Delcambre v. Price

• Decision Date: 24 March 1999
• Docket Number: No. 99-C-0223.,99-C-0223.
• Parties: Warren DELCAMBRE, Jr. and State Farm Mutual Automobile Insurance Co. v. Douglas PRICE.
• Court: Court of Appeal of Louisiana — District of US

Page 593

738 So.2d 593

Warren DELCAMBRE, Jr. and State Farm Mutual Automobile Insurance Co. v. Douglas PRICE.

No. 99-C-0223.

Court of Appeal of Louisiana, Fourth Circuit.

March 24, 1999.

Michael H. Hogg, Rodney Kelp Littlefield, Perlis & Hogg, Metairie, Louisiana, Counsel for Relator.

Joel Waltzer, Bruce Waltzer, Waltzer & Associates, New Orleans, Louisiana, Counsel for Respondent.

Court composed of Chief Judge ROBERT J. KLEES, Judge WILLIAM H. BYRNES III, and Judge CHARLES R. JONES.

BYRNES, Judge.

Douglas Price, the defendant-third-party-plaintiff-respondent, seeks insurance coverage from its insurer, the relatorthird-party-defendant, Southern Fire Insurance Company, in connection with an automobile collision. Relator, Southern Fire, moved for summary judgment, alleging that the policy in question had been cancelled prior to the accident. The trial court denied relator's motion and the relator then applied to this court for supervisory writs.

It is undisputed that on October 2, 1996, the defendant-third-party-plaintiff-respondent, Douglas Price applied for insurance at Agency Risk Management Corporation. On October 27, relator-third-party-defendant, Southern Fire Insurance Company issued Price a policy of automobile liability insurance. Agency Risk Management financed a portion of the premium for Price. Subsequently, Southern Fire determined that $28.00 was due in addition to the amount of premium initially remitted, allegedly for undisclosed traffic violations.

On November 18, 1996, Southern Fire contends that it mailed a notice of cancellation for non-payment of the $28.00 to become effective November 29, 1996, if Southern did not receive the additional $28.00 prior to that date. It is undisputed that the additional $28.00 was not remitted to Southern Fire. Accordingly, the policy was cancelled in accordance with the terms of the notice.

On December 5, 1996, Southern Fire mailed Price and Agency Risk a Notice of Final Cancellation. Southern Fire characterizes this second notice as a "courtesy" because it is not required by the statutory law relating to the cancellation of insurance policies.

Shortly thereafter, Price was involved in an automobile accident with the original plaintiff, Warren Delcambre. Delcambre was insured by State Farm Mutual Automobile Casualty Company. Delcambre and State Farm instituted this litigation against Price. Price filed an answer and third party demand alleging that the accident was caused entirely by Delcambre's negligence and naming Southern Fire as a third party defendant, claiming that Southern Fire is obligated to defend and indemnify Price.

Annexed to relator's writ application is a copy of its submission below, including a properly identified and attested notice of cancellation of the policy. Both the reason for cancellation and the timeliness of the notice pursuant to the requirements of LSA-R.S. 22:636.1 appear on the face of the notice. Also annexed and submitted below is a properly identified and attested proof of timely mailing to the respondent, Douglas 0. Price.

In his opposition below, the respondent offered a copy of a "Notice of Final Cancellation" which is not properly sworn to or certified as required by LSA-C.C.P. art. 967, in support of the proposition that the notice was untimely. However, even had this document been properly attested as required by summary judgment procedure, on its face it fails to support the proposition for which it is offered. It is not the notice of cancellation required by LSA-R.S. 23:636.1 to be issued prior to cancellation, but is a second and subsequent notice characterized by relator as a courtesy to inform the insured of the cancellation as an accomplished fact There are no statutory requirements concerning such a notice. Therefore, the timing of it is irrelevant.

Consequently, the face of relator's writ application raises serious issues not properly countered by the face of respondent's opposition. As the reversal of the decision of the trial court would result in the termination of this litigation as to Southern Fire, this Court was initially of the opinion that the writ application merited full consideration by this Court, and, accordingly granted the writ. However, after reviewing the record in depth, we deny the requested relief and affirm the judgment below.

The crux of this case is to be found in the affidavit of Barry C. Prine and its attachments. In his affidavit, Prine swears that he is relator's Staff Counsel and authorized representative and that pursuant to his search of relator's business records he found a notice of cancellation of Prine's insurance policy issued by relator along with a proof of mailing.

Because we review summary judgments de novo, we must first examine the legal sufficiency of Prine's affidavit and attachments.

In Tritt v. Gares, 98-CA-0704 (La.App. 4 Cir. 12/23/98); 735 So.2d 659, this Court stated that:

LSA-C.C.P. art. 967 uses the conjunctive in requiring that the evidence offered in support of or in opposition to a motion for summary judgment be not only admissible, but it must also affirmatively show that the affiant is competent to testify to matters stated in the affidavit, and more significantly, it must be made "on personal knowledge." Plotkin, Louisiana Civil Procedure, Article 967, Requirements for Affidavits, Section 1. Therefore, the fact that evidence may be admissible is not the same as saying that it is made based on personal knowledge and is not sufficient in itself to satisfy the LSA-C.C.P. art. 967 personal knowledge requirement. "Regarding the use of affidavits, the requirement of La.C.C.P. Artai967 that `affidavits shall be made on personal knowledge' has been strictly enforced;. . ."

Personal knowledge encompasses only those facts which the affiant saw, heard or perceived with his own senses.

Superficially, it would seem at first glance that the attachments to Prine's affidavit, although admissible under the business records exception to the hearsay rule (LSA-C.E. art. 803(6)), would not satisfy the personal knowledge requirement of LSA-C.C.P. art. 967 as discussed in Tritt, supra. However, where business records are concerned, the courts have deemed it sufficient that the affiant be qualified to identify the business records as such. The affiant has not been required to show that he personally prepared the business records, or that he had direct, independent, first hand knowledge of the contents thereof. Brown v. Adolph, 96-1257 (La.App. 1 Cir. 3/27/97); 691 So.2d 1321. See also Whitney Nat. Bank v. Reliable Mailing, 96-968 (La.App. 5 Cir. 4/9/97); 694 So.2d 479, where it is implicit that a bank officer was identifying mortgage payment records of the bank when it is reasonable to assume that such an officer of a large bank would not have handled such payments directly and personally. The practical wisdom of this approach is especially easy to appreciate in litigation involving long running account relationships where it would not normally be practical or necessary to require every one of possibly numerous employees to personally attest to each entry on the account. Although the wisdom of the business records doctrine is easiest to see in connection with accounts of long standing, it is equally applicable to business records in general. Accordingly, in the absence of a challenge from the respondent to the competency of Prine, we find...