Appealed from the First Judicial District Court for the
Parish of Caddo, Louisiana Trial Court No. 598158 Honorable
Michael Pitman, Judge
C. MILKOVICH Counsel for Appellant.
THOMAS, SOILEAU, JACKSON, BAKER & COLE, LLP By: Stephen
E. Soileau Counsel for Appellee, Allstate Insurance Company.
GARRETT, STEPHENS, and McCALLUM, JJ.
plaintiff, Easter McGee, appeals from a summary judgment
granted in favor of the defendant, Allstate Insurance Company
("Allstate"), that dismissed her
uninsured/underinsured motorist ("UM") claim
against Allstate. Allstate answers the appeal, claims that
McGee's appeal is frivolous, and requests an award of
costs and attorney fees. For the following reasons, we affirm
the trial court judgment but deny Allstate's claim for
costs and attorney fees.
facts are not in dispute. McGee was a passenger in a 1981
Corvette owned and driven by her nephew, Walter Perry. A
wheel came off, Perry lost control of the vehicle and crashed
into a tree. No other vehicles were involved in the accident.
McGee was injured. Perry had liability and UM coverage with
Allstate. Allstate paid the liability policy limits to McGee,
who released Perry, but reserved her rights to pursue UM
coverage. She sued Allstate, alleging that her damages
exceeded the liability coverage limits and seeking recovery
under the UM coverage of the policy.
filed a motion for summary judgment, claiming that McGee
could not recover under both the liability and the UM
provisions of the policy under the circumstances presented
here. McGee was injured in a one-car accident, the host
driver was at fault, his liability insurance provided
coverage and the policy excluded from UM coverage vehicles
with liability coverage under the policy.
hearing was held on August 14, 2017. The trial court granted
summary judgment in favor of Allstate and dismissed
McGee's claims. McGee appealed in November 2017. Allstate
answered the appeal, arguing that McGee's appeal is
frivolous because the exact issue, raised by the same lawyer,
was rejected by this court in January 2018, in Mills v.
Mills, 51, 509 (La.App. 2 Cir. 1/10/18), 243 So.3d 1245.
argues that the trial court erred in granting summary
judgment in favor of Allstate, dismissing her claims for UM
coverage. This argument is without merit.
courts review motions for summary judgment de novo,
using the same criteria that govern the district court's
consideration of whether summary judgment is appropriate.
Peironnet v. Matador Res. Co., 12-2292 (La.
6/28/13), 144 So.3d 791; Bank of Am., N.A. v. Green,
52, 044 (La.App. 2 Cir. 5/23/18), 249 So.3d 219.
motion for summary judgment is a procedural device used when
there is no genuine issue of material fact for all or part of
the relief prayed for by a litigant. Schultz v.
Guoth, 10-0343 (La. 1/19/11), 57 So.3d 1002. Summary
judgment procedure is favored and is designed to secure the
just, speedy and inexpensive determination of actions. La.
C.C.P. art. 966(A)(2). A motion for summary judgment 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 judgment as a matter of law.
La. C.C.P. art. 966(A)(3).
burden of proof rests with the mover. Nevertheless, if the
mover will not bear the burden of proof at trial on the issue
that is before the court on the motion for summary judgment,
the mover's burden on the motion does not require him to
negate all essential elements of the adverse party's
claim, action, or defense, but rather to point out to the
court the absence of factual support for one or more elements
essential to the adverse party's claim, action, or
defense. The burden is on the adverse party to produce
factual support sufficient to establish the existence of a
genuine issue of material fact or that the mover is not
entitled to judgment as a matter of law. La. C.C.P. art.
matter before us, there are no factual issues in dispute. We
are presented with a legal issue - does McGee have the right
to recover under the UM provisions of the Allstate policy?
maintains that the trial court erred in ruling that she could
not recover under both the liability and UM coverage of the
same insurance policy where the host driver was solely at
fault. She claims this result is contrary to the purpose of
the UM statute and violates certain provisions of it. She
argues that any exclusions of UM coverage in the insurance
policy violate the purpose of the statute and cannot be given
effect. She contends that the insurance policy contains
contradictory provisions creating ambiguity which should be
construed against Allstate. She asks us to disregard or
overrule well-settled jurisprudence because she contends it
argues that the intent of the UM statute is to provide full
coverage to persons injured in collisions through no fault of
their own. She cites La. R.S. 22:1295(1)(a)(i) which
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 or issued for
delivery in this state with respect to any motor vehicle
designed for use on public highways and required to be
registered in this state or as provided in this Section
unless coverage is provided therein or supplemental thereto,
in not less than the limits of bodily injury liability
provided by the policy, under provisions filed with and
approved by the commissioner of insurance, for the protection
of persons insured thereunder who are legally entitled to
recover nonpunitive damages from owners or operators of
uninsured or underinsured motor vehicles because of bodily
injury, sickness, or disease, including death resulting
therefrom; however, the coverage required under this Section
is not applicable when any insured named in the policy either
rejects coverage, selects lower limits, or selects
economic-only coverage, in the manner provided in Item
(1)(a)(ii) of this Section. In no event shall the policy
limits of an uninsured motorist policy be less than the
minimum liability limits required under R.S. 32:900, unless
economic-only coverage is selected as authorized in this
Section. Such coverage need not be provided in or
supplemental to a renewal, reinstatement, or substitute
policy when the named insured has rejected the coverage or
selected lower limits in connection with a policy previously
issued to him by the same insurer or any of its affiliates.
The coverage provided under this Section may exclude coverage
for punitive or exemplary damages by the terms of the policy
or contract. Insurers may also make available, at a reduced
premium, the coverage provided under this Section with an
exclusion for all noneconomic loss. This coverage shall be
known as "economic-only" uninsured motorist
coverage. Noneconomic loss means any loss other than economic
loss and includes but is not limited to pain, suffering,
inconvenience, mental anguish, and other noneconomic damages
otherwise recoverable under the laws of this state.
states that La. R.S. La. 22:1295(2)(b) is the operative
provision in this case. That statute provides:
For the purposes of this coverage the term uninsured motor
vehicle shall, subject to the terms and conditions of such
coverage, also be deemed to include an insured motor vehicle
when the automobile liability insurance coverage on such
vehicle is less than the amount of damages suffered by an
insured and/or the passengers in the insured's vehicle at
the time of an accident, as agreed to by the parties and
their insurers or as determined by final adjudication.
urges that, under a "literal interpretation" of La.
R. S. 22:1295(2)(b), where an auto has liability coverage
less than the losses of an insured or a guest passenger, the
insured or guest passenger may recover under the UM policy of
the insured vehicle. She claims this is true even though
there has been recovery on the liability portion of the
policy on the insured vehicle. She maintains that the statute
does not contemplate that the at-fault vehicle, for which
liability coverage is owed, and the underinsured vehicle for
which UM coverage is owed, must be two separate vehicles.
McGee contends that any provisions or exclusions in an
insurance police which limit or prohibit such coverage are
contrary to the purpose of the UM statute, are against public
policy, and cannot be given effect.
arguments and interpretation of the UM statute have been
previously considered in numerous cases in the jurisprudence
and have been uniformly rejected. The issues raised by McGee
were first considered by the Louisiana Supreme Court in
Breaux v. Gov't Emp. Ins. Co., 369 So.2d 1335
(La. 1979). In that case, a guest passenger was killed in an
auto accident. Her parents sued the insurer of the host
driver, Government Employees Insurance Company
("GEICO"), and asserted a UM claim against their
own insurer, Traders and General Insurance Company
("Traders"), because their damages exceeded the
available liability coverage under the GEICO policy. The
plaintiffs settled their claims with GEICO and released it