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Caceres v. United Auto. Ins. Co.

Court of Appeal of Louisiana, Fourth Circuit

November 5, 2014

LUZ CACERES AND LASTENIA ESCOBAR
v.
UNITED AUTOMOBILE INSURANCE COMPANY

APPEAL fro CIVIL DISTRICT COURT, ORLEANS PARISH. NO. 2013-00927, DIVISION " A" . Honorable Tiffany G. Chase, Judge.

AFFIRMED.

Cristian P. Silva, Maria Vargas, CRISTIAN P. SILVA LAW OFFICE, L.L.C., Harvey, LA, Arthur O. Schott, III, RIGUER SILVA, L.L.C, New Orleans, LA, COUNSEL FOR PLAINTIFF/APPELLANT.

M. Randall Brown, Cameron M. Mary, Brown & Mary, LLC, Mandeville, LA, COUNSEL FOR DEFENDANT/APPELLEE.

(Court composed of Judge Max N. Tobias, Jr., Judge Edwin A. Lombard, Judge Madeleine M. Landrieu). LANDRIEU, J., CONCURS IN THE RESULT.

OPINION

Edwin A. Lombard, J.

Page 585

[2014-0418 La.App. 4 Cir. 1] The Appellants, Luz Caceres and Lastenia Escobar, seek review of the February 7, 2014 judgment of the district court denying their motion for new trial. Finding that the judgment of the district court is not manifestly erroneous, we affirm.

In May 2012, the Appellants, who are Mississippi residents, were allegedly injured as a result of being involved in hit and run car accident in Orleans Parish. At the time of the accident, Ms. Escobar was driving a vehicle owned by Ms. Caceres, who was riding as a passenger. Ms. Caceres' vehicle was insured by United Automobile Insurance Company (" UAIC" ), the Appellee. The Appellants were unable to locate the vehicle they were allegedly struck by and subsequently filed an insurance claim with UAIC seeking coverage under the uninsured/underinsured portion of Ms. Caceres' policy.

After UAIC denied their claims, the Appellants filed suit against UAIC on January 29, 2013. UAIC answered the suit and subsequently filed a motion for summary judgment asserting that the terms of uninsured policy provisions excluded coverage for the accident and that the alleged phantom vehicle does not [2014-0418 La.App. 4 Cir. 2] meet the definition of an uninsured/underinsured vehicle under the policy. UAIC further asserted that because Ms. Caceres is a Mississippi resident, who purchased her insurance policy in Mississippi from a Mississippi insurer, that Mississippi's insurance contract laws should be applied by the district court in making its determination. At the January 10, 2014 hearing, the district court determined that Mississippi law was applicable and granted the motion.[1]

On January 30, 2014, the Appellants filed a motion for new trial asserting that the secretary of their attorneys, Cristian P. Silva and Maria P. Vargas, failed to calendar the rule to show cause for the motion for summary judgment hearing; thus, neither of the attorneys appeared at the show cause hearing. They also argued that their attorneys failed to file an opposition to the motion for summary judgment. The district court denied the motion for new trial on February 7, 2014[2] and this

Page 586

timely appeal followed. The sole assignment of error raised by the Appellants is that the district court abused its discretion in denying their motion for new trial pursuant to La. Code Civ. Proc. art. 1973.

The appellate standard of review of the ruling on a motion for new trial is whether the trial court abused its discretion. Jackson v. Bally's Louisiana, Inc., 09-1574, p. 4 (La.App. 4 Cir. 4/7/10), 36 So.3d 1001, 1004. " Where one or more legal errors interdict the trial court's fact-finding process, however, the manifest error standard becomes inapplicable, and the appellate court must conduct its own de novo review of the record." Hamp's Const., L.L.C. v. Hous. Auth. of New [2 ...


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