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Lee v. Sapp

Court of Appeal of Louisiana, Fourth Circuit

March 4, 2015

RODERICK F. LEE
v.
THOMAS D. SAPP, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, BMW FINANCIAL SERVICES N.A., L.L.C. AND FINANCIAL SERVICES VEHICLE TRUST, INC

Page 61

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH. NO. 2010-07164, DIVISION " G-11" . Honorable Robin M. Giarrusso, Judge.

W. Travis Bousquet, David Aden, New Orleans, LA, COUNSEL FOR PLAINTIFF/APPELLEE.

Charles R. Rumbley, LOBMAN CARNAHAN BATT ANGELLE & NADER, New Orleans, LA; James S. Thompson, Michele Trowbridge Barreca, PORTEOUS HAINKEL & JOHNSON, L.L.P., New Orleans, LA, COUNSEL FOR DEFENDANT/APPELLANT.

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

OPINION

Page 62

Max N. Tobias, Jr., Judge.

[2014-1047 La.App. 4 Cir. 1] State Farm Mutual Automobile Insurance Company (" State Farm" ), the defendant/ appellant, complains of a judgment of the trial court that found coverage for an accident that occurred in August 2009 in New Orleans, Louisiana. After reviewing the record and applicable law of both Louisiana and Florida, we find no error by the trial court and affirm the judgment.

The facts of this case are not in dispute. State Farm issued policy number 628 2111-F03-59A to co-defendant Thomas Sapp (" Sapp" ) for his 2007 BMW automobile with the effective dates of 3 December 2007 through 3 June 2008. The policy was a Florida policy issued and delivered to Sapp in Florida. The policy was renewed thereafter for consecutive six-month terms. State Farm claims that the policy last renewed in December 2008 for a term of 3 December 2008 through 3 June 2009. At some point in time, Sapp moved to New Orleans; the record indicates that State Farm was aware of Sapp's move.

On 15 August 2009, Sapp was involved in an automobile accident with plaintiff/appellee, Roderick Lee (" Lee" ). Lee sued Sapp and State Farm seeking [2014-1047 La.App. 4 Cir. 2] damages for his personal injuries incurred in the accident as the result of Sapp's alleged negligence. State Farm denied coverage, arguing that the policy was not renewed on 3 June 2009.

Initially, State Farm contended that it sent a cancellation notice to Sapp because he had moved from Florida to Louisiana. Years later, State Farm now concedes that a cancellation notice was not sent, but asserts that the policy " died a natural death" due to non-payment of premiums after 3 February 2009; Sapp contends that he continued to make his monthly payments. In any event, it is undisputed that no notice for any reason was sent by State Farm to Sapp.

Both Lee and Sapp filed motions for partial summary judgment, arguing that the State Farm policy was in effect on the day of the accident because State Farm did not send the legally required notice of cancellation or for non-renewal. State Farm filed its own motion for summary judgment contending that no coverage existed at the time of the accident. The trial court agreed with Lee and Sapp, and granted their motions, while denying the motion from State Farm.

In its reasons for judgment, the trial court found that the laws of both Louisiana and Florida required that the insurer send the insured a written notice of cancellation of its intention not to renew coverage. State Farm timely filed this appeal, arguing that the trial court erred because no notice is required when a lapse in coverage occurs for non-payment of premiums.

An appellate court reviews a judgment granting a partial summary judgment utilizing the de novo standard of review. Kimpton Hotel & Restaurant Group, Inc. v. Liberty Mut. Fire Ins. Co., [2014-1047 La.App. 4 Cir. 3] 07-1118, 07-1209, 07-1310, p. 3 (La.App. 4 Cir. 12/19/07), 974 So.2d 72, 75. An appellate court uses the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Ramos v. Tulane Univ. of La. ...


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