Ronnie E. Jarvis v. Foremost Express Insurance Agency Inc., Marcelles A. Taylor, Felton Keyes, Jr., Kent & Smith Holdings, LLC, and ABC Insurance Company

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2020 CA 0886

RONNIE E. JARVIS

VERSUS

FOREMOST EXPRESS INSURANCE AGENCY, INC., MARCELLES A.
TAYLOR, FELTON KEYES, JR., KENT & SMITH HOLDINGS, LLC, AND
AMC INSURANCE COMPANY

Judgment Rendered: MAY 2' 72021

On Appeal from the
Nineteenth Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
Trial Court No. 669, 602

The Honorable Janice Clark, Judge Presiding

Mark D. Plaisance Attorneys for Plaintiff/Appellant
Marcus J. Plaisance Ronnie E. Jarvis
Prairieville, Louisiana

Scott M. Mansfield
Kelly R. Dick, Jr.
Baton Rouge, Louisiana

Jack E. Truitt Attorneys for Defendant/Appellee
Lou Anne Milliman Foremost Insurance Company Grand
Michelle Mayne Davis Rapids, Michigan
Nancy N. Butcher
Lauren A. Duncan
Covington, Louisiana

BEFORE: McDONALD, HOLDRIDGE, AND PENZATO, JJ.

s

v

PENZATO, J.

Appellant, Ronnie E. Jarvis, appeals a judgment granting summary judgment

in favor of Foremost Insurance Company Grand Rapids, Michigan (Foremost)' and

dismissing his claims with prejudice. For the reasons that follow, we reverse the

trial court' s judgment and remand the matter to the trial court.

FACTS AND PROCEDURAL HISTORY

On November 1, 2017, Mr. Jarvis was driving in a westerly direction on I- 10

in Ascension Parish, when an 18 -wheeler rear-ended him. The tractor -trailer was

being driven by Felton Keyes, Jr. The Peterbilt tractor was owned by Marcelles A.

Taylor and was alleged to be insured by Foremost pursuant to a policy of liability
coverage.
The trailer was a dump trailer owned by Kent & Smith Holdings, LLC,

Kent & Smith),
alleged to be insured by Zurich American Insurance Company

Zurich). Mr. Jarvis filed suit against Foremost, Mr. Taylor, Mr. Keyes, Kent &

Smith, and Zurich. Foremost answered the petition, pleading the affirmative defense

of lack of insurance coverage and asserting that the policy issued to its insured was

cancelled on September 5, 2017, for non-payment of premium. Foremost filed a

motion for summary judgment, asserting that the commercial insurance policy had

been issued to M. Taylor Trucking, LLC, and was cancelled for nonpayment of

premium prior to the accident.' After Foremost filed its motion for summary

judgment with attachments in support of same, Mr. Jarvis added M. Taylor Trucking,

LLC, as a defendant in his second supplemental and amending petition, alleging that

M. Taylor Trucking, LLC, also owned the Peterbilt tractor. Foremost reasserted its

Foremost was incorrectly named as Foremost Express Insurance Agency, Inc., in the petition for
damages. Foremost filed an answer delineating its correct name, and Mr. Jarvis filed a first
supplemental and amending petition to replace every reference to the incorrect name with
Foremost Insurance Company Grand Rapids, Michigan.

2 Kent & Smith and Zurich filed their own motion for summary judgment, which was heard at the
same time as Foremost' s motion for summary judgment. The trial court denied the motion for
summary judgment filed by Kent & Smith and Zurich. The ruling is not at issue in the instant
appeal.

2

denial of insurance coverage in its answer to the second supplemental and amending
petition.
After a hearing on Foremost' s motion for summary judgment, the trial

court signed an amended judgment on June 18, 2020, granting the summary

judgment in favor of Foremost and dismissing all of Mr. Jarvis' s claims against

Foremost with prejudice.' It is from this judgment that Mr. Jarvis appeals, claiming

that the trial court erred in determining that the cancellation notice relied upon by

Foremost is legally sufficient pursuant to La. R.S. 22: 1266.

LAW AND DISCUSSION

Appellate courts review the grant or denial of a motion for summary judgment

de novo using the same criteria applied by the trial courts to determine whether

summary judgment is appropriate. Jackson v. Wise, 2017- 1062 ( La. App. 1 st Cir.

4/ 13/ 18), 249 So. 3d 845, 850, writ denied, 2018- 0785 ( La. 9/ 21/ 18), 252 So. 3d

914. After an opportunity for adequate discovery, a motion for summary judgment

shall be granted if the motion, memorandum, and supporting documents show there

is no genuine issue of material fact and that the mover is entitled to judgment as a

matter of law. La. C. C. art. 966( A)(3); Campbell v. Dolgencorp, LLC, 2019- 0036

La. App. 1st Cir. 1/ 9/ 20), 294 So. 3d 522, 526. A genuine issue of material fact is

one as to which reasonable persons could disagree; if reasonable persons could reach

only one conclusion, there is no need for trial on that issue and summary judgment

is appropriate. Bass v. Disa Global Solutions, Inc., 2019- 1145 ( La. App. 1st Cir.

6/ 12/ 20), 305 So. 3d 903, 906- 07, writ denied, 2020- 01025 ( La. 11/ 4/ 20), 303 So.

3d 651.

Summary judgment is appropriate for determining issues relating to insurance

coverage. Bosse v. Access Home Insurance Co., 2018- 0482 ( La. App. 1st Cir.

12/ 17/ 18), 267 So. 3d 1142, 1145. On a motion for summary judgment, if the issue

3 The trial court had previously signed a judgment dated November 19, 2019. However, prior to
an order of appeal being granted, the parties determined that the judgment was not a final judgment,
and the trial court signed an amended judgment.

3

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 La. C. C.P. art. 966( D)( 1); Rider v. Ambeau,

2011- 0532 ( La. App. lst 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. It is well settled that where an insurer defends a claim on the ground that the

policy has been cancelled, the insurer bears the burden of establishing facts that will

relieve it of liability. Wiley v. Cornerstone National Ins. Co., 2012- 0909 ( La. App.

1st Cir. 4/ 25/ 13), 2013 WL 179512, at * 2 ( unpublished). The insurer must show

facts constituting positive and unambiguous proof of understanding of cancellation

of the policy. Wiley, 2013 WL 179512, at * 2. Thus, in this case, the burden of proof

on the motion for summary judgment remained with the insurer herein.

The insurer, Foremost, attached to its motion for summary judgment the

petition; the answer; an affidavit of Paulette Terhune, an employee of Foremost; a

Specialty Contractor' s Policy issued to M. Taylor Trucking, LLC, bearing policy

number SCP 08081715 for the policy period June 5, 2017 to June 5, 2018; several

endorsements to the policy; a Notice of Cancellation of Insurance for Nonpayment

of Premium dated August 18, 2017; and a notice to an additional insured of

cancellation dated September 20, 2017. Mr. Jarvis opposed the motion for summary

judgment. The only document attached to the opposition to the motion for summary

judgment is an affidavit dated December 29, 2018, of Jacob James Sarver, a private

process server, who attested that he had made several attempts to serve Mr. Taylor

and was still attempting to do so. Mr. Jarvis argued in opposition to the motion for

4

summary judgment that the notice of cancellation upon which Foremost relies does

not comply with the requirements for cancellation as set forth in La. R.S. 22: 1266.4

The affidavit of Ms. Terhune and attachments thereto establish that Foremost

issued a commercial insurance policy bearing policy number SCP08081715 to the

named insured, M. Taylor Trucking, LLC, and provided coverage to several

vehicles, including the 2000 Peterbilt tractor involved in the accident herein. The

policy was effective from June 5, 2017 to June 5, 2018. On June 6, 2017, M. Taylor

Trucking, LLC, notified Foremost of a change of address to 10629 Hwy. 18, Saint

James, Louisiana, 70086 ( Saint James address). On August 14, 2017, M. Taylor

Trucking, LLC, notified Foremost that KNS Logistics (KNS) would be added as an

additional named insured and that the address for KNS was 1555 Beauli Rd.,

Gonzales, Louisiana, 70737. All of these endorsement changes to the policy were

sent by Foremost to the Saint James address.

On August 18, 2017, Foremost mailed M. Taylor Trucking, LLC, a notice of

cancellation to the Saint James address. The notice of cancellation provided that the

policy of insurance would be cancelled effective September 5, 2017, if the past

amount due was not paid by that date. The notice of cancellation specifically

provided, in pertinent part:

Notice of Cancellation for Nonpayment of Premium

Our records reflect that we have not received payment for the amount
due on the insurance policy(ies) listed below. Accordingly, all of the
policy(ies) will be cancelled as of the Cancellation Effective Date
shown below. The cancellation will take effect at 12: 01 AM local time
at your mailing address shown above. If we receive sufficient payment
by that date and time, the insurance coverage( s) will continue without
interruption.

Note: This is the only notice you will receive.

4 As will be addressed subsequently herein, La. R.S. 22: 1267, regarding commercial policies,
actually applies to the facts of the present case.
5

Emphasis added). The notice lists a " Cancellation Effective Date" of September 5,

2017, and states, " To maintain coverage beyond the Cancellation Effective Date,

please pay ...." The Notice also contains a payment stub with a past due amount, a

current amount due, and a total amount due, all of which are redacted.

Foremost did not receive the past due amount by September 5, 2017, or

anytime thereafter. Foremost subsequently notified KNS that the policy, under which

it had been named as an additional insured, had been cancelled. Foremost contends

that the policy was cancelled effective September 5, 2017, for nonpayment of

premium, and that it did not provide coverage for the accident which occurred on

November 1, 2017.

Foremost asserts that it cancelled the policy due to nonpayment of premium,

and even notified KNS of the cancellation, although it was not required by statute or

the policy to notify the additional named insured. Jarvis maintains that the notice

sent by Foremost is legally insufficient to constitute proper notice of cancellation.

As do both parties, we recognize that La. R.S. 22: 1266 applies to the cancellation of

consumer automobile policies, and that the jurisprudence is limited to the

interpretation of La. R.S. 22: 1266. Louisiana Revised Statutes 22: 1266( A) provides:

6) " Nonpayment of premium" means failure of the named insured to

discharge when due any of his obligations in connection with the
payment of premiums on a policy, or any installment of such premium,
whether the premium is payable directly to the insurer or its agent or
indirectly under any premium finance plan or extension of credit.

Insurers are permitted to cancel a policy for nonpayment of premium. La. R. S.

22: 1266( B)( 1)( a). The manner to effect the cancellation is provided in La. R.S.

22: 1266( D)( 1), which states in pertinent part, " when cancellation is for nonpayment

of premium at least ten days notice of cancellation accompanied by the reason shall

be given." Commercial policies are governed by La. R.S. 22: 1267. " Nonpayment

of premium" is defined as " the failure or inability of the named insured to discharge

any obligation in connection with the payment of premiums on a policy of insurance

subject to this regulation, whether such payments are payable directly to the insurer

or its producer or indirectly payable under a premium finance plan or extension of

credit." La. R.S. 22: 1267( B)( 3). In order to effectuate a cancellation, the insurer

must comply with La. R.S. 22: 1267( C)( 2)( a), which provides:

A notice of cancellation of insurance coverage by an insurer shall be in
writing and shall be mailed or delivered to the first -named insured at
the mailing address as shown on the policy. Notices of cancellation.
based on R.S. 22: 1267( C)( 1)( b) through (g) shall be mailed or delivered
at least thirty days prior to the effective date of the cancellation.; notices
of cancellations based upon R.S. 22: 1267( C)( 1)( a) shall be mailed or
delivered at least ten days prior to the effective date of cancellation.
The notice shall state the effective date of the cancellation.

Because we find no significant difference in the substance of these two statutes and

due to the absence ofjurisprudence concerning La. R.S. 22: 1267, we will rely on the

jurisprudence interpreting La. R.S. 22: 1266.

Mr. Jarvis argues that the purported cancellation by Foremost is legally

insufficient since it merely informs the insured that unless premiums due were paid,

the policy would be cancelled, rather than clearly and unequivocally showing a

present cancellation" as required by Ellzey v. Hardware Mutual Insurance

Company ofMinnesota, 40 So. 2d 24, 28 ( La. App. 1 st Cir. 1949). ( Appellant Brief

at p. 5).

This court in Ellzey determined that a notice of cancellation that states the

policy " will be cancelled" as of a certain date is insufficient to cancel the policy.

The court stated that the notice must clearly and unequivocally show a present

cancellation, not just be a demand for payment. Ellzey, 40 So. 2d at 28. In contrast,

Alexander v. State Farm Mutual Automobile Ins. Co., 148 So. 2d 898, 902 ( La. App.

1 st Cir. 1962) ( on rehearing) ( emphasis added), determined that a notice that stated

this policy is cancelled, effective on ..." was a legally sufficient notice of

cancellation. The court found such language to be clear, unequivocal, and

unambiguous. Alexander, 148 So. 2d at 902. Alexander distinguished Ellzey, which

7

was based on the policy language and not La. R.S. 22: 636 ( the applicable

cancellation statute at the time).

Following Ellzey and Alexander, the First Circuit continued to interpret the

statutory law to require a clear, unequivocal, and unambiguous notice of

cancellation. In Travelers Ins. Co. v. Jenkins, 285 So. 2d 839, 842 ( La. App. 1 st Cir.

1973), after accepting late payments and reinstating the policy several times, the

insurer returned a check to the insured due to insufficient funds and informed the

insured it "will continue coverage ... in order that you may have an opportunity to

submit a replacement payment to us." The notice further stated, " If we have not

received the replacement payment within the time mentioned above, the policy will

be cancelled effective that date." Jenkins, 285 So. 2d at 842 ( emphasis added).

The court explained that " will be cancelled" is different from " is cancelled", " is

hereby cancelled", or " stands cancelled." Jenkins, 285 So. 2d at 844 ( emphasis

added).
The court in Jenkins held that merely informing the insured that unless the

premiums were paid the policy would be cancelled amounts to a demand for payment

of premiums rather than a notice of cancellation. Jenkins, 285 So. 2d at 844.

In addition to Alexander, other First Circuit cases interpreting notices of

cancellation have stated that the language " is hereby cancelled" or " is being

cancelled"
is sufficient notice to cancel a policy. Chapman v. Leger, 405 So. 2d

604, 606- 07 ( La. App. 1 st Cir. 1981), distinguished both Ellzey and Alexander

finding that those cases " indicated that the insured might avoid cancellation by

responding to the invitation to remit the premium payment." The notice at issue in

Chapman stated the policy " is hereby cancelled." Winbush v. Polk, 97- 1967 ( La.

App. 1 st Cir. 6/ 29/ 98), 713 So. 2d 1262, 1264, involved a notice of cancellation,

which at the time was governed by La. R.S. 22: 636. 1( D)( 1). 5 The notice stated,

5 Louisiana Revised Statutes 22: 636. 1 was renumbered La. R.S. 22: 1266 by 2008 La. Acts; No.
415, § 1, effective January 1, 2009.
9

Cancellation to take effect at ...." It also stated, " Your policy is being cancelled

for non-payment of premium." Winbush, 713 So. 2d at 1264 ( emphasis added). The

court noted that a cancellation notice must be unequivocal, and the determination of

the sufficiency and effectiveness of a cancellation notice depends upon the language

of that particular cancellation notice. Winbush, 713 So. 2d at 1264.

Unlike the notices of cancellation at issue in Alexander, Chapman, and

Winbush, the notice sent by Foremost stated that the policy " will be cancelled."

Emphasis added). The First Circuit has continuously interpreted " will be

cancelled" language in a notice of cancellation to be insufficient to comply with the

statutory law. State Farm Mutual Automobile Ins. Co. v. Villneuve, 1998- 2421 ( La.

App. 1 st Cir. 12/ 28/ 99), 747 So. 2d 777, writ denied, 2000- 0273 ( La. 3/ 24/ 00), 758

So. 2d 156, involved a notice of cancellation entitled, " CANCELLATION NOTICE

IF NOT PAID." It also stated, " YOUR POLICY WILL BE CANCELLED FOR

NON-PAYMENT OF PREMIUM AT ... IF YOUR PREMIUM IS NOT PAID BY

THE DUE DATE." Villneuve, 747 So. 2d at 778 ( emphasis added). The court

recognized that the unpaid balance on the notice was zero, and on the date mailed,

the premium was not yet due. The court stated, " A notice of intent to cancel if the

premium is not paid is not the same as a notice of cancellation for nonpayment of

premium under [ La.] R.S. 22: 636. 1." Villneuve, 747 So. 2d at 780. The court also

held "[ a] notice of intent to cancel is nothing more than a demand for payment,

whereas a notice of cancellation positively puts an insured on notice that the policy

will be cancelled." Villneuve, 747 So. 2d at 780 ( citing Dairyland Insurance

Company v. Marks, 468 So. 2d 841, 843 ( La. App. 1 st Cir. 1985), a case involving

a premium finance company governed by La. R.S. 9: 3550( G)). The Villneuve court

determined that the notice of cancellation lacked the unequivocal cancellation

language that was present in Folds v. Protective Casualty Ins. Co., 26, 323 ( La. App.

2nd Cir. 12/ 7/ 94), 647 So. 2d 1215, and was more similar to the equivocal language

D

in Dairyland. Villneuve, 747 So. 2d at 780. The Villneuve court also found that the

cancellation notice at issue was a demand for payment, specifying that the policy

would be cancelled if the premium was not paid and that no outstanding premium

was due at the time the notice was mailed. Villneuve, 747 So. 2d at 780. Villneuve

relied on the language of Jenkins that " will be cancelled" is different from " is

cancelled", "
is hereby cancelled", or " stands cancelled" to find that the notice of

cancellation was insufficient. Villneuve, 747 So. 2d at 781 ( emphasis added).

In Wiley, a more recent decision, another panel of this court discussed many

of the above cited First Circuit cases in reversing a summary judgment granted to

Cornerstone National Insurance Company, finding a notice of cancellation to be

legally insufficient. The notice of cancellation was entitled, " Notice of Intent to

Cancel for Non -Payment of Premium" and had a specific cancellation date. The

notice also stated, " your policy is cancelled or terminated on the date and time

indicated, for ... Non Payment of Premium[.]" Wiley, 2013 WL 1792512, at * 1

some emphasis added). This court relied on La. R.S. 22: 1266 and the jurisprudence

outlined in Jenkins, Villneuve, and Ellzey to reverse the summary judgment. This

court recognized that the language of the notice of cancellation stated " is cancelled",

but determined that under the circumstances, that the notice, combined with a

premium invoice and conditioned on the nonpayment of the premium by the due

date, constituted a demand for payment rather than an unequivocal notice of

cancellation.
Wiley, 2013 WL 1792512, at * 4. This court declined to follow the

case of Narcisse v. Evans, 2001- 1092 ( La. App. 4th Cir. 1/ 16/ 02), 807 So. 2d 339,

which held that a notice by Cornerstone similar to the one at issue constituted an

effective cancellation. Wiley, 2013 WL 1792512, at * 3.

The notice of cancellation issued by Foremost contains the language " will be

cancelled." ( Emphasis added). The notice of cancellation is also a demand for

payment as it contains language that if sufficient payment is received the insurance

10

coverage will continue and additional language stating that to maintain coverage

beyond the cancellation effective date the insured must pay the amount past due.

Foremost has provided no First Circuit decision that has interpreted a similar notice

to be a clear, unequivocal, and unambiguous notice of cancellation. Pursuant to the

jurisprudence of this circuit, the notice is legally insufficient to have cancelled the

policy.

Foremost argues that commercial policies governed by La. R.S. 22: 1267 are

distinguishable from consumer policies governed by La. R.S. 22: 1266. As we stated

above, we do not find the language in the two statutes to be so dissimilar that the

jurisprudence interpreting La. R.S. 22: 1266 is not applicable. Foremost relies on

Hodges v. Colonial Lloyd' s Ins., 546 So. 2d 898 ( La. App. 1st Cir. 1989), to assert

that " will be cancelled" language was sufficient notice in a commercial automobile

policy to cancel the policy. Hodges involved a premium finance company, which is

governed by La. R.S. 9: 3550( G) that sets forth the conditions for a premium finance

company to cancel a policy of insurance for nonpayment of premium. Furthermore,

in Hodges, although a first notice did state the policy " WILL BE CANCELLED"

if the premium was not paid, a second notice was sent stating that the " POLICY

HAS BEEN TERMINATED." Hodges, 546 So. 2d at 903. We do not find that

Hodges stands for the proposition asserted by Foremost— that the " will be

cancelled" language is only insufficient for consumer policies, not commercial ones.

Foremost also asserts that the present case is distinguishable from the

Villneuve decision, because an outstanding balance was due in the present case at

the time the notice of cancellation was issued, unlike the factual scenario of

Villneuve. Although Foremost argues that a balance was due, the notice in the record

before us is void of any information concerning the past, current, and total amounts

due, as these are redacted. Therefore, it is impossible to determine whether there

was actually any amount past due, and we are unable to distinguish Villneuve from

11

the present facts based on the record. Also, in Wiley, this court found no effective

cancellation even though the insurer used the phrase " is cancelled" in the notice of

cancellation when the notice was attached to a premium due notice. Wiley, 2013

WL 1792512, at * 4.

Foremost further urges this court to follow the interpretation of other circuits

that have determined that the language " will be cancelled" in a notice of

cancellation is legally sufficient to cancel a policy. We recognize that other circuits

have found similar language to be sufficient to effect cancellation.' However, we

are constrained to follow existing First Circuit jurisprudence. See Pontchartrain

Natural Gas System v. Texas Brine Co., LLC, 2018- 0001 ( La. App. 1st Cir. 6/ 4/ 18),

253 So. 3d 156, writ denied, 2018- 1124 ( La. 9/ 28/ 18), 253 So. 3d 147 ( recognizing

this court is bound by the " law of the circuit" doctrine to follow prior decisions); see

also Internal Rules of Court, First Circuit Court of Appeal, Rule 2. 1( d)( 1); H.J.

Bergeron, Inc. v. Parker, 2006- 1855 ( La. App. 1st Cir. 6/ 8/ 07), 964 So. 2d 1075,

1076 n.2. Following a de novo review of this matter, we find that Foremost has not

carried its burden that its notice of cancellation was clear, unequivocal, and

unambiguous so as to entitle it to summary judgment as a matter of law.

CONCLUSION

For the reasons set forth above, the June 18, 2020 judgment of the trial court

granting the motion for summary judgment in favor ofForemost Insurance Company

Grand Rapids, Michigan is reversed. This matter is remanded to the trial court for

further proceedings consistent herewith. All costs of this appeal are assessed against

Foremost Insurance Company Grand Rapids, Michigan.

REVERSED AND REMANDED.

6 See Lewis v. Coleman, 48, 173 ( La. App. 2nd Cir. 6/ 26/ 13), 118 So. 3d 492, 499- 502, writ denied,
2013- 1993 ( La. 11/ 15/ 13), 125 So. 3d 1108; Narcisse, 807 So. 2d at 344; Hunter v. Automotive
Casualty Ins. Co., 606 So. 2d 571, 572 ( La. App. 5th Cir.), writ denied, 609 So. 2d 225 ( La. 1992);
and Hemperly v. Aetna Casualty & Surety Co., 516 So. 2d 1202, 1206 ( La. App. 2nd Cir. 1987).
12

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2020 CA 0886

RONNIE E. JARVIS

VERSUS

FOREMOST EXPRESS INSURANCE AGENCY, INC., MARCELLES A.
TAYLOR, FELTON KEYES, JR., KENT & SMITH HOLDINGS, LLC, AND
AMC INSURANCE COMPANY

McDonald, J. concurs:

I believe the majority opinion is correct only because of the years of

misinterpretation of the English language that goes all the way back to 1949 with the

decision in Ellzey. I believe the terms " will be cancelled," " is cancelled," or " stands

cancelled"
have the same meaning when followed by a date and time certain. As

such this language unequivocally conveys to the insured a notice of cancellation.

This language provided a clear, express statement that the policy is being cancelled

on that date and time. I believe the analysis in the decisions by other courts is better

than that following Ellzey.

In Narcisse v. Evans, 2001- 1092 ( La. App. 4th Cir. 1/ 16/ 02), 807 So. 2d

339, 344, the court stated:

We conclude that the notice sent to Evans by Clarendon was an
unambiguous and unequivocal notice of cancellation. Evans was
clearly put on notice that his coverage would terminate at 1. 2: 0.1 a. m.
on July 30, 1995, if his payment was not received or postmarked prior
to that date. The notice was in compliance with La. R.S. 22: 636. 1( D).

The language at issue in Narcisse was as follows:

NOTICE OF INTENT TO CANCEL FOR NON-PAYMENT OF
PREMIUM

THIS IS THE ONLY NOTICE YOU WILL RECEIVE * *

You are hereby notified in accordance with the terms and conditions
of the above- mentioned policy that your insurance will be cancelled

1

at 12: 01 am Standard Time on 7/ 30/ 95 if premium due is not
postmarked prior to the cancellation date.

I am more persuaded by this decision of the Fourth Circuit, and those cases

cited in footnote 61 by the majority in the present case, than by the prior decisions

of the First Circuit. For these reasons I respectfully concur.

See Lewis v. Coleman, 48, 173 ( La. App. 2nd Cir. 6/ 26/ 13), 118 So. 3d 492, 499- 502, writ denied,
2013- 1993 ( La. 11/ 15/ 13),
125 So. 3d 1108; Hunter v. Automotive Casualty Ins. Co., 606 So. 2d
571, 572 ( La. App. 5th Cir.), writ denied, 609 So. 2d 225 ( La. 1992); and Hemperly v. Aetna
Casualty & Surety Co., 516 So. 2d 1202, 1206 ( La. App. 2nd Cir. 1987).

RONNIE E. JARVIS STATE OF LOUISIANA

VERSUS COURT OF APPEAL

FOREMOST EXPRESS INSURANCE
AGENCY, INC., MARCELLES A. FIRST CIRCUIT
TAYLOR, FELTON KEYES, JR.
KENT & SMITH HOLDINGS, LLC, 2020 CA 0886
AND AMC INSURANCE COMPANY

HOLDRIDGE, J., concurring.

k I agree that the trial court' s granting of the summary judgment should be

reversed because Foremost did not meet its burden of establishing that it was

entitled to summary judgment as a matter of law. La. C. C. P. art. 966A( 3). The

mover acknowledges that First Circuit jurisprudence does not recognize the

language in Foremost' s cancellation notice to be sufficient. While other circuits

may reach a different result, the mover did not meet the standard required under

La. C. C. P. art. 966 to prove that it was entitled to judgment as a matter of law in

this circuit.