United States District Court, E.D. Louisiana
ORDER AND REASONS
MICHAEL B. NORTH UNITED STATES MAGISTRATE JUDGE
the Court is the Partial Motion for Summary Judgment of
Defendant, Allstate Property and Casualty Insurance Company
(“Allstate”). (Rec. doc. 55). The motion is
opposed by Plaintiff. (Rec. doc. 58). On its own order, the
Court heard oral argument on the motion on February 21, 2018,
during which it directed the Defendant to file a reply to
Plaintiff's opposition memorandum by February 28, 2018
and gave the Plaintiff the option of submitting a surreply
within two weeks thereafter. (Rec. docs. 56, 60).
Defendant's reply memorandum is now before the Court.
(Rec. doc. 62). Plaintiff, however, has failed to avail
himself of the opportunity to submit a surreply. For the
reasons that follow, it is ordered that the motion is
timely-removed, diversity-based action arises from injuries
allegedly sustained by Plaintiff as a result of a motor
vehicle accident that occurred on July 22, 2015, in which the
vehicle in which he was driving was rear-ended by a vehicle
driven by one Claire Gregoire. (Rec. docs. 1, 1-2). At the
time of the accident, Ms. Gregoire had in place with State
Farm Fire Insurance Company an automobile liability policy
with a coverage limit of $15, 000. (Rec. doc. 1-2). That
policy limit was subsequently tendered to Plaintiff by State
Farm. (Id.). At the time of the accident, Plaintiff
also had uninsured motorist (“UM”) coverage
through an automobile liability policy through Allstate
covering himself and his wife, Lisa Sacks, with a per-person
limit of $250, 000.00. (Rec. doc. 55-5, pp. 11-3). The
instant lawsuit was brought by Plaintiff as a result of
Allstate's initial failure to make an unconditional
tender of the policy limits which it ultimately did after
conducting discovery in this matter, thus exhausting the
limits of the policy coverage. (Rec. doc. 11-1, pp. 5-6). The
issue of whether Allstate acted in bad faith by delaying its
payments on the UM coverage component of the Sacks'
liability insurance policy remains unresolved despite motion
practice previously engaged in by the parties. (Rec. docs.
11, 21, 41).
addition to the State Farm and Allstate insurance policies
described above, potentially at play in connection with the
accident in question is a personal umbrella policy issued to
Plaintiff's wife by Allstate which provided excess
liability coverage for bodily injury up to $1, 000, 000.00.
(Rec. doc. 55-6, pp. 3-5). The declaration page of that
umbrella policy bears the notation that “Uninsured
Motorists Insurance Rejected.” (Id. at p. 3).
By way of the motion that is presently before the Court,
Allstate seeks summary judgment on the issue of whether UM
coverage under the umbrella policy was validly waived by Ms.
Sacks, thus providing no such coverage to Plaintiff with
respect to the accident at issue. In opposing Allstate's
motion, Plaintiff relied upon a number of cases1/ in arguing
that there was no valid waiver of UM coverage by Ms. Sacks
because the waiver form that she executed did not bear the
number of the umbrella policy and there was no showing that
“… the policy number was not available at the
time of the purported waiver.” (Rec. doc. 58, p. 3).
Following the hearing on Defendant's motion, it has
provided the Court with a duly-executed affidavit from the
1/ Duncan v. USAA Ins. Co., 950 So.2d 544
(La. 2006); Hayes v. DeBarton, 211 So.3d 1275
(La.App. 3rd Cir.), writ denied, 220
So.3d 743 (La. 2017); Kurtz v. Milano, 6 So.3d 916
(La.App. 4th Cir. 2009); Angelin v. Ins. Co.
of State of Penn., No. 16-CV-15189, 2017 WL 1494500
(E.D. La. Apr. 26, 2017). insurance adjuster handling
Plaintiff's claim. (Rec. doc. 64-2). In that affidavit
the adjuster attests to the fact that when the umbrella
policy was initially obtained in 2013, Ms. Sacks executed the
waiver of UM coverage form that is appended thereto, which
form admittedly does not bear the number of the umbrella
policy. (Id.; rec. doc. 64-3). Allstate argues in
its reply memo that under the law that was in effect at the
time that the waiver was executed, a policy number was not
required to be included in a UM waiver form and that the
waiver of such coverage is therefore valid.
judgment is appropriate under Rule 56(c) when no genuine
issue of material fact exists and the moving party is
entitled to judgment as a matter of law. Celotex Corp. v.
Catrett, 477 U.S. 317, 106 S.Ct. 2548 (1986). Although
all inferences drawn from the evidence are to be resolved in
the non-movant's favor, he may not rest on the mere
allegations or denials in his pleadings. Spellman v.
Shalala, 1 F.3d 357, 360 (5th Cir. 1993).
Rather, once a properly supported motion for summary judgment
is made, the burden shifts to the non-movant who bears the
burden of proof at trial to show with “'significant
probative' evidence” that there exists a triable
factual issue. Kansa Reinsurance v. Cong. Mortgage Corp.
of Texas, 20 F.3d 1362, 1371 (5th Cir.
1994)(quoting In re: Municipal Bond Reporting Antitrust
Litig., 672 F.2d 436, 440 (5th Cir. 1982)). That burden
is not satisfied by “… ‘some metaphysical
doubt as to the material facts, ' … by
‘conclusory allegations, ' … by
‘unsubstantiated assertions, ' … or by only
a ‘scintilla' of evidence.” Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.
1994)(en banc)(citations omitted). Rather, the
nonmovant “… must adduce admissible evidence
which creates a fact issue concerning the existence of every
essential component of that party's case; naked
assertions of an actual dispute will not suffice.”
Matter of Lewisville Properties, Inc., 849 F.2d 946,
950 (5th Cir. 1998). The insufficiency of the
proof must be such that it would prevent a rational finder of
fact from finding for the non-moving party. Phillips Oil
Co v. OKC Corp., 812 F.2d 265, 272-73 (5th Cir.),
cert. denied, 484 U.S. 851, 108 S.Ct. 152 (1987).
opposing Defendant's motion, Plaintiff primarily relied
upon the Louisiana Supreme Court's decision in Duncan
v. USAA Ins. Co., 950 So.2d 544, 551 (La. 2006) in which
it held that the inclusion of a policy number on a waiver
form was required for the waiver of UM coverage to be
effective. Alternatively, a waiver form that failed to
include a policy number would not be enforceable if the
policy number did not exist at the time the waiver was
executed. Carter v. State Farm Mutual Auto. Ins.
Co., 964 So.2d 375, 376 (La. 2007). However, as aptly
noted by former Chief Judge Vance of this court:
Duncan and Carter were decided, the
commissioner of insurance has modified its waiver form and
regulations. On August 29, 2008, the commissioner issued
Louisiana Department of Insurance Bulletin No. 08-02, in
order to “issue a revised UM form” and to clarify
“what constitutes a properly completed form [and] what
information must be included …” See
Louisiana Department of Insurance, Bulletin No. 08-02 (Aug.
29, 2008). Under the heading “Important Form Changes,
” the Bulletin provides:
The revised UM form includes two boxes on the lower right
hand corner of the form….The upper box contains an
area that the insurer may use for policy information
purposes (e.g. policy number, binder number [sic],
application number, etc.). This box does not need to be
filled in for the form to be properly completed.
(emphasis in original). Thus, under the commissioner's
current regulations, the policy number is optional; the
number need not be present in order for a UM waiver form to
be valid. See Chicas v. Doe, 166 So.3d 238 (La.
2015)(noting that “in light of [Bulletin 08-02], the
absence of a blank box for the policy number does not create
a question of fact concerning the form's
validity”); Clark, 2014 WL 5305887, *3
(“With the publication of LDOI Bulletin 08-02, the
Commissioner no longer requires that the policy number be
present on the UM selection form for the form to be
considered valid.”). Instead, a UM waiver form is
valid if it contains: (1) “[the insured's]
signature”; (2) ‘his/her printed name to identify
his/her signature”; (3) “the date the form is
completed”; and (4) “initials to select/reject
UMBI coverage prior to signing the form.” Louisiana
Department of Insurance, Bulletin No. 08-02 (Aug. 29, 2008).
Under the Bulletin's terms, these rules apply to all UM
coverage waivers executed “[o]n or after January 1,
Guidry v. Geico Gen. Ins. Co., No. 15-CV-1518, 2015
WL 9002408 at *3 (E.D. La. Dec. 16, 2015)(footnote omitted).
courts, both state and federal, have reached the same result.
Osborne v. Benson, No. 15-CV-2845, 2017 WL 4365821
at *4 (W.D. La. Sept. 29, 2017); Stall v. Mercury Ins.
Co. of Florida, No. 17-0439, 2017 WL 7513387 at *3-4
(La.App. 3rd Cir. Dec. 28, 2017); Clark v. Savoy,
No. 14-CA-0308, 2014 WL 5305887 at *2-5 (La.App. 1st Cir.
2014), writ denied, 158 So.3d 821 (La. 2015).
present case, the UM waiver form that was executed by Ms.
Sacks, well after Bulletin 08-02's effective date,
contained her printed name and signature, the date on which
the form was signed, and her initials beside a line that
states: “I do not want UMBI coverage. I understand that
I will not be compensated through UMBI coverages for losses
arising from an accident caused by an uninsured/underinsured
motorist.” (Rec. doc. 64-3). The waiver form is thus
valid and enforceable under Louisiana law. Guidry,
2015 WL 9002408 at *3. As for Plaintiff's contention made
in affidavit form that Ms. Sacks “… was unaware
the form … [she] signed on May 31, 2013 would remove a
portion of UM coverage from ... [her] policy” and that
she “believed after signing the form … that
Ralph Sacks and I still had $1, 250, 000.00 in UM coverage
provided through … [the] policy, ” (rec. doc.
58-1), that self-serving declaration cannot overcome the well
established principle that “… a party who signs
a written instrument is presumed to know its contents and
cannot avoid its obligations by contending that [s]he did not
read it, that [s]he did not understand it, or that the other
party failed to explain it to … [her].”
Coleman v. Jim Walter Homes, Inc., 6 So.3d 179, 183