Dibos v. Bill Watson Ford, Inc.

• Decision Date: 27 May 1993
• Docket Number: No. 92-CA-1999,92-CA-1999
• Citation: 622 So.2d 677
• Parties: Kenneth J. DIBOS v. BILL WATSON FORD, INC., and New Hampshire Indemnity Company, Inc.
• Court: Court of Appeal of Louisiana — District of US

Page 677

622 So.2d 677

Kenneth J. DIBOS v. BILL WATSON FORD, INC., and New Hampshire Indemnity Company, Inc.

No. 92-CA-1999.

Court of Appeal of Louisiana Fourth Circuit.

May 27, 1993.

Rehearings Denied Sept. 15, 1993.

Paula L. Marcello, Hoffman, Sutterfield, Ensenat & Bankston, New Orleans, LA, for defendants-appellees.

Harry C. Graham, III, Earl A. Maxwell, New Orleans, LA, for plaintiff-appellant.

Before SCHOTT, C.J., and BARRY, BYRNES, WALTZER and LANDRIEU, JJ.

WALTZER, Judge.

Plaintiff, Kenneth Dibos, appeals from the trial court's granting of defendant's summary judgment dismissing plaintiff's claims against both Bill Watson Ford and New Hampshire Indemnity Company.

On April 27, 1990 at approximately 1:15 p.m., plaintiff, an employee of Bill Watson Ford, was involved in an automobile accident while driving a car owned and insured by Bill Watson. The driver of the other automobile did not stop and his identity is unknown. On the morning of the accident, at about 11:30 a.m., Bill Watson Jr., the president of the company, allegedly signed a waiver of uninsured/underinsured motorist ("UM") coverage in front of two witnesses.

Plaintiff filed suit against his employer and its insurer. Defendants filed a motion for summary judgment based upon the fact that the president of the company employing the plaintiff appropriately signed the rejection of UM coverage as required by LSA-R.S. 22:1406(D)(1). At the summary judgment hearing, the defendants introduced the deposition testimony of Bill Watson Jr., one of the witnesses to the signing, and a representative of the insurer, as well as an affidavit from the company's insurance agent. The testimony and the affidavit showed that Bill Watson had refused UM coverage for several years, and that Bill Watson Jr. signed a rejection for UM coverage on April 27, 1990 at about 11:30 a.m. Based on this evidence and arguments from counsel, the trial judge granted defendants' motion for summary judgment on February 10, 1992. Plaintiff now appeals from this ruling, claiming that, as a matter of law, the rejection of UM coverage could not be considered effective until the day after the signing of such rejection.

Louisiana law, as well as judicial interpretation of public policy strongly favoring UM coverage, is unambiguous and unyielding with respect to UM coverage. The law regarding such coverage is so strong that typical contractual concepts, which exist and are usually applied to insurance contracts, are not considered in determining whether the insurance policy contained UM coverage. Under LSA-R.S. 22:1406(D)(1)(a), UM coverage is automatic. Whether the parties intended for such coverage does not matter. Public policy demands and LSA-R.S. 22:1406(D)(1)(a) dictates that UM coverage up to policy's limit, even if nowhere mentioned in the policy, be read into every insurance contract as if it were written on the face of the policy. Ruiz v. Lewis, 579 So.2d 1203, 1205 (La.App. 4th Cir.1991); Alexander v. Allstate Ins. Co., 493 So.2d 677 (La.App. 2d Cir.1986); see also Roger v. Estate of Moulton, 513 So.2d 1126 (La.1987). In order for there not to be UM coverage, "the insured or his authorized representative must expressly set forth in a single document that UM coverage is rejected in the State of Louisiana as of a specific date in a particular policy issued or to be issued by the insurer. A writing, regardless of the intention of the insured, of a less precise nature is insufficient to effect a valid rejection." Roger v. Estate of Moulton, 513 So.2d 1126, 1132 (La.1987). If the rejection of UM coverage is ambiguous, it is ineffective, regardless of the parties' intent. If the rejection is unambiguous, but not in proper form, it is ineffective.

The burden of proving that rejection of UM coverage was executed, in proper form, without ambiguity, by the proper person, or anything else regarding the effectiveness of such a rejection lies on the party seeking to enforce the rejection and escape UM liability. Henson v. Safeco Insurance Companies, 585 So.2d 534, 538 (La.1991). Proof of the rejection and its effectiveness shall be heavily scrutinized by courts in accordance with the strong public policy to encourage UM coverage as noted by our Supreme Court, and as is inherent in the legislative language of Louisiana statutory provisions. Henson, supra at 538; Roger, supra at 1132.

In this case, Bill Watson Ford and its insurer presented evidence to prove that a waiver of UM coverage was executed in proper form, by the proper person, and became effective before the accident of the plaintiff. This evidence should have been carefully scrutinized by the trial court, as we will proceed to do on our review.

Additionally, because the evidence presented by defendants' was presented for the trial court's consideration of defendants' motion for summary judgment, the evidence should have been closely scrutinized to determine whether the defendants met their heightened burden of proof required for a summary judgment.

We believe the following reasoning from the Second Circuit in Watson v. Cook, 427 So.2d 1312, 1315 (La.App. 2d 1983) appropriately defines the considerations before a trial court in determining whether to grant a summary judgment.

A motion for summary judgment should be granted if, and only if, the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. Thornhill v. Black, Sivals & Bryson, Inc., 394 So.2d 1189 (La.1981); Urban Management Corp. v. Ellis L. Burns, Jr., et al., 427 So.2d 1310 (La.App. 2d Cir.1983); La.C.C.P. Art. 966. The movant for the summary judgment has the burden of affirmatively showing the absence of a genuine issue of material fact and any doubt as to the existence of such issue of material fact is to be resolved against granting the motion. White v. Baker Manor Nursing Home, Inc., 400 So.2d 1168 (La.App. 1st Cir.1981). To satisfy his burden, the party moving for the summary judgment must meet a strict standard by showing that it is quite clear as to what the truth is, and that excludes any real doubt as to the existence of material fact. Vermilion Corp. v. Vaughn, 397 So.2d 490 (La.1981). The papers supporting the position of the party moving for the summary judgment are to be closely scrutinized while the opposing papers are to be indulgently treated, in determining whether mover has satisfied his burden. Vermilion Corp. v. Vaughn, supra. Where the trial court is presented with a choice of reasonable inferences to be drawn from subsidiary facts contained in affidavits and attached exhibits, reasonable inferences must be viewed in light most favorable to the party opposing the motion. Duvalle v. Lake Kenilworth, Inc., 396 So.2d 1268 (La.1981). No summary judgment will be granted even if the trial court has grave doubts regarding a party's ability to establish disputed facts. Aydell v. Charles Carter & Co., Inc., 388 So.2d 404 (La.App. 1st Cir.1980). It is not the function of the trial court on a motion for summary judgment to determine or even inquire into the merits of the issues raised. Morris v. Louisiana Coca Cola Bottling Co., Ltd., 354 So.2d 659 (La.App. 1st Cir.1977). The weighing of conflicting evidence on a material fact has no place in summary judgment procedure. Mecom v. Mobil Oil Corp., 299 So.2d 380 (La.App. 3d Cir.1974). A motion for summary judgment is not appropriate for disposition of cases requiring a judicial determination of subjective facts, e.g., motive, intent, good faith, knowledge. See Jefferson Parish School Bd. v. Rowley Company, Inc., 305 So.2d 658 (La.App. 4th Cir.1974); Butler v. Travelers Ins. Co., 233 So.2d 271 (La.App. 1st Cir.1970). Testimony should neither be received nor considered, even with the consent of counsel, to decide a motion for summary judgment. Urban Management Corp. v. Ellis L. Burns, Jr., et al., supra; Hemphill v. Strain, 341 So.2d 1186 (La.App. 1st Cir.1976). Making evaluations of credibility has no place in determining a summary judgment. Dixie Buick, Inc. v. Lockett 263 So.2d 56 (La.App. 4th Cir.1972); Hemphill v. Strain, supra.

Watson at 1315-1316.

After reviewing the record, we find that the trial court was in error for granting the summary judgment for several reasons.

Defendants, Bill Watson Ford and its insurer, presented the deposition testimony of Bill Watson, Jr., the president of the company, Joe Nelson, the comptroller of the company, and Shelly Schmid, a representative of New Hampshire Indemnity Company to the trial court for its consideration of defendants' motion for summary judgment. Also submitted as evidence was an affidavit from Rowland Staltzer, an insurance agent located in Metairie, Louisiana. This evidence was introduced to prove that Bill Watson, Jr., as an authorized agent of Bill Watson Ford, properly executed a waiver of UM coverage at 11:30 a.m. on the morning of April 27, 1990, just two hours before plaintiff's accident.

Plaintiff, in a memorandum opposing the motion for summary judgment, argued that the credibility of the deposed witnesses and the insurance agent were questionable as each witness was subject to bias and possessed a motive in demonstrating that a UM rejection form had been signed shortly before the accident. We believe that this argument, in a situation such as the present one where the rejection form was by a truly remarkable, even miraculous coincidence, signed just two hours before the accident, has merit. While the plaintiff presented no evidence to support his claim, we emphasize that he is under no burden to do so at this early stage of the proceedings. The entire burden lies on the defendant moving for the summary judgment. In the present case, as argued by the plaintiff, the credibility of the witnesses was at issue. The trial court therefore made a credibility...