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Townzel v. Rush

Court of Appeals of Louisiana, First Circuit

January 9, 2020

GINA TOWNZEL
v.
GEORGE O. RUSH AND PROGRESSIVE PALOVERDE INSURANCE COMPANY

          On Appeal from the Twenty-Second Judicial District Court In and for the Parish of St. Tammany State of Louisiana Docket No. 2018-13530 Honorable William J. Knight, Judge Presiding

          Leloashia H. Taylor Gretna, Louisiana Counsel for Plaintiff/ Appellant Gina Townzel

          Charles V. Giordano Michael E. Escudier Jairo F. Sanchez Dianna Duffy Willem Alicia R. Aguillard Metairie, Louisiana Counsel for Defendant/ Appellee Progressive Paloverde Insurance Company

          BEFORE: McCLENDON, WELCH, AND HOLDRIDGE, JJ.

          McCLENDON, J.

         The plaintiff appeals a summary judgment in favor of one of the defendants that dismissed the plaintiff's claims against that defendant with prejudice. For the following reasons, we affirm.

         FACTS AND PROCEDURAL HISTORY

         On May 29, 2018, George 0. Rush agreed to sell to Gina Townzel his 2009 Hyundai Santa Fe, which was secured by a mortgage in favor of Capital One Bank (Capital One). Pursuant to their agreement, Mr. Rush and Ms. Townzel signed a Transfer of Title/Bill of Sale on that date in the presence of a notary public, wherein Ms. Townzel agreed to pay $5, 000.00 to Capital One in exchange for possession and ownership of the vehicle. Additionally, the agreement provided that Ms. Townzel, as the buyer, would provide insurance coverage on the vehicle on May 29, 2018. Ms. Townzel paid $5, 000.00 to Capital One and took possession of the vehicle on May 29, 2018, as per the agreement.

         Thereafter, on June 1, 2018, Ms. Tonzel was involved in a motor vehicle accident in the subject vehicle. Ms. Townzel made a claim for the injuries she alleged she sustained in the accident under the insurance policy issued to Mr. Rush on the Hyundai by Progressive Paloverde Insurance Company (Progressive). Progressive denied coverage for Ms. Townzel's claim.

         On July 19, 2018, Ms. Townzel filed a Petition for Declaratory Judgment against Mr. Rush and Progressive. Therein, she requested a judgment in her favor declaring that 1) the signing of the bill of sale was not effective to transfer ownership of the subject vehicle, 2) the automatic termination clause in the Progressive policy was inapplicable because ownership of the vehicle was not transferred, and 3) she was a covered party under the insurance policy issued by Progressive to Mr. Rush.

         After answering the petition, Progressive filed a Motion for Summary Judgment, asserting that there were no genuine issues of material fact that the policy issued to Mr. Rush excluded coverage for the claims of Ms. Townzel. The trial court heard the motion and granted summary judgment in Progressive's favor, dismissing all claims against it. The trial court signed a judgment in conformity with its ruling on February 27, 2019, and issued written reasons on April 22, 2019. Ms. Townzel has appealed, asserting that the trial court erred in finding that a sale was confected without the certificate of title.

         SUMMARY JUDGMENT LAW

         After an opportunity for adequate discovery, 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. LSA-C.C.P. art. 966A(3). The summary judgment procedure is favored and shall be construed to secure the just, speedy, and inexpensive determination of every action. LSA-C.C.P. art. 966A(2). In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Riedel v. Fenasci, 18-0540 (La.App. 1 Cir. 12/28/18), 270 So.3d 583, 590.

         The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue before the court on the motion for summary judgment, the mover's burden does not require that he or she negate all essential elements of the adverse party's claim, action, or defense, but rather to point to 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 ...


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