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Stall v. Mercury Ins. Co.

Court of Appeals of Louisiana, Third Circuit

December 28, 2017



          Robert I. Siegel Michael E. Hill Tara E. Clement Gieger, Laborde & Laperouse, LLC COUNSEL FOR DEFENDANT/APPELLANT: National Union Fire Insurance Co. of Pittsburgh, PA

          J. Lomax Jordan, Jr. Victor R. A. Ashy COUNSEL FOR PLAINTIFF/APPELLEE: Aaron Allen Stall

          Court composed of Marc J. Amy, Elizabeth A. Pickett, Shannon J. Gremillion, John E. Conery, and Candyce G. Perret, Judges.



         Aaron Stall, an employee of CVS Caremark Corporation, and Gustavo Garcia-Jimenez were involved in a two-vehicle accident on January 1, 2014. Mr. Stall was operating a vehicle provided by CVS. National Union Fire Insurance Company of Pittsburgh, Pennsylvania issued a business auto policy to CVS that covered the vehicle and its employee/driver, Mr. Stall. Mr. Stall filed suit against Mr. Garcia-Jimenez and his alleged insurer, Mercury Insurance Company of Florida.[1] He also sued National Union, among others, alleging that Mr. Garcia-Jimenez was at fault, was uninsured or underinsured, and National Union's uninsured/underinsured policy provided coverage for the accident. National Union denied coverage, claiming the policy issued to CVS insuring the CVS vehicle Mr. Stall was driving contained a proper waiver of uninsured or underinsured (UM) coverage.

         Mr. Stall filed a motion for partial summary judgment, alleging that the UM waiver produced by National Union in discovery was defective. However, there was no dispute that the waiver was executed on a form provided by the Louisiana Department of Insurance and signed by "David Huntley" in the space provided for the named insured or representative. Mr. Huntley's printed, handwritten name also appears on the form in the proper space. It is dated December 19, 2012. Mr. Huntley's initials appear in the blank waiving UM coverage, all in compliance with the form prepared by the Louisiana Department of Insurance for such purposes.

         The evidence presented in connection with the hearing on the motion for partial summary judgment on the issue of the validity of the UM waiver showed that the policy for which the UM waiver was purportedly executed on December 19, 2012, was in effect from January 1, 2013, through January 1, 2014, at 12:01 a.m. The accident at issue occurred at 1:29 a.m. on January 1, 2014, after that policy had expired. The policy was timely renewed before the accident, and the new policy was effective January 1, 2014 through January 1, 2015, at 12:01 a.m., and issued by AIG/National Union. However, a UM waiver for the renewal policy was not executed until February 21, 2014, several weeks after the accident at issue herein, and hence, on its face, the UM waiver attached to that policy was signed too late to be effective. National Union claims that since the 2014/2015 policy was a renewal, the UM waiver executed on December 19, 2012 for the 2013/2014 policy year was still binding pursuant to specific statutory law so providing.[2]

         Following the hearing on Mr. Stall's motion for partial summary judgment, the trial court found that the UM waiver was not valid. In written reasons, the trial court stated:

The Court granted the Motion for Partial Summary Judgment filed on behalf of Aaron Stall and held that the waiver of uninsured/underinsured motorist coverage executed by David Huntly [sic] as legal representative to CVS on December 19, 2012, did not clearly and unmistakably waive uninsured/underinsured motorist coverage under the policy issued. Accordingly, the Court held that the waiver was invalid and inapplicable to preclude uninsured/underinsured motorist coverage for the accident that occurred on January 1, 2014.
The waiver at issue cast [sic] doubt as to which policy it was applicable to. The policy existing at the time the waiver was executed was insured by Chartis. The policy existing at the time of the accident and at the time a second waiver was signed after the accident on February 21, 2014, was insured by AIG/National Union. The 2012 waiver did not have the policy listed on it; however failure to list the policy number on the waiver is not a sole basis for finding the waivers ambiguous. The waivers also did not contain the name of the current policy issuer; the 2012 waivers named Chartis, not AIG/National Union.
The Court found that the totality of the facts at issue and the form of the purported waiver of uninsured/underinsured motorist coverage made the waiver unclear and mistakable. Accordingly, the Court found that the uninsured/underinsured coverage waiver was invalid.

         The trial court certified the ruling as final and appealable. National Union now timely appeals the judgment of the trial court. For the following reasons, we reverse, finding that there is a genuine issue of material fact as to whether a valid UM waiver was properly executed.


         National Union asserts one assignment of error on appeal: "The trial court erred in granting Plaintiff's Motion for Summary Judgment on the validity of the UM/UIM waiver form."


         Summary judgment motions must be filed using the procedures set forth in La.Code Civ.P. art. 966, and "shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to a judgment as a matter of law." La.Code Civ.P. art. 966(A)(3).

         Louisiana Revised Statutes 22:1295 (emphasis added), which governs uninsured motorist coverage, states in pertinent part:

         The following provisions shall govern the issuance of uninsured motorist coverage in this state:

(1)(a)(i) No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered . . . unless coverage is provided therein or supplemental thereto[ ] . . . for the protection of persons insured thereunder who are legally entitled to recover nonpunitive damages from owners or operators of uninsured or underinsured motor ...

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