Peña v. Simeon

96 So. 3d 547, 2012 WL 1867669
CourtLouisiana Court of Appeal
DecidedMay 22, 2012
DocketNo. 11-CA-1083
StatusPublished
Cited by4 cases

This text of 96 So. 3d 547 (Peña v. Simeon) 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
Peña v. Simeon, 96 So. 3d 547, 2012 WL 1867669 (La. Ct. App. 2012).

Opinion

JUDE G. GRAVOIS Judge.

LThe plaintiff, Rosa Peña, appeals the trial court’s grant of summary judgment in favor of the defendant insurer, USAgen-cies Casualty Insurance Company, Inc., finding that the uninsured/underinsured bodily injury motorist coverage on the auto policy issued by the defendant insurer was validly waived. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Plaintiff was involved in an automobile accident on Huey P. Long Avenue in Gret-na, Louisiana, on August 21, 2008. On January 6, 2009, plaintiff filed suit against her insurer, USAgencies Casualty Insurance Company, Inc. (“USAgencies”), seeking uninsured/underinsured bodily injury motorist coverage (“UMBI”) for personal injuries she allegedly sustained in this accident.1 USAgencies answered plaintiffs petition claiming that there was no UMBI |Hcoverage under the policy in question because UMBI coverage had been validly rejected when the policy was purchased on May 3, 2008.

On May 12, 2009, USAgencies moved for summary judgment, claiming that there was a valid rejection of UMBI coverage on the policy. In support of its position, US-Agencies submitted the policy application, the declarations page of the policy, the UMBI Coverage Form for the policy, and the financing agreement for the policy premiums. These documents reflect the following:

• Plaintiff signed both pages of the policy application.
• Fausto Justo and plaintiff are both named as “Covered Persons” on policy application.
• The declarations page of the policy lists Mr. Justo’s name next to “Insured’s Name and Address”.
• Mr. Justo and plaintiff are listed as the “Operators” on the declarations page.
• Plaintiff initialed the UMBI Coverage Form next to UMBI Coverage option number 5, which states: “I do not want UMBI coverage. I understand that I will not be compensated through UMBI coverage for losses arising from an accident caused by an uninsured/underinsured motorist.” (Emphasis in original.)
• “Fausto Justo” is typed on the line entitled “Named Insured or Legal Representative” on the UMBI Coverage Form.
• Plaintiff signed the UMBI Coverage Form on the line entitled “Signature of a Named Insured or Legal Representative”.
• The only form that Mr. Justo signed is the financing application for the policy premiums.

In its motion for summary judgment, US-Agencies argued simply that if plaintiff did not have authority to sign the UMBI Coverage Form, then she had no authority to sign the application, and therefore, the policy is void.

Plaintiff responded that the UMBI Coverage Form is invalid because it was not signed by the “named insured” (Mr. Jus-[549]*549to), or his “legal representative.” Alternatively, plaintiff argued that there was a material issue of fact as to whether |4plaintiff was Mr. Justo’s legal or authorized representative. At the conclusion of the hearing on the motion for summary judgment, the trial court denied the motion without reasons.

USAgencies then deposed plaintiff. In her deposition, plaintiff testified that she lives with Mr. Justo, who is the father of her two children. She explained that she and Mr. Justo went to the agency together to obtain insurance. She stated that Mr. Justo was going to be “the one on the policy, but he was giving me authority to drive the vehicles.” She denied that Mr. Justo gave her authority to sign the forms. Rather, the “lady” at the agency “told us that we both had to sign the forms in order to drive the vehicles.” She acknowledged that Mr. Justo only signed the financing agreement for the policy premiums and did not sign the policy application. She stated that she read the documents she signed, but could not understand them because they were in English and she does not read English or “know what it says.” Plaintiffs native language evidently is Spanish. She testified that the agent did not speak to her in Spanish.

On August 27, 2010, USAgencies filed a second motion for summary judgment. In this motion, USAgencies argued that on the date the policy was issued, plaintiff was an “additional insured” under the policy. It noted that plaintiff testified in her deposition that it was her intention to obtain automobile insurance for Mr. Justo and herself so that she could operate Mr. Justo’s vehicles. It argued that “any insured named in the policy” is authorized to sign the UMBI Coverage Form, and concluded that because plaintiff had authority to sign the form, UMBI coverage was validly rejected.

In defense of this second motion for summary judgment, plaintiff repeated her prior argument that there was no valid waiver of UMBI coverage because the UMBI Coverage Form states that Mr. Justo is the “named insured” on the policy, Ubut the policy is signed only by plaintiff. Plaintiff contends that in order for the UMBI Coverage Form to be valid, it had to be signed by the named insured. Plaintiff argued that the only new evidence presented by USAgencies in its second motion for summary judgment is plaintiffs deposition which actually corroborates her arguments that the waiver contained in the UMBI Coverage Form is invalid. Plaintiff points out that in her deposition, she testified that she and Mr. Justo had never been married, and that she did not have authority to sign any documents on his behalf. Plaintiff further argued that she did not understand what she was signing because she could not understand or read English.

At the conclusion of the hearing on US-Agencies’ second motion for summary judgment, the trial judge granted the motion, finding that plaintiff was an insured under the policy, and as an insured under the policy, had authority to reject UMBI coverage. This timely appeal followed.

LAW AND DISCUSSION

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. C.C.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. C.C.P. art. 966(B). The mover bears the initial burden of showing that no genuine issue of material fact exists. La. C.C.P. art. 966(C)(2).

[550]*550Louisiana Revised Statutes 22:1295(l)(a)(i) provides, in pertinent part, that no policy of automobile liability insurance “shall be delivered or issued for ^delivery in this state” without uninsured motorist coverage; however, UMBI 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(l)(a)(ii) of this Section.” (Emphasis added.) Subsection (l)(a)(ii) of La. R.S. 22:1295 provides, in pertinent part, that the “rejection, selection of lower limits, or selection of economic-only [UMBI] coverage shall be made only on a form prescribed by the commissioner of insurance,” that “[t]he prescribed from shall be provided by the insurer and signed by the named insured or his legal representative,”

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Bluebook (online)
96 So. 3d 547, 2012 WL 1867669, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pena-v-simeon-lactapp-2012.