Craig Biagas v. Ronald Portaway

CRAIG BIAGAS * NO. 2021-CA-0680

VERSUS *
COURT OF APPEAL
RONALD PORTAWAY, ET AL. *
FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******

APPEAL FROM
ST. BERNARD 34TH JUDICIAL DISTRICT COURT
NO. 19-1730, DIVISION “A”
Honorable William M McGoey, Judge
******
Chief Judge Terri F. Love
******
(Court composed of Chief Judge Terri F. Love, Judge Dale N. Atkins, Judge Pro
Tempore Lynn M. Luker)

ATKINS, J., CONCURS

Matthew C. Nodier
NODIER LAW, LLC
8221 Goodwood Boulevard, Suite A
Baton Rouge, LA 70806

COUNSEL FOR PLAINTIFF/APPELLEE

David C. Jarrell
9101 W. St. Bernard Hwy.
Chalmette, LA 70043

COUNSEL FOR DEFENDANT/APPELLANT

REVERSED; REMANDED
March 16, 2022

This appeal arises from an automobile accident. Craig Biagas was driving a

vehicle owned by his employer, Cox Communications, Inc. (hereinafter, “Cox”),

during the accident. Mr. Biagas later filed suit against the other motorist, Ronald

Portaway, and Mr. Portaway’s insurer. Mr. Biagas also filed an underinsured

motorist claim with the liability carrier for the Cox vehicle, National Union Fire

Insurance Company of Pittsburgh, PA (“National Union”). National Union filed a

motion for summary judgment which sought to declare that its policy did not

provide underinsured motorist coverage because underinsured motorist coverage

was waived by Cox. The trial court granted National Union’s motion for summary

judgment and dismissed it from the suit.

The estate of Mr. Biagas now appeals this judgment, arguing that

underinsured motorist coverage was not waived because the form rejecting

coverage was not valid and the individual who signed the form for National Union

was not properly authorized to do so.

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We find that the form rejecting coverage was not properly completed

because the insurer’s name was not included, thereby resulting in the invalidity of

the form and invalidating the waiver overall. We further find that the signatory

was properly authorized to sign for National Union because written authorization is

not required for corporate representatives to execute waiver forms on behalf of

their employers.

Accordingly, the judgment of the trial court is reversed and the matter is

remanded.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The automobile accident underlying this suit occurred on November 29,

2018, between Mr. Biagas and Mr. Portaway. At the time of the accident, Mr.

Biagas was driving a vehicle belonging to his employer, Cox. Mr. Biagas

instituted a suit against Mr. Portaway, an underinsured motorist, and Mr.

Portaway’s insurer. In addition, Mr. Biagas filed an underinsured motorist claim

with National Union, the liability carrier for Cox. While the suit was pending, Mr.

Biagas passed away, and his wife and children were substituted into the claim.

National Union filed a motion for summary judgment, arguing that its policy

did not provide underinsured motorist coverage because Cox, through Cox

Enterprises, Inc., had waived that coverage by executing an

Uninsured/Underinsured Motorist Bodily Injury Coverage waiver form (“UM

form”). On the UM form, neither the name of the insurer, the group name, nor the

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insurer’s logo was provided. The form was signed by Don Stryszko, Cox’s Vice

President of Risk Management.

Following a hearing, the trial court granted National Union’s motion for

summary judgment, dismissed it from the suit, and granted its request to have the

court designate the judgment as a final judgment. The trial court found that there

was no material dispute of fact that a valid UM form was executed by Cox and that

the UM form complied with the requirements of Duncan v. U.S.A.A. Ins. Co., 06-

0363 (La. 11/29/06), 950 So. 2d 544. The Biagas estate filed the instant appeal of

the trial court’s judgment.

DISCUSSION

Standard of Review

The standard of review in examining a trial court ruling on a motion for

summary judgment is de novo, “using the same criteria applied by trial courts to

determine whether summary judgment is appropriate.” Kurz v. Milano, 08-1090,

p. 3 (La. App. 4 Cir. 2/18/09), 6 So. 3d 916, 918 (citing Indep. Fire Ins. Co. v.

Sunbeam Corp., 99-2181, p. 7 (La. 2/29/00), 755 So. 2d 226, 230). 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.” La. C.C.P. art. 966(A)(3).

Normally, the burden of proof in a motion for summary judgment rests with

the mover. La. C.C.P. art. 966(D)(1). If the mover will not bear the burden at trial

on the issue under review for summary judgment, the mover is not required to

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“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.” Id. “The

burden is on the adverse party to produce 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.” Id.

“A dispute as to whether, as a matter of law, an insurance policy provides or

precludes coverage to a party can be properly resolved within the framework of a

motion for summary judgment.” Dore v. Brignac, 00-1719, p. 3 (La. App. 4 Cir.

6/20/01), 791 So. 2d 736, 738 (citing Garcia v. Certified Lloyds Ins. Co., 598 So.

2d 1278, 1280 (La. App. 4 Cir. 1992); Lefeaux v. Taylor, 97-0332, p. 2 (La. App. 4

Cir. 9/24/97), 700 So. 2d 1027, 1028). The burden of proof for insurance coverage

matters in the summary judgment context has been summarized by this Court:

When seeking recovery under a policy of insurance, it is the plaintiff’s
burden to establish every essential fact and that his claim is within the
policy coverage. See Mercadel v. Tran, 92-0798 (La. App. 4 Cir.
3/29/94), 635 So. 2d 438, 440. The Supreme Court, nevertheless, has
held that the uninsured motorist statute should be liberally construed.
See Duncan, 06-0363, p. 4, 950 So. 2d at 547. Because uninsured
motorist coverage is an “implied amendment of any automobile
liability policy” issued in Louisiana, and will be read into the policy
“even when not expressly addressed,” a plaintiff seeking to prove the
presence of such coverage need only show that at the time of the loss
he was insured by a policy of “automobile liability insurance
delivered or issued for delivery in Louisiana and arising out of
ownership, maintenance, or use of a motor vehicle registered in
Louisiana and designed for use on public highways.” La. R.S.
22:1295(1)(a)(1); Green [ex rel. Peterson v. Johnson], 14-0292, p. 5
[(La. 10/15/14),] 149 So. 3d [766,] 771.

Conversely, the uninsured motorist statute’s liberal construction
requires that “the statutory exceptions to coverage be interpreted

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strictly.” Duncan, 06-0363, p. 4, 950 So. 2d at 547. Any exclusion
from coverage in an insurance policy must, therefore, be clear and
unmistakable. See Duncan, 06-363, pp. 4-5, 950 So. 2d at 547. “In
accordance with this strict construction requirement, the insurer bears
the burden of proving any insured named in the policy rejected in
writing the coverage equal to bodily injury coverage or selected lower
limits.” Duncan, 06-0363, p. 5, 950 So. 2d at 547. As noted, a
properly completed uninsured motorist coverage form where the
signatory rejected coverage creates a rebuttable presumption that the
insured knowingly rejected uninsured motorist coverage. See Terrell
v. Fontenot, 11-1472, p. 4 (La. App. 4 Cir. 6/27/12), 96 So. 3d 658,
661. The burden of proof then shifts to the insured to present evidence
that the uninsured motorist selection form was in fact not properly
completed. See Cortes-Valencia v. Crews, 14-234, p. 5 (La. App. 5
Cir. 10/29/14), 164 So. 3d 204, 207.

Rapalo-Alfaro v. Lee, 15-0209, pp. 9-10 (La. App. 4 Cir. 8/12/15), 173 So. 3d

1174, 1179-80.

Assignment of Error #1

The appellants’ first assignment of error is that the trial court incorrectly

concluded that the statutory rejection form was valid despite not having the name

of the insurance company anywhere on the form.

Liability coverage for uninsured/underinsured motorists is governed by La.

R.S. 22:1295. That statute provides that “rejection, selection of lower limits, or

selection of economic-only coverage shall be made only on a form prescribed by

the commissioner of insurance.” La. R.S. 22:1295(1)(a)(ii). The relevant form

utilized by the appellee, National Union, was promulgated by the Commissioner in

2008 with Bulletin No. 08-02. The prescribed form includes two boxes on the

lower right-hand side. The upper box contains an area that the insurer “may” use

for policy information purposes (such as the policy number). The Commissioner

explained that this section does not need to be filled in for the form to be properly

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completed. In contrast, Bulletin No. 08-02 states that “[t]he lower box must

contain one of the following: the individual company name, the group name, or the

insurer’s logo.”

The appellants argue that this language requires the insurance company’s

name to be inserted in the lower box, and that, lacking that information, the form

was not properly completed. In support of their argument, the appellants cite to a

recent decision rendered eight days after the trial court’s decision in this case. In

the cited case, the form at issue was also a form executed under the authority of

Bulletin No. 08-02. Berkley Assurance Co. v. Willis, 20-0354, 20-0355, p. 12 (La.

App. 4 Cir. 9/29/21), 328 So. 3d 567, 574.

The Court examined the evolution of UM forms and discussed the

jurisprudential impacts of the language used on those forms. Id., 20-0354, 20-

0355, pp. 11-16, 328 So. 3d at 574-77. The Court found that “Bulletin 08-02 made

the inclusion of policy information, e.g. policy number, binder number, application

number, etc., optional, but the insurers [sic] name was mandatory.” Id., 20-0354,

p. 14, 328 So. 3d at 575-76. The Court concluded that the UM form “was invalid,

because it did not contain the insurer’s name, group name, and/or logo” and that

this failure to properly complete the form rendered the UM waiver as a whole to be

invalid, causing UM coverage to be read into the policy under dispute. Id., 20-

0354, 20-0355, p. 17, 328 So. 3d at 577.

The appellee contends that its UM form complied with the requirements

articulated in Duncan, 06-0363, pp. 11-12, 950 So. 2d at 551, an earlier case

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decided under a bulletin that preceded Bulletin No. 08-02. Duncan concerned the

failure of a UM waiver to include a policy number, as was then required under the

relevant Commissioner’s bulletin, Bulletin 98-01. Id., 06-0363, p. 3, 950 So. 2d at

546. Bulletin 98-01 also required that the “company name” be placed on the form.

Id., 06-0363, p. 11, 950 So. 2d at 551. Yet, when the Duncan Court pronounced

the requirements for a properly completed UM form, it did not include the

insurance company name. Duncan stated that the UM form entails six tasks:

(1) initialing the selection or rejection of coverage chosen; (2) if limits
lower than the policy limits are chosen (available in options 2 and 4)
then filling in the amount of coverage selected for each person and
each accident; (3) printing the name of the named insured or legal
representative; (4) signing the name of the named insured or legal
representative; (5) filling in the policy number; and (6) filling in the
date.

Id., 06-0363, pp. 11-12, 950 So. 2d at 551.

Subsequently, the Louisiana Supreme Court issued a decision in Gingles v.

Dardenne, 08-2995 (La. 3/13/09), 4 So. 3d 799. The waiver form in Gingles “did

not expressly provide for the insurer’s name,” despite Bulletin 98-01’s requirement

that the company name “be placed at the lower left-hand corner.” Id., 08-2995, p.

1, 4 So. 3d at 799. The Court held that although Bulletin 98-01 required the

company name, the failure to include the insurance company’s name did not render

the UM waiver invalid. Id., 08-2995, p. 2, 4 So. 3d at 800. Gingles relied on

Duncan in its holding, finding that the requirements articulated in Duncan had

been met because all “pertinent designated spaces on the form were filled out.” Id.

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The appellants argue that Berkley and Bulletin No. 08-02 supersede the

requirements of Duncan. The appellee counters that Duncan expressly considered

and rejected the notion that the insurance company’s name is required because

Bulletin 98-01 and Bullet No. 08-02 both contained the same language requiring

the “company name.”

However, as this Court discussed in Berkley, the prescribed UM form issued

with Bulletin No. 08-02 made the inclusion of policy numbers optional, while

emphasizing that the individual company name, the group name, or the insurer’s

logo must be included. Berkley, 20-0354, 20-0355, pp. 14-15, 328 So. 3d at 575-

76. The Court in Berkley also pointed out that Gingles did not invalidate the

insured’s waiver of UM, despite the insurer’s failure to put its name on the waiver

form, because the prescribed UM form designed by the Commissioner at that time

“did not include a space for the insurer’s name.” Id., 20-0354, 20-0355, p. 14, 328

So. 3d at 575.

Bulletin 08-02 addressed this oversight, stating that its revisions were “in

response to the myriad of issues that Louisiana courts have recently examined

regarding the current UM form, including, but not limited to, what constitutes a

properly completed form. . . .” In keeping with this intention, the new form issued

in conjunction with Bulletin 08-02 plainly provided space for the insurance

company name and highlighted that the company name must be included.

Consequently, we find that the failure in this case to properly complete the

prescribed UM form invalidates the UM waiver and results in UM coverage being

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read into the policy equal to the liability limits of the policy. Berkley, 20-0354, 20-

0355, p. 17, 328 So. 3d at 577 (quoting Barras v. Cardinal Servs., LLC, 19-530, p.

11 (La. App. 3 Cir. 4/1/20), 297 So. 3d 877, 885, writ denied, 20-00978 (La.

11/4/20), 303 So. 3d 631). Therefore, the appellee is not entitled to summary

judgment as a matter of law.

Assignment of Error #2

The appellants’ second assignment of error asserts that the trial court

incorrectly concluded that the statutory rejection form was valid despite the fact

that the act of mandate authorizing Mr. Stryszko to sign the rejection form was not

in the proper form under Louisiana Civil Code Article 2993.

As we have found the UM waiver invalid, this remaining assignment of error

could be pretermitted. However, in furtherance of a complete and thorough

review, we address whether a written act of mandate was required to authorize

Cox’s signatory to reject UM coverage.

Pursuant to La. C.C. art 2993, “[t]he contract of mandate is not required to

be in any particular form.” “Nevertheless, when the law prescribes a certain form

for an act, a mandate authorizing the act must be in that form.” La. C.C. art 2993.

In this case, the act of waiving UM insurance must be “only on a form prescribed

by the commissioner of insurance. . . . signed by the named insured or his legal

representative.” La. R.S. 22:1295(1)(a)(ii). The appellants argue that because a

UM waiver requires a written act, a written act was likewise required to grant Mr.

Stryszko authority to sign on behalf of Cox, the insured.

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The appellants further allege that the appellee failed to produce the requisite

evidence of formal compliance with the law as it relates to the act of mandate. The

appellee denies that it had any obligation to produce evidence of formal

compliance with La. C.C. art 2993, arguing that the properly completed and signed

UM form created a rebuttable presumption that the insured knowingly rejected

coverage. However, as previously discussed, the form was not properly completed

and signed, so the appellee is unable to avail itself of this shift in its evidentiary

burden.

In the alternative, the appellee argues that Mr. Stryszko was a legal

representative authorized to execute a UM rejection form. The appellee presented

an affidavit from a Cox Human Resources Consultant confirming Mr. Stryszko’s

employment at Cox. The appellee also presented an affidavit from Mr. Stryszko

attesting to his authorization to elect or reject UM coverage in his capacity as Vice

President of Risk Management. The appellee argues that this evidence is sufficient

in light of the fact that “Louisiana law does not require that a corporation issue a

corporate resolution in order for a corporate representative to validly execute a

rejection form.” Dabney v. Plaisance, 02-0710, p. 9 (La. App. 4 Cir. 12/4/02), 832

So. 2d 1103, 1109; see Ruiz v. Lewis, 579 So. 2d 1203, 1206 (La. App. 4 Cir.

1991); see Terrell v. Fontenot, 11-1472, p. 7 (La. App. 4 Cir. 6/27/12), 96 So. 3d

658, 663. In Dabney, as in this case, a corporate employee signed a UM waiver

form on behalf of his employer, without a written act granting the employee that

authority. 02-0710, p. 9, 832 So. 2d at 1109.

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The appellants argue that the issue of authority to execute UM waiver forms

has not been addressed in the context of La. C.C. art 2993. However, in Terrell,

this Court noted that the appellant in that case raised this exact argument. 11-1472,

p. 3, 96 So. 3d at 661. The Court dismissed the appellant’s argument, instead

finding that “[n]o Louisiana law exists requiring the governing body of an entity or

a president or chief executive officer of an entity to formally and in writing specify

who has authority to decline UM coverage.” Id., 11-1472, p. 7, 96 So. 3d at 663.

Lastly, the appellants rely on Holloway v. Shelter Mut. Ins. Co., 03-986, pp.

6-7 (La. App. 3 Cir. 12/10/03), 861 So. 2d 763, 768, for the premise that an act of

“procuration conferring authority to waive UM coverage would require that the

authority be given in writing.” In Holloway, the Third Circuit evaluated whether a

mother could possess authorization to reject UM coverage for her son. 03-986, pp.

2-3, 861 So. 2d at 765-66. The mother frequently handled her son’s automobile

insurance affairs and stated that her son gave her express authorization to reject

UM coverage on his behalf. Id., 03-986, p. 2, 861 So. 2d at 765. The Court found

that without written authorization, the mother was not authorized to execute a UM

waiver for her son. Id., 03-986, p. 8, 861 So. 2d at 769.

Holloway is distinguishable from the case at hand. In Holloway, the

authority to waive coverage is analyzed in the context of a personal familial

relationship, not a corporate employment relationship. 03-896, pp. 2-3, 861 So. 2d

at 765-66. Furthermore, Holloway does not foreclose the possibility of unwritten

authority to execute UM waivers, but expresses that, “in this case[,]” “resort to the

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principle of apparent authority” is not appropriate. Id., 03-986, p. 11, 861 So. 2d at

770.

As a result, we find that Mr. Stryszko was authorized to execute the UM

form, despite the omission of a written act of mandate authorizing him to do so.

CONCLUSION

For the foregoing reasons, we reverse the trial court’s judgment and remand

the matter for further proceedings consistent with this opinion.

REVERSED; REMANDED

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