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Higginbotham v. Usagencies Casualty Insurance Co. Inc.

Court of Appeals of Louisiana, Third Circuit

June 13, 2018

JOEY HIGGINBOTHAM
v.
USAGENCIES CASUALTY INSURANCE COMPANY, INC., ET AL. JOEY HIGGINBOTHAM
v.
USAGENCIES CASUALTY INSURANCE COMPANY, INC., ET AL.

          APPEAL FROM THE TWENTY-SEVENTH JUDICIAL DISTRICT COURT PARISH OF ST. LANDRY, NO. 13-2360 HONORABLE D. JASON MECHE, DISTRICT JUDGE.

          Michael D. Peytavin, John J. Danna, Jr., William D. Dunn, Jr. Gaudry, Ranson, Higgins & Gremillion, L.L.C. Counsel for Defendant/Appellant Zurich American Insurance Company.

          Miles A. Matt Law Offices of Matt & Allen, L.L.C. Counsel for Plaintiff/Appellee: Joey Higginbotham.

          James M. Dill The Dill Firm, APLC Counsel for Defendant/Appellant: Zurich American Insurance Company.

          Jennifer L. Simmons Melchiode, Marks, King, LLC., Counsel for Intervenor/Appellee: Zurich American Insurance Company.

          Bradley J. Gadel Counsel for Intervenor/Appellee: Louisiana Insurance Guaranty Association.

          Donald Mayeux Counsel for Defendant/Appellee: Eddie J. Edmond.

          Court composed of Sylvia R. Cooks, Marc T. Amy, Shannon J. Gremillion, Phyllis M. Keaty, and Candyce G. Perret, Judges.

          Gremillion, J., dissents for the reasons provided by Judge Amy.

          PHYLLIS M. KEATY JUDGE.

         An employee of the insured transportation company was injured in an automobile accident and sought recovery under the uninsured/underinsured (UM) provisions of his employer's trucker's liability policy. The insurer denied the plaintiff's claims, alleging that its insured waived UM coverage. The plaintiff challenged the validity of the UM waiver. The issue of UM coverage was presented to the trial court in cross-motions for summary judgment. The trial court granted the motion for partial summary judgment filed by the plaintiff and denied the motion for summary judgment filed by the insurer, finding that the policy provided UM coverage for the plaintiff's damages. The insurer filed an appeal and an application for supervisory writs challenging that judgment, which this court consolidated. For the following reasons, we affirm.

         Factual and Procedural History[1]

         The plaintiff, Joey Higginbotham, was employed as a truck driver for Dupre Logistics, LLC (Dupre), when he was involved in a January 25, 2013 on-the-job automobile accident. He filed the underlying action for damages against the other driver involved in the accident, as well as his insurer, USAgencies Casualty Insurance Company. Later, the plaintiff filed a supplemental and amending petition naming Dupre's trucker's liability insurer, Zurich American Insurance Company (Zurich) as a defendant, seeking UM coverage under the policy it issued to Dupre. In its answer to the amended petition, Zurich admitted that it issued trucker's liability insurance to Dupre, but denied coverage for the plaintiff's claims based upon its assertion that Dupre waived UM coverage.

         Zurich filed a motion for summary judgment seeking dismissal of the plaintiff's claims against it, alleging that Dupre waived UM coverage in the initial policy Zurich issued to it in October 2005, TRK 5916139-00, and in the renewal policies issued to it over the next six years. Thereafter, the plaintiff moved for partial summary judgment seeking a declaration that the Zurich policy afforded UM coverage for his claims because the purported waiver did not comply with Louisiana law.

         At the close of a contradictory hearing, the trial court issued a ruling from the bench denying Zurich's motion for summary judgment and granting the motion for partial summary judgment filed by the plaintiff. In oral reasons for ruling given at that time, the trial court concluded that the 2005 UM form and the subsequent UM forms executed in conjunction with the renewal policies issued by Zurich[2] were not valid for the reasons stated by this court in Johnson v. Government Employees Insurance Co., 07-1391 (La.App. 3 Cir. 4/9/08), 980 So.2d 870, writ denied, 08-1031 (La. 8/29/08), 989 So.2d 105. The trial court explained that Zurich's insertion of "N/A" on the blanks of the UM forms "depriv[ed] its insureds of the choice, making the rejection forms not clear and unmistakable from the face of the rejection form limiting the choices available to the insured." The trial court later signed a "Final Judgment on Partial Summary Judgment" in conformity with its oral reasons for judgment. Therein, the trial court decreed that:

[T]he policy of insurance issued by Zurich American Insurance Company to Dupre Logistics, LLC, policy number TRK 5916139-07, for the period of October 1, 2012 to October 1, 2013 provides uninsured/underinsured motorist coverage for damages sustained by Joey Higginbotham arising out of the accident occurring on or about 25 January, 2013 giving rise to claims in the captioned and numbered cause.

         The trial court designated the judgment as final and appealable ...


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