FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2017-10426,
DIVISION "N-8" Honorable Ethel Simms Julien, Judge
LOBRANO, J., CONCURS IN THE RESULT Preston L. Hayes CHEHARDY
SHERMAN WILLIAMS MURRAY RECILE STAKELUM & HAYES, L.L.P.
COUNSEL FOR PLAINTIFFS/APPELLANTS
Michele Trowbridge Barreca Matthew E. Simmons PORTEOUS
HAINKEL & JOHNSON, L.L.P. COUNSEL FOR DEFENDANT/APPELLEE
composed of Chief Judge James F. McKay, III, Judge Daniel L.
Dysart, Judge Joy Cossich Lobrano
L. Dysart, Judge
Albert Cutno and Akeisha Wharton, appeal a grant of summary
judgment in favor of Go Auto Insurance Company, on the basis
that the policy had been cancelled for non-payment of the
premium. For the reasons that follow, we affirm.
Brittany Nicholas, financed a policy of insurance issued by
Go Auto Insurance Company ("Go Auto") by entering
into a financing agreement with Auto Premium Assistance
Company ("APAC"), and signed a promissory note
obligating herself to make monthly payments to APAC. The note
provided that if she failed to make timely payments, she
would be in default of the financing agreement. Nicholas also
signed a power of attorney authorizing APAC to request
cancellation of the policy with Go Auto if the financing
agreement was in default for ten days after the installment
21, 2017, as they were exiting a parking lot in New Orleans,
plaintiffs, Albert Cutno and Akeisha Wharton
("plaintiffs"), were struck by a vehicle being
driven by Brittany Nicholas ("Nicholas"), who was
attempting to enter the parking lot. Plaintiffs claimed to
have been injured in the collision and filed suit against
Nicholas and her alleged insurer, Go Auto Insurance Company,
on October 30, 2017.
filed an answer to the petition and, thereafter, on August 6,
2018, filed a Motion for Summary Judgment. Go Auto sought the
dismissal of the claims against it, as a matter of law, as it
argued there was no coverage in effect at the time of the
June 21, 2017 accident due to the policy being cancelled.
October 11, 2018, plaintiffs filed a Peremptory Exception of
Nonjoinder of a Party under Articles 641 and 642 Relative to
Defendant's Motion for Summary Judgment.
hearing on October 26, 2018, plaintiffs argued that it would
be unfair to them and to Nicholas to go forward with the
hearing, as Nicholas had never been served. The trial court
continued the hearing until November, allowing time for
plaintiff to be properly notified.
parties returned to court in November, but as Nicholas had
only been served three days prior to the
hearing, the court again continued the hearing and
ordered Go Auto to notify her of the new date. Nicholas was
served on January 19, 2019 with notice of the hearing.
did not appear at the hearing on February 22, 2019. After
argument, the trial court rendered summary judgment in favor
of Go ...