97-1102 La.App. 3 Cir. 1/7/98, Anderson v. Oliver

• Decision Date: 07 January 1998
• Citation: 705 So.2d 301
• Parties: 97-1102 La.App. 3 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 301

705 So.2d 301

97-1102 La.App. 3 Cir. 1/7/98

John Edward ANDERSON, Plaintiff-Respondent, v. Cynthia C. OLIVER, Liberty Mutual Insurance Company and Assicurazioni Generali S.P.A., Defendant-Relator.

Nos. W97-721, 97-1102.

Court of Appeal of Louisiana Third Circuit.

Jan. 7, 1998.

Rehearing Denied Feb. 25, 1998.

John Allen Jeansonne, Jr., Lafayette, for John Edward Anderson.

Marvin Huber Olinde, Baton Rouge, for Cynthia C. Oliver, et al.

Thomas Reginald Hightower, Jr., Lafayette, for Assicurazioni Generali, S.P.A.

Steven M. Lozes, New Orleans, for Vesta Insurance Co. in No. W97-721.

Thomas Reginald Hightower, Jr., Lafayette, Steven M. Lozes, New Orleans, for Vesta Insurance Co. in No. 97-1102

Before DECUIR, PETERS and GREMILLION, JJ.

[97-1102 La.App. 3 Cir. 1] PETERS, Judge.

The plaintiff, John Anderson, brought this suit to recover damages for physical injuries he sustained on October 6, 1994, in Acadia Parish, Louisiana, when he was struck by an automobile being driven by Cynthia Oliver. In his suit, Mr. Anderson named Ms. Oliver, Liberty Mutual Insurance Company (Liberty Mutual), Assicurazioni Generali S.P.A. (Generali), and Vesta Fire Insurance Company (Vesta) as defendants. Liberty Mutual is Ms. Oliver's liability insurance carrier, and the other two companies provide uninsured/underinsured (UM) insurance coverage for the vehicle Mr. Anderson was driving at the time of the accident. In the proceedings before this court, Generali seeks reversal of a partial summary judgment rendered by [97-1102 La.App. 3 Cir. 2] the trial court to the effect that Louisiana law governs interpretation of its insurance policy.

There is no dispute as to the facts which relate to this motion as presented to the trial court. Mr. Anderson sustained his injuries in an accident which occurred on Interstate Highway 10 (I-10) in Acadia Parish on October 6, 1994. On that day, Anderson, who was then a Texas resident, ¹ was driving a 1987 Peterbilt tractor-trailer rig owned by Eddie Waldrup of Houston, Texas, and leased by Mr. Waldrup to Morgan Southern, Inc. (Morgan Southern), a Georgia common carrier. Mr. Anderson was traveling west on I-10 when he pulled his rig onto the shoulder of the highway to check his load. As he exited his vehicle, Ms. Oliver's vehicle, which was also traveling west on I-10, struck him.

Generali had issued a policy of insurance covering the tractor-trailer rig, which provided for liability limits of $1,000,000.00 and UM limits of $40,000.00. Morgan Southern had purchased the Generali policy through an insurance agency with offices in North Carolina and Georgia. The policy complied with all requirements of Georgia law, including Georgia's requirements concerning selection of UM benefits. Additionally, the negotiation, selection of benefits, issuance, and delivery of the policy occurred entirely outside the State of Louisiana. Neither Morgan Southern nor the insurance agency that issued the policy maintained any offices, terminals, or employees in Louisiana. All vehicles owned by Morgan Southern were registered or garaged in states other than Louisiana, and other than the fortuitous event of the accident occurring in Louisiana, Morgan Southern had no Louisiana connection whatsoever.

[97-1102 La.App. 3 Cir. 3] Sometime after the suit was filed, Liberty Mutual paid its policy limits, and it was dismissed from the suit. Mr. Anderson filed a motion for partial summary judgment, requesting that the trial court apply Louisiana law, and not Georgia law, in determining the UM coverage afforded Mr. Anderson under the Generali insurance policy. Relying on this court's decision in Trautman v. Poor, 96-627 (La.App. 3 Cir. 12/11/96), 685 So.2d 516, the trial court granted the motion. In granting the motion, the trial court further concluded that the Generali policy did not comply with the written waiver requirements of La.R.S. 22:1406(D)(1)(a)(i) and (ii). Because the policy did not comply with those provisions, the trial court rendered judgment increasing the UM limits available to Mr. Anderson to $1,000,000.00. Generali seeks reversal of this judgment.

Generali both filed for supervisory writs to this court and appealed, requesting review of the decision of the trial court on the partial summary judgment. Generali presents two issues for our review. First, Generali asserts that the trial court erred in applying this court's decision in Trautman to conclude that Louisiana law should apply to the interpretation of Generali's liability for UM benefits and in failing to apply the Louisiana conflict-of-laws provisions to the interpretation of the Generali policy. Generali's second assertion is that La.R.S. 22:1406(D)(1)(a)(iii) is unconstitutional because it violates the prohibitions against the impairment of contracts, the Commerce Clause of the United States Constitution, substantive and procedural due process, and the Full Faith and Credit Clause of the United States and Louisiana Constitutions.

La.R.S. 22:1406(D)(a)(i) provides in part that "[n]o automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any [97-1102 La.App. 3 Cir. 4] motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle designed for use on public highways and required to be registered in this state" unless the policy makes available to the named insured under the policy UM coverage in an amount equal to the liability limits. Further, "[s]uch coverage need not be provided ... where the named insured has rejected the coverage or selected lower limits...." The rejection of UM coverage or selection of lower UM limits must be made in writing on a form provided by the insurer. La.R.S. 22:1406(D)(1)(a)(ii). By Acts 1987, No. 444, § 1, the Louisiana Legislature attempted to expand the Louisiana UM requirements to policies other than those in-state situations contemplated in La.R.S. 22:1406(D)(1)(a)(i). That Act added the following language to the Louisiana Insurance Code: "This Subparagraph and its requirement for uninsured motorist coverage shall apply to any liability insurance covering any accident which occurs in this state and involves a resident of this state." La.R.S. 22:1406(D)(1)(a)(iii) (emphasis added). The Generali policy contains no written rejection/selection form as required by these provisions of Louisiana law.

Acts 1987, No. 444, § 1, was added in response to the supreme court's decision in Snider v. Murray, 461 So.2d 1051 (La.1985). In Snider, the supreme court concluded that La.R.S. 22:1406(D)(1) did not purport to affect policies written and delivered in other states covering vehicles garaged or registered elsewhere, even if such vehicles were involved in Louisiana accidents with Louisiana residents. In reaching that conclusion, the supreme court commented that "[p]erhaps the Legislature could have enacted a law which under modern conflict of laws theories would affect insurance policies written in other states when the accident occurs in Louisiana, but the Legislature did not include such a provision in La.R.S. 22:1406(D)(1)[97-1102 La.App. 3 Cir. 5] ." Id. at 1053-54. Acts 1987, No. 444, § 1, was the legislature's attempt to enact such a law.

Since the addition of La.R.S. 22:1406(D)(1)(a)(iii), this court has issued three opinions concerning its effect on an out-of-state UM policy, including the decision in Trautman. We first addressed the issue in Willett v. National Fire & Marine Insurance Co., 594 So.2d 966 (La.App. 3 Cir.), writ denied, 598 So.2d 355 (La.1992). In Willett, two New Hampshire residents were injured in an accident which occurred after the effective date of Acts 1987, No. 444, § 1. Their automobile, a borrowed Louisiana vehicle, was rear-ended in Lake Charles, Louisiana, by a vehicle driven and owned by Louisiana residents. The New Hampshire residents sought to recover UM benefits under an Allstate insurance policy insuring a vehicle which belonged to one of the plaintiffs and which was principally garaged and registered in New Hampshire. The policy had been written, issued, and delivered in New Hampshire, and contained a clause, authorized by New Hampshire law, which provided Allstate a credit for its UM coverage if the liability coverage was equal to or exceeded the UM limits. The liability coverage of the Louisiana residents exceeded the Allstate UM limits, and, based on this clause, Allstate sought a release from any responsibility in the accident. The trial court granted a summary judgment to the effect that New Hampshire law governed this policy and dismissed the plaintiffs' claims against Allstate.

This court concluded that Acts 1987, No. 444, § 1, had the effect of overruling the supreme court's decision in Snider. However, we did not automatically apply Louisiana law simply because Louisiana residents were involved in the accident and the accident occurred in the state. We first performed a choice-of-law analysis based [97-1102 La.App. 3 Cir. 6] on the jurisprudence available at that time. ² After analyzing the existing jurisprudence, this court reached the following conclusions:

We find in this case that Louisiana's interests outweigh those of New Hampshire. The accident happened in Louisiana and involved the owner of the eighteen wheeler and its driver, both of whom were residents of Louisiana. As defendants, their interests could be adversely affected by a New Hampshire construction of the underinsured motorist provision by limiting the fund from which the plaintiffs' claims are to be satisfied. Moreover, other economic interests are involved. For example, the cost of medical care provided in Louisiana for the injured parties is generally more likely to be paid if there is sufficient insurance.

These interests are consistent with Louisiana's long-time policy of requiring uninsured and underinsured motorist protection. By Act 444 of 1987, the legislature reaffirmed Louisiana's public...