Walker v. Hebert

155 So. 3d 114, 13 La.App. 3 Cir. 495, 2014 La. App. LEXIS 2925, 2014 WL 6911081
CourtLouisiana Court of Appeal
DecidedDecember 10, 2014
DocketNo. 13-495
StatusPublished
Cited by1 cases

This text of 155 So. 3d 114 (Walker v. Hebert) 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
Walker v. Hebert, 155 So. 3d 114, 13 La.App. 3 Cir. 495, 2014 La. App. LEXIS 2925, 2014 WL 6911081 (La. Ct. App. 2014).

Opinions

COOKS, Judge.

hFACTS AND PROCEDURAL HISTORY

Clayton Walker (Plaintiff) was allegedly injured on September 22, 2009, when a vehicle driven by Joe Hebert (Hebert), and owned by his brother, Donald Hebert (Donald), pinned Plaintiff between the vehicle and a building. Hebert was insured with Essentia Insurance Company (Essen-tia) at the time of this accident on a policy covering his 1969 Chevrolet. Camaro with an effective policy period of March 15, 2009, through March 15, 2010. Plaintiff sued Hebert and Essentia among others. [116]*116Essentia filed a Motion for Summary Judgment asserting an exclusion provision in the policy rendered Essentia free from any responsibility for damages suffered by Plaintiff.

The trial court denied Essentia’s Motion for Summary Judgment finding the policy ambiguous because it contained provisions which both excluded and included coverage over non-owned vehicles being used by the insured. Essentia later filed a second Motion for Summary Judgment, and a Motion for Partial Summary Judgment, to which Plaintiffs filed Oppositions and a Cross Motion for Summary Judgment. The trial court again denied Essentia’s Motions and granted Plaintiffs’ Motion for Summary Judgment. The trial court specifically found “there was a policy in effect on the date of the accident” and the policy is “not against public policy.” Essentia asserted that the policy had been cancelled with an effective date of cancellation of September 22, 2009, 12:01 A.M. The accident occurred on September 22, 2009, after 12:01 A.M. The trial court found the policy provides coverage in the amount of “$100,000.00 per person and $800,000.00 per accident.” On the “Declarations” page of the policy coverage limits are set forth as: “A. Bodily Injury & Property Damage: $100,000.00 Per Accident [;] B. Medical Payments: $1,000.00 Per Person Per Accident [;] and C. Uninsured ^Motorists Bodily Injury: $80,000.00 Per Accident.” Essentia appeals the trial court judgment.

LEGAL ANALYSIS

Under the provisions of La.Code Civ. P. art 966(B)(2), a party is entitled to summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions, 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.” We review summary judgments de novo “under the same criteria that govern the district court’s consideration of whéther summary judgment is appropriate.” Dronet v. Safeway Ins. Co., 95-1471, p. 2 (La.App. 3 Cir. 11/7/97), 703 So.2d 97, 99, citing Potter v. First Fed. Sav. & Loan Ass’n of Scotlandville, 615 So.2d 318 (La.1993). “A dispute as to the issue of whether, as a matter of law, the language in an insurance policy provides coverage to a party can properly be resolved within the context of a motion for summary judgment.” Id., citing Domingue v. Reliance Ins. Co., 619 So.2d 1220 (La.App. 3 Cir.1993).

Before we address the question of coverage we will address Essentia’s argument that even if there is coverage under the policy, the policy was cancelled prior to the accident for which coverage is sought. Relying solely on its representations in its Admissions of Fact, Essentia asserts that on November 4, 2009, Hebert signed a form cancelling his policy on his 1969 Ca-maro with a retroactive effective date of September 22, 2009, 12:01 A.M. Essentia asserts this came about through a series of events following the destruction by fire of Hebert’s Camaro on August 14, 2009. According to Essentia, Hebert advised them after the destruction of his car “he would want to cancel his policy if he did not buy another classic car to replace the insured 1969 Chevrolet Camaro lost in the fire.” They further assert that on October 28, 2009, Hebert informed them that as he had .not Ryet bought any replacement car he wanted to cancel the policy. According to Essentia’s Admission of Facts, Hebert “signed the policy cancellation form showing September 22, 2009, at 12:01 a.m. as the cancellation date,” and Essentia “received the cancellation form [on November 11, 2009] and cancelled the policy retroactive to September 22, 2009, at 12:01 a.m., the date on which Essentia and Mr. [Joe] [117]*117Hebert settled the amount for loss on the insured 1969 Camaro ...” The record does not contain a copy of this form. Be that as it may, if we accept Essentia’s “admissions of fact” these facts do not establish that coverage was not in effect on September 22, 2009, when the accident injuring Plaintiff Walker occurred. Under these alleged facts Hebert had not made a decision to cancel his insurance coverage when the accident involving Walker occurred, and did not come to that decision until just over a month later. Until then, the policy remained in effect as it was still within the original policy period. When the accident occurred on September 22, 2009, Walker and Hebert had vested rights in the insurance policy. This court has long recognized insurance policies cannot be canceled retroactively. Ceasar v. New England Ins. Co., 616 So.2d 850 (La.App. 3 Cir.1993). Additionally, Louisiana Revised Statutes 22:885(A) (emphasis added) provided in 2009 as follows:

Cancellation by the insured of any policy which by its terms is cancellable at the insured’s option or of any binder based on such policy may be effected by written notice thereof to the insurer and surrender of the policy or binder for cancellation prior to or on the effective date of cancellation. In event the policy, or binder has been lost or destroyed and cannot be so surrendered, the insurer may in lieu of such surrender accept and in good faith rely upon the insured’s written statement setting forth the fact of such loss or destruction.

As the statute provides that notice of cancellation by an insured must be prior to or on an effective date of cancellation, it is clear that the. policy cannot be canceled retroactively. By Essentia’s own admission, Hebert did not send written |4notice to cancel his policy until after the accident involving Plaintiff occurred, and not until after the “effective date” of cancellation recited in the notice. Likewise, the insurance policy covering Hebert’s classic Ca-maro expressly provides the manner in which the policy may be cancelled by the insured (emphasis added):

Cancellation. This policy may be canceled during the policy period as follows:
1. The named insured shown in the Declarations may cancel by:
a. Returning this policy to us; or
b. Giving us advance written notice of the date cancellation is to take effect.

Under Essentia’s own version of the facts regarding the insured’s cancellation of the policy, Hebert did not give any notice of cancellation prior to September 22, 2009, thus that date cannot be the date, of cancellation as to do so runs afoul of both the contractual provisions of this insurance contract and the provisions of La. R.S. 22:885. We therefore hold, as did the trial court, the policy insuring Hebert’s Camaro was in effect on the date of Plaintiff’s accident.

Next, we must determine whether the policy provides coverage for Hebert while driving his brother’s vehicle. Essen-tia asserts that the policy specifically excluded coverage for any liability “arising out of the ownership, maintenance, or use of any vehicle other than ‘your covered auto.’ ” This provision appears in the basic policy under- the heading “Part A. Liability Coverage.

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Cite This Page — Counsel Stack

Bluebook (online)
155 So. 3d 114, 13 La.App. 3 Cir. 495, 2014 La. App. LEXIS 2925, 2014 WL 6911081, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walker-v-hebert-lactapp-2014.