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Cortes-Valencia v. Crews

Court of Appeals of Louisiana, Fifth Circuit

October 29, 2014

FELIX CORTES-VALENCIA, EDWARD SANTOS AND PEDRO MENDOZA
v.
JEFFREY CREWS, TENNESSEE FARMERS MUTUAL INSURANCE COMPANY AND ACCESS INSURANCE COMPANY

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA. NO. 731-312, DIVISION " G" . HONORABLE ROBERT A. PITRE, JR., JUDGE PRESIDING.

IVAN A. ORIHUELA, ATTORNEY AT LAW, Kenner, Louisiana, COUNSEL FOR PLAINTIFF/APPELLANT.

LORRAINE P. MCINNIS, SUZAN N. RICHARDSON, JAMES W. HAILEY, III, ATTORNEYS AT LAW, New Orleans, Louisiana, COUNSEL FOR DEFENDANT/APPELLEE.

Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and Robert A. Chaisson.

OPINION

Page 205

ROBERT A. CHAISSON, Judge.

[2014-0234 La.App. 5 Cir. 1] Felix Cortez-Valencia, Edward Santos, and Pedro Mendoza appeal a judgment of the trial court granting the motion for summary judgment filed by Access Insurance Company (" Access" ) in this dispute over uninsured motorist (" UM" ) insurance coverage. For the reasons that follow, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

Felix Cortez-Valencia was involved in an automobile accident with Jeffrey Crews. At the time of this accident, Edward Santos and Pedro Mendoza were guest passengers in Mr. Cortez-Valencia's automobile. Mr. Cortez-Valencia, Mr. Santos, and Mr. Mendoza filed suit against Mr. Crews and his insurance company, and also named as an additional defendant Access, Mr. Cortez-Valencia's insurer, alleging that Mr. Crews was at fault, that he was either uninsured or underinsured, and that Access provided UM coverage under the policy. Access denied such [2014-0234 La.App. 5 Cir. 2] coverage and moved for summary judgment. At

Page 206

the hearing on its motion, Access submitted a copy of the insurance policy and a waiver of UM coverage form executed by Ana Juarez Cortez, Mr. Cortez-Valencia's wife and the owner of the vehicle. This waiver was executed on the form authorized by the Louisiana Insurance Commissioner, and the required initials, signature, printed name, policy number, insurer's name, and date appear on the form. On the basis of this evidence, summary judgment was rendered in favor of Access. This appeal followed.

DISCUSSION

Appellants contend that the trial court erred in granting summary judgment because Access failed to show that the UM selection form was properly completed. Specifically, appellants contend that the waiver is invalid because the date on the form, rather than being hand-written by the insured herself, was generated electronically by Access's computer. They further contend that since the date is not hand-written by the insured herself, Access has the burden to show that the insured consented to the date being filled in by electronic means, or that the electronic date is otherwise attributable to the insured.

Louisiana Code of Civil Procedure article 966(B)(2) provides that a motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. The initial burden is on the mover to show that no genuine issue of material fact exists. If the moving party will not bear the burden of proof at trial, the moving party must only point out that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The nonmoving party must then produce factual support to establish that [2014-0234 La.App. 5 Cir. 3] he will be able to satisfy his evidentiary burden of proof at trial. If the nonmoving ...


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