Danny Barras v. Ronald Jackson

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2019 CW 1276

DANNY BARRAS

VERSUS

RONALD JACKSON, GEICO CASUALTY COMPANY, AND STATE
FARM MUTUAL AUTOMOBILE COMPANY

Judgment Rendered: SEP 18 2020

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On Review from the 19" Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
No. 658484

The Honorable Wilson Fields, Judge Presiding

Frederic C. Fondren Attorneys for Relators
George O. Luce Ace American Insurance
Mayhall Fondren Blaize Company and UV Insurance Risk
Houma, Louisiana Retention Group, Inc.

Brad M. Barback Attorneys for Respondent
Peyton P. Murphy Danny Barras
Troy D. Morain
Todd C. Comeaux
Baton Rouge, Louisiana

Tucker Giles Attorneys for Respondent
Baton Rouge, Louisiana State Farm Mutual Automobile
Insurance Company

BEFORE: WHIPPLE, C.J., GUIDRY AND WOLFE, JJ.

WHIPPLE, C.J.

In this application for supervisory writs of review, relators -defendants, Ace

American Insurance Company (" Ace Insurance") and UV Insurance Risk

Retention Group, Inc. (" UV Insurance"), challenge the ruling of the trial court

which denied their motion for summary judgment seeking dismissal from this

action based upon rejections of uninsured/ underinsured motorists coverage

UM").

For the following reasons, we grant the writ, reverse the ruling of the trial

court, grant the motion for summary judgment and dismiss plaintiff' s claims

against Ace Insurance and UV Insurance.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Danny Barras (" Barras"), filed this action seeking damages for

injuries arising from an automobile accident which occurred on November 18,

2016, when a vehicle driven by defendant, Ronald Jackson, lost control, crossed

the center line and struck the tractor -trailer operated by Barras. The original

petition filed by Barras named as defendants Ronald Jackson, his insurer, GEICO

Casualty Company, and Barras' personal UM insurer, State Farm Mutual

Automobile Insurance Company (" State Farm"). Barras subsequently amended his

petition to name additional defendants, including Ace Insurance and UV Insurance,

alleging they issued policies with UM coverage to UV Logistics, LLC d/b/ a United

Vision Logistics (" UVL"), and that he was employed with UVL and covered by

such policies.

Effective January 1, 2009, Fast Cast Trucking, LLC' leased the tractor -

trailer operated by Barras at the time of this accident, to Ace Transportation, LLC

Ace Transportation"), an authorized for -hire interstate motor carrier, pursuant to

In his brief to this court, Barras refers to Fast Cast Trucking, LLC as his " personally held
LLC". Barras signed the Ace Agreement as " owner" of Fast Cast Trucking, LLC.
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the terms of an Independent Contractor Operating Agreement ( the " Ace

Agreement"). Ace Transportaton and three other companies were purchased by an

equity firm. The Companies continued to operate in their own name and authority

until January of 2011, when they merged into UVL.

The Ace Agreement provided for a one-year term, renewing automatically

from year to year, unless terminated sooner in writing and upon the specified

notice by either party. In addition, any modification to the agreement was not

binding unless in writing and signed by both parties. Although a new agreement

between Fast Cast Trucking, LLC and UVL was not entered into, Section 20 of the

Ace Agreement provided that the agreement shall be binding upon and inure to the

benefit of the parties and their respective successors.

The Ace Agreement further provided as follows, in Section 14( b)( 3):

Other Insurance. In addition to the insurance coverages required
under the AGREEMENT, it is CONTRACTOR' S [ Fast Cast Trucking,
LLC] responsibility to procure, carry, and maintain any fire, theft,
uninsured and/ or underinsured motorist, physical damage ( collision),

and any other Insurance coverage that CONTRACTOR may desire for
the Equipment or for CONTRACTOR' s life, health care, dental care, vision
care, or other needs. As provided in the AGREEMENT, CONTRACTOR
holds CARRIER harmless with respect to loss of or damage to
CONTRACTOR' s Equipment, trailer, or other property, and CARRIER has
no responsibility to procure, carry, or maintain any insurance covering loss
of or damage to CONTRACTOR' s Equipment, trailer, or other property.
CONTRACTOR acknowledges that CARRIER [ Ace Transportation]
may, and CONTRACTOR hereby authorizes CARRIER to, waive,
reject, or reduce no- fault, uninsured, and underinsured motorist

coverage from CARRIER' s Insurance policies to the extent allowed
under the laws of Louisiana and Texas, the states in which CARRIER' s
insurance policies are [ delivered], and CONTRACTOR shall cooperate in
the completion of all necessary documentation for such waiver, election,
rejection, or reduction. [ Emphasis added].

UV Insurance issued a policy of automobile liability insurance for the period

of 1/ 31/ 16 to 1/ 31/ 17, and the named insured on that policy is " LTV Logistics LLC

d/ b/ a United Vision Logistics." Ace Insurance issued a policy of excess business

auto policy and excess truckers liability policy for the period of 1/ 31/ 15 to 1/ 31/ 17,

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and the named insured on that policy is WL Acquisition Holding, LLC.

According to a Joint Venture Endorsement to that policy, UVL is one of the

Scheduled Entities" and is also a named insured. A rejection of UM coverage for

the UV Insurance policy no. RRG194705- 16 was signed by Timothy T. Alguire on

behalf of LVL and dated 1/ 31/ 16. A rejection of UM coverage for the Ace

Insurance policy no XSAH09040249 was signed by Tim Alguire and dated

2/ 5/ 2016.

Ace Insurance and UV Insurance filed a motion for summary judgment,

alleging that UM coverage was validly rejected in each of the policies.

Accordingly, both insurers asserted there was no UM coverage under their policies

and they should be dismissed from this action. Both Barras, and his personal UM

insurer, State Farm, opposed that motion. The trial court denied the motion for

summary judgment, and the insurers filed the instant writ application seeking,

supervisory review of that ruling. This court issued a briefing schedule pursuant to

LSA-C. C.P. art. 966(H) and, after the briefs were filed, heard oral argument from

the parties herein.

LAW AND DISCUSSION

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. 966( A)(3). 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. Green v.

State Farm Mutual Automobile Insurance Company, 2007- 0094 ( La. App. 1 st Cir.

11/ 2/ 07), 978 So. 2d 912, 914, writ denied, 2008- 0074 ( La. 3/ 7/ 08), 977 So. 2d

917.

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On a motion for summary judgment, if the issue before the court is one on

which the party bringing the motion will bear the burden of proof at trial, the

burden of showing that there is no genuine issue of material fact is on the party

bringing the motion. See LSA-C. C. P. art. 966( D)( 1); Rider v. Ambeau, 2011- 0532

La. App. 1st Cir. 2/ 1/ 12), 100 So. 3d 849, 854. An insurer seeking to avoid

coverage through summary judgment must prove some provision or exclusion

applies to preclude coverage. Halphen v. Borja, 2006- 1465 ( La. App. 1st Cir.

5/ 4/ 07), 961 So. 2d 1201, 1204, writ denied, 2007- 1198 ( La. 9/ 21/ 07), 964 So. 2d

338. Thus, in this case, the burden of proof on the motion for summary judgment

remained with the insurers herein.

The issue of whether an insurance policy, as a matter of law, provides or

precludes coverage is a dispute that can be resolved properly within the framework

of a motion for summary judgment. Green, 978 So. 2d at 914. However, summary

judgment declaring a lack of coverage under an insurance policy may not be

rendered unless there is no reasonable interpretation of the policy, when applied to

the undisputed material facts shown by the documents supporting the motion,

under which coverage could be afforded. Green, 978 So. 2d at 914.

The insurers, Ace Insurance and UV Insurance, assert that they produced

valid rejections of UM coverage on behalf of a named insured under the policies,

and therefore, summary judgment should have been granted dismissing the claims

against them. Plaintiff, Barras, and his personal UM insurer, State Farm, opposed

the motion, arguing the insurers failed to show compliance with the factors set

forth in Duncan v. U.S. A.A. Insurance Co., 2006- 363 ( La. 11/ 29/ 06), 950 So. 2d

544, the Ace Agreement, which contained a provision authorizing Ace

Transportation to waive UM coverage, was no longer in existence at the time of the

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waiver, and WL had to offer Barras the opportunity to obtain UM coverage or

waive such coverage.

Louisiana Revised Statute 22: 1295 governs the issuance of UM coverage

and provides, in pertinent part, as follows:

1)( a)( i) No automobile liability insurance coveringliability
arising out of the ownership, maintenance, or use of any motor
vehicle shall be delivered or issued for delivery in this state
with respect to any motor vehicle designed for use on public
highways and required to be registered in this state or as
provided in this Section unless coverage is provided therein or
supplemental thereto, in not less than the limits of bodily injury
liability provided by the policy, under provisions filed with and
approved by the commissioner of insurance, for the protection
of persons insured thereunder who are legally entitled to
recover nonpunitive damages from owners or operators of
uninsured or underinsured motor vehicles because of bodily
injury, sickness, or disease, including death resulting therefrom;
however, the coverage required under this Section is not
applicable when any insured named in the policy either
rejects coverage, selects lower limits, or selects economic -only
coverage, in the manner provided in Item ( 1)( a)( ii) of this
Section. [... ]

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 Iower 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. [...]
Emphasis added.]

The object of UM insurance is to provide full recovery for automobile

accident victims who suffer damages caused by a tortfeasor who is not covered by

adequate liability insurance. Duncan, 950 So. 2d at 547. The UM statute is to be

liberally construed, and thus, exceptions to coverage are to be interpreted strictly.

Any exclusion from coverage in an insurance policy must be clear and

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unmistakable, and the insurer bears the burden of proving any insured named in the

policy rejected, in writing, coverage equal to bodily injury coverage or selected

lower limits. Duncan, 954 So. 2d at 547.

In Duncan, the Supreme Court noted that the commissioner of insurance, in

drafting the form, required that the insured must complete six tasks for a valid

rejection of UM coverage:

The insured initials the selection or rejection chosen to indicate
that the decision was made by the insured. If lower limits are
selected, then the lower limits are entered. on the form to denote
the exact limits. The insured or the legal representative signs
the form evidencing the intent to waive UM coverage and
includes his or her printed name to identify the signature.
Moreover, the insured dates the form to determine the effective
date of the UM waiver. Likewise, the form includes the policy
number to demonstrate which policy it refers to. Thus, the
policy number is relevant to the determination of whether the
insured waived UM coverage for the particular policy at
issue.[']

Duncan, 950 So. 2d at 552.

Barras and State Farm argue that a factual dispute exists as to the dating of

the UV Insurance form and as to the electronic signature on the Ace Insurance

form, precluding summary judgment. The UV Insurance rejection form was

signed by Timothy Alguire, as the representative of UVL. The date of " 1/ 31/ 16"

was typed, not handwritten by Mr. Alguire. Barras and State Farm cite the

deposition testimony of Richard Yandel, in the corporate deposition of UV

Insurance and UVL, who, when asked if he knew whether the date was typed

before Mr. Alguire' s signature, responded, " I don' t think it was. I don' t recall

specifically, no." Later, Mr. Yandel was asked when he filled in some of the

information on the form if this form was already dated, and he responded, " I

believe it was, but I don' t specifically recall." Accordingly, Barras and State Farm

It should be noted that the policy number is no longer required pursuant to a bulletin
issued by the Commissioner of Insurance. However, that is not an issue herein.
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contend that the form was dated after Mr. Alguire signed it and, relying on Gray v.

American National Property & Casualty Co., 2007- 1670 ( La. 2/ 26/ 08), 977 So. 2d

839, argue that the form is invalid.

In Gray, the Supreme Court found the UM selection form did not meet the

necessary requirements because the spaces for the amount of lower UM coverage

were blank, as were the spaces for the printed name of the insured, the policy

number and the date. See Grav, 977 So. 2d at 846. The form was later completed

by an employee of the insurance agency, who documented the policy number, the

date of the policy and the UM limits. The date filled in by the employee was the

date the policy period began, but the representative who signed the form was not

authorized and the form was not sent to him until after that date. Accordingly, the

date on the form was clearly not the date it was signed. See Gray, 977 So. 2d at

848. While we find the facts of Gray distinguishable from this matter, we also note

that in Lynch v. Kennard, 2009- 282 ( La. 5/ 15/ 09), 12 So. 3d 944 ( per curiam), the

Supreme Court found a UM rejection form valid when dated by the insured' s

secretary after he signed the form, as he was walking out of the office.

In this case, the insurers submitted an affidavit of Mr. Alguire, the

representative who signed the forms, who attested that he executed the UV

Insurance form on January 31, 2016, and he executed the Ace Insurance form on

February 5, 2016, the dates shown on the respective forms. Accordingly, we find

the insurers produced sufficient, credible evidence to show that Mr. Alguire

executed the forms on the stated dates.

Barras and State Farm further argue, with regard to the Ace Insurance form,

that the form was never actually executed by UVL' s representative because the

form was populated by the computer, which included the signature of Mr. Alguire.

However, we note that in Garay -Lara v. Cornerstone National Insurance Company,

2013- 2016 ( La. App. 1 st Cir. 5/ 2/ 14), 145 So. 3d 423, a UM rejection form, which

was printed out after an insured verbally made selections and contained an

electronic signature, was found valid by this court. Such a holding is consistent

with LSA-R.S. 9: 2607, which provides that a record or signature may not be

denied legal effect or enforceability solely because it is in electronic form, and if a

law requires a signature, an electronic signature satisfies the law. See LSA-R.S.

9: 2607( A)&( D). Accordingly, we find the Ace Insurance rejection form met the

legal requirements for such rejection. Having found both rejection forms include

the necessary requirements set forth in Duncan, such forms create a rebuttable

presumption that the insured, WL, knowingly rejected coverage. See LSA-R.S.

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

Barras and State Farm further assert that Barras was not provided with a

meaningful opportunity, as an insured, to reject UM coverage.3 First, they assert

that the Ace Agreement in which Fast Cast Trucking, LLC granted to Ace

Transportation the right to reject such coverage expired as a result of the " merger

agreement" between the trucking companies to which Fast Cast Trucking, LLC

was not a parry. We find no merit to this argument, as the Ace Agreement itself

provided that the agreement would inure to the benefit of the parties' successors

and that any modification to the agreement was not binding unless in writing and

signed by both parties. Nevertheless, even assuming arguendo that such agreement

was invalid or did not provide such authority to reject UM coverage, our ruling

would not differ because LSA-R.S. 22: 1295 does not require each insured under a

policy to execute such a rejection, but instead, only requires the rejection by any

3Although Barras asserts he was an insured and appears to make this assertion as owner
of the tractor -trailer, arguing that he leased " his 18 -wheeler" to UVL and referencing "[ his]
position as a purchaser of liability insurance," according to the Ace Agreement, it was Fast Cast
Trucking, LLC, which is not a party to this action and which represented and warranted it was
the " owner" of the tractor -trailer, not Barras individually, although Barras is identified as the
owner of Fast Cast Trucking, LLC. Nevertheless, this issue is not dispositive herein.
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insured named in the policy. As WL is a named insured under both policies at

issue herein, its rejection of UM coverage is valid for the policies.

Secondly, Barras and State Farm argue that he should have been given the

opportunity to reject UM coverage, relying on Martin v. Clanton, 93- 304 ( La. App.

5th Cir. 11/ 10/ 93), 626 So. 2d 909. In that case, Martin leased his personal vehicle

to his employer, Lance, and in return, Lance provided insurance coverage through

its insurer, AMIC. Martin was also provided the opportunity to insure his other

vehicles through the lease program. After an accident, Martin asserted he was

entitled to UM coverage through the policy. Although Lance had executed a valid

rejection of the UM coverage, Martin argued he was entitled to UM coverage

because he was never given the opportunity under the lease agreement or in the

insurance policy to reject or not reject UM coverage. The court noted that Martin' s

name did not appear on the policy, and Lance was the named insured. The court

found that AMIC was not entitled to summary judgment, which had been granted

by the trial court. In doing so, the court noted that while the lease form informed

Martin that UM coverage was available on request for an additional premium, he

was not given the option to accept or reject the coverage. The court further found

that Lance sold a portion of its insurance to Martin, and therefore, plaintiffs,

Martin and his wife, became named insureds who must be given an option to

choose or waive UM coverage. See Martin, 629 So. 2d at 912.

However, in Bullock v. Homestead Insurance Company, 29,536 ( La. App.

2nd Cir. 6/ 20/ 97), 697 So. 2d 712, writ denied, 97- 1936 ( La. 11/ 7/ 97), 703 So. 2d

1272, the plaintiff, Bullock, was driving a tractor/trailer owned by his father and

leased to Rebel, an interstate carrier. The lease agreement provided that Rebel.

would secure liability, property damage and cargo insurance and would deduct the

money for such insurance from settlements with Bullock' s father. Rebel obtained

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a policy, under which it was the named insured, and Bullock' s father was an

additional insured by endorsement. Rebel' s president executed the waiver of UM

coverage. The court noted that LSA-R. S. 22: 1295 provides that such coverage

may be rejected by " any insured" named in the policy.' See Bullock, 697 So. 2d at

714. The court found that Rebel, as a named insured, executed a valid UM

rejection and that Bullock was bound by this rejection. In doing so, the court

specifically chose not to follow Martin, finding it failed to consider the portion of

LSA-R.S. 22: 1295 which allows rejection of UM coverage by any insured named

in the policy. The court also distinguished the cases involving commercial car

rental entities which were involved in the business of leasing vehicles to retail

customers for profit, providing or guaranteeing liability insurance coverage to the

customer and charging for that coverage. The court found that the commercial

trucking contract at issue created a wholly different relationship from that

established by a car rental agency and its customer. See Bullock, 697 So. 2d at

715- 716.

In Reily v. Frey, 99- 1166 ( La. App. 1st Cir. 6/ 23/ 00), 762 So. 2d 728,

plaintiff, Reily, was driving a vehicle owned by Wheels and leased to Reily' s

employer, Team. Team was required to maintain its own liability insurance under

the lease. Team was the named insured on the policy and executed a UM waiver.

Reily was not provided with an opportunity to either select or reject UM coverage.

Reily argued that he should have been given an opportunity to either accept or

reject UM coverage as a lessee. This court noted that, assuming arguendo that

Reily was a sublessee and entitled to accept or reject UM coverage, the

responsibility to give him this option lay with Team, not the insurer, Hartford. See

Reily, 762 So. 2d at 730. The court found that Hartford could only rely on Team' s

The applicable UM statute in effect at the time and interpreted by the court in Bullock
was LSA- R.S. 22: 1406.
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rejection as it had no contractual relationship with Reify and that Team' s rejection

was valid for purposes of insulating Hartford from UM claims by Team or Reify.

This court noted the language of LSA-R.S. 22: 1295 and the holding in Bullock that

any named insured" may reject such coverage and affirmed the dismissal of

Hartford.' See Reily, 762 So. 2d at 730- 731.

Likewise, the clear and unambiguous language of LSA-R.S. 22: 1295 allows

any insured named in the policy to reject UM coverage. As noted above, W

Insurance and Ace Insurance established that the UM rejection forms created a

rebuttable presumption that UM coverage was validly rejected. Barras and State

Farm have failed to rebut that presumption, and accordingly, the trial court erred in

denying the motion for summary judgment filed by defendants, UV Insurance and

Ace Insurance.

CONCLUSION

For the foregoing reasons, the August 26, 2019 judgment of the trial court,

which denied the motion for summary judgment filed by defendants, Ace

American Insurance Company and UV Insurance Risk Retention Group, Inc., is
reversed.
The motion for summary judgment filed by Ace American Insurance

Company and UV Insurance Risk Retention Group, Inc. is hereby granted, and the

claims of plaintiff, Danny Barras, against defendants, Ace American Insurance

Company and W Insurance Risk Retention Group, Inc., are dismissed.

Costs of this appeal are assessed one- half each to plaintiff/respondent,

Danny Barras, and to defendant/ respondent, State Farm Mutual Automobile

Insurance Company.

WRIT GRANTED; REVERSED AND RENDERED.

The UM statute in effect at that time and interpreted by the court was LSA-R.S. 22: 1406.

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