Havard v. Jeanlouis

• Decision Date: 12 May 2021
• Docket Number: 20-404
• Citation: 320 So.3d 1186
• Parties: Johnny Carval HAVARD v. Ricky JEANLOUIS, et al.
• Court: Court of Appeal of Louisiana — District of US

320 So.3d 1186

Johnny Carval HAVARD
v.
Ricky JEANLOUIS, et al.

20-404

Court of Appeal of Louisiana, Third Circuit.

May 12, 2021

Philip C. Kobetz, Philip C. Kobetz, LTD., 120 Representative Row, Post Office Box 80275, Lafayette, LA 70598, (337) 291-1990, COUNSEL FOR PLAINTIFF/APPELLANT: Johnny Carval Havard

Jean E. Lavidalie, Jr., Guy D. Perrier, Perrier & Lacoste, LLC, 365 Canal Street, Suite 2550, New Orleans, LA 70130, (504) 212-8820, COUNSEL FOR DEFENDANT/APPELLEE: State National Insurance Company, Inc.

Floyd A. Buras, III, Law Office of Jazmine A. Duarte, 4000 South Sherwood Forest Blvd., Suite 403, Baton Rouge, LA 70816, (225) 368-1494, COUNSEL FOR DEFENDANT/APPELLEE: GEICO Casualty Company

Court composed of Sylvia R. Cooks, Chief Judge, Shannon J. Gremillion, John E. Conery, Sharon Darville Wilson, and Charles G. Fitzgerald, Judges.

CONERY, Judge.

Plaintiff Johnny Carval Havard sought recovery under his employer's underinsured/uninsured motorist coverage following a work-related automobile accident. The insurer, State National Insurance Company, Inc. (State National), filed a motion for summary judgment, producing a purported UM waiver form. Plaintiff challenged the validity of the form, noting that, in part, the form contained a stamped signature rather than one by hand. The trial court found in favor of State National, entering summary judgment and dismissing Plaintiff's claims against the insurer. Plaintiff appeals. For the following reasons, we reverse and remand.

FACTS AND PROCEDURAL BACKGROUND

Plaintiff filed the petition instituting this matter following a March 23, 2017 automobile

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accident in which a Ford Expedition driven by Rick Jeanlouis struck a portion of Plaintiff's tow truck, causing injury to him. The tow truck was owned by Plaintiff's employer, Rick's Towing & Recovery Services, Inc. (Rick's Towing).

Seeking damages associated with physical injury and earnings loss,¹ Plaintiff named Mr. Jeanlouis and his insurer, GEICO Casualty Company, as defendants and alleged that Mr. Jeanlouis caused the accident by crossing onto the shoulder of the highway where Plaintiff was working. Alleging that his damages exceeded those of the GEICO policy, Plaintiff also named State National as a defendant in its capacity as Rick's Towing's uninsured/underinsured motor coverage provider.

State National filed a motion for summary judgment, contending that Rick's Towing had completed a valid UM waiver form and that its policy did not, therefore, provide UM coverage for Plaintiff's accident. It presented the UM waiver form in support of its motion, along with the affidavit of Rick's Towing's owner, Richard Baker, and that of Mr. Baker's Administrative Assistant, Vickie d'Augereaux. Ms. d'Augereaux explained therein that she completed the UM waiver on Mr. Baker's behalf and at his direction. In his own affidavit, Mr. Baker confirmed that he had authorized and directed Ms. d'Augereaux to reject UM coverage and that she did so with his consent. In opposition, Plaintiff challenged the effectiveness of the UM waiver form, asserting that Ms. d'Augereaux’s completion of the form was invalid in light of the tasks delineated in Duncan v. U.S.A.A. Insurance Co. , 06-363 (La. 11/29/06), 950 So.2d 544 and its progeny.

Following a February 2020 hearing, the trial court granted summary judgment in favor of State National. Plaintiff appeals and assigns as error:

1. The trial court erred in granting the motion for summary judgment filed by State National Insurance Company, Inc., dismissing that insurer from this case, and finding that State National did not provide uninsured motorist insurance coverage for and on behalf of the plaintiff for the accident made the basis of this lawsuit.

LAW AND DISCUSSION

Summary Judgment

Louisiana Code of Civil Procedure Article 966(A)(2) provides that the summary judgment procedure is favored and must be construed to accomplish its purpose of "the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969." Article 966(A)(3) further instructs that the "motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law."

When the issue presented by the motion for summary judgment is one on which the movant will bear the burden of proof at trial, the burden of showing that there is no genuine issue of material fact is on the moving party. La.Code Civ.P. art. 966(D)(1). The adverse party must then "produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law." Id.

In this case, State National attempts to avoid coverage through a purported

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waiver of the statutorily required UM coverage. The supreme court has explained that it is the insurer's burden of proving that its insured rejected, in writing, UM coverage or that it selected lower limits. Gray v. American Nat'l Prop. & Cas. Co. , 07-1670 (La. 2/26/08), 977 So.2d 839. Accordingly, as the non-moving party, Plaintiff was required in opposition only "to point out to the court the absence of actual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law." La.Code Civ.P. art. 966(D)(1).

The trial court granted summary judgment in favor of State National, a ruling we review under the de novo standard. See Higgins v. Louisiana Farm Bureau Cas. Ins. Co. , 20-1094 (La. 3/24/21), 315 So.3d 838. Having done so under the same criteria guiding the trial court, we find that State National did not meet its burden of proving the valid waiver of UM coverage for summary judgment purposes.

Uninsured/Underinsured Motorist Coverage

Under La.R.S. 22:1295(1)(a)(i), all automobile liability insurance policies delivered or issued in the state "and arising out of ownership, maintenance, or use of a motor vehicle ... designed for use on public highways and required to be registered in this state" must provide coverage not less than the policy's bodily injury liability "under provisions filed with and approved by the commissioner of insurance, for the protection of persons issued thereunder who are legally entitled to recover nonpunitive damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness, or disease, including death resulting therefrom[.]" This statutory provision reflects a strong public policy of allowing innocent automobile accident victims to fully recover their damages from their UM motorist coverage when their injuries are caused by a tortfeasor who is not adequately covered by liability insurance. Duncan , 950 So.2d 544. See also Higgins , 315 So.3d at –––– ; Cutsinger v. Redfern , 08-2607 (La. 5/22/09), 12 So.3d 945.

Louisiana Revised Statutes 22:1295(1)(a)(i) (emphasis added) further provides, however, for a waiver of that statutorily-mandated coverage "when any insured named in the policy either rejects coverage , selects lower limits, or selects economic-only coverage, in the manner provided in Item (1)(a)(ii) of this Section." Generally describing the requirements for such a waiver, La.R.S. 22:1295(1)(a)(ii) (emphasis added) provides:

(ii) Such rejection, selection of lower limits, or selection of economic-only coverage shall be made only on a form prescribed by the commissioner of insurance. The prescribed form shall be provided by the insurer and signed by the named insured or his legal representative. The form signed by the named insured or his legal representative which initially rejects such coverage, selects lower limits, or selects economic-only coverage shall be conclusively presumed to become a part of the policy or contract when issued and delivered, irrespective of whether physically attached thereto. A properly completed and signed form creates a rebuttable presumption that the insured knowingly

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rejected coverage, selected a lower limit, or selected economic-only coverage ....

In Duncan , 950 So.2d at 552, the supreme court further set forth the criteria used to determine whether a UM waiver meets the formal requirements of law, explaining:

The insured initials the selection or rejection chosen to indicate that the decision was made by the insured. If lower limits are selected, then the lower limits are entered on the form to denote the exact limits. The insured or the legal representative signs the form evidencing the intent to waive UM coverage and includes his or her printed name to identify the signature. Moreover, the insured dates the form to determine the effective date of the UM waiver. Likewise, the form includes the policy number to demonstrate which policy it refers to. Thus, the policy number is relevant to the determination of whether

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