Berkley Assurance Company v. Melissa Willis, as parent/guardian of MacY Lee Willis

BERKLEY ASSURANCE * NO. 2020-CA-0354
COMPANY
* COURT OF APPEAL
VERSUS
* FOURTH CIRCUIT
MELISSA WILLIS, AS
PARENT/GUARDIAN OF * STATE OF LOUISIANA
MACY LEE WILLIS, ET AL.
*

*
*******

CONSOLIDATED WITH: CONSOLIDATED WITH:

BERKLEY ASSURANCE NO. 2020-CA-0355
COMPANY

VERSUS

MELISSA WILLIS, AS
PARENT/GUARDIAN OF MACY
LEE WILLIS, ET AL.

LOBRANO, J., CONCURS IN PART, DISSENTS IN PART, AND ASSIGNS
JCL
REASONS.

I respectfully concur in part and dissent in part. I concur with the majority’s

conclusion that Berkley stated a cause of action in concursus. I also agree with the

majority’s reversal of summary judgment in Berkley’s favor, but for different,

evidentiary reasons. I find that Berkley failed to meet its summary judgment

burden to prove that Rony Jo Polizzi, Sr. was the legal representative of the

insured. In opposition to Defendants’ summary judgment motion, Berkley

introduced the affidavit of Rony Jo Polizzi, Sr. attesting to his capacity to execute

the UM Form on the Insured’s behalf and his signature on the UM Form. Berkley

failed, however, to introduce this affidavit in support of its own summary judgment

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motion.1 Under current La. C.C.P. art. 966(D)(2), in reviewing the grant of

summary judgment in favor of Berkley, this Court may consider only those

documents specifically filed in support of or in opposition to Berkley’s motion for

summary judgment. See Gibbs Constr., L.L.C. v. Nat’l Rice Mill, L.L.C., 17-0113,

p. 8 (La. App. 4 Cir. 2/21/18), 238 So.3d 1033, 1039; Huggins v. Amtrust Ins. Co.

of Kansas, Inc., 20-0516, p. 6 (La. App. 1 Cir. 12/30/20), 319 So.3d 362, 367.2

As Berkley is the concursus plaintiff, as well as the party moving for

summary judgment, and the insurer seeking to establish rejection of full UM

coverage, the summary judgment burden remained with Berkley to show that no

genuine issue of material fact remained such that it was entitled to judgment as a

matter of law. See La. C.C.P. art. 966(D)(1). I find, with respect to Berkley’s

motion, that the burden never shifted to Defendants. The district court erred in

granting summary judgment in Berkley’s favor, and I would reverse the judgment

in that respect.

1
Numerous courts have relied on an unrefuted affidavit to establish that the individual whose
signature appears on the UM Form was authorized to reject UM coverage on behalf of the
insured. See, e.g., Vitelaro v. Zanca, 15-1365, p. 5 (La. App. 4 Cir. 6/22/16), 195 So.3d 1259,
1262 (citing Harper v. Direct General Ins. Co., 08-2874, p. 3 (La. 2/13/09), 2 So.3d 418, 420);
Banquer v. Guidroz, 09-466, pp. 3-4 (La. 5/15/09), 8 So.3d 559, 561; Voinche v. Capps, 14-
1498, p. 1 (La. 10/24/14), 150 So.3d 297, 298; Davis v. Allstate Prop. & Cas. Ins. Co., 13-0244,
p. 8 (La. App. 4 Cir. 11/27/13), 129 So.3d 811, 816. Courts have also recognized that a corporate
executive’s authority to reject UM coverage may be established explicitly or implicitly, but that
corporate authority must be proved by admissible evidence. See Gunter v. State Farm Mut. Auto.
Ins. Co., 12-0562, p. 1 (La. 5/4/12), 88 So.3d 444, 445 (citing Stewart v. Edwards, 34,435, p. 8
(La. App. 2 Cir. 4/4/01), 784 So.2d 740, 746); Ruiz v. Lewis, 579 So.2d 1203, 1206 (La. App. 4th
Cir. 1991). Rony Polizzi, Sr.’s printed name and signature appear on the UM Form, which was
properly introduced. Nevertheless, none of the remaining documents introduced affirmatively
show his capacity as the Insured’s legal representative.
2
“Under prior summary judgment law, in a case where cross motions for summary judgment
were filed, the district court was able to consider each party’s motion as an opposition to the
other party’s motion and to consider all evidence offered on the cross motions.” Huggins, 20-
0516, p. 6, 319 So.3d at 367 (citing Bouquet v. Williams, 16-0134, pp. 4-5 (La. App. 1 Cir.
10/28/16), 206 So.3d 232, 236-37; Smart v. Calhoun, 49,943, p. 6 (La. App. 2 Cir. 7/29/15), 174
So.3d 168, 172-73)(finding that former La. C.C.P. art. 966(F)(2) did not require parties to file a
separate opposition when they filed cross motions for summary judgment on the same issue).
2

I dissent, however, from the majority’s finding that Defendants were entitled

to partial summary judgment. I disagree with their conclusion that the lack of an

insurer name renders the UM form invalid. The Louisiana Supreme Court held in

Gingles v. Dardenne, 08-2995 (La. 3/13/09), 4 So.3d 799 that omission of the

insurer name did not render the UM form invalid. Gingles (and also Duncan v.

U.S.A.A. Ins. Co., 06-0363 (La. 11/29/06), 950 So.2d 544) relied on a prior

insurance commissioner bulletin, Bulletin 98-01, setting forth the applicable UM

form at that time. That bulletin has since been updated to reflect a revised UM

form, which is provided for in Bulletin 08-02. No cases have interpreted Gingles

on this issue since Bulletin 08-02 has been effective.3 Nevertheless, the majority

finds that Bulletin 08-02 superseded Gingles.

Bulletin 98-01 contained the following language:

The prescribed UM Form is required by law to be
used with all automobile insurance policies
delivered or issued for delivery in Louisiana. FOR
IDENTIFICATION PURPOSES, THE
COMPANY NAME MUST BE PLACED AT
THE LOWER LEFT–HAND CORNER AND
THE POLICY NUMBER AT THE LOWER
RIGHT–HAND CORNER OF THE FORM.

(Emphasis added).

Bulletin 08-02 provided, in relevant part:

IMPORTANT FORM CHANGES

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One recent case found that the absence of an insurer name on the subject UM form rendered the
form invalid. Hart v. Mabou, 21-0028, p. 20 (La. App. 3 Cir. 6/23/21), --- So.3d ---, 2021 WL
2559252, *9. However, that opinion contained no reference to Gingles and all parties conceded
that the form at issue did not meet the requirements for a valid UM waiver. The disputed issue
was instead whether the form at issue, or a prior form, applied to a renewal of the policy. I find
this case distinguishable. Likewise, I distinguish the facts of the other cases cited by the majority,
which recognized the updated provisions of Bulletin 08-02, but which relied on other
deficiencies to find their subject UM forms invalid. See Dotson v. Price, 399 F.Supp. 3d 617
(E.D. La. 2019); Barras v. Cardinal Svcs., LLC, 19-0530 (La. App. 3 Cir. 4/1/20), 297 So.3d
877. Similarly, I do not find the federal district court’s conclusion persuasive in Guillory v.
Commonwealth Ins. Co. of America, No. 19-1679, 2021 WL 149474 (W.D. La. 2021), which
relied on the aforementioned cases, Dotson and Barras.
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•POLICY NUMBER AND OTHER POLICY
IDENTIFICATION INFORMATION - The revised UM
form includes two boxes on the lower right hand corner
of the form.

•The upper box contains an area that the insurer may use
for policy information purposes (e.g. policy number,
binder number [], application number, etc.). This box
does not need to be filled in for the form to be properly
completed.

•The lower box must contain one of the following: the
individual company name, the group name, or the
insurer’s logo.

(Emphasis added).

Both Bulletin 98-01 and Bulletin 08-02 contained language that the insurer

name “must” appear on the UM form. There has been no change in this language.

Even though the insurance commissioner stated in Bulletin 98-01 that the insurer

name “must be placed” on the relevant form, Gingles held that failure to do so did

not invalidate the form or mandate UM coverage where otherwise rejected by the

insured. While Bulletin 08-02 changed the placement for inserting the insurer

name on the form and provided a box for that placement, I cannot ascribe such

meaning to this change that would supersede Supreme Court precedent.

I certainly acknowledge the UM coverage statute’s directive for the

insurance commissioner to prescribe a form and to determine what that form would

require. See Duncan, 06-0363, pp. 12-13, 950 So.2d at 552; La. R.S.

22:1295(1)(a)(ii). Under the Chevron doctrine, considerable weight should be

afforded to an administrative agency’s construction and interpretation of its rules

and regulations adopted under a statutory scheme that it is entrusted to administer,

and deference must be awarded to its administrative interpretations. Matter of

Recovery I, Inc., 93-0441, p. 11 (La. App. 1 Cir. 4/8/94), 635 So.2d 690, 696

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(citing Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S.

837, 844, 104 S.Ct. 2778, 2782–83, 81 L.Ed.2d 694 (1984));4 Forbes v.

Cockerham, 08-0762, p. 34 (La. 1/21/09), 5 So.3d 839, 859. Nevertheless, the

insurance commissioner is not the “final, definitive arbiter for the interpretation

and reconciliation of the Insurance Code and insurance policy language. That role

is of course constitutionally assigned to the judiciary.” Bayham v. State Through

Off. of Grp. Benefits, 18-1708, p. 10 (La. App. 1 Cir. 8/29/19), 285 So.3d 1111,

1117, writ denied, 19-01667 (La. 1/14/20), 286 So.3d 1040 (citing Wooley v. State

Farm Fire and Cas. Ins. Co., 05-1490, p. 7 (La. App. 1 Cir. 2/10/06), 928 So.2d

618, 622-23); Breazeale v. T.T., 12-1703, pp. 14-15 (La. App. 1 Cir. 4/26/13), 117

So.3d 192, 202 (comparing La. R.S. 22:2 et seq with La. Const. art. V, § 1). As the

Supreme Court addressed the issue and held that absence of an insurer name did

not render a UM form invalid, this Court must be bound by that precedent.

Further, no party disputes that the Insured intended to select $30,000 in UM

coverage limits. Indeed, all relevant spaces are signed, initialed, and dated, and

$30,000 is explicitly typed onto the UM Form where required. There simply can be

no debate as to the lower amount of UM coverage limits that the Insured intended

to select.

Moreover, no dispute exists that Berkley is the insurer. Berkley initiated this

proceeding. Berkley’s policy, and no other, is in evidence. Defendants specifically

seek recovery of Berkley’s policy proceeds. I cannot overlook that there is no

question as to which policy the UM Form applies. The prescribed form, which

4
“If Congress has explicitly left a gap for the agency to fill, there is an express delegation of
authority to the agency to elucidate a specific provision of the statute by regulation.” Chevron,
467 U.S. at 843-44, 104 S. Ct. at 2782. “Such legislative regulations are given controlling weight
unless they are arbitrary, capricious, or manifestly contrary to the statute.” Id.
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initially selects lower UM limits, “shall be conclusively presumed to become a part

of the policy or contract when issued and delivered, irrespective of whether

physically attached thereto.” La. R.S. 22:1295(1)(a)(ii). According to Berkley’s

unrefuted affidavit by its adjuster, the Berkley policy was the only policy in effect

on the date of the accident, and the UM Form was a “true and accurate copy of the

UMBI Form executed by Rony’s Towing & Recovery d/b/a Rony’s Towing.”

“Requiring the UM form to bear the name of the insurance company where there is

no uncertainty regarding the policy to which the form pertains would be a hyper-

technical, absurd result.” Dixon v. Direct Gen. Ins. Co. of Louisiana, 08-0907, pp.

7-8 (La. App. 1 Cir. 3/27/09), 12 So.3d 357, 362 (citing Harper v. Direct General

Ins. Co., 08-2874, p. 3 (La. 2/13/09), 2 So.3d 418, 420). “The purpose of requiring

the UM waiver to be clear and unmistakable is to establish that the insured

knowingly waived coverage under a particular policy.” Dixon, 08-0907, p. 8, 12

So.3d at 362.

I see no reason to conclude that Bulletin 08-02 supplanted Gingles’ holding

on this issue. I find that Gingles remains good law, and the lack of the Berkley

company name, group name, or logo on the UM Form does not render the UM

Form invalid. Thus, I dissent in part from the majority’s reversal of the district

court judgment denying Defendant’s summary judgment motion.

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