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Tanet v. Geico General Insurance Co.

Court of Appeals of Louisiana, Fourth Circuit

October 25, 2017

LINDA TANET
v.
GEICO GENERAL INSURANCE COMPANY A/K/A GEICO AND RONALD TANET

         APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2015-06423, DIVISION "I-14" Honorable Piper D. Griffin, Judge

          Roderick Christopher Patrick PATRICK & ASSOCIATES COUNSEL FOR PLAINTIFF/APPELLANT

          Kevin O'Bryon Laura A. Leggette O'BRYON & SCHNABEL, PLC COUNSEL FOR DEFENDANT/APPELLEE

          Court composed of Judge Daniel L. Dysart, Judge Regina Bartholomew-Woods, Judge Terrel J. Broussard, Pro Tempore

          Regina Bartholomew-Woods, Judge.

         Appellant, Linda Tanet, appeals the May 19, 2016 judgment of the district court granting the motion for summary judgment filed by Appellee, GEICO General Insurance Company (hereinafter "GEICO"). For the reasons that follow, we affirm the judgment of the district court.

         PROCEDURAL AND FACTUAL BACKGROUND

         On July 4, 2014, Appellant, a passenger in a vehicle operated by her husband, Ronald Tanet, was injured as a result of a single-vehicle, rollover accident. The parties agree that Mr. Tanet was solely responsible for the accident. Both Appellant and her husband owned the vehicle, and both were named insureds on the policy which was issued by GEICO.

         According to the petition filed on July 6, 2015, as a result of the accident, Appellant suffered severe and life-threatening injuries. At the time of filing, Appellant's petition alleged that GEICO had, to that point, failed to make any coverage payments to Appellant. GEICO ultimately paid the full amount of the liability policy which was $100, 000, but denied Appellant's claim for underinsured coverage for damages allegedly exceeding the liability amount.

         Subsequent to paying Appellant on the liability policy, GEICO moved for summary judgment, arguing "the same person cannot be insured with respect to liability coverage and also un/underinsured with respect to UM[1] coverage under the same policy[, ]" relying on Bernard v. Ellis, 2011-2377 (La. 7/2/12), 111 So.3d 995. GEICO additionally refers to the policy language contained in the uninsured/underinsured section of the policy and the amendments thereto in arguing that the plain language of the policy specifically excludes both underinsured and uninsured motor vehicles from the definition of an insured vehicle.

         In opposition to the motion, Appellant first noted this state's strong public policy in favor of providing full recovery for innocent accident victims and that any ambiguity in the policy must be construed in favor of providing coverage. Appellant also argues she is entitled to underinsured coverage according to the language of the policy and amendments thereto, as well as by virtue of her status as a first-party insured who had paid for un/underinsured coverage which attached to her as a person.

         A hearing on the motion proceeded on April 1, 2016, and the district court granted summary judgment in GEICO's favor.[2] The district court signed the written judgment on May 18, 2016. It is from this judgment that Appellant now appeals. Appellant argues the judgment is not only substantively incorrect, but also that GEICO failed to follow local rules and statutory requirements when it filed its motion.

         STANDARD OF REVIEW

         The standard of review on appeal of a ruling on a motion for summary judgment is well-settled, as explained by this Court in Pierre-Ancar v. Browne-McHardy Clinic, 2000-2409, pp. 4-5 (La.App. 4 Cir. 1/16/02), 807 So.2d 344, 347-48:

Appellate courts review summary judgments de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226, 230. Summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue of material fact, and that the movant is entitled to judgment as a matter of law. La. C.C. P. art. 966.
The initial burden of proof remains on the movant to show that no genuine issue of material fact exists. However, if the movant will not bear the burden of proof at trial, his burden on the motion requires him not to negate all essential elements of the plaintiff's claim, but rather to point out that there is an absence of factual support for one or more elements essential to the claim. La. C.C.P. art. 966(C)(2); Fairbanks v. Tulane University, 98-1228 (La.App. 4 Cir. 3/31/99), 731 So.2d 983, 985.
After the movant has met his initial burden of proof, the burden shifts to the non-moving party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. La. C.C.P. art. 966(C)(2). If the non-moving party fails to meet this burden, there is no genuine issue of material fact, and the movant is entitled to summary judgment. La. C.C.P. art. 966; Schwarz v. Administrators of Tulane Educational Fund, 97-0222 (La.App. 4 Cir. 9/10/97), 699 So.2d 895, 897. When a motion for summary judgment is properly supported, the non-moving party may not rest on the mere allegations of his pleading, but his response, by affidavits or as otherwise provided by law, must set forth specific facts showing that there is a genuine issue of material fact for trial. La. C.C.P. art. 967; Townley v. City of Iowa, 97-493 (La.App. 3 Cir. 10/29/97), 702 So.2d 323, 326.

         In order for GEICO to succeed on its motion for summary judgment, therefore, it was required to show there existed no genuine issue of material fact as it applied to Appellant's claim for underinsured motorist coverage.

         DISCUSSION

         Assignments of Error ...


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