Bonura v. United Bankers Life Ins. Co.

• Decision Date: 14 November 1989
• Docket Number: No. 88,88
• Citation: 552 So.2d 1248
• Parties: Carlo J. BONURA and Ann M. Bonura v. UNITED BANKERS LIFE INSURANCE COMPANY and Hill Country Life Insurance Company. CA 1423. 552 So.2d 1248
• Court: Court of Appeal of Louisiana — District of US

Page 1248

552 So.2d 1248

Carlo J. BONURA and Ann M. Bonura v. UNITED BANKERS LIFE INSURANCE COMPANY and Hill Country Life Insurance Company.

No. 88 CA 1423.

552 So.2d 1248

Court of Appeal of Louisiana First Circuit.

Nov. 14, 1989.

Writ Denied Feb. 2, 1990.

Sumpter B. Davis, III, Jeff C. Calmes, Baton Rouge, for plaintiffs-appellees Carlo J. Bonura and Ann M. Bonura.

Charles W. Nelson, Jr., New Orleans, for defendant-appellant Texas Receiver of United Bankers Life Ins. Co.

Before CARTER, SAVOIE and ALFORD, JJ.

CARTER, Judge.

This case arose from a claim for benefits under a policy of health and accident insurance.

FACTS

On November 21, 1980, United Bankers Life Insurance Company (United Bankers) issued a policy of health and accident insurance covering Carlo J. and Ann M. Bonura. ¹ The policy provided benefits for specific dread diseases, including cancer, in the amount of $100,000.00. On March 8, 1982, Ann Bonura was diagnosed as having infiltrating ductal carcinoma of the left breast. Thereafter, the Bonuras made periodic claims upon United Bankers for the costs of the treatment received by Ann Bonura. United Bankers denied coverage on the basis that the cancer was a preexisting condition and that the claims were for outpatient treatment, neither of which were covered by the policy.

In October of 1982, United Bankers was placed in receivership in Texas. By order dated April 12, 1983, Hill Country Life Insurance Company (Hill Country) assumed certain obligations of United Bankers. Thereafter, the Bonuras made claims for benefits upon Hill Country, which were denied.

On March 19, 1984, the Bonuras filed suit for damages against United Bankers and Hill Country. ² Thereafter, the Bonuras added, as defendants, Anthony G. Harris, temporary receiver for United Bankers, and Life, Accident, Health, and Hospital Service Insurance Guaranty Association (IGA), an entity created by the Texas Insurance Code. Harris filed a declinatory exception pleading the objection of lack of jurisdiction over the subject matter. IGA filed peremptory and declinatory exceptions pleading the objections of no cause of action and lack of personal and subject matter jurisdiction, respectively.

The trial court denied the exceptions, finding that the claims against Harris and IGA were subject to the jurisdiction of the Louisiana courts. Harris and IGA applied to this court for writs of certiorari, which were granted, to consider whether Louisiana had jurisdiction over a Texas statutory entity and a Texas receiver in a claim by Louisiana residents against a foreign insurer placed in receivership in Texas. In Bonura v. United Bankers Life Insurance Company, 509 So.2d 8 (La.App. 1st Cir.1987), writ denied, 512 So.2d 462 (La.1987), this court determined that Louisiana had subject matter jurisdiction of the controversy, but that Louisiana did not have in personam jurisdiction over IGA. This court noted that Harris failed to except to Louisiana's in personam jurisdiction, thereby waiving any such objection. Accordingly, IGA was dismissed from the suit.

The matter proceeded to trial against United Bankers and Harris. Prior to trial, however, Carlo J. and Ann M. Bonura died. Donna Bonura Lensing, representative of the succession of the Bonuras, was substituted as party plaintiff. After trial, the trial court rendered judgment in favor of Donna Bonura Lensing and against United Bankers and Harris for $92,361.76 in medical benefits, $184,723.52 in penalties, and $25,000.00 in attorney's fees, together with legal interest from date of judicial demand ³ and all costs.

From this adverse judgment, United Bankers and Harris appeal, assigning the following errors:

1. The Trial Court erred in assuming jurisdiction of the subject matter of this suit.

2. The Trial Court erred in refusing to give full faith and credit to the judgment of the Texas court.

3. The Trial Court erred in refusing to honor the judgment of the Texas Court as a manner of comity.

4. The Trial Court erred in holding that the plaintiff's claims were covered by the policy.

5. The Trial Court erred in awarding penalties and attorney's fees.

6. The attorneys' fees awarded by the Trial Court were excessive.

ASSIGNMENTS OF ERROR NOS. 1, 2, & 3

(Jurisdiction)

In these assignments of error United Bankers and Harris contend that Louisiana courts lack jurisdiction over this matter under the provisions of the Uniform Insurers Liquidation Acts, LSA-R.S. 22:757, et seq. United Bankers and Harris reason that LSA-R.S. 22:760 B requires Louisiana residents to assert their claims in the proceedings of the domiciliary state of the foreign insurer when no receivership proceedings have been initiated in Louisiana. United Bankers and Harris also contend that, in Texas state court proceedings, the receiver was given exclusive jurisdiction over the assets of United Bankers and an injunction was issued, enjoining all persons from asserting any claim against United Bankers or Harris except in the receivership proceedings. United Bankers and Harris reason that the trial court erred in not giving full faith and credit to the Texas court judgment pursuant to the full faith and credit clause of the constitution or under the doctrine of comity.

As noted earlier, prior to trial, this court addressed the issue of subject matter jurisdiction in Bonura v. United Bankers Life Insurance Company, supra. When this court considers questions in advance of trial by granting a pretrial application for supervisory writs (rather than deferring judgment until an appeal), the determination does not absolutely preclude a different decision on appeal, at which time the issues may have been more clearly framed by the evidence adduced at trial. Nevertheless, judicial efficiency demands that this court accord great deference to its pretrial decisions, unless it is apparent, in light of the subsequent trial record, that the determination was clearly wrong. See State v. Humphrey, 412 So.2d 507 (La.1981).

In Bonura v. United Bankers Life Insurance Company, supra, this court stated:

Section 760, entitled "Claims against foreign insurers," provides as follows:

A. In a delinquency proceeding in a reciprocal state against an insurer domiciled in that state, claimants, against such insurer, who reside within this state may file claims either with the ancillary receiver, if any, appointed in this state, or with the domiciliary receiver. All such claims must be filed on or before the last date fixed for the filing of claims in the domiciliary delinquency proceeding.

B. Controverted claims belonging to claimants residing in this state may either (1) be proved in the domiciliary state as provided by the law of that state, or (2) if ancillary proceedings have been commenced in this state, be proved in those proceedings. In the event that any such claimant elects to prove his claim in this state, he shall file his claim with the ancillary receiver in the manner provided by the law of this state for the proving of claims against insurers domiciled in this state, and he shall give notice in writing to the receiver in the domiciliary state, either by registered mail or by personal service at least forty days prior to the date set for hearing. The notice shall contain a concise statement of the amount of the claim, the facts on which the claim is based, and the priorities asserted, if any. If the domiciliary receiver, within thirty days after the giving of such notice, shall give notice in writing to the ancillary receiver and to the claimant, either by registered mail or by personal service, of his intention to contest such claim, he shall be entitled to appear or to be represented in any proceeding in this state involving the adjudication of the claim. The final allowance of the claim by the courts of this state shall be accepted as conclusive as to its amount, and shall also be accepted as conclusive as to its priority, if any, against special deposits or other security located within this state.

[Emphasis added.]

We find Section 760 to be inapplicable here. This section does not stand alone in our statutes, but is one of the seven sections of Title 22 which comprise the Uniform Insurers Liquidation Law. As stated in Section 763, this law "shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states that enact it." [Emphasis added.] Each section contains one or more times the phrase "reciprocal state," which is defined in Section 757(7) as "any state other than this state in which in substance and effect the provisions of this law are in force, including the provisions requiring that the insurance commissioner or equivalent insurance supervisory official be the receiver of a delinquent insurer." As shown by the Table of Jurisdictions immediately following Section 757 in which the Act has been adopted, Texas is not a reciprocal state. Therefore, the provisions of the Uniform Insurers Liquidation Law, and specifically Section 760, cannot be applicable in this instance. See Martin v. General American Casualty Company, 226 La. 481, 76 So.2d 537 (1954).

However, two other sections of the Insurance Code do apply to this situation. La.R.S. 22:629 provides that no insurance contract delivered or issued for delivery in this state which covers Louisiana residents may contain any provision which deprives the courts of this state of jurisdiction of action against the insurer. The jurisprudence construing and applying this statute is both consistent and too voluminous to require citation. Together, the statute and cases announce the unequivocal policy of this state that no foreign insurer may enjoy the benefits of a source of business in this state without being prepared to answer any claims based on that business by a Louisiana resident in the Louisiana courts. This policy comports with due process requirements and the insurer suffers no undue hardship thereby. We find no...