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McGee v. Allstate Insurance Co.

Court of Appeals of Louisiana, Second Circuit

November 14, 2018

EASTER McGEE Plaintiff-Appellant
v.
ALLSTATE INSURANCE COMPANY AND SAFECO INSURANCE COMPANY OF OREGON Defendants-Appellees

          Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 598158 Honorable Michael Pitman, Judge

          JOHN C. MILKOVICH Counsel for Appellant.

          THOMAS, SOILEAU, JACKSON, BAKER & COLE, LLP By: Stephen E. Soileau Counsel for Appellee, Allstate Insurance Company.

          Before GARRETT, STEPHENS, and McCALLUM, JJ.

          GARRETT, J.

         The 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

         The 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.[1]

         Allstate 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.

         A 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.

         UM COVERAGE

         McGee 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.

         Legal Principles

         Appellate 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.

         A 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).

         The 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. 966(D)(1).

         In the 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?

         Discussion

         McGee 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 is wrong.

         McGee 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 provides:

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.

         McGee states that La. R.S. La. 22:1295(2)(b) is the operative provision in this case.[2] 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.

         McGee 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.

         McGee's 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 ...


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