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Blandino v. Pierre

Court of Appeals of Louisiana, Fifth Circuit

November 15, 2017

MIRIAM BLANDINO AND FAUSTO MERCEDES, INDIVIDUALLY AND ON BEHALF OF THEIR MINOR CHILDREN, JARED MERCEDES AND YERIANNIS MERCEDES
v.
KENDRA PIERRE, JOHN DOE, GEICO INDEMNITY COMPANY, USAGENCIES CASUALTY INSURANCE COMPANY, INC.-LIABILITY AND USAGENCIES CASUALTY INSURANCE COMPANY, INC.-UM

         ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 718-077, DIVISION "E" HONORABLE JOHN J. MOLAISON, JR., JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLANT, MIRIAM BLANDO AND FAUSTO MERCEDES, INDIVIDUALLY AND ON BEHALF OF THEIR MINOR CHILDREN, JARED MERCEDES AND YERIANNIS MERCEDES IVAN A. ORIHUELA

          COUNSEL FOR INTERVENOR/APPELLEE, LOUISIANA INSURANCE GUARANTY ASSOCIATION STEPHANIE B. LABORDE, BENJAMIN M. CHAPMAN, J. JACOB CHAPMAN

          Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Robert A. Chaisson

          JUDE G. GRAVOIS JUDGE

         Plaintiffs/appellants, Miriam Blandino and Fausto Mercedes, individually and on behalf of their minor children, Jared Mercedes and Yeriannis Mercedes, appeal the trial court's June 18, 2015 judgment that granted defendant/appellee, USAgencies Casualty Insurance Company, now known as Affirmative Casualty Insurance Company's ("USAgencies"), motion for summary judgment, dismissing all of plaintiffs' claims against USAgencies with prejudice. For the following reasons, we affirm this trial court judgment.

         FACTS AND PROCEDURAL BACKGROUND

         Plaintiffs, Miriam Blandino and Fausto Mercedes, individually and on behalf of their minor children, Jared Mercedes and Yeriannis Mercedes, filed suit on August 12, 2012 for damages allegedly sustained in an automobile accident that occurred on August 12, 2011. Plaintiffs alleged in their petition for damages that Ms. Blandino was operating a vehicle, owned by Fausto Mercedes and occupied by their children, Jared and Yeriannis Mercedes, which was stopped at a stop sign in Jefferson Parish, when a 1998 Chevrolet Blazer driven by Kendra Pierre or "John Doe" struck their vehicle, causing personal injuries and property damages. They named as defendants Ms. Pierre and "John Doe, " GEICO Indemnity Company and USAgencies, as automobile liability insurers for either Ms. Pierre or "John Doe, " and USAgencies, as plaintiffs' uninsured/underinsured motorist carrier.

         On April 9, 2015, USAgencies filed a motion for summary judgment seeking dismissal of plaintiffs' claims against it on the basis there was no valid automobile liability insurance policy issued by USAgencies in effect on the date of the subject accident. Specifically, USAgencies maintained that although Ms. Pierre attempted to purchase an automobile liability insurance policy from USAgencies on February 9, 2011, she failed to submit adequate funds to USAgencies to obtain coverage, and thus, the policy never became effective.

          In support of its motion for summary judgment, USAgencies submitted several exhibits, including the policy's declaration page, policy transaction information, non-sufficient funds ("NSF") notification from Capital One, N.A., correspondence sent to Ms. Pierre, and affidavits of Margaret Shoemaker and Jose Sergio Vidal, authorized representatives of USAgencies. These exhibits showed that Ms. Pierre attempted to purchase an automobile liability insurance policy from USAgencies on February 9, 2011, with an effective policy period from February 9, 2011 through August 11, 2011; however, the initial payment made by Ms. Pierre was returned by Capital One, N.A., to USAgencies for insufficient funds on February 16, 2011. Correspondence dated February 17, 2011 sent by certified mail by USAgencies to Ms. Pierre at the address shown in the policy advised her that her policy "never became effective" and she had "no coverage" due to her failure to make the initial premium payment. The correspondence also advised Ms. Pierre that she could reinstate the policy, which would apply retroactively to the original premium due date, by submitting adequate payment, including a fifteen dollar fee for the NSF check, within ten days of February 17, 2011. USAgencies did not receive any subsequent payment from Ms. Pierre. Plaintiffs filed an opposition to the motion for summary judgment, which did not include any supporting documents or attachments. After a hearing, the trial court granted the motion for summary judgment. Plaintiffs' appeal of that judgment follows.

         ASSIGNMENTS OF ERROR AND ARGUMENT

         On appeal, plaintiffs contend that the trial court erred in granting USAgencies motion for summary judgment because USAgencies failed to satisfy the requirements for proper cancellation of an automobile insurance policy for nonpayment of premium. Specifically, plaintiffs urge that the notice provided to Ms. Pierre did not comply with La. R.S. 22:1266 because it did not advise that the policy was "cancelled." Plaintiffs also argue that the notice was ineffective because it advised Ms. Pierre that she would need to pay a fifteen dollar fee for her NSF check in addition to paying the initial premium amount in order to reinstate her insurance policy. Plaintiffs contend that by requiring more than the premium amount, USAgencies did not comply with the law for the proper cancellation of a policy for non-payment of premium. Plaintiffs further argue that the notice was not properly delivered and that there was inadequate evidence of delivery of the notice of cancellation to the insured.

         ANALYSIS

         The summary judgment procedure is a procedural device used to secure the just, speedy, and inexpensive determination of actions by avoiding a full-scale trial where there is no genuine factual dispute. La. C.C.P. art. 966(A)(2); Pouncy v. Winn-Dixie La., Inc., 15-189 (La.App. 5 Cir. 10/28/15), 178 So.3d 603, 605. Summary judgment should be granted if the motion and supporting documents, including the pleadings, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations and admissions, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A).

         The initial burden is on the mover to show that no genuine issue of material fact exists. If the moving party will not bear the burden of proof at trial, the moving party must only point out that there is an absence of factual support for one or more elements essential to the adverse party's claim, action or defense. The non-moving party must then produce factual support to establish that he will be able to satisfy his evidentiary burden at trial. La. C.C.P. art. 966(D). If ...


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