Ware v. Gemini Insurance Co.

51 So. 3d 179, 10 La.App. 3 Cir. 594, 2010 La. App. LEXIS 1822, 2010 WL 4740294
Louisiana Court of Appeal·Decided November 24, 2010·No. 10-594·Published·Cited by 4 cases

Opinions

THIBODEAUX, Chief Judge.

| Appellant, Gemini Insurance Company (Gemini), asserts that the trial court erred by granting a summary judgment in favor of Ralph Ware and by denying a summary judgment in its favor. The trial court found that Ware’s employer did not properly select the uninsured/underinsured motorist (UM) coverage that is lower than the limit of its liability insurance policy. For the following reasons, we affirm.

I.

ISSUE

We shall consider whether the employer properly selected a UM coverage that is lower than the limit of its liability policy where the insurance agent entered the lower limit without a discussion with the insured, but the employer initialed, signed, and dated the form.

II.

FACTS

Ware, a driver of a tractor trailer rig, was in an accident while in the course and scope of his employment. The other driver had a liability coverage with a minimum limit that was insufficient to compensate Ware for his injuries.

Gemini provided liability coverage to Ware’s employer with the limit of $1,000,000.00. Gemini tendered $50,000.00 to Ware, claiming that this amount was the limit of the UM coverage Ware’s employer chose. Ware, on the other hand, argued that his employer did not properly select the lower coverage, and, therefore, the $1,000,000.00 limit should apply.

The following are the circumstances surrounding the selection of the $50,000.00 UM coverage. Randall Murphy, on behalf of Ware’s employer, signed an Uninsured/Underinsured Motorist Bodily Injury Coverage Form (UM form). This 12form lists five UM coverage options an insured may choose from by initialing each choice: (1) allows the insured to select a UM coverage with the same limit as the liability policy; (2) allows the insured to select a UM coverage with a limit that is lower than the liability limit. This choice also has two sub-options. The first sub-option allows the insured to enter the amount of the limit per each person, and the second sub-option allows the insured to enter the amount of the limit per each accident; (3) allows the insured to select an economic-only UM coverage with the same limit as the liability coverage; (4) allows the insured to select an economic-only UM coverage but with the limit lower than the liability coverage. This option, like the second option, has two sub-options that allow the insured to enter the amount of the limit per each person or per each accident; and, (5) allows the insured to reject the UM coverage entirely.

On January 22, 2007, Randall Murphy, on behalf of Ware’s employer, initialed choice number two and signed the form. The insurance agent, Dorothy Ladd, who has been working for the insurance industry for over thirty years, wrote $“50,000” in the sub-option “each person” and in the sub-option “each accident.”

According to Ladd, after she faxed this form to the underwriter, she received a phone call from the underwriter’s assistant, Laurie Bonds, who told Ladd that [181] she needed to redo the UM form. Ladd testified: “[s]he [Bonds] told me exactly what was wrong with the form and that it had to be redone” because “we don’t write in anything under the each person.” (Emphasis added).

Thus, on January 26, 2007, another UM form was executed. Again, Ladd wrote $“50,000,” but solely in the “each accident” sub-option. Then, Murphy initialed option number two and signed the form. There is no dispute that Ladd and Murphy did not discuss the amount of the limit. Likewise, there is no dispute that |,sMurphy initialed choice number two and signed the form after Ladd entered the amount of the limit.

Both parties motioned for summary judgment on the issue of the UM coverage limit. The trial court granted Ware’s motion and denied Gemini’s motion. The trial court concluded that the issue in this case was “whether the insured has to personally fill in the amount of the reduced coverage, should he select a lower limit, or whether it is satisfactory for the insurance agent to fill in the amount and the insured only initial it.” The trial court reasoned that the form the Commissioner of Insurance promulgated and the Insurance Code mandated commanded the insured to fill out the form. Then, the court noted the pronouncements in Duncan v. U.S.A.A. Ins. Co., 06-363 (La.11/29/06), 950 So.2d 544, that the expression of a desire not to have a UM coverage does not necessarily constitute a valid rejection if the rejection does not meet the formal requirements of the law. The trial court concluded that because Murphy did not physically write in the amount, the selection of the lower limit was invalid.

Gemini appealed and filed an application for supervisory review arguing the trial court erred by granting Ware’s motion and by denying its motion for summary judgment. The appeal and the writ have been consolidated.

III.

STANDARD OF REVIEW

Appellate courts review summary judgments de novo. Guilbeaux v. Times of Acadiana, Inc., 96-360 (La.App. 3 Cir. 3/26/97), 693 So.2d 1183, writ denied, 97-1840 (La.10/17/97), 701 So.2d 1327. Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material |4fact and the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B).

Because the denial of a motion for summary judgment is an interlocutory ruling from which no appeal may be taken, the only practical remedy available is to request the appellate court’s exercise of its supervisory jurisdiction to review the propriety of this ruling. Louviere v. Byers, 526 So.2d 1253 (La.App. 3 Cir.), writ denied, 528 So.2d 153 (La.1988).

IV.

LAW AND DISCUSSION

UM insurance is provided for by statute that embodies a strong public policy to give full recovery for the automobile accident victims. Duncan, 950 So.2d 544 (citing Roger v. Estate of Moulton, 513 So.2d 1126 (La.1987); A.I.U. Ins. Co. v. Roberts, 404 So.2d 948 (La.1981); Tugwell v. State Farm Ins. Co., 609 So.2d 195 (La.1992); Henson v. Safeco Ins. Cos., 585 So.2d 534 (La.1991); Hoefly v. Gov’t Employees Ins. Co., 418 So.2d 575 (La.1982)). “Thus, under the UM statute, the requirement of UM coverage is an implied amendment to any automobile liability policy, [182] even when not expressly addressed, as UM coverage will be read into the policy unless validly rejected.” Id. at 547 (citations omitted). The

rejection, selection of lower limits, or selection of economic-only coverage shall be made only on a form prescribed by the commissioner of insurance. The prescribed form shall be provided by the insurer and signed by the named insured or his legal representative.... A properly completed and signed form creates a rebuttable presumption that the insured knowingly rejected coverage, selected a lower limit, or selected economic-only coverage.

La.R.S. 22:1295.

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Ware v. Gemini Insurance Co., 51 So. 3d 179, 10 La.App. 3 Cir. 594, 2010 La. App. LEXIS 1822, 2010 WL 4740294 (La. Ct. App. 2010).

51 So. 3d 179 (Ware v. Gemini Insurance Co.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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