Jones v. Jason Anderson & Goauto Ins. Co.

• Decision Date: 29 June 2017
• Docket Number: No. 2016 CA 1361.,2016 CA 1361.
• Citation: 224 So.3d 413
• Parties: Brenda JONES & Mario Jones, Jr. v. Jason ANDERSON & GoAuto Insurance Company
• Court: Court of Appeal of Louisiana — District of US

224 So.3d 413

Brenda JONES & Mario Jones, Jr.
v.
Jason ANDERSON & GoAuto Insurance Company

No. 2016 CA 1361.

Court of Appeal of Louisiana, First Circuit.

Judgment Rendered: JUNE 29, 2017

Charlotte C. McDaniel McGehee, Baton Rouge, LA, Counsel for Plaintiffs/Appellants, Brenda Jones & Mario Jones, Jr.

Anderson O. Dotson, III, Baton Rouge, LA, Counsel for Defendant/Appellee, Jason Anderson

Chase Tettleton, Stephen Babcock, Baton Rouge, LA, Counsel for Defendant/Appellee, GoAuto Insurance Company

BEFORE: WHIPPLE, C.J., GUIDRY, McCLENDON, THERIOT, AND HOLRIDGE, JJ.

WHIPPLE, C.J.

This matter is before us on appeal by plaintiffs, Brenda Jones and Mario Jones, Jr., from a judgment of the trial court granting summary judgment in favor of defendant, GoAuto Insurance Company ("GoAuto"). For the reasons that follow, we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

On June 1, 2015, after coming to a stop at a light-controlled intersection on Florida

224 So.3d 415

Boulevard in Baton Rouge,¹ the vehicle Brenda Jones was driving was hit in the rear by a vehicle driven by Jason Anderson. Her adult step-son, Mario Jones, Jr., was riding as a guest passenger in the vehicle at the time of the accident. Brenda Jones and Mario Jones, Jr. (hereinafter "plaintiffs") subsequently filed suit against Anderson and GoAuto Insurance Company for damages allegedly sustained as a result of the collision.

GoAuto answered plaintiffs' petition and asserted affirmative defenses, contending that the automobile liability insurance policy issued to Anderson by GoAuto was financed through an insurance premium finance agreement entered into by Anderson and Auto Premium Assistance Company, LLC ("APAC") and that the policy was cancelled effective May 24, 2015, due to Anderson's nonpayment of a premium installment. Thus, GoAuto averred it was not the liability insurer of Anderson at the time of the collision herein.²

GoAuto subsequently filed a motion for summary judgment and dismissal of plaintiffs' claims, seeking a judgment declaring that the policy issued to Anderson was cancelled prior to the accident of June 1, 2015, that GoAuto was not liable for the damages alleged by plaintiffs, and that GoAuto had no duty to provide a defense to Anderson for any damages alleged.

In support of its motion for summary judgment, GoAuto offered: (1) the affidavit of Angela Pittman, APAC's operations manager; (2) the GoAuto insurance policy for the six-month coverage period of July 25, 2014 to January 24, 2015; (3) the July 25, 2014 Consumer Insurance Premium Finance Agreement Anderson entered into with APAC; (4) the renewal policy declarations sheet for the next coverage period of January 27, 2015 through July 29, 2015; (5) APAC's May 14, 2015 email to Anderson with attached "TEN (10) DAY NOTICE OF CANCELLATION"; (6) Ms. Pittman's affidavits of proof of emailed notices to GoAuto; (7) APAC's letter to GoAuto dated May 24, 2015, requesting cancellation of the policy; and (8) plaintiffs' answers to interrogatories and requests for admissions of fact.

GoAuto contends that this evidence established that GoAuto issued Anderson an automobile liability insurance policy bearing number 320107, which provided coverage from July 25, 2014 to January 24, 2015, and that Anderson opted to make a down payment on the policy premium and finance the balance of the premium through APAC pursuant to a Consumer Insurance Premium Finance Agreement entered into on July 25, 2014, through which Anderson agreed to pay a Promissory Note for the balance of the premium. According to the agreement, Anderson requested that APAC use his email address "for all notices required by law." Pursuant to the agreement, Anderson further conferred power of attorney to APAC, authorizing APAC to cancel his policy should he fail to pay a premium installment, which GoAuto contends happened herein.

According to GoAuto, upon the expiration of the policy period, Anderson renewed his policy and was issued policy number 320107–12, which provided coverage from January 27, 2015 to July 29,

224 So.3d 416

2015. According to Ms. Pittman's affidavit, Anderson again opted to make a down payment on the premium and finance the balance of the premium through APAC. According to GoAuto, after Anderson failed to submit his monthly installment payment due May 13, 2015, APAC emailed Anderson a late notice on May 14, 2015, explaining that "[t]his marks the beginning of your 10 day late notice period, after which your policy will be cancelled and you will owe fees required to reinstate" and attached a "TEN (10) DAY NOTICE OF CANCELLATION." The notice of cancellation provided that the policy would be cancelled effective 12:01 a.m. on May 24, 2015, if the delinquent installment was not received. APAC did not receive the premium installment before May 24, 2015. Thus, exercising the power of attorney conferred upon it by Anderson in the finance agreement, APAC sent a letter to GoAuto requesting cancellation of the policy for non-payment of premium pursuant to the requirements set forth in LSA–R.S. 9:3550(G)(3)(a). The letter was signed by Ms. Pittman as APAC's authorized representative.

Following the cancellation of the policy on May 24, 2015, Anderson appeared on June 1, 2015, at 5:04 p.m., after the instant accident herein, and paid the premium installment that was due on May 13, 2015, thereby reinstating the policy. According to Ms. Pittman, no automobile liability coverage existed for Anderson under policy number 320107–12 (or any other GoAuto policy) between the cancellation date of May 24, 2015, and the time of the accident, approximately 3:57 p.m., on June 1, 2015.

Plaintiffs filed a memorandum in opposition to GoAuto's motion for summary judgment. Although plaintiffs did not offer any documents or exhibits in support of their opposition, they contended that the evidence set forth by GoAuto failed to establish that GoAuto was entitled to judgment as a matter of law.³

Following a hearing, the trial court granted GoAuto's motion for summary judgment. In its oral reasons, the trial court found that GoAuto had complied with the laws governing the cancellation of coverage and that accordingly, there was no insurance coverage in effect at the time of the accident. A written judgment was subsequently signed by the trial court on August 1, 2016, granting GoAuto's motion for summary judgment and dismissing plaintiffs' claims against it. The judgment further declared that GoAuto had no duty to provide a defense to Anderson in this action.

Plaintiffs filed the instant appeal, contending that the trial court erred in:

(1) finding there was no coverage afforded to Anderson on June 1, 2015;

(2) concluding that GoAuto complied with the laws governing cancellation of insurance;

(3) finding that GoAuto complied with the laws governing cancellation of insurance, which necessarily includes a finding that GoAuto received a valid cancellation request from a mandate who had authority to make such request;

(4) finding that GoAuto could effectively cancel coverage to Anderson without providing Anderson with a written, mailed notice of cancellation;

(5) finding that the cancellation of insurance coverage could stem from a premium finance company agreement, which

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created a power of attorney on behalf of an entity;

(6) finding that a cancellation notice of the finance company was valid as to Anderson where there was no proof of mailing of the notice from the finance company to the insurance company pursuant to LSA–R.S. 9:3550 ;

(7) finding that the notice sent to Anderson by APAC was effective notice of cancellation by GoAuto;

(8) finding there was a valid power of attorney allowing APAC to act as mandatory and cancel the insurance policy issued by GoAuto; and

(9) finding that GoAuto complied with the laws governing the cancellation of coverage to Anderson to be performed by Ms. Pittman, who has never been given authority as a mandatory of Anderson.

SUMMARY JUDGMENT

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. All Crane Rental of Georgia, Inc. v. Vincent, 2010-0116 (La. App. 1st Cir. 9/10/10), 47 So.3d 1024, 1027, writ denied, 2010-2227 (La. 11/19/10), 49 So.3d 387. After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law. LSA–C.C.P. art. 966(A)(3). The only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and...