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.
COUNSEL FOR DEFENDANT/APPELLEE, LOUISIANA INSURANCE GUARANTY
ASSOCIATION Stephanie B. Laborde Benjamin M. Chapman J. Jacob
composed of Judges Marc E. Johnson, Robert A. Chaisson, and
Hans J. Liljeberg
A. CHAISSON, JUDGE.
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
AND PROCEDURAL HISTORY
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) 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,
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.
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. 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" sent by Confie to
Ms. Abdelaal and her agent, USAgencies-Harahan; and Exhibit
4: the "notice of cancellation" sent by Confie to
Ms. Abdelaal, ACIC, and USAgencies-Harahan and proof of
mailing to Ms. Abdelaal.
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.
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.
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
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).
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.
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.
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.
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