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Weems v. Houston Specialty Ins. Co.

Court of Appeals of Louisiana, Third Circuit

May 17, 2017

WILLIAM WEEMS, ET AL.
v.
HOUSTON SPECIALTY INS. CO., ET AL.

         APPEAL FROM THE TENTH JUDICIAL DISTRICT COURT PARISH OF NATCHITOCHES, NO. C-85164, DIV. A HONORABLE DESIREE DYESS, DISTRICT JUDGE

          Joseph Payne Williams, Williams Family Law Firm, LLC COUNSEL FOR PLAINTIFF/APPELLANT: William Weems and Tina Weems Indiv. & on b/h of Hailey Brooke Weems and Dylan Chase Weems

          Donald James Armand, Jr. Pettiette, Armand, Dunkelman COUNSEL FOR DEFENDANT/APPELLEE: Houston Specialty Ins. Co.

          Brian Allen Homza, Cook, Yancey, King & Galloway COUNSEL FOR THIRD PARTY/APPELLEE:, Moreman, Moore & Company Jeff Dickerson

          Court composed of Shannon J. Gremillion, John E. Conery, and David E. Chatelain [*] , Judges.

          JOHN E. CONERY, JUDGE

         William A. Weems and Tina Weems, individually and on behalf of their minor children Hailey Brooke Weems and Dylan Chase Weems (Weems plaintiffs), appeal the June 23, 2016 judgment of the trial court denying their motion for partial summary judgment and granting summary judgment in favor of defendant, Houston Specialty Insurance Company (Houston Specialty) and partial summary judgment in favor of third party defendants, Jeff Dickerson and Moreman, Moore & Company, Inc. (Moreman Moore). For the following reasons, we affirm.

         FACTS AND PROCEDURAL HISTORY

         On August 31, 2011, Mr. Weems, an employee of Cane River Construction LLC (Cane River), was driving Cane River's 1995 Chevorolet Model 3500 vehicle on Interstate-49, while in the course and scope of his employment, when he was struck from behind by a 2005 Chevorlet Suburban and severely injured.

         Houston Specialty provided automobile liability insurance to Cane River. Under the terms of the policy, which covered the period from March 26, 2011 to March 26, 2012, the automobile bodily injury liability limit was one million dollars. Due to the severity of his injuries, Mr. Weems sought uninsured/underinsured motorist (UM) coverage under Cane River's policy issued by Houston Specialty. Houston Specialty denied that its policy provided UM coverage to Cane River, and in the alternative, filed a third party demand against Moreman Moore, its insurance agent, and Mr. Dickerson, the agent at Moreman Moore responsible for obtaining the documents necessary to complete Houston Specialty's in house file.

         Certain facts pertaining to the execution of the UM waiver are undisputed. Mr. Tim Moran was the owner and principal of Cane River in 2011, and was authorized to either accept or reject UM coverage on behalf of Cane River when he obtained the automobile bodily injury liability insurance policy at issue. Mr. Moran negotiated with Moreman Moore's agent, Mr. Dickerson, in order for Cane River to secure insurance coverage.

         On August 28, 2008, the Commissioner of Insurance, (Commissioner) had promulgated LDOI Bulletin No. 08-02, which included a revised UM waiver form that became mandatory on or after January 1, 2010. On the date at issue in this case, insurance companies were required to use the revised UM waiver form included in LDOI Bulletin No. 08-02 in securing a determination by a client of whether to accept or reject UM insurance coverage, or accept UM coverage at lower limits.

         On March 23, 2011, Mr. Dickerson delivered an application form, and in accordance with LDOI Bulletin No. 08-02, the mandated blank

         Uninsured/Underinsured Motorist Bodily Injury Coverage Form (UM waiver form) to Mr. Moran on behalf of Cane River. Mr. Moran properly completed, signed and dated the UM waiver form rejecting the UM coverage available under the automobile bodily injury liability insurance policy of one million dollars the next day on March 24, 2011. He faxed the documents, including the UM waiver form mandated by the Commissioner, to Moreman Moore, who in turn emailed the signed forms to RISCOM, Houston Specialty's Managing General Agent. On March 25, 2011, RISCOM, on behalf of Houston Specialty bound[1] the policy, and sent an email to Moreman Moore giving notice that the policy was bound and effective immediatly. An automobile bodily injury liability insurance policy ...


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