Williams v. USAgencies Casualty Ins. Co.

140 So. 3d 895, 14 La.App. 3 Cir. 185, 2014 WL 2515660, 2014 La. App. LEXIS 1498
CourtLouisiana Court of Appeal
DecidedJune 4, 2014
DocketNo. 14-185
StatusPublished
Cited by1 cases

This text of 140 So. 3d 895 (Williams v. USAgencies Casualty Ins. Co.) 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
Williams v. USAgencies Casualty Ins. Co., 140 So. 3d 895, 14 La.App. 3 Cir. 185, 2014 WL 2515660, 2014 La. App. LEXIS 1498 (La. Ct. App. 2014).

Opinion

EZELL, Judge.

B USAgencies Casualty Insurance Company, Inc. appeals a trial court judgment granting summary judgment in favor of [897]*897Nicholas Williams and Bobby Giroir. The plaintiffs instituted a class action lawsuit seeking damages and penalties when USA-gencies failed to pay for collision damages under its contract of automobile insurance. USAgeneies filed a motion for summary judgment alleging that its policy excluded coverage for first-party property damage while driving with a blood alcohol content above the legal limit. The plaintiffs filed a motion for partial summary judgment claiming the exclusion was unenforceable. The trial court denied USAgeneies’ motion for summary judgment and granted the plaintiffs’ motion for summary judgment, declaring that the subject policy exclusion is void and unenforceable because it is against public policy.

FACTS

On August 26, 2012, Nicholas Williams was operating a 2005 Chevrolet Avalanche when he was involved in a single-car collision and cited for driving while intoxicated. The automobile was a total loss. Mr. Williams filed a claim for damages to the truck under his own policy of insurance with USAgeneies held by Bobby Giroir and himself, as a permitted driver. USAgen-cies denied coverage due to a policy exclusion for blood alcohol content above the legal limit. The plaintiffs filed suit for damages to the truck and for emotional damages due to the financial strain of paying a bank note for collateral that no longer exists.1

After answering and filing several exceptions, USAgeneies filed a motion for partial summary judgment seeking a determination by the trial court that the | .¡exclusion in its insurance policy is enforceable. The plaintiffs also moved for partial summary judgment requesting a finding that the exclusion is unenforceable as ambiguous, vague, and/or against public policy.

To oppose USAgeneies’ motion and support their motion, the plaintiffs submitted several affidavits. One of the affidavits, from a finance manager of a Lafayette car dealership, states that the majority of all automobiles sold at the dealership are financed. There are affidavits from presidents and vice presidents of three different banks, all attesting that as the loan officers for their respective institutions, they would not finance any automobile with an exclusion as it is written in USAgeneies’ policy. USAgeneies filed a motion to strike these affidavits.

After a hearing on the motions for summary judgment and the motion to strike, the trial court denied USAgeneies’ motion to strike and for summary judgment. The trial court granted the plaintiffs’ motion for summary judgment finding that the subject policy exclusion is void and unenforceable because it is against public policy. USAgeneies then filed the present appeal seeking reversal of the trial court’s denial of its partial motion for summary judgment and the granting of the plaintiffs’ motion for partial summary judgment. USAgeneies also seeks reversal of the trial court’s denial of its motion to strike the four affidavits.

AFFIDAVITS

We must first address USAgeneies’ contention that the four affidavits are inadmissible. USAgeneies claims the affidavits are immaterial, irrelevant, and speculative. The plaintiffs offered the affidavits in support of their argument that the USAgen-cies policy exclusion is unenforceable [898]*898claiming that it is against public policy because it “stifles commerce.”

^Louisiana Code of Civil Procedure Article 967 permits the use of affidavits for the purposes of supporting or opposing a motion for summary judgment if they are made on personal knowledge, set forth facts that would be admissible in evidence, and affirmatively show that the affiant is competent to testify to the matters set forth in the affidavit. However, affidavits containing “ ‘[mjere conclusory allegations, improbable inferences and unsupported speculation will not support a finding of a genuine issue of material fact.’ ” Richard v. Liberty Mut. Ins. Co., 13-26, p. 6 (La. App. 3 Cir. 10/9/13), 123 So.3d 345, 348 (quoting Sears v. Home Depot, USA, Inc., 06-201, p. 12 (La.App. 4 Cir. 10/18/06), 943 So.2d 1219, 1228, writ denied, 06-2747 (La.1/26/07), 948 So.2d 168) (alteration in original).

The affidavit from the finance manager of a dealership states that 75% of the automobiles at that dealership are financed. He also concludes that this number could be as high as 90% on an industry-wide level. The other three affidavits are from loan officers who state that they would not finance any automobile with an exclusion as written in the USAgencies policy.

These conclusory statements are unsupported by sufficient admissible facts. None of the affidavits indicate that financing has been denied based on the contents of an insurance policy. Even in the present case, financing was provided when such an exclusion was in the policy. In addition to this exclusion, there are other exclusions in most policies under the comprehensive and collision sections, yet the financing of vehicles has continued. Furthermore, the statements are speculative as to what may occur in the future. We find these conclusory statements of these affiants are no more than unsupported speculation that financing would not be provided if this particular exclusion was included in automobile policy. Therefore, these affidavits are not sufficient to support or oppose a motion for summary | Judgment, and the trial court erred in relying on them when ruling on the motion for summary judgment.

SUMMARY JUDGMENT

“The issue of whether an insurance policy, as a matter of law, provides or precludes coverage is a dispute that can be resolved properly within the framework of a motion for summary judgment.” Collins v. Randall, 02-209, p. 3 (La.App. 1 Cir. 12/20/02), 836 So.2d 352, 354.

Louisiana Code of Civil Procedure Article 966, which governs summary judgment proceedings, was significantly amended in both the 2012 and 2013 legislative sessions. These amendments affect the burden of proof elements of the Article. At the time of this hearing, August 2, 2013, the 2013 version of Article 966 was in effect. After the amendment by 2013 La. Acts No. 391, § 1, Article 966(F)(l)(emphasis supplied) now provides that “A summary judgment may be rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that time.” Furthermore, Article 966(B)(2) now provides that evidence considered by the trial court must be “admitted for purposes of the motion for summary judgment.” Article 966(F)(2) now provides that “[ejvidence cited in and attached to the motion for summary judgment or memorandum filed by an adverse party is deemed admitted for purposes of the motion for summary judgment unless excluded in response to an objection.” Furthermore, “[ojnly evidence admitted for purposes of the motion for summary judgment may be considered [899]*899by the court in its ruling on the motion.” La.Code Civ.P. art. 966(F)(2).

The amendments did not change the burden of proof applicable to a motion for summary judgment as set forth in Article 966(C)(2):

IsThe burden of proof remains with the movant.

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140 So. 3d 895, 14 La.App. 3 Cir. 185, 2014 WL 2515660, 2014 La. App. LEXIS 1498, Counsel Stack Legal Research, https://law.counselstack.com/opinion/williams-v-usagencies-casualty-ins-co-lactapp-2014.