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Benitez v. Elsayed

Court of Appeals of Louisiana, Fifth Circuit

December 4, 2019

LUCY BENITEZ
v.
AHMED ELSAYED, AFFIRMATIVE INSURANCE COMPANY, AND LOUISIANA INSURANCE GUARANTY ASSOCIATION

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 768-981, DIVISION "I" HONORABLE NANCY A. MILLER, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLANT, LUCY BENITEZ Ivan A. Orihuela.

          COUNSEL FOR DEFENDANT/APPELLEE, LOUISIANA INSURANCE GUARANTY ASSOCIATION Stephanie B. Laborde Benjamin M. Chapman J. Jacob Chapman.

          Panel composed of Judges Marc E. Johnson, Robert A. Chaisson, and Hans J. Liljeberg

          ROBERT A. CHAISSON, JUDGE.

         In this automobile accident case, Lucy Benitez appeals the trial court's grant of summary judgment in favor of Louisiana Insurance Guaranty Association and dismissal of Ms. Benitez's claims against LIGA and Affirmative Casualty Insurance Company, in liquidation, with prejudice. For the reasons that follow, we vacate the judgment of the trial court and remand for further proceedings consistent with this opinion.

         FACTS AND PROCEDURAL HISTORY

         On February 10, 2016, Ms. Benitez was a passenger on a bus that was rear-ended by a 2012 Ford Fiesta operated by Ahmed R. Elsayed. As a result of injuries allegedly sustained in the accident, Ms. Benitez filed suit against Mr. Elsayed, Affirmative Casualty Insurance Company (ACIC)[1] as the alleged insurer of the vehicle, and Louisiana Insurance Guaranty Association (LIGA), which acquired all the rights, duties, and obligations of ACIC pursuant to La. R.S. 22:2051, et seq., after ACIC was declared insolvent on April 11, 2016.

         LIGA thereafter filed a motion for summary judgment with attachments, contending that it was entitled to judgment as a matter of law on the issue of lack of coverage because the ACIC insurance policy had been cancelled on January 3, 2016, prior to the accident at issue, for non-payment of premium. LIGA specifically maintained that the ACIC policy, which was financed through Confie Premium Finance (Confie), a premium finance company, was properly cancelled in accordance with the provisions of La. R.S. 9:3550, noting that the insured, Reda Abdelaal, was properly notified of the cancellation and was afforded an opportunity to avoid cancellation by payment prior to the effective date of cancellation. LIGA further maintained that Ms. Abdelaal did not remit any additional payments, and her policy was therefore cancelled. LIGA accordingly requested that the matter be dismissed and that judgment be rendered declaring that LIGA no longer has a duty to defend the alleged insured.

         In support of its motion for summary judgment, LIGA submitted the May 4, 2018 affidavit of Jay Mayfield, a claims examiner for LIGA, with attached exhibits. In his affidavit, Mr. Mayfield attested that ACIC was declared insolvent on April 11, 2016; that as a result of this liquidation, LIGA is currently discharging its obligations with respect to claims made against ACIC; that ACIC issued a policy of automobile liability insurance to Ms. Abdelaal, bearing policy number 6468314, with effective dates of coverage from October 13, 2015, through April 13, 2016; and that the ACIC policy was properly cancelled, effective January 3, 2016, and Ms. Abdelaal was properly notified of the cancellation in accordance with La. R.S. 9:3550.[2] The following exhibits were attached to Mr. Mayfield's affidavit: Exhibit 1: the April 11, 2016 order of liquidation of ACIC; Exhibit 2: the ACIC insurance policy declarations page; Exhibit 3: the "notice of intent to cancel"[3] sent by Confie to Ms. Abdelaal and her agent, USAgencies-Harahan; and Exhibit 4: the "notice of cancellation"[4] sent by Confie to Ms. Abdelaal, ACIC, and USAgencies-Harahan and proof of mailing to Ms. Abdelaal.

         Ms. Benitez filed an opposition to the motion for summary judgment alleging that the motion should be denied because LIGA failed to present clear and unequivocal proof that it satisfied the requirements of law for proper cancellation of an automobile insurance policy for non-payment of premium. Specifically, Ms. Benitez alleged that LIGA did not comply with La. R.S. 9:3550 because 1) LIGA failed to present a premium finance agreement containing a power of attorney granting to the premium finance company the authority to cancel the policy on behalf of Ms. Abdelaal, the insured; 2) LIGA failed to present evidence that the notice of intent to cancel allegedly sent by the premium finance company to Ms. Abdelaal was actually mailed or delivered to her electronically; and 3) LIGA failed to present evidence that it received any notice or statement from the premium finance company, either by mail or electronically, with a copy of the notice of cancellation.

         LIGA filed a reply brief contending that the premium finance company did comply with the requirements of La. R.S. 9:3550, as evidenced by the documents attached to its motion for summary judgment. LIGA further maintained that even if the requirements of La. R.S. 9:3550 were not strictly complied with by the finance company, that determination does not result in a finding of coverage since LIGA is entitled to a conclusive presumption that the documentation received from the finance company was accurate.

         The matter was thereafter submitted on briefs. On September 6, 2018, the trial court granted LIGA's motion for summary judgment and dismissed LIGA and ACIC, in liquidation, with prejudice, declaring that LIGA no longer has a duty to defend the alleged insured. Ms. Benitez now appeals asserting that the trial court erred in granting the motion for summary judgment.

         DISCUSSION

         A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. Upton v. Rouse's Enterprise, LLC, 15-484 (La.App. 5 Cir. 2/24/16), 186 So.3d 1195, 1198, writ denied, 16-580 (La. 5/13/16), 191 So.3d 1057. The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966(A)(2).

         According to La. C.C.P. art. 966(A)(3), 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(D)(1) sets forth the burden of proof in a motion for summary judgment as follows:

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.

         Appellate courts review a judgment granting or denying a motion for summary judgment de novo. Thus, appellate courts ask the same questions the trial court does in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Nions v. Richardson, 10-610 (La.App. 5 Cir. 3/9/11), 62 So.3d 217, 219. The decision as to the propriety of a grant of a motion for summary judgment must be made with reference to the substantive law applicable to the case. Ricalde v. Evonik Stockhausen, LLC, 16-178 (La.App. 5 Cir. 9/22/16), 202 So.3d 548, 551-52, writ denied, 16-1923 (La. 12/16/16), 212 So.3d 1170.

         Interpretation of an insurance policy ordinarily involves a legal question that can be properly resolved by a motion for summary judgment. The burden of proof is on the insurance company to show that the policy had been cancelled prior to the date of the loss that gave rise to the denied claim. Nions v. Richardson, 62 So.3d at 219.

         La. R.S. 9:3550 applies to any person engaged in the business of financing insurance premiums for consumers entering into premium finance agreements or otherwise acquiring premium finance ...


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