Joyce Nordstrom and David Nordstrom v. New York Marine and General Insurance Company, New Orleans City Sightseeing, LLC, Tasha Batiste, John Doe, Xyz Insurance Company, and Automobile Club Inter-Insurance Exchange D/B/A Aaa of Michigan

JOYCE NORDSTROM AND * NO. 2019-CA-0577
DAVID NORDSTROM
*
VERSUS COURT OF APPEAL
*
NEW YORK MARINE AND FOURTH CIRCUIT
GENERAL INSURANCE *
COMPANY, NEW ORLEANS STATE OF LOUISIANA
CITY SIGHTSEEING, LLC, *******
TASHA BATISTE, JOHN DOE,
XYZ INSURANCE COMPANY,
AND AUTOMOBILE CLUB
INTER-INSURANCE
EXCHANGE D/B/A AAA OF
MICHIGAN

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2017-10174, DIVISION “J”
Honorable D. Nicole Sheppard,
******
Judge Edwin A. Lombard
******
(Court composed of Judge Edwin A. Lombard, Judge Sandra Cabrina Jenkins,
Judge Tiffany G. Chase)

Jason Giles
Brian King
James E. Courtenay
THE KING FIRM, LLC
2912 Canal Street
New Orleans, LA 70119

COUNSEL FOR PLAINTIFF/APPELLANT

Sidney J. Angelle
Brant J. Cacamo
LOBMAN, CARNAHAN, BATT, ANGELLE & NADER
400 Poydras Street, Suite 2300
New Orleans, LA 70130

COUNSEL FOR DEFENDANT/APPELLEE

REVERSED AND REMANDED

DECEMBER 11, 2019

The Appellants, Joyce Nordstrom and her husband David Nordstrom, seek

review of the February 20, 2019 judgment of the district court, granting the motion

for summary judgment of the Appellee, New York Marine and General Insurance

Company (“NYM”). Pursuant to our de novo review, we reverse the judgment of

the district court, finding that there is a genuine issue of material fact as to whether

the policy is a renewal or a new policy, and remand for further proceedings.

Facts and Procedural History

The Nordstroms visited New Orleans in October 2016, and purchased a hop-

on hop-off tour on a double-decker tour bus in New Orleans operated by New

Orleans City Sightseeing, LLC, (“NOCS”). The Nordstroms maintain that Mrs.

Nordstrom was injured while riding on the NOCS tour bus, when the tour bus

driver allegedly made an abrupt stop to avoid a phantom driver. Mrs. Nordstrom

avers that she was thrust out of her seat and sustained serious injuries for which she

was treated at the scene. She maintains that she received further medical treatment

upon her return home to Michigan.

In 2017, the Nordstroms sued NYM as the uninsured or underinsured

motorist (“UM”) carrier of NOCS at the time of the alleged accident.

1

On May 21, 2018, NYM filed a motion for summary judgment, arguing that

there is no genuine issue of material fact that NYM did not provide a policy of UM

coverage to NOCS because NOCS executed a valid waiver of UM coverage dated

October 22, 2015, that was in force and effect on the date of the alleged incident.1

NYM attached to its motion three affidavits from: Doug Hathaway, the Niche

President for underwriting Prosight Specialty Insurance/NYM and General

Insurance; the NOCS General manager Emily Valentino; and the NOCS Managing

member Michael Valentino. Attached to the affidavits were the 2015 NYM policy

(“the 2015 policy”), in effect from July 2015 to July 2016, with the UM rejection

form attached, and the 2016 NYM policy (“the 2016 policy”) in effect from July

2016 thru the date of the alleged accident.

NYM argued that it issued a commercial liability policy, bearing policy

number AU201500007486, for the 2015 policy, which had a $1,000,000 liability

limit. Emily Valentino, NOCS’ general manager, completed the UM rejection

form for this policy. The 2016 policy, bearing policy number AU201600007486,

was issued by NYM to NOCS in 2016. NYM maintains this policy was a renewal

of the 2015 policy. Another UM rejection form was completed by Michael

Valentino on or about July 5, 2016; however, this form is alleged to be invlalid.

The Nordstroms opposed the motion for summary judgment asserting that

the 2015 UM rejection form was inapplicable to the 2016 policy because separate

and distinct applications of insurance were negotiated by NOCS, including an

application for insurance dated June 15, 2016. Therefore, the 2016 policy required

its own UM rejection form. They further argued that NOCS was actively shopping

1
NOCS executed another UM form in 2016, but NYM did not base its motion for summary
judgment on the 2016 NOCS’ UM rejection form, which is alleged to be invalid.

2

for insurance rates prior to executing the 2016 policy with NYM. Thus, they

argued that there is a genuine issue of material fact as to whether the 2016 policy

was a renewal of the 2015 policy or a new policy as defined by La. Rev. Stat.

22:1295(1)(a)(ii).2

The district court, at a February 8, 2019 hearing, granted the motion for

summary judgment and read its Reasons for Judgment into the record. The Court

granted NYM’s motion for summary judgment based upon its determination that

the 2015 UM rejection form executed by Ms. Valentino was applicable to the 2016

policy.3 By judgment dated February 20, 2019, the district court granted NYM’s

motion for summary judgment, dismissing the claims of the Nordstroms with

prejudice. This timely appeal followed.

2
The Nordstroms later filed two respective supplemental oppositions to NYM’s motion for
summary judgment, which were both granted by the district court. First, they filed an ex parte
motion to supplement and a motion to continue, wherein they stated that they had not received a
reply brief filed by NYM and further authenticated a portion of the exhibits previously
submitted. Subsequently, they filed an Unopposed Second Motion to Supplement their
opposition with responses to requests for admissions to authenticate the contents of the
underwriting file they attached to their initial opposition to be properly considered on summary
judgment, as required by La. Code Civ. Proc. art. 966.
3
The district court explained:

. . Here, pursuant to the evidence submitted in support of its
motion for summary judgment, defendant makes a clear and
unmistakable showing that the New Orleans City Sightseeing
normally waived coverage under this particular policy. Emily
Valentino initialed next to the option which stated, “I do not want
UMBI coverage. I understand that I will not be compensated
through UMBI coverage for lost [sic] arising from an accident
caused by an uninsured or underinsured motorist.” Further the
document signed, printed, and dated [sic]. Moreover, the document
includes the policy number, name of insured, and individual
company. This, coupled with the affidavits of Doug Hathaway and
the [sic] Emily Valentino, suggests that there’s no issue of material
fact, and will preclude summary judgment.

3

The Nordstroms raise nine assignments of error:

1. Whether the district court erred in granting the motion for
summary judgment dismissing with prejudice the
Nordstroms’ UM claims?

2. Whether the district court erred in failing to properly
consider what is a “new policy” under La. Rev. Stat.
22:1295(l)(a)(ii)?

3. Whether the district court erred in failing to consider the
original applications of insurance filled out by NOCS
when it annually shopped its insurance, creating “new
policies” under the terms of La. Rev. Stat.
22:1295(l)(a)(ii)?

4. Whether the district court erred in looking at the intent
of the parties by considering and weighing the “history”
of the rejections at issue and what NOCS “normally”
did?

5. Whether the district court erred in failing to consider the
factual issue of why NOCS executed a UM rejection
form for what NYM argues was a “renewal” policy?

6. Whether the district court erred in failing to consider the
factual questions involved in shopping commercial
insurance and how it impacts the question of renewing
insurance and/or binding new coverage?

7. Whether the district court erred in failing to construe all
factual inferences reasonably drawn from the evidence in
favor of the Nordstroms, as the party opposing the
motion for summary judgment?

8. Whether the district court erred in failing to resolve all
doubt in favor of the Nordstroms, as the party opposing
the motion for summary judgment?

9. Whether the district court erred in failing to allow further
discovery on whether the UM rejection forms in the
underwriting file, including the rejection form that
appears valid and at issue, was filled in and executed on
the same date in compliance with Grey v. Am. Nat. Prop.
& Cos. Co., 07-1670 (La. 2/26/08), 977 So.2d 839, given
the multiple copies of forms partially completed in the
underwriting file?

4

While the Nordstroms maintain that there is a need for more discovery and

that the district court erroneously considered the “history” of NOCS rejecting UM

coverage and what NOCS “normally” did, we pretermit discussion of these

assignments of error. First, the Nordstroms failed to raise the need for more

discovery before the district court. Thus, this issue is not properly before this Court

on appeal. Additionally, the Nordstroms’ reference to the wording the district court

used in its Reasons for Judgment, which are distinct from the judgment itself, are

not reviewable on appeal and are not germane to our de novo review, explained

below.

The central issue of this appeal is whether there is a genuine issue of

material fact that the 2016 policy is a new policy under La. Rev. Stat. 22:1295

(1)(a)(ii), requiring its own rejection form, or is it a renewal of the 2015 policy

such that the 2015 UM rejection form is applicable? Pursuant to our de novo

review and for the reasons more fully explained below, we find that a genuine

issue of material fact exists as to this issue.

Standard of Review

Summary judgments are reviewed by appellate courts under a de novo

standard of review, using the same criteria as the trial court. Gray v. Am. Nat'l

Prop. & Cas. Co., 07-1670, p. 6 (La. 2/26/08), 977 So.2d 839, 844. In order to

prevail on a motion for summary judgment, the moving party must show that

“there is no genuine issue of material fact and that he is entitled to judgment as a

matter of law.” La. Code Civ. Proc. art. 966(A)(3). “The summary judgment

procedure is designed to secure the just, speedy, and inexpensive determination of

every action . . . . The procedure is favored and shall be construed to accomplish

these ends.” La. Code Civ. Proc. art. 966 (A)(2).

5

Documents that may be filed in support of or in opposition to the motion are

“pleadings, memoranda, affidavits, depositions, answers to interrogatories,

certified medical records, written stipulations, and admissions.” La. Code Civ.

Proc. art. 966 (A)(4). Only those documents filed in support of or in opposition to

the motion for summary judgment shall be considered, in addition to any

documents to which no objection is made. La. Code Civ. Proc. art. 966 (D)(2).

Moreover, the burden of proof on a motion for summary judgment 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.” La. Code Civ. Proc. art. 966 (D)(1). The adverse party

bears the burden of producing “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. Code Civ. Proc. art. 966 (D)(1).

“Insurance policies are interpreted according to the general rules of contract

interpretation, and liability insurance policies are interpreted to provide coverage

not deny coverage.” Hayes v. De Barton, 16-541, pp. 2-3 (La. App. 3 Cir.

2/15/17), 211 So.3d 1275, 1278 (citing Supreme Servs. & Specialty Co., Inc. v.

Sonny Greer, Inc., 06-1827 (La. 5/22/07), 958 So.2d 634). The Hayes Court

further explained Louisiana’s public policy that UM coverage will be read into a

policy except when such coverage is validly rejected, as set forth in La. Rev. Stat.

22:1295(1)(a)(ii):

6

Louisiana law provides that “[n]o automobile
liability insurance” policy shall be issued in the state
unless it provides UM coverage for persons injured in
accidents involving “owners and operators of uninsured
or underinsured motor vehicles.” La. Rev. Stat.
22:1295(1)(a)(i). This law embodies a strong public
policy to allow innocent automobile accident victims to
fully recover their damages. Cutsinger, 12 So.3d 945.4
“Thus, under the UM statute, the requirement of UM
coverage is an implied amendment to any automobile
liability policy, even when not expressly addressed, as
UM coverage will be read into the policy unless validly
rejected.” Id. (quoting Duncan v. USAA Ins. Co., 06–363,
p. 4 (La. 11/29/06), 950 So.2d 544, 547).

Id., 16-541, pp, 2-3, 211 So.3d at 1278.

Thus, the UM statute is liberally construed, such that the statutory

exceptions to coverage are to be interpreted strictly. Daigle v. Authement, 96-1662,

p. 3 (La. 4/8/97), 691 So.2d 1213, 1214. Any exclusion from coverage in an

insurance policy must be clear and unmistakable. Id. It is the insurer’s burden to

prove that an insured “named in the policy rejected in writing the coverage equal to

bodily injury coverage or selected lower limits.” Henson v. Safeco Ins. Companies,

585 So.2d 534, 538 (La.1991). Consequently, in the instant matter the burden of

proof is on NYM to establish that NOCS validly rejected UM coverage.

Discussion

The instant appeal involves both statutory interpretations as well as the

interpretation of an insurance contract as “UM coverage is determined not only by

contractual provisions, but also by applicable statutes.” Duncan v. U.S.A.A. Ins.

Co., 06-363, p. 4 (La. 11/29/06), 950 So.2d 544, 547 (citation omitted). “Whether

a policy has been renewed or whether a policy has been submitted as a new

4
Cutsinger v. Redfern, 08-2607 (La. 5/22/09), 12 So.3d 945.

7

application is a factual question.” Guillory v. Progressive Ins. Co., 12-1284, p. 5

(La. App. 3 Cir. 7/3/13), 117 So.3d 318, 323.

In the instant matter, two statutes are applicable:

 La. Rev. Stat. 22:1295(1)(a)(ii), entitled Uninsured motorist
coverage; and

 La. Rev. Stat. 22:1267, entitled Commercial insurance; cancellation
and renewal.

The requirements for those rejecting uninsured motorist coverage are set

forth in La. Rev. Stat. 22:1295(1)(a)(ii), which requires the completion of a form

provided by the Commissioner of Insurance:

(ii) Such rejection, selection of lower limits, or selection
of economic-only coverage shall be made only on a form
prescribed by the commissioner of insurance. The
prescribed form shall be provided by the insurer and
signed by the named insured or his legal representative.
The form signed by the named insured or his legal
representative which initially rejects such coverage,
selects lower limits, or selects economic-only coverage
shall be conclusively presumed to become a part of the
policy or contract when issued and delivered, irrespective
of whether physically attached thereto. A properly
completed and signed form creates a rebuttable
presumption that the insured knowingly rejected
coverage, selected a lower limit, or selected economic-
only coverage. The form signed by the insured or his
legal representative which initially rejects coverage,
selects lower limits, or selects economic-only coverage
shall remain valid for the life of the policy and shall
not require the completion of a new selection form
when a renewal, reinstatement, substitute, or
amended policy is issued to the same named insured
by the same insurer or any of its affiliates. An
insured may change the original uninsured motorist
selection or rejection on a policy at any time during the
life of the policy by submitting a new uninsured motorist
selection form to the insurer on the form prescribed by
the commissioner of insurance. Any changes to an
existing policy, regardless of whether these changes
create new coverage, except changes in the limits of
liability, do not create a new policy and do not require

8

the completion of new uninsured motorist selection
forms. For the purpose of this Section, a new policy
shall mean an original contract of insurance which an
insured enters into through the completion of an
application on the form required by the insurer.
[Emphasis added].

The Third Circuit in Guillory explained that La. Rev. Stat. 22:1295(1)(a)(ii),

establishes that a new policy is created when policy limits are changed and/or when

an application for new insurance policy is completed:

The statute [La. Rev. Stat. 22:1295(1)(a)(ii)] is
clear that an insured can modify a policy without creating
a new policy. Such changes might include new coverage,
but cannot include changes in the limits of liability. When
changes other than liability limits are completed, a new
uninsured motorist selection form is not required. In
contrast to changes during the term of the contract, a new
policy can be created. This is not the same as modifying
a contract during its term. A new policy is created when
an original contract of insurance is entered into upon
completion of an application on the form required by the
insurer. Whether a policy has been renewed or whether a
policy has been submitted as a new application is a
factual question.

It is incorrect to assert that a new policy can only
be created when there is a change in liability limits.
Louisiana Revised Statutes [sic] 22:1295(1)(a)(ii) is clear
that during the term of a policy it can be modified
without creating a new policy; however, if the liability
limits are changed, this is a way to enter into a new
policy which would require a new UM selection form.
Another way to enter into a new policy arrangement
is further laid out in the statute: through completion
of an application on the required form. Furthermore,
it is important not to confuse changes during the term
of a policy with a renewal of a policy. . . .

A policy can be renewed, and this does not require a new
waiver of UM coverage. . . . On the other hand, a new
application on the required form also creates a new
policy, which also requires a new waiver of UM
coverage. [Emphasis added].

Guillory, 12-1284, pp. 5-6, 117 So.3d at 323-24.

9

While La. Rev. Stat. 22:1295 states that a properly executed UM rejection

form is applicable to the “renewal” of a policy, the statute does not define the

term.5 However, in Section B(5) of La. Rev. Stat. 22:1267,6 the Louisiana

Legislature set forth the definition of a “renewal” policy applicable to commercial

liability insurance policies:

B. For the purposes of this Section, the following terms
shall mean:

(5) “Renewal” or “to renew” means the issuance of or the
offer to issue by the insurer a policy succeeding a policy
previously issued and delivered by the same insurer or an
insurer within the same group of insurers, or the issuance
of a certificate or notice extending the term of an existing
policy for a specified period beyond its expiration date.

Our review of the record, the aforementioned statutes and the Third Circuit

opinions of Guillory and Hayes, reveals that the definition of a new policy and a

renewal are met in the instant matter.

In Guillory, a Cox Communications Inc. employee and his spouse (“the

plaintiffs”) filed suit against Cox’s automobile insurer, American Home Assurance

5
The Louisiana Legislature has expressed that “[w]hen a law is clear and unambiguous, and its
application does not lead to absurd consequences, it shall be applied as written, with no further
interpretation made in search of the legislative intent. Pierce Foundations, Inc. v. Jaroy Const.,
Inc., 15-0785, pp. 6-7 (La. 5/3/16), 190 So.3d 298, 303 (citing La. Rev. Stat. 1:4). “The starting
point for interpretation of any statute is the language of the statute itself.” Borcik v. Crosby Tugs,
L.L.C., 16-1372, p. 4 (La. 5/3/17), 222 So.3d 672, 675.

However, unclear and ambiguous laws, or laws whose application leads to absurd consequences
are reviewed under “secondary rules of statutory interpretation to discern the meaning of the
statute at issue.” Id. (citations omitted.) In such cases, the statute “must be interpreted as having
the meaning that best conforms to the purpose of the law. Moreover, when the words of a law are
ambiguous, their meaning must be sought by examining the context in which they occur and the
text of the law as a whole.” Id., 16-1372, p. 5 (La. 5/3/17), 222 So.3d at 675.
6
The Nordstroms maintain that the “renewal” definition contained in the above-referenced
statute is inapplicable because it is neither contained in nor referenced in La. Rev. Stat. 22:1295
(1)(a)(ii). Nevertheless, the Louisiana Supreme Court reasoned that “all laws pertaining to the
same subject matter must be interpreted in pari materia, or in reference to each other.” See, e.g.,
State v. Williams, 10-1514, p. 4 (La.3/15/11), 60 So.3d 1189, 1191; La. Civ. Code art. 13.
Moreover, the Third Circuit in both Hayes and Guillory applied La. Rev. Stat. 22:1295 with La.
Rev. Stat. 22:1267(B)(5).

10

Co., seeking UM benefits for a 2005 accident that left the employee injured.

American Home asserted that Cox had validly rejected UM coverage in an

insurance policy issued a few years prior to the accident which was still applicable

as the policy had been continuously renewed. The district court ultimately granted

summary judgment in favor of the plaintiffs, determining that American Home’s

2005 policy was a new policy, not a renewal. After a jury verdict was rendered for

the plaintiffs, both parties filed motions for judgment notwithstanding the verdict;

however, the district court granted only the plaintiffs’ motion. Guillory, 12-1284,

pp. 1-3, 117 So.3d at 321-22.

On appeal, American Home argued that a 2002 UM waiver was valid at the

time of the 2005 accident. Id., 12-1284, p. 3, 117 So.3d at 322. The Guillory

Court reasoned that it needed to address two issues: whether the completion of an

application for insurance creates an original contract of insurance; and whether the

limits of liability changed. Id., 12-1284, p. 5, 117 So.3d at 323.

The Third Circuit noted that negotiations that occurred between American

Home and Cox were “distinctive and important to the application of the law.” The

Court determined there were significant differences between the policies issued for

three successive years, noting that: the premiums for the policies were separately

and annually negotiated between American Home and Cox; UM waiver forms

were completed for each of the policies7; and the policy limits had also changed in

each of the policies. As a result of the foregoing, the Court reasoned that the

completion of an application for insurance created a new original contract of

insurance. Id.,12-1284, pp. 7-8, 117 So.3d at 324-25. Thus, the Guillory Court

reversed the district court’s grant of summary judgment.

7
The Third Circuit noted that the latter two waivers executed were both invalid.

11

Following the Third Circuit’s decision in Guillory, the Court again

addressed the issue of whether a commercial insurance policy was a “renewal” or a

“new policy” under La. Rev. Stat. 22:1295(1)(a)(ii). In Hayes v. De Barton, 16-

541 (La. App. 3 Cir. 2/15/17), 211 So.3d 1275, an employee was seriously injured

when struck by another motorist. He and his wife (“the plaintiffs”) sued his

employer’s insurer, Penn Millers Insurance Company, seeking UM coverage. The

district court granted the plaintiffs’ motion for partial summary judgment, finding

that the insurance policy issued by Penn Millers provided UM coverage. Penn

Millers appealed, raising among other issues that its insured had validly waived

UM coverage in 2007, which applied to the 2013 accident. Id., 16-541, pp. 1-2,

211 So.3d at 1277-78.

The Third Circuit reviewed the plaintiffs’ argument that the

employer/insured annually submitted new applications for insurance, which the

plaintiffs asserted required the annual completion of a UM waiver. Relying upon

commercial auto forms for various years that identified the insured/employer as

“applicant,” the plaintiffs maintained that the statutory definition of a “new policy”

was met under La. Rev. Stat. 22:1295(1)(a)(ii), as application forms required by

the Employer’s insured had been completed. Id., 16-541, p. 6, 211 So.3d at 1280.

The Hayes Court reasoned, however, that the plaintiffs failed to consider that

the policy at issue was a renewal under La. Rev. Stat. 22:1267(B)(5). Id. The Court

further noted that seven forms identified as “Declarations: General Policy

Information,” corresponding to the policies it issued to the insured/employer

beginning in 2007 and continuing through 2013, were in the record. The initial

2007 declarations form identifies the policy as a “new policy” bearing policy

number PAC 2603726-01. However, the subsequently and consecutively issued

12

declarations forms for policies issued from 2008-2013 included the same

identification information, with policy numbers that only changed corresponding to

the years the policy had been in effect, as well as identifying them as policy

renewals:

The 2007 declarations form also identifies the
“Transaction” as “New Policy.” Every declarations form
after the 2007 form includes the same identification
information with one exception: the policy numbers after
2007 are PAC 2603726–02 for 2008 through PAC
2603726–07 for 2013. The last two numbers “02”
through ‘07” reflect the number of years the policy had
been in effect. The limit of insurance on each
declarations form remained $1 million during those
years. Moreover, the 2008–2013 declarations forms
identify the “Transaction” as “Policy Renewal Certificate
for PAC 2603716–01” through “PAC 2603716–06.” This
evidence establishes that Penn Millers renewed O’Neal’s
commercial auto policy each year and did not issue a new
policy each year.

Id., 16-541, p. 6, 211 So.3d at 1280.

The Hayes Court reversed the judgment of the lower court on this issue, as well as

on other issues, holding that the subsequent policies were renewals. Id.

In the instant matter, a review of the 2015 and 2016 policies shows that the

limits of liability remained the same, thus, a new policy was not created in this

manner. Furthermore, the only change in the policy number is the change in the

year the policy was issued from AU201500007486 to AU201600007486, which is

factually similar to Hayes.

Additionally, another similarity to the facts of Hayes is that the declarations

page of the 2015 policy states “Previous Policy Number: NEW,” whereas the

declarations page of the 2016 policy states “Previous Policy Number:

AU201500007486.” Thus, from the face of these documents it would appear that

the 2016 policy was a renewal of the 2015 policy because NYM issued “a policy

13

succeeding a policy previously issued and delivered” to NOCS, under La. Rev.

Stat. 22:1267(B)(5).

Nevertheless, the documents contained in the record also show that a new

application for insurance was completed by NOCS as it shopped for competitive

rates and/or coverage. Included in the record is a “Public Transportation

Application” dated July 10, 2016, the same type of form completed on NOCS’

behalf in 2015, showing that NOCS as an “applicant” was shopping for insurance

policies. Mr. Valentino also executed a new UMBI rejection form in connection

with the 2016 application. Ultimately, NOCS again obtained insurance coverage

with NYM in 2016 with the same liability limit, but with a premium lowered by

over $8,000, from $153,162 to $144,938, evidencing NOCS and its agents were

negotiating for a better rate. As the Guillory Court observed, such negotiations are

integral to the procurement of a “new policy.”

In consideration of the differing facts about the 2016 policy, we recognize

that the weighing of conflicting evidence on a material fact has no place in

summary judgment procedure. Patterson v. Al Copeland Enterprises, Inc., 95-

2288, p. 2 (La. App. 4 Cir. 1/19/96), 667 So.2d 1188, 1190 (citation omitted).

Appellate courts, furthermore, must consider whether summary judgment is

appropriate under the circumstances of the case and whether there is a genuine or

triable issue on which reasonable minds could disagree. G.A. Lotz Co. v. Alack, 13-

674, p. 7 (La. App. 5 Cir. 4/9/14), 140 So.3d 94, 98.

In the matter sub judice, the record contains evidence of both a new policy

and a renewal such that reasonable minds could disagree. We determine that there

is a genuine issue of material fact as to whether the 2016 policy is indeed a renewal

14

of the 2015 policy. Therefore, we reverse the judgment of the district court and

remand for further proceedings.

DECREE

For the reasons discussed herein, the February 20, 2019 judgment of the

district court granting summary judgment in favor of New York Marine and

General Insurance Company, is reversed and the matter is remanded for further

proceedings.

REVERSED AND
REMANDED

15