Trautman v. Poor

685 So. 2d 516, 1996 WL 709727
CourtLouisiana Court of Appeal
DecidedDecember 11, 1996
Docket96-627
StatusPublished
Cited by10 cases

This text of 685 So. 2d 516 (Trautman v. Poor) 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
Trautman v. Poor, 685 So. 2d 516, 1996 WL 709727 (La. Ct. App. 1996).

Opinion

685 So.2d 516 (1996)

Wanda TRAUTMAN, et. al., Plaintiffs-Appellees,
v.
Larry T. POOR, et al., Defendants-Appellants.

No. 96-627.

Court of Appeal of Louisiana, Third Circuit.

December 11, 1996.

*517 Ronald L. Menville, for Wanda Trautman, et al.

Leon Elzear Roy, III, New Iberia, for Larry T. Poor, et al.

Nicholas Gachassin, Jr., Gerald J. Dartez, Lafayette, for Victoria Fire & Casualty Co.

Before THIBODEAUX, COOKS and GREMILLION, JJ.

COOKS, Judge.

Victoria Fire and Casualty Company (Victoria) appeals the district court's grant of Wanda Trautman's motion for partial summary judgment. Applying Louisiana Conflicts of Law, Civil Code Article 3544, the trial court chose this state's law and found invalid a "prior consent to settle" clause contained in an insurance policy issued by Victoria to a Tennessee resident involved in an automobile accident in this state. For different reasons, we affirm the trial court's ruling.

FACTS

A vehicle owned by a Louisiana resident and operated by another Louisiana resident struck a vehicle owned and operated by a Tennessee resident in the Parish of St. Martin. At all relevant times, Victoria had in full force and effect a policy of automobile insurance providing uninsured motorist coverage for plaintiff, the Tennessee resident, and the vehicle she was operating in Louisiana on the day of the mishap. Plaintiff was residing in Tennessee when the policy was secured, which covered her vehicle registered in that state. The Victoria policy, in the part pertinent to this dispute, contained a clause excluding uninsured/underinsured motorist (UM) coverage if the insured failed to obtain prior consent from it before settling with the primary parties.[1] Plaintiff settled her primary claims against the tortfeasor without securing Victoria's prior consent.

When plaintiff notified Victoria of her intent to claim UM benefits pursuant to the terms of its policy, Victoria denied that coverage existed. Plaintiff filed suit in Louisiana. Victoria answered plaintiffs UM claim against it asserting she breached an exclusionary *518 condition of the policy; and, as a consequence, the policy provided no coverage for the excess damages she sustained as a result of the tortfeasor's admitted negligence.

Plaintiff then filed a "Motion for Partial Summary Judgment" seeking a determination from the trial court on whether this state's or Tennessee's law applied in assessing the validity of the "prior consent to settle" clause found in Victoria's policy.

Finding Louisiana Civil Code article 3544 controls the "conflict of laws" issue raised and that this provision requires application of Louisiana law to the underlying dispute, the trial court granted partial summary judgment on the coverage question in plaintiffs favor.

Victoria appeals the district court's partial summary judgment, asserting the following assignments of error:

1. The district court committed manifest error in concluding that Article 3544 governs the factual situation of this case.
2. The district court committed manifest error in concluding Tennessee law does not govern the validity of the contract of insurance issued to a resident of Tennessee in the State of Tennessee.

LAW & DISCUSSION

Appellate courts review summary judgments de novo using the same criteria that the trial court used in determining whether summary judgment is appropriate. Bertrand v. Metropolitan Life Ins. Co., 93-1123 (La.App. 3 Cir. 4/6/94), 635 So.2d 579. If the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law, then summary judgment shall be rendered forthwith. La.Code Civ.P. art. 966(b). When a motion for summary judgment is made, an adverse party may not rest on the mere allegations or denials of his pleading, but his response must set forth specific facts showing there is a genuine issue for trial, and if he does not respond, summary judgment, if appropriate, shall be rendered against him. La.Code Civ.P. art. 967.

The issues raised by Victoria do not survive or fail based on our review of the facts which are, in the main, undisputed. Though Victoria bifurcated the argument it urges us to accept as meritorious, the real issue presented for our consideration is singular in scope. The question is whether the law of Louisiana barring inclusion of "prior consent clauses" in automobile insurance contracts should apply, where the accident occurred and was caused by a tortfeasor residing and operating a vehicle registered in Louisiana versus the law of the State of Tennessee allowing such clauses, where the plaintiff resided and was operating a Tennessee registered vehicle at the time insured by a policy issued by Victoria, an Ohio company.

Generally, absent constitutional restrictions, a court will follow the statutory direction of its own state on choice of law issues. Restatement (Second) of Conflicts of Law § 6 (1971); Levy v. Jackson, 612 So.2d 894 (La.App. 4 Cir.1993). Victoria does not quarrel with this accepted principle of law. Rather, Victoria's discontent hinges on its insistence that the trial court misapplied Louisiana's choice of law article 3544 which it argues relates to delictual and quasi-delictual and not contractual actions. Victoria insists the relationship between it and the insured is cemented by contract and more appropriately governed by article 3537. We have examined both articles with a scrivener's eye and find neither applies to the "issue" in controversy.

As Victoria notes Louisiana revised, amended, and re-enacted its conflict of laws provisions, previously consisting of Articles 14 and 15, to consist of Articles 14 through 49, effective January 1, 1992 and redesignated by the Louisiana State Law Institute as Book IV of the Louisiana Civil Code and renumbered articles 3515 through 3549. Paraphrasing Article 3544(2)(a), the trial judge found "an offense which has caused harm to parties domiciled in different states when the injury and conduct occurred in one of the states, the law of that state applies." Thus, finding both the "injury and conduct" occurred in Louisiana, the trial judge reasoned *519 Louisiana's law applied in interpreting the validity of Victoria's "prior consent" provision. Although reading and lifting this section from the full text of article 3544 reasonably supports an interpretation favoring application of Louisiana law, we must avoid such myopic review of statutory provisions. We cannot ignore the preface of Article 3544 in deciphering its meaning. The Article begins: "Issues pertaining to loss distribution and financial protection are governed, as between a person injured by an offense or quasi-offense and the person who caused the injury, by the law designated in the following order...." The phrase "as between a person injured by %65 5an offense or quasioffense and the person who caused the injury" is not ambiguous. See La.Civ.Code art. 9. The article purports to regulate issues to loss distribution and financial protection involving offenses and quasi-offenses only "as between" victims and tortfeasors. The article by its clear wording does not apply to similar issues "as between" insureds and insurers, though the underlying action arose from an offense or quasi-offense. See La. Civ.Code art. 11.

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685 So. 2d 516, 1996 WL 709727, Counsel Stack Legal Research, https://law.counselstack.com/opinion/trautman-v-poor-lactapp-1996.