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Brice v. State Farm Mutual Automobile Insurance Co.

Court of Appeals of Louisiana, Second Circuit

June 21, 2017

CURTIS BRICE, Plaintiff-Appellee

         Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Lower Court Case No. 554040 Honorable Michael A. Pitman, Judge

          LEWIS, BRISBOIS, BISGAARD & SMITH, LLP By: Maureen O. Sullivan Jean Ann Billeaud Jenna Harris Counsel for Appellant, Old Republic Ins. Co.

          ALL AMERICAN LAW FIRM OF LA, LLC By: Wade T. Visconte Counsel for Appellee

          Before BROWN, WILLIAMS, and GARRETT, JJ.

          BROWN, C.J.

         On October 4, 2009, plaintiff, Curtis Brice, was operating a vehicle owned by his employer, Baxter International, Inc., and was acting in the course and scope of his employment when he was involved in an automobile accident. Subsequently, plaintiff filed suit against Baxter's liability insurer, Old Republic Insurance Co. Baxter had rejected uninsured/underinsured coverage except for "Economic Only" loss up to $100, 000 per accident or occurrence. Plaintiff filed a motion for partial summary judgment.[1] The sole issue was the validity of the selection of "Economic Only" UM/UIM coverage. The trial court granted the motion, finding that the UM/UIM selection form Baxter completed was invalid, and thus, plaintiff was entitled to full ($5 million) liability coverage. Baxter has appealed. Finding that the UM form is valid, we reverse.


         On October 4, 2009, plaintiff, Curtis Brice, was driving on Lee Drive in Baton Rouge when he was rear-ended by a vehicle owned and driven by Justin Golden. At the time of the collision, Brice was acting in the course and scope of his employment as a senior regional sales manager for Baxter, a multinational pharmaceutical company. Additionally, Baxter owned the vehicle that Brice was operating.

         As a result of the collision, Brice suffered injuries to his hip, neck, and right shoulder. Plaintiff started receiving workers' compensation benefits thereafter. He attempted to return to work but was terminated from his employment by Baxter. At some point after the wreck, Golden's automobile insurer, U.S. Agencies Casualty Insurance Company, paid plaintiff its full policy limit of $10, 000.

         On May 11, 2010, Brice had surgery to address his right shoulder AC joint synovitis, right shoulder impingement syndrome, and right shoulder labral tear. He also underwent arthroscopy and a "partial removal" of his right "collarbone." Plaintiff asserts that his injuries and the continuing pain have rendered him "totally disabled, " making it impossible for him to secure gainful employment.

         On September 28, 2011, plaintiff filed suit against State Farm Mutual Automobile Insurance Co., his own insurer, and Old Republic, Baxter's commercial automobile liability insurer.[2]

         The record reflects prior to the October 4, 2009, collision, Old Republic issued a commercial automobile liability policy to Baxter with $5 million liability limits for the policy period May 1, 2008, through May 1, 2009. This policy was renewed for May 1, 2009, through May 1, 2010. Old Republic does not dispute that all premiums were paid prior to the collision.

         On August 30, 2012, plaintiff filed a motion for summary judgment. Brice argued that since Baxter was covered for liability purposes, he was also an insured for UM coverage as a matter of law unless the UM coverage was validity rejected by his employer. Plaintiff asserted that on March 12, 2009, an employee of Baxter, Marie Kupferschmid, executed three UM forms "UA 182e" for Category 1 through Category 3 Motor Vehicles.[3]However, Brice asserted: (1) the UM rejection forms do not identify Baxter as the named insured; (2) the forms do not distinguish whether Kupferschmid executed them as the "legal representative" or "named insured;" and (3) none of the UM rejection forms identified as "UA 182e" had Policy No. MWTB20158 listed on them at the time of execution. Plaintiff argued that the UM rejection forms were not properly executed as required by the Louisiana Supreme Court in Duncan v. U.S.A.A. Insurance Co., 06-0363 (La. 11/29/06), 950 So.2d 544. According to plaintiff, the Old Republic policy provides full UM limits of $5, 000, 000 for bodily and economic damages.

         In reply, Old Republic, citing Bulletin 08-05 issued by the Commissioner of Insurance, argued that the current UM/UIM coverage form does not require a policy number. Old Republic asserted that it satisfied all of the other requirements of Duncan, and Kupferschmid signed the rejection form in her capacity as a duly authorized representative of Baxter. Old Republic further argued that waivers are presumptively valid.

         On March 20, 2013, plaintiff and State Farm filed a joint order to dismiss with reservation of rights. Brice sought to dismiss, with prejudice, all of the rights, claims, and demands against State Farm, and reserve all of the aforementioned against Old Republic. Subsequently, the trial court granted this motion.

         On March 24, 2016, Brice filed the instant motion for partial summary judgment. On May 23, 2016, the trial court held a hearing, and on June 27, 2016, the trial court gave oral reasons for judgment in support of its ruling granting plaintiff's motion. A written judgment followed on August 15, 2016. The trial court ruled that Old Republic's "Category 1" UM selection form for the 2009-2010 policy period was invalid ...

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