STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
08-632
WADE PHILLIPS, ET AL.
VERSUS
NEW HAMPSHIRE INSURANCE COMPANY, ET AL.
**********
APPEAL FROM THE ALEXANDRIA CITY COURT PARISH OF RAPIDES, NO. 105,872 HONORABLE RICHARD E. STARLING, JR., CITY COURT JUDGE
MARC T. AMY JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Oswald A. Decuir and Marc T. Amy, Judges.
REVERSED AND REMANDED.
Thomas O. Wells Post Office Box 13438 Alexandria, LA 71315 (318) 445-4500 COUNSEL FOR DEFENDANTS/APPELLEES: Jackie D. Hampton, Jr. Cenla Courier Services, Inc. Bobby Adrian Patrick
David L. Roberson, II Bolen, Parker, Brenner, Lee & Gremillion Ltd. Post Office Box 11590 Alexandria, LA 71315-1590 (318) 445-8236 COUNSEL FOR DEFENDANTS/APPELLEES: James Thomasee Jim Thomasee Insurance Agency, Inc. Russell L. Potter Stafford, Stewart & Potter Post Office Box 1711 Alexandria, LA 71309 (318) 487-4910 COUNSEL FOR DEFENDANTS/APPELLEES: Metropolitan Inurance Group Property and Casualty Company Metropolitan Group Property and Casualty Insurance Company
Philip G. Hunter Hunter & Morton Post Office Box 11710 Alexandria, LA 71315-1710 (318) 487-1997 COUNSEL FOR PLAINTIFFS/APPELLEES: Mary Beth Phillips Wade Phillips
Michael H. Rubin Juston M. O'Brien Jamie D. Seymour McGlinchey Stafford, PLLC One American Place, 14th Floor Baton Rouge, LA 70825 (225) 383-9000 COUNSEL FOR DEFENDANT/APPELLANT: New Hampshire Insurance Company
Marjorie B. Breaux Daigle, Jamison and Rayburn, LLC Post Office Box 3667 Lafayette, LA 70502 (337) 234-7000 COUNSEL FOR DEFENDANT/APPELLANT: New Hampshire Insurance Company AMY, Judge.
A car accident occurred on May 29, 2006. The plaintiffs, alleging that the
driver was in the course and scope of his employment, sued the driver’s alleged
employer and its insurer, among other defendants. The plaintiffs, the insurance agent,
and the alleged employer filed a joint motion for summary judgment, seeking a
judicial declaration that the insurer issued a policy affording coverage on the date of
the accident. The trial court granted the motion based on its finding that La.R.S.
45:173 and La.R.S. 45:174 make cancellation of a common carrier insurance policy
contingent on notification of the cancellation to the Louisiana Public Service
Commission (LPSC) and the insurer’s failure to provide such notice. The insurer
appeals. For the following reasons, we reverse and remand.
Factual and Procedural Background
On May 29, 2006, the plaintiffs’ son, Justin Phillips, was involved in an
automobile accident with Jackie Hampton. Hampton was allegedly operating the
1997 Mercury Grand Marquis in the course and scope of his employment with Cenla
Taxi and Courier Service, Inc. (Cenla Courier), a business insured by New Hampshire
Insurance Company (New Hampshire). Bobby Patrick is the sole owner of several
businesses, including Cenla Courier and Cenla Dispatch Company. Patrick’s other
businesses were insured by Progressive Insurance Company (Progressive). Cenla
Courier contracted with the military to provide transportation for military personnel.
This contract required insurance coverage of one million dollars; thus, Patrick
procured, via the Jim Thomasee Insurance Agency, higher insurance limits through
New Hampshire for Cenla Courier.
New Hampshire issued a policy to Cenla Courier (originally under the name
of Crew Livery Transport), bearing the effective dates of October 12, 2005 to October 12, 2006. The record shows that the policy only listed a 1996 Ford van as a covered
vehicle. As evidenced in the record, the LPSC initially rejected Cenla Courier’s filing
request due to a lapse of coverage. According to a letter addressed to the insurance
agency, New Hampshire advised Cenla Courier and/or its producer, to address the
problem with the Louisiana Department of Motor Vehicles and resubmit its request
upon resolution of the problem. The record indicates that Cenla Courier later
requested that the Jim Thomasee Insurance Agency (not New Hampshire) file the
policy with the LPSC.
According to Patrick’s deposition, Cenla Courier ceased its business operations
prior to the May 26, 2006 accident. He stated that he made an oral request to the Jim
Thomasee Insurance Agency that his policy with New Hampshire be cancelled and
that Progressive provide insurance coverage for all of his company vehicles. Patrick
testified that he did not pay the February 2006 premium owed to New Hampshire.
In turn, the record indicates that New Hampshire mailed a notice of cancellation to
Cenla Courier to be effective March 8, 2006. Testimony reveals that there was a
discrepancy as to whether this notice was received. On the basis of this discrepancy,
New Hampshire’s motion for summary judgment regarding cancellation of the policy
was denied.
On November 27, 2007, the plaintiffs, James Thomasee, the Jim Thomasee
Insurance Agency, and Bobbie Patrick filed a joint motion for summary judgment on
the ground that “[New Hampshire] failed to cancel its policy that afforded coverage
on the date of the accident at issue.” The movers urged that the vehicle involved in
the accident was covered as a “temporary substitute auto” as per a provision in the
insurance policy. The trial court, relying on New Hampshire’s lack of notification to
2 the LPSC, granted summary judgment. New Hampshire appeals, asserting several
assignments of error:
1. The trial court erred as a matter of law when it granted summary judgment because the insurance policy was never put into evidence and the movers failed to carry their burden of proof to show that insurance coverage existed.
2. The trial court erred as a matter of law in granting summary judgment when it held that cancellation of a commercial carrier’s insurance was ineffective solely because the Louisiana Public Service Commission purportedly did not receive notice of cancellation.
3. The trial court erred as a matter of law when it granted summary judgment despite unresolved issues of material fact regarding whether New Hampshire’s insured was involved in the accident, whether the vehicle involved qualified as a temporary substitute vehicle under the policy, and whether the policy was cancelled for failure to pay premiums.
Discussion
Burden of Proof
Appellate courts conduct a de novo review of motions for summary judgment,
making the same inquiries as the trial court in determining the appropriateness of
summary judgment. Champagne v. Ward, 03-3211 (La. 1/19/05), 893 So.2d 773. 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). “[F]acts are material if
they potentially insure or preclude recovery, affect a litigant’s ultimate success, or
determine the outcome of a legal dispute.” Smith v. Our Lady of the Lake Hosp., Inc.,
93-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751 (citation omitted). “If evidence
presented is subject to conflicting interpretations, summary judgment is not proper.”
3 Federated Rural Elec. Ins. Corp. v. Gulf S. Cable Inc., 02-0852, p. 4 (La.App. 3 Cir.
12/11/02), 833 So.2d 544, 546-547.
Initially, the burden of proof remains with the mover to show that genuine
issues of material fact do not exist. “However, if the movant will not bear the burden
of proof at trial on the matter that is before the court on the motion for summary
judgment,” he need not “negate all essential elements of the adverse party’s claim”
but he must point out that “there is an absence of factual support for one or more
elements essential to the adverse party’s claim, action or defense.” La.Code Civ.P.
art. 966(C)(2). Once the mover has met his initial burden of proof, the burden shifts
to the non-moving party to “produce factual support sufficient to establish that he will
be able to satisfy his evidentiary burden of proof at trial[.]” Id.
Evidence in the Record
New Hampshire argues that the insurance policy was never entered into the
record by the movers. As stated above, La.Code Civ.P. art. 966(B) describes what a
court may consider in its determination of a summary judgment motion, namely:
“pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any[.]” Further, La.Code Civ.P. art. 967(A) explains the kinds
of documents that can be submitted by a party in support of or in opposition to a
motion for summary judgment:
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein . . .. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.
4 The supreme court in Aydell v. Sterns, 98-3135, p. 1 (La. 2/26/99), 731 So.2d
189, 190 held that evidence presented as an attachment to the memorandum in
support of or in opposition to the motion for summary judgment is properly before
the court, reasoning that to hold otherwise “undermines the use of summary judgment
procedures to ‘secure the just, speedy, and inexpensive determination of every
action.’ La.C.C.P. art. 966(A)(2).” Furthermore, in Hutchinson v. Knights of
Columbus, Council No. 5747, 03-1533, p. 4 (La. 2/20/04), 866 So.2d 228, 232, the
supreme court stated that “[a]ffidavits in support of or in opposition to motions for
summary judgment must be filed into evidence at the hearing on the motion or filed
into the record in order for the affidavits to be part of the record on appeal.”
New Hampshire argues that Denoux v. Vessel Mgmt. Servs., Inc., 07-2143, p.
6 (La. 5/21/08), 983 So.2d 84, 88 mandates that “[e]vidence not properly and
officially offered and introduced cannot be considered, even if it is physically placed
in the record.” However, Denoux addressed a peremptory exception of prescription
governed by La.Code Civ.P. art. 9311, not a motion for summary judgment governed
by La.Code Civ.P. art. 966.
Insofar as New Hampshire contends that the policy under which coverage is
sought (policy number 416-28-390) is not contained in the record, we address this
omission below. However, insofar as the movers’ motion for summary judgment
1 Art. 931. Evidence on trial of peremptory exception
On the trial of the peremptory exception pleaded at or prior to the trial of the case, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition.
When the peremptory exception is pleaded in the trial court after the trial of the case, but prior to a submission for a decision, the plaintiff may introduce evidence in opposition thereto, but the defendant may introduce no evidence except to rebut that offered by plaintiff.
No evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action.
5 questions the effectiveness of cancellation, we note that the record contains the
affidavit of Milton West, the underwriting manager for New Hampshire, wherein Mr.
West attests to the existence of a policy, bearing the number 416-28-390 with
effective dates of October 12, 2005 to October 12, 2006. Further, the declarations
page for the relevant policy, which provides, at a minimum, the policy number, the
named insured, the policy limits, and the covered auto, was filed into the record as per
the attachment to the mover’s Memorandum in Support of Joint Motion for Summary
Judgment. The presence of the affidavit and the declarations page are sufficient for
a discussion of the parties’ arguments regarding cancellation insofar as they establish,
not coverage, but the existence of a policy.
Notice Requirement
In its second assignment of error, New Hampshire contends that the trial court
erred by holding that La.R.S. 45:173 and La.R.S. 45:174 require LPSC to receive
notice of the cancellation of a commercial carrier’s policy in order for said
cancellation to have effect.2 Louisiana Revised Statutes 45:173 and 45:174 provide:
2 The trial court’s reasons for judgment:
However, there is a legal issue that must be decided, even if Mr. Patrick received notice of cancellation. Louisiana Revised Statutes 45:173 and 45:174 require that a policy of liability insurance issued to a common carrier shall provide ten days notice of intention to cancel the policy which shall be given to the LPSC. While the cases addressing this issue do not specifically state the purpose of these statutes, it would seem clear that the LPSC must be notified of the cancellation of the policy by the carrier to protect the public. It allows the LPSC to take corrective action to make sure a common carrier is not operating vehicles on a public roadway without insurance or a bond to cover damages to innocent third parties. Notification by the insurance carrier to the LPSC to effectuate a valid cancellation is consistent with holdings of the First and Second Circuit Louisiana Appellate Courts. Walcott v. Trailways Lines, Inc. 774 So.2d 1054 (La.App.2d Cir. 2000); St. Paul Marine and Insurance Company v. Roubion 252 So.2d 679 (La. App. 1st Cir. 1071). Accordingly, the court holds that the moving parties Wade Phillips and Mary Beth Phillips, individually, and on behalf of Justin Phillips and James Thomasee and the Jim Thomasee Insurance Agency, Inc. and Bobby Adrian Patrick are entitled to Summary Judgment against New Hampshire Insurance Company recognizing that New Hampshire Insurance Company afforded liability insurance coverage for the accident at issue.
6 § 173. Contract carriers; liability policy or bond required
Every motor carrier, as defined in R.S. 45:162(10), not exempted by R.S. 45:177, using the highways shall file with the Louisiana Public Service Commission, a liability insurance policy or bond satisfactory to the commission of a company authorized to do business in this state. For contract carriers of passengers, other than a contract carrier by bus, the policy or bond shall be not less than five thousand dollars for the death or injury to any one person and thirty thousand dollars total liability for any one accident, and for contract carriers of property the policy or bond shall be not less than five thousand dollars for the death or injury to any one person and ten thousand dollars total liability for any one accident.
§ 174. Cancellation of bond or policy
The policy or bond provided in R.S. 45:173 shall provide that ten days’ notice in writing shall be given to the commission of intention to cancel the policy or bond. If the policy or bond is cancelled, or in the event it should lapse for any reason, the contract carrier by motor vehicle shall replace the policy or bond with another.
In review of the question posed by the motion for summary judgment, we are
mindful of the rules of statutory construction. Louisiana Revised Statutes 1:3
provides:
Words and phrases shall be read with their context and shall be construed according to the common and approved usage of the language. Technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning.
The word “shall” is mandatory and the word “may” is permissive.
Louisiana Revised Statutes 1:4 provides:
When the wording of a Section is clear and free of ambiguity, the letter of it shall not be disregarded under the pretext of pursuing its spirit.
Further, the supreme court has explained:
The fundamental question in all cases of statutory interpretation is legislative intent. SWAT 24 Shreveport Bossier, Inc. v. Bond, 2000-1695, p. 11 (La. 6/29/01), 808 So.2d 294, 302; Succession of Boyter, 99-0761, p. 9 (La. 1/7/00), 756 So.2d 1122, 1128. The rules of statutory construction are designed to ascertain and enforce the intent of
7 the legislature. Id.; Stogner v. Stogner, 98-3044, p. 5 (La. 7/7/99), 739 So.2d 762, 766.
The meaning and intent of a law is determined by considering the law in its entirety and all other laws on the same subject matter and by placing a construction on the law that is consistent with the express terms of the law and with the obvious intent of the legislature in enacting the law. SWAT 24 Shreveport Bossier, 2000-1695 at p. 11, 808 So.2d at 302; Succession of Boyter, 99-0761 at p. 9, 756 So.2d at 1129. A statute must be applied and interpreted in a manner that is logical and consistent with the presumed purpose and intent of the legislature. Id.
Further, it is presumed that every word, sentence, or provision in a law was intended to serve some useful purpose, that some effect is to be given to each such provision, and that no unnecessary words or provisions were employed. Sultana Corporation v. Jewelers Mutual Insurance Company, 03-0360, p. 9 (La.12/3/03), 860 So.2d 1112, 1119. As a result, courts are bound, if possible, to give effect to all parts of a statute and to construe no sentence, clause or word as meaningless and surplusage if a construction giving force to, and preserving, all words can legitimately be found. St. Martin Parish Police Jury v. Iberville Parish Police Jury, 212 La. 886, 33 So.2d 671, 676 (1947); State v. Fontenot, 112 La. 628, 36 So. 630, 634 (1904). Finally, it is presumed that the legislature acts with full knowledge of well-settled principles of statutory construction. Sultana Corporation, 03-0360 at p. 9, 860 So.2d at 1119.
Moss v. State, 05-1963, pp. 15-16 (La. 4/4/06), 925 So.2d 1185, 1196.
We review the mover’s argument in light of the above principles of statutory
interpretation. While La.R.S. 45:173 and La.R.S. 45:174 anticipate that an applicable
policy will require the notification of the LPSC upon cancellation, they do not
designate the party responsible for notification. Nor do the statutes contain a
provision that makes cancellation effective solely upon the receipt of said notice. We
do not impose this provision or read it into the law. See Perritt v. Dona, 02-2601 (La.
7/2/03), 849 So.2d 56. For this reason, the trial court erred in rendering summary
judgment on the basis that the cancellation was not effective due to a lack of notice.
We note that the movers and the trial court relied on Wolcott v. Trailways
Lines, Inc., 34,071 (La.App. 2 Cir. 12/06/00), 774 So.2d 1054 and St. Paul Fire
Marine & Ins. Co. v. Roubion, 252 So.2d 679 (La.App. 1Cir. 1971), to support the
8 assertion that the LPSC must receive notice before cancellation is effective.
However, in Wolcott, 774 So.2d 1054, a Form E3 was present and cancellation of the
policy was determined by the terms of the form. The court did not find that the
statutes, alone, dictated coverage or cancellation. Ultimately, the second circuit held
that replacement of one insurer with another constitutes termination of coverage by
the first insurer, without reaching the issue now before the court of whether
notification to the LPSC is a prerequisite to termination of coverage. Similarly, St.
Paul Marine and Insurance Company, 252 So.2d 679 is distinguishable from this
matter, as the issue of coverage in the former case was decided, again, upon the
language of the endorsement, not as a matter of statutory interpretation involving
La.R.S. 45:173 and La.R.S. 45:174 alone.
Genuine Issues of Material Fact
Notwithstanding the cancellation issue addressed above, New Hampshire also
points out that key facts regarding coverage are disputed. Significantly, the policy
under which the movers claim coverage, policy number 416-28-390, is not contained
in the record.4 Further, there is a dispute concerning whether Jackie Hampton, the
driver of the Mercury Marquis, was employed by Cenla Courier, New Hampshire’s
insured, at the time of the accident. Patrick, the owner of both Cenla Courier and
Cenla Dispatch, made conflicting statements in regard to which company employed
3 In Wolcott, 774 So.2d at 1060, the second circuit explained that: “Form E is a document required to be filed, inter alia, with the Interstate Commerce Commission (“ICC”) and the LPSC.” The second circuit set forth the contents of the Form E in that case, which provided:
This certificate and the endorsement described herein may not be canceled without cancellation of the policy to which it is attached. Such cancellation may be effected by the Company or the insured giving thirty (30) days notice in writing to the State Commission, such thirty (30) days notice to commence to run from the date notice is actually received in the office of the Commission.
Id. 4 Another policy, bearing the number 419-09-298, was filed into the record earlier in the proceedings. We do not substitute the language of that policy for the policy at issue.
9 Hampton when the accident occurred. In his exception of no cause of action, Patrick
asserted that “he did not employ Jackie D. Hampton, Jr. at the time of the accident
and thus is not responsible for the alleged negligent action of Jackie D. Hampton Jr.”
However, he also stated in an affidavit that Jackie “at the time of that accident . . .
had started working under our fleet company then with the Cenla Dispatch
Company,” which was insured by Progressive, not New Hampshire. Additionally,
Patrick’s joint motion for summary judgment states that “Jackie D. Hampton, Jr. was
allegedly within his course and scope of employment by Cenla Taxi and Courier
Service, Inc.” Because New Hampshire’s involvement in the case as a potential
insurer necessarily depends on whether the driver was New Hampshire’s insured, a
genuine issue of material fact exists, precluding summary judgment.
Another issue regards whether the car involved in the accident was covered
under the policy. It is undisputed that the 1997 Mercury Grand Marquis was not
listed on the New Hampshire policy declaration sheet as a covered automobile. The
movers, though, argue coverage is afforded due to the policy provision that includes
“temporary substitute autos.5”
5 As noted, policy number 416-28-390 is not contained in the record. For discussion purposes only, we note that as per a letter from York Claims Service, Inc., the authorized representative of New Hampshire, wherein coverage for this accident was declined, the policy provision reads in pertinent part:
C. CERTAIN TRAILERS, MOBILE EQUIPMENT AND TEMPORARY SUBSTITUTE AUTOS
If Liability Coverage is provided by this Coverage Form, the following types of vehicles are also covered “autos” for Liability Coverage:
....
3. Any “auto” you do not own while used with the permission of its owner as a temporary substitute for a covered “auto” you own that is out of service because of its:
a. Breakdown; b. Repair: c. Servicing; d. “Loss”; or e. Destruction.
10 While the policy was not filed into the record, it appears that coverage as
claimed by the movers will require proof that a “temporary substitute automobile,”
is one that “you do not own.” Although the movers contend that the “Mercury
Marquis . . . was a temporary replacement used by Cenla Taxi and Courier Service,
Inc. for a Ford Van previously damaged in another accident” and, thus, is covered as
a temporary substitute vehicle, competing evidence exists as to who is the owner of
the Mercury. Pointing to the affidavit of Bobby Patrick, the movers urge that the
Mercury qualified under the temporary substitute provision, while New Hampshire
contends that the insured, Cenla Taxi, owned the Mercury, and the provision
affording coverage is only triggered if the insured does not own the vehicle. The
absence of the policy from the record, as well as the disputed issue of coverage, create
genuine issues of material fact.
Consequently, we find that, in addition to the failure of the movers’ statutory
claim as to notice of cancellation, multiple, genuine issues of material fact exist and
preclude summary judgment. We reverse and remand for further proceedings.
DECREE
For the foregoing reasons, the summary judgment entered by the trial court is
reversed. This matter is remanded to the trial court for further proceedings. Costs of
this appeal are assessed to the appellees, Wade Phillips and Mary Beth Phillips,
individually and on behalf of Justin Phillips, James Thomasee, the Jim Thomasee
Insurance Agency, and Bobbie Adrian Patrick.