Dean v. State Farm Mut. Auto. Ins. Co.
| Decision Date | 16 January 2008 |
| Docket Number | No. 2007-CA-0645.,2007-CA-0645. |
| Parties | Glendale Swaingan DEAN v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY. |
| Court | Court of Appeal of Louisiana — District of US |
Allen H. Borne, Ryan P. Reece, Allen H. Borne and Associates, New Orleans, LA, for Plaintiff/Appellant.
Robert H. Cooper, Pelleteri & Wiedorn, Mandeville, LA, for Defendant/Appellee.
(Court Composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY, III, and Judge MAX N. TOBIAS, JR.).
The plaintiff-Appellant, Glendale Swaingan Dean ("Mrs. Dean"), appeals an adverse judgment dismissing her automobile theft claim against the defendant-appellee, State Farm Mutual Automobile Insurance Company ("State Farm"), on a motion for summary judgment. For the reasons that follow, we reverse the trial court judgment and remand the matter for further proceedings.
This case stems from an alleged automobile theft. State Farm issued an automobile policy to Mrs. Dean insuring a 1999 Ford Mustang (hereinafter, "vehicle") for loss by theft. The insured vehicle was reported to the police as stolen on 11 June 2004. Subsequently, Mrs. Dean made a claim for the alleged theft of the automobile under the comprehensive loss provision of her State Farm policy. State Farm denied the theft claim on the basis that Mrs. Dean and her daughter, Dewana Swaingan ("Ms. Swaingan"), made numerous misrepresentations of fact in connection with the claim with the intent to deceive thereby triggering Section 8 of State Farm's policy voiding all coverage for the alleged theft. The vehicle has not been recovered.
Mrs. Dean filed the instant suit against State Farm seeking coverage for the theft of her automobile. Specifically, the suit alleges breach of contract and seeks bad faith penalties for State Farm's alleged arbitrary and capricious failure to pay for the purported loss of the stolen vehicle. State Farm subsequently deposed Mrs. Dean wherein Mrs. Dean admitted to providing false information in both a recorded statement given to a State Farm's Claim Representative, Mitch Falgoust, and in an Affidavit of Vehicle Theft filed with State Farm. The false information pertains to events occurring on the day of the alleged theft and relating to Mrs. Dean's daughter's regular use of the vehicle in the months preceding the loss. Mrs. Dean testified in her deposition that the reason she provided the false information was because she believed that had State Farm known her daughter was the one who drove and parked the vehicle on the morning of its theft and had regularly driven the automobile during the preceding six months, State Farm would deny coverage under the policy for the claimed loss.1 Despite a provision in the State Farm policy providing coverage for losses occurring while the insured vehicle is in the possession of a permissive user, Mrs. Dean believed that coverage for the loss would attach only if she was the one who drove and parked the automobile immediately preceding and on the day of its theft.
Following the depositions of Mrs. Dean and Ms. Swaingan, State Farm filed a motion for summary judgment urging that (1) the misrepresentations made by Mrs. Dean and her daughter were material and made with the intent to deceive thereby triggering Section 8 of the policy voiding coverage for the alleged theft, and (2) as such, Mrs. Dean was not entitled to bad faith penalties or damages for breach of contract, as a matter of law. On 8 December 2006, at the conclusion of the summary judgment hearing, the trial court granted State Farm's motion dismissing Mrs. Dean's suit, with prejudice, and assigning oral reasons.2 Judgment was subsequently rendered on 12 February 2007. Thereafter, Mrs. Dean filed a Request for Written Reasons for Judgment, which the trial court issued by on 16 March 2007. In written reasons, the trial court stated:
State Farm alleged that the claimant made false statements throughout the investigation of the claim with the intent to deceive and therefore, coverage is voided, pursuant to Section 8 of the terms of the policy.
The record is replete with documentation of Mrs. Dean's misrepresentations throughout the investigation of her claim. These misrepresentations were not insignificant. Their nature and numerosity trigger Section 8 of the policy and void coverage.3
Mrs. Dean timely filed the instant appeal.
We review a grant of summary judgment de novo applying the same criteria applied by trial courts to determine if summary judgment is appropriate. Supreme Services and Specialty Co., Inc. v. Sonny Greer, Inc., 06-1827 (La.5/22/07), 958 So.2d 634. Summary judgment should only be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show no genuine issue of material fact exists and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966B.
If the movant will not bear the burden of proof at trial, the movant's burden on the motion does not require him to negate all essential elements of the adverse party's claim, but rather to point out to the court the absence of factual support for one or more elements essential to that claim. La. C.C.P. art. 966C(2). The adverse party must, thereafter, produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. Id. Summary judgment shall be rendered against the adverse party if he fails to set forth facts sufficient to show that a genuine issue for trial exists.
Exceptions to the rule that the failure of an adverse party to file countervailing affidavits will result in a summary judgment exist. The exceptions to the general rule stand for the principle that countervailing affidavits need not be filed by the party opposing summary judgment if the motion for summary judgment has not been properly made. Chrysler Credit Corporation v. Harris, 417 So.2d 1370, 1372-73 (La.App. 4 Cir.1982).4 For example, in Chaisson v. Domingue, 372 So.2d 1225 (La.1979),5 where it was undisputed that the teacher-plaintiff had been injured while attending a school band concert, the Supreme Court held that despite the fact that counter-affidavits had not been submitted, summary judgment was not appropriate because it was unclear whether the moving party, her professional liability insurer, was entitled to judgment as a matter of law. Also, in Thompson v. South Central Bell Tel. Co., 411 So.2d 26 (La. 1982),6 the Supreme Court found that even though South Central Bell was the only party to file affidavits, it was not entitled to summary judgment because there were contradictions on factual issues created by the depositions and the affidavits stated conclusions of law rather than evidentiary facts.
Hence, even if affidavits are unanswered, a motion for summary judgment should not be granted if the moving party is not entitled to it as a matter of law or if the affidavits themselves show a material issue of fact. In the instant case, Mrs. Deans opposition memorandum to State Farms summary judgment motion is not contained in the record on appeal. Additionally, no references to any countervailing affidavits or other controverted evidence submitted by Mrs. Dean are made in the appellate briefs. Because we hold that State Farm is not entitled to judgment as a matter of law, we find the exception to the general rule is applicable.
The issues raised by Mrs. Dean on appeal are twofold: (1) the applicability of a "concealment or fraud clause" in the policy to Mrs. Dean's post-application misrepresentation; and (2) whether or not the misrepresentations made must be material to the loss claimed in order to void coverage under the policy.
We are not persuaded by Mrs. Dean's argument that La. R.S. 22:619A provides the sole remedy for an automobile insurer to void a policy on the basis of material misrepresentations made with the intent to deceive. La. R.S. 22:619A states:
A. Except as provided in Subsection B of this Section and R.S. 22:692, and R.S. 22:692.1, no oral or written misrepresentation or warranty made in the negotiation of an insurance contract, by the insured or in his behalf, shall be deemed material or defeat or void the contract or prevent it attaching, unless the misrepresentation or warranty is made with the intent to deceive.
Mrs. Dean contends this statute limits ah insurer's right to void coverage under an automobile policy on the basis of material misrepresentations made with the intent to deceive solely to misrepresentations made in the negotiation or in the application for insurance. Mrs. Dean further contends that because State Farm has neither alleged nor shown that she made any misstatements in her application, State Farm cannot void coverage under her policy based on her post-application misrepresentations even though made with the intent to deceive.
Contrary to the plaintiff-appellant's assertions, there is no restrictive language within the statute limiting an insurer's right to void coverage under an automobile policy for material misrepresentations made subsequent to the issuance of a policy or occurring after a loss. We find that La. R.S. 22:619A does not limit the application of the language to misrepresentations occurring in the policy application, but rather limits the instances when an insurance company can void a policy when misrepresentations occur in the application. Moreover, while La. R.S. 22:619A is silent with respect to material misrepresentations occurring subsequent to the issuance of a policy and/or after a loss, State Farm's policy speaks directly to the issue. Specifically, Section 8 of State Farm's policy provides:
CONDITIONS
8. Concealment or Fraud
There is no coverage under this policy if you or any other person...
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