Rudolph v. Weckesser

675 So. 2d 1158, 95 La.App. 5 Cir. 1044, 1996 La. App. LEXIS 1018, 1996 WL 252694
CourtLouisiana Court of Appeal
DecidedMay 15, 1996
DocketNo. 95-CA-1044
StatusPublished
Cited by1 cases

This text of 675 So. 2d 1158 (Rudolph v. Weckesser) 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
Rudolph v. Weckesser, 675 So. 2d 1158, 95 La.App. 5 Cir. 1044, 1996 La. App. LEXIS 1018, 1996 WL 252694 (La. Ct. App. 1996).

Opinion

hCANNELLA, Judge.

The Louisiana Insurance Guaranty Association (LIGA) appeals from a summary judgment granted in favor of State Farm Mutual Automobile Insurance Company (State Farm), holding that LIGA, in place of defendant’s insolvent liability insurer, was primarily liable in damages to plaintiffs, Russell L. Rudolph, individually and as tutor of his minor daughters, Sarah Rudolph and Danielle Rudolph, rather than State Farm, which provided uninsured/underinsured motorist (UM) coverage to plaintiffs under circumstances not present here. For the reasons which follow, we affirm.

Plaintiffs filed suit against defendants, Dennis Weckesser and his liability insurer, American Surety Fidelity Insurance Company (American), for injuries in an automobile accident that occurred on May 8,1989. Subsequently, American was declared insolvent and its liquidation order Iswas effective July 8, 1992. Thereafter, plaintiffs amended their petition to add as defendants LIGA, the successor in interest to American, and State Farm, them UM carrier. By stipulation, the parties conceded that plaintiffs’ claims jointly do not exceed the $20,000 American policy limits and no one individual claim of the plaintiffs exceeds the $10,000 limits.

Pertinent to the issue before the court is the language contained in the UM section of the State Farm policy. The State Farm policy provided UM coverage where the insured was legally entitled to collect damages from the owner or driver of a vehicle that was insured at the time of the accident, but the insuring company is or becomes insolvent [1159]*1159within one year after the accident. Based on the above policy language, State Farm filed a motion for summary judgment, arguing that they had no liability to plaintiffs under the circumstances presented. That is, American’s insolvency occurred more than three years after the accident and damages stipulated are within the American liability limits ($10,000/$20,000), now covered by LIGA.

In response, LIGA also moved for a summary judgment. It argued that under the Supreme Court decision in Segura v. Frank, 93-1271, 93-1401, (La. 1/14/94), 630 So.2d 714, cert. denied, — U.S. -, 114 S.Ct. 2165, 128 L.Ed.2d 887 (1994), which applied La.R.S. 22:1386 as amended by Act 237 of 1992 retroactively, requiring a claimant to exhaust all other insurance coverage before collecting from LIGA, the State Farm UM coverage should be held primary to the LIGA coverage. The trial court, disagreeing with LIGA’s position, granted State Farm’s summary judgment and dismissed them from the case. After LIGA’s motion for new trial was denied, LIGA appealed.

Here, LIGA argues, as it did in the trial court, that based on the 1992Lamendment to La.R.S. 22:1386, requiring a claimant to exhaust all other insurance coverage before collecting from LIGA, and the Supreme Court decision in Segtvra, applying that statute retroactively to all pending claims, this court should find State Farm, the UM insurer, primarily liable to plaintiffs for their damages. We disagree, finding Segura distinguishable.

At the time that the State Farm policy was issued and the accident occurred, the UM provision in the policy, limiting coverage to instances where the tort feasor’s liability insurer becomes insolvent within one year of the accident, was valid. La.R.S. 22:1406(D)(3) prior to its repeal in 1990 by Act 634 of 1990; LaSalle v. Kubelka, 544 So.2d 523 (La.App. 5th Cir.1989); DiPaola v. Fernandez, 270 So.2d 893 (La.App. 4th Cir. 1972).

The part of La.R.S. 22:1406 which permitted such a limitation on UM coverage was not repealed until 1990, by Act 634 of 1990, effective September 9, 1990, over a year and a half after the accident. Thus, based on the insurance contract between the parties, State Farm would have only provided UM coverage for the May 8,1989 accident, if American was insolvent-prior to May 8, 1990. After that date, there was no UM coverage provided under the policy, in the event that American became insolvent.

LIGA nevertheless argues, relying on Seg-ura v. Frank, supra, that State Farm should be liable for plaintiffs’ damages before LIGA is held liable. We find that LIGA’s argument lacks merit because the facts of the present case, in critical respects, are distinguishable from those in Segura, i.e., under the UM policy in this case, there is no UM coverage.

In Segura, there was a dispute between LIGA, as the substitute for the tort feasor’s insolvent liability insurer, and plaintiffs UM insurer, as to whose coverage must be exhausted before the other’s would apply. Prior to |5amendment in 1990, La.R.S. 22:1386, as interpreted in Hickerson v. Protective National Insurance Co., 383 So.2d 377 (La. 1980), provided for exhaustion of LIGA’s exposure before the UM coverage would apply. Effective September 7,1990, La.R.S. 22:1386 was amended by Act 130 of 1990, to place the UM coverage ahead of LIGA liability. Under the 1990 version of La.R.S. 22:1386, there was no question but that a plaintiff had to exhaust his own insurance coverage (UM) before he could recover from LIGA. However, the question soon arose whether the 1990 amendment applied retroactively.

In Act 237 of 1992, effective June 10, 1992, the Legislature reenacted La.R.S. 22:1386, unchanged except to add § 3, which provided:

This Act shall apply to all covered claims as defined in R.S. 22:1379, pending on or arising after the effective date of this Act.

The Louisiana Supreme Court granted writs in two cases, Segura v. Frank, and Rey v. Guidry, and consolidated them, to resolve a split of opinion among the circuits as to whether the 1990 and 1992 amendments to La.R.S. 22:1386 could be applied retroactively to accidents which occurred before the [1160]*1160effective dates of the amendments. 620 So.2d 822 (La.1993).1

The Louisiana Supreme Court concluded that the 1990 amendment to La.R.S. 22:1386 was a substantive change that could not be applied retroactively because the Legislature had not expressed its intent that the amendment be applied retroactively. However, the court further concluded that the 1992 amendment, with the Legislative expression that it be applied retroactively, could be so applied. The court ruled that the 1992 |6amendment, although substantive and resulting in the impairment of contractual obligations, could be applied retroactively as expressly provided by the Legislature. The provision was justified by the significant and legitimate public purpose of protecting citizens from economic harm. The adjustment of the rights and responsibilities between the contracting parties is based upon reasonable conditions and is of a character appropriate to the public purpose justifying the legislation’s adoption.

Segura is distinguishable from the instant case. In Segura, there was viable UM coverage in existence and the statutory changes had to do with the priming of coverage between LIGA and the UM insurer. In this case, there is no basis for UM coverage under the insolvency provision of the State Farm policy because the insolvency did not occur within a year after the accident. LIGA, in its argument in brief, is inviting this court to stretch Segura to create UM coverage where, under the policy, there is none. We decline the invitation.

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675 So. 2d 1158, 95 La.App. 5 Cir. 1044, 1996 La. App. LEXIS 1018, 1996 WL 252694, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rudolph-v-weckesser-lactapp-1996.