318) 445-4500 Counsel for Plaintiff/Appellee: Patricia Ashmore
Michael P. Corry Jason R. Garrot Briney & Foret Post Office Box 51367 Lafayette, Louisiana 70505-1367 (337) 237-4070 Counsel for Defendant/Appellant: Financial Indemnity Company Mark J. Neal Hudson, Potts & Bernstein Post Office Drawer 3008 Monroe, Louisiana 71210-3008 (318) 388-4400 Counsel for Defendants/Appellees: USAgencies Casualty Insurance Company Stephen P. McBride SULLIVAN, Judge.
Insurer appeals the denial of its motion for summary judgment in which it
sought a judgment recognizing that its policy does not provide uninsured motorist
(UM) coverage to the plaintiff and the grant of summary judgment in favor of the
plaintiff that the policy provides UM coverage to her. We reverse.
Facts
Patricia Ashmore filed suit to recover damages for injuries she sustained on
July 31, 2007, when the car she was driving which was owned by Patrick O’Neal, was
struck from the rear by a car driven by Stephen P. McBride. She sued Mr. McBride
and his insurer, USAgencies Casualty Insurance Company (USAgencies). She also
sued Financial Indemnity Company (Financial), alleging that a policy of insurance
it issued to Mr. O’Neal provided UM coverage to her for the accident.
Financial filed a Motion for Summary Judgment, alleging that it did not
provide UM coverage because Mr. O’Neal rejected UM coverage. After a hearing,
the trial court issued written reasons denying the motion. Financial filed a Notice of
Intention to Apply for Supervisory Writs.
Thereafter, Ms. Ashmore filed a Motion for Summary Judgment, seeking, in
part, a judgment declaring that Financial provided UM coverage to her in the amount
of the liability limits of its policy. After a hearing, the trial court granted the motion.
A judgment was signed on October 2, 2008; the judgment was designated a final
judgment as provided in La.Code Civ.P. art. 1915. Financial filed a devolutive
appeal, then sought to consolidate its writ application with its appeal. The motion to
consolidate was denied on the basis that the grant of summary judgment in favor of
Ms. Ashmore might constitute a final judgment which would be appealable.
1 Thereafter, Financial’s writ application was denied because the judgment was an
appealable judgment, pursuant to La.Code Civ.P. art. 1915(A)(5). See Ashmore v.
McBride, an unpublished writ opinion bearing docket number 08-1211 (La.App. 3
Cir. 11/7/08).
Financial appeals the denial of its Motion for Summary Judgment and the grant
of Ms. Ashmore’s Motion for Summary Judgment.
Summary Judgment
Appellate courts review motions for summary judgments de novo to determine
whether any genuine issue of material fact exists and whether the mover is entitled
to judgment as a matter of law. La.Code Civ.P. art. 966(B). A motion for summary
judgment will be granted “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.” La.Code Civ.P. art. 966(B). The mover bears the initial burden of proof to
show that no genuine issue of material fact exists. La.Code Civ.P. art. 966(C)(2).
Discussion
One question is presented for determination herein: is there a genuine issue of
material fact as to whether the insurance policy Financial issued to Mr. O’Neal
provides UM coverage to Ms. Ashmore. Financial claims that Mr. O’Neal rejected
UM coverage by executing a valid UM selection form and selecting the option which
provides “I do not want UMBI Coverage.” Ms. Ashmore argues that the selection
was invalid because the UM selection form does not meet all the requirements
established by the Louisiana Insurance Commissioner. Specifically, she asserts that
Financial’s failure to place the binder number in the space designated on the form for
2 the policy number and its failure to place its name in the lower left corner of the form
invalidated Mr. O’Neal’s rejection of UM coverage.
Louisiana Revised Statutes 22:1295(1)(a)(i) provides that no policy of
automobile liability insurance “shall be delivered or issued for delivery in this state”
without uninsured motorist coverage; however, UM coverage “is not applicable when
any insured named in the policy either rejects coverage, selects lower limits, or selects
economic-only coverage, in the manner provided in Item(1)(a)(ii) of this Section.”
Subsection (a)(ii) of La.R.S. 22:1295(1)(a) provides that the “rejection, selection of
lower limits, or selection of economic-only [UM] coverage shall be made only on a
form prescribed by the commissioner of insurance” and that “[a] properly completed
and signed form creates a rebuttable presumption that the insured knowingly rejected
[UM] coverage.”
A bulletin issued by the Commissioner of Insurance provides that the policy
number must be indicated in the lower right corner of the selection form, unless a
policy number is not available; in that case, “the space for the policy number may be
left blank or a binder number may be inserted.” Louisiana Insurance Rating
Commission Bulletin (LIRC) 98-03.
In Duncan v. U.S.A.A. Insurance Co., 06-363, p. 4 (La. 11/29/06), 950 So.2d
544, 547, the supreme court observed that strong public policy is embodied in the UM
coverage statute and that the statute is to be liberally construed, which “requires the
statutory exceptions to coverage be interpreted strictly.” For these reasons, “the
insurer bears the burden of proving any insured named in the policy rejected in
writing the coverage equal to bodily injury coverage or selected lower limits.” Id.
Thereafter, the supreme court identified six tasks which must be performed to
3 complete the UM selection form prescribed by the Commissioner of Insurance in
order to reject UM coverage:
[T]he prescribed form involves six tasks: (1) initialing the selection or rejection of coverage chosen; (2) if limits lower than the policy limits are chosen (available in options 2 and 4), then filling in the amount of coverage selected for each person and each accident; (3) printing the name of the named insured or legal representative; (4) signing the name of the named insured or legal representative; (5) filling in the policy number; and (6) filling in the date.
Id. at 551. Failure to comply with one of these six tasks results in an invalid rejection
of UM coverage. Id.
In Carter v. State Farm Mutual Automobile Insurance Co., 07-1294 (La.
10/5/07), 964 So.2d 375, the supreme court granted an insurer’s application for writs
and granted summary judgment in favor of the insurer that urged it was entitled to
summary judgment, although its insured’s UM rejection form did not include the
policy number, because the policy number did not exist when the rejection form was
completed.
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
09-80
PATRICIA ASHMORE
VERSUS
STEPHEN P. MCBRIDE, ET AL.
************
APPEAL FROM THE PINEVILLE CITY COURT PARISH OF RAPIDES, NO. 7-0828 HONORABLE J. PHILLIP TERRELL, JR., CITY JUDGE
MICHAEL G. SULLIVAN JUDGE
Court composed of Oswald A. Decuir, Michael G. Sullivan, Billy Howard Ezell, Judges.
REVERSED AND RENDERED.
Thomas O. Wells Attorney at Law Post Office Box 13438 Alexandria, Louisiana 71315 (318) 445-4500 Counsel for Plaintiff/Appellee: Patricia Ashmore
Michael P. Corry Jason R. Garrot Briney & Foret Post Office Box 51367 Lafayette, Louisiana 70505-1367 (337) 237-4070 Counsel for Defendant/Appellant: Financial Indemnity Company Mark J. Neal Hudson, Potts & Bernstein Post Office Drawer 3008 Monroe, Louisiana 71210-3008 (318) 388-4400 Counsel for Defendants/Appellees: USAgencies Casualty Insurance Company Stephen P. McBride SULLIVAN, Judge.
Insurer appeals the denial of its motion for summary judgment in which it
sought a judgment recognizing that its policy does not provide uninsured motorist
(UM) coverage to the plaintiff and the grant of summary judgment in favor of the
plaintiff that the policy provides UM coverage to her. We reverse.
Facts
Patricia Ashmore filed suit to recover damages for injuries she sustained on
July 31, 2007, when the car she was driving which was owned by Patrick O’Neal, was
struck from the rear by a car driven by Stephen P. McBride. She sued Mr. McBride
and his insurer, USAgencies Casualty Insurance Company (USAgencies). She also
sued Financial Indemnity Company (Financial), alleging that a policy of insurance
it issued to Mr. O’Neal provided UM coverage to her for the accident.
Financial filed a Motion for Summary Judgment, alleging that it did not
provide UM coverage because Mr. O’Neal rejected UM coverage. After a hearing,
the trial court issued written reasons denying the motion. Financial filed a Notice of
Intention to Apply for Supervisory Writs.
Thereafter, Ms. Ashmore filed a Motion for Summary Judgment, seeking, in
part, a judgment declaring that Financial provided UM coverage to her in the amount
of the liability limits of its policy. After a hearing, the trial court granted the motion.
A judgment was signed on October 2, 2008; the judgment was designated a final
judgment as provided in La.Code Civ.P. art. 1915. Financial filed a devolutive
appeal, then sought to consolidate its writ application with its appeal. The motion to
consolidate was denied on the basis that the grant of summary judgment in favor of
Ms. Ashmore might constitute a final judgment which would be appealable.
1 Thereafter, Financial’s writ application was denied because the judgment was an
appealable judgment, pursuant to La.Code Civ.P. art. 1915(A)(5). See Ashmore v.
McBride, an unpublished writ opinion bearing docket number 08-1211 (La.App. 3
Cir. 11/7/08).
Financial appeals the denial of its Motion for Summary Judgment and the grant
of Ms. Ashmore’s Motion for Summary Judgment.
Summary Judgment
Appellate courts review motions for summary judgments de novo to determine
whether any genuine issue of material fact exists and whether the mover is entitled
to judgment as a matter of law. La.Code Civ.P. art. 966(B). A motion for summary
judgment will be granted “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.” La.Code Civ.P. art. 966(B). The mover bears the initial burden of proof to
show that no genuine issue of material fact exists. La.Code Civ.P. art. 966(C)(2).
Discussion
One question is presented for determination herein: is there a genuine issue of
material fact as to whether the insurance policy Financial issued to Mr. O’Neal
provides UM coverage to Ms. Ashmore. Financial claims that Mr. O’Neal rejected
UM coverage by executing a valid UM selection form and selecting the option which
provides “I do not want UMBI Coverage.” Ms. Ashmore argues that the selection
was invalid because the UM selection form does not meet all the requirements
established by the Louisiana Insurance Commissioner. Specifically, she asserts that
Financial’s failure to place the binder number in the space designated on the form for
2 the policy number and its failure to place its name in the lower left corner of the form
invalidated Mr. O’Neal’s rejection of UM coverage.
Louisiana Revised Statutes 22:1295(1)(a)(i) provides that no policy of
automobile liability insurance “shall be delivered or issued for delivery in this state”
without uninsured motorist coverage; however, UM coverage “is not applicable when
any insured named in the policy either rejects coverage, selects lower limits, or selects
economic-only coverage, in the manner provided in Item(1)(a)(ii) of this Section.”
Subsection (a)(ii) of La.R.S. 22:1295(1)(a) provides that the “rejection, selection of
lower limits, or selection of economic-only [UM] coverage shall be made only on a
form prescribed by the commissioner of insurance” and that “[a] properly completed
and signed form creates a rebuttable presumption that the insured knowingly rejected
[UM] coverage.”
A bulletin issued by the Commissioner of Insurance provides that the policy
number must be indicated in the lower right corner of the selection form, unless a
policy number is not available; in that case, “the space for the policy number may be
left blank or a binder number may be inserted.” Louisiana Insurance Rating
Commission Bulletin (LIRC) 98-03.
In Duncan v. U.S.A.A. Insurance Co., 06-363, p. 4 (La. 11/29/06), 950 So.2d
544, 547, the supreme court observed that strong public policy is embodied in the UM
coverage statute and that the statute is to be liberally construed, which “requires the
statutory exceptions to coverage be interpreted strictly.” For these reasons, “the
insurer bears the burden of proving any insured named in the policy rejected in
writing the coverage equal to bodily injury coverage or selected lower limits.” Id.
Thereafter, the supreme court identified six tasks which must be performed to
3 complete the UM selection form prescribed by the Commissioner of Insurance in
order to reject UM coverage:
[T]he prescribed form involves six tasks: (1) initialing the selection or rejection of coverage chosen; (2) if limits lower than the policy limits are chosen (available in options 2 and 4), then filling in the amount of coverage selected for each person and each accident; (3) printing the name of the named insured or legal representative; (4) signing the name of the named insured or legal representative; (5) filling in the policy number; and (6) filling in the date.
Id. at 551. Failure to comply with one of these six tasks results in an invalid rejection
of UM coverage. Id.
In Carter v. State Farm Mutual Automobile Insurance Co., 07-1294 (La.
10/5/07), 964 So.2d 375, the supreme court granted an insurer’s application for writs
and granted summary judgment in favor of the insurer that urged it was entitled to
summary judgment, although its insured’s UM rejection form did not include the
policy number, because the policy number did not exist when the rejection form was
completed. The court noted that the facts therein were “distinguishable” from the
facts in Duncan, 950 So.2d 544, “because the Commissioner of Insurance’s
regulations specifically allow omission of the policy number if it does not exist at the
time [the] UM waiver form is completed.” Id. at 376.
The supreme court later observed in a footnote in Gray v. American National
Property & Casualty Co., 07-1670, p. 11 (La. 2/26/08), 977 So.2d 839, 847, with
regard to the six tasks identified in Duncan, that because “Insurance Commissioner
Bulletin LIRC 98-03 provides as follows: ‘In the case where a policy number is not
available, the space for the policy number may be left blank or a binder number may
be inserted,’” only five “tasks” must be completed for a valid UM selection when the
policy number is not available.
4 A policy number did not exist when Mr. O’Neal executed the UM rejection
form; therefore, only five tasks had to be completed for a valid UM rejection. Id. See
also, Duncan, 950 So.2d 544. Pursuant to LIRC 98-03, placement of the binder
number on the policy was optional. Reading this provision in conjunction with the
supreme court’s footnotes in Duncan, 950 So.2d 544, and Gray, 977 So.2d 839, and
its holding in Carter, 964 So.2d 375, we conclude that inclusion of the optional
binder number in a place other than that provided for a policy number does not
invalidate the UM rejection.
Ms. Ashmore also argues that Financial’s failure to place its name in the lower
left corner of the rejection form resulted in an invalidated rejection. This claim was
recently denied by the supreme court in Gingles v. Dardenne, 08-2995 (La. 3/13/09),
4 So.3d 799. In Gingles, the supreme court held that although a bulletin issued by the
Commissioner of Insurance stated that the insurer’s name should appear in the lower
left corner of the UM selection form, the insurer’s failure to put its name in that
location did not invalidate the insured’s waiver of UM because the form designed by
the Commissioner did not include a space for the insurer’s name. The court
explained:
It is undisputed that the pertinent designated spaces on the form were filled out. Additionally, the form at issue in these proceedings satisfies all of the requirements of our opinion in Duncan. Under these circumstances, we find [the insurer] has established it is entitled to judgment as a matter of law.
Id. at 800. Pursuant to the supreme court’s holding in Gingles, Financial’s failure to
place its name in the lower left corner of the UM selection form did not invalidate
Mr. O’Neal’s rejection of UM coverage.
5 For these reasons, we conclude that Financial has established that Mr. O’Neal
validly rejected UM coverage and that it is entitled to summary judgment as
requested. This determination means that the insurance policy issued by Financial
to Mr. O’Neal does not provide UM coverage to Ms. Ashmore as claimed.
Disposition
The judgments of the trial court are reversed, and summary judgment is granted
in favor of Financial Indemnity Company. Ms. Ashmore’s claim that its policy of
insurance provided UM coverage to her for the accident sued upon herein is
dismissed. Costs are assessed to Ms. Ashmore.