APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH. NO. 2011-09968, DIVISION " A" . Honorable Carolyn Gill-Jefferson, Judge Pro Tempore.
W. Jared Vincent, LAW OFFICES OF WILLIAM S. VINCENT, JR., New Orleans, LA, COUNSEL FOR PLAINTIFF/APPELLANT.
Corey L. Pierce, LAW OFFICE OF WILLIAM H. JUSTICE, Baton Rouge, LA, COUNSEL FOR DEFENDANT/APPELLEE.
(Court composed of Judge Terri F. Love, Judge Edwin A. Lombard, Judge Joy Cossich Lobrano).
[2014-0903 La.App. 4 Cir. 1]
Edwin A. Lombard, Judge.
The plaintiff, Nicole Johnson, appeals the summary
judgment granted in favor of the defendant/appellee, USAgencies Casualty Insurance Company, Inc. After de novo review of the record in light of the applicable law and arguments of the parties, we affirm the judgment of the district court.
Relevant Facts and Procedural History
After an automobile accident on September 15, 2010, Nicole Johnson filed this lawsuit on September 15, 2011, naming as defendants Lewis Burnett, Leroy Williams, Progressive Security Insurance Company (as insurer of Leroy Williams), USAgencies Direct Insurance Company (as insurer of Mr. Burnett), and her own insurer, Louisiana Farm Bureau Casualty Insurance Company. By supplemental and amending petition filed on January 23, 2013, the plaintiff named Benjamin Cosby, Lewis Burnett, Progressive Insurance Company of Louisiana (as insurer of Mr. Cosby and Mr. Williams) and USAgencies (as insurer of Mr. Burnett) as defendants in her lawsuit. By second supplemental and amending petition filed on May 20, 2013, the plaintiff corrected her pleading to substitute USAgencies as insurer to Mr. Cosby. Mr. Cosby was not served with either supplemental and amending petition.
[2014-0903 La.App. 4 Cir. 2] On November 12, 2013, USAgencies moved for summary judgment, pointing out that its insurance coverage of Mr. Cosby had expired on September 4, 2010, and, thus, it was entitled to summary judgment as a matter of law. In support of its motion, the defendant/appellee insurance company submitted an unverified copy of policy No. 4861875 and declarations page, as well as an affidavit by an authorized insurance company representative stating
that Mr. Cosby's policy was not renewed and, thus, expired on its own terms on September 4, 2010.
On December 12, 2013, the plaintiff responded to USAgencies motion for summary judgment, asserting that USAgencies did not show by competent, reliable evidence that Mr. Cosby did not renew his policy. The plaintiff insisted that the issue before the court on summary judgment was " whether the Mover, urging an affirmative defense, has provided evidence that shows that mover legally notified Mr. Cosby of the alleged lapse in his coverage."
A hearing on the motion for summary judgment was initially held on December 20, 2013, but upon learning that Mr. Cosby had not been served, the district court gave the plaintiff until February 3, 2014, to effect service on Mr. Cosby, with instructions that the motion should be re-urged after service. A waiver of service was filed on behalf of Mr. Cosby by plaintiff's counsel on February 11, 2014. On March 3, 2014, Mr. ...