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Diaz v. Lopez

Court of Appeals of Louisiana, Fourth Circuit

May 27, 2015

MARIO DIAZ
v.
EUDOLIO LOPEZ, ASSURANCE AMERICA INSURANCE COMPANY, DARRELL BUTLER AND ALLSTATE INSURANCE COMPANY

APPEAL FROM FIRST CITY COURT OF NEW ORLEANS, NO. 2012-51627, SECTION " B" . Honorable Angelique A. Reed, Judge.

Ivan Alberto Orihuela, RIGUER SILVA, LLC, Kenner, LA, COUNSEL FOR PLAINTIFF/APPELLANT.

Chauntis T. Jenkins, Michele Trowbridge Barreca, PORTEOUS HAINKEL & JOHNSON, L.L.P., New Orleans, LA, COUNSEL FOR DEFENDANT/APPELLEE.

(Court composed of Judge Max N. Tobias, Jr., Judge Madeleine M. Landrieu, Judge Sandra Cabrina Jenkins).

OPINION

Page 1037

[2014-1041 La.App. 4 Cir. 1] Madeleine M. Landrieu, J.

Plaintiff, Mario Diaz, appeals the trial court's judgment granting summary judgment in favor of Allstate Insurance Company (" Allstate" ). For the reasons that follow, we affirm the judgment of the trial court.

Facts and Proceedings Below

Mr. Diaz was a passenger in a vehicle driven by Eudolio Lopez when that vehicle collided with a vehicle driven by Darrell Butler. Mr. Diaz filed a petition for damages for alleged injuries sustained in the accident against Mr. Lopez and his insurer, Assurance American Insurance Company, and Mr. Butler and his insurer, Allstate.

Allstate filed a Motion for Summary Judgment, alleging that Mr. Butler was not covered under an Allstate policy at the time of the accident. In support of its motion for summary judgment, Allstate submitted the cancellation notice mailed to Mr. Butler, a " Record of Mailing," and the affidavit of Kathy Collard, an employee [2014-1041 La.App. 4 Cir. 2] at Allstate's Customer Enterprise Service Center.[1] After a contradictory hearing, the trial court granted Allstate's motion. This appeal follows.

Assignments of Error

Mr. Diaz contends that the trial court erred in granting Allstate's motion for summary judgment because (1) Allstate failed to meet its burden for summary judgment; (2) Allstate failed to satisfy the requirements for proper cancellation of an automobile policy for non-payment of premium; (3) Allstate's cancellation notice was inadequate under Louisiana law; (4) Allstate failed to satisfy the proof of notice requirement; and (5) the trial court erred in considering the affidavit of Kathy Collard, an Allstate employee.

Discussion

We review the trial court's granting of a motion of summary judgment de novo using the same criteria applied by the trial courts to determine whether summary judgment is appropriate. Fleming v. Hilton Hotels Corp., ...


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