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.
A. Matt Law Offices of Matt & Allen, L.L.C. Counsel for
Plaintiff/Appellee: Joey Higginbotham.
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.
Mayeux Counsel for Defendant/Appellee: Eddie J. Edmond.
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
PHYLLIS M. KEATY JUDGE
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.
and Procedural History
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.
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
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 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
[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.
trial court designated the judgment as final and appealable
pursuant to La.Code Civ.P. art. 1915.
Zurich now appeals, asserting that:
A. The Court Erred in Granting Plaintiff Summary Judgment And
Declaring UM Coverage Exists When Dupre Executed Six UM
Waivers And Verified It Did Not Want UM Coverage.
B. The Court Erred In Holding An Incomplete Waiver For A
Seventh Renewal Voids Six Prior UM Waivers As Limits Did Not
C. If The Judgment Is Improperly Designated A "Final
Judgment" Under Art. 1915 It Is Reviewable By
makes similar arguments in the corresponding writ application
it filed regarding the denial of ...