Charlyne R. Alfred v. Joseph J. Trapp, US Agencies Casualty Insurance Company and State Farm Mutual Automobile Insurance Company

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2021 CW 0563

CHARLYNE R. ALFRED

VERSUS

JOSEPH J. TRAPP, US AGENCIES CASUALTY INSURANCE
COMPANY AND STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY

Judgment Rendered: FEB 10 2022

On Appeal from the
Twenty -Second Judicial District Court
In and for the Parish of St. Tammany
State of Louisiana
Suit Number 22008- 12051

Honorable Vincent J. Lobello, Presiding

Wayne William Yuspeh Counsel for Plaintiff A
- ppellant
Metairie, Louisiana Charlyne R. Alfred

Ashley Edwards Bass Counsel for Defendant -Appellee
Hammond, Louisiana State Farm Mutual Automobile
Insurance Company

BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ.

17 s % CcS li S o

GUIDRY, J.

Plaintiff-appellant, Charlyne R. Alfred, appeals a district court judgment

denying her motion for summary judgment in which she challenged the validity of
an uninsured motorist coverage form purportedly selecting lower limits than her

liability coverage. For the following reasons, we convert the appeal to an application

for supervisory writ and deny the writ.

FACTUAL AND PROCEDURAL BACKGROUND

In September 2004, plaintiff contacted her insurance agent to request an

increase in the coverage provided by her automobile insurance policy with State

Farm Mutual Automobile Insurance Company ( State Farm). At the time, the policy

provided limits of 100, 000/ 300, 000 both for bodily injury liability and

uninsured/ underinsured motorist ( UM) coverage. According to plaintiff, she

informed her insurance agent that she wanted to increase the limits of both her bodily

injury liability and UM coverage to $ 500, 000 each. On September 27, 2004,

plaintiff signed and initialed a UM coverage form at the agent' s office. Plaintiff

claims the form was incomplete when she signed it. Specifically, she denied that

her printed name, the limits of UM coverage, or the policy number were written on

the coverage form when she signed it. Further, plaintiff denied any knowledge of

who subsequently completed the coverage form with this information or when they

did so.

In any event, on April 17, 2007, plaintiff was injured when her vehicle was

rear- ended by a vehicle driven by Joseph Trapp. Plaintiff filed a suit for damages

against Trapp and his liability insurer. State Farm was also named as a defendant

based on plaintiff's contention that Trapp was underinsured. Plaintiff subsequently

settled her claims against Trapp and his insurer. Although plaintiff' s insurance

policy provided for 500, 000/ 500, 000 in liability coverage, State Farm asserted the

policy' s UM coverage limits were 100, 000/ 300,000, in accordance with the UM

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coverage form plaintiff signed in September 2004. Accordingly, State Farm

tendered $ 100, 000 to plaintiff.

In 2020, the parties filed cross-motions for summary judgment concerning the

validity of the UM coverage form and the applicable limits of the policy' s UM
coverage.'
Following a hearing, the district court denied both motions for summary
judgment, concluding genuine issues of material fact existed on both sides. The

district court signed a judgment on October 7, 2020, which included a certification

that the judgment was final and appealable.

Plaintiff thereafter filed an application for supervisory writ challenging the

denial of her motion for summary judgment. A different panel of this court granted

the writ application for the limited purpose of remanding this matter to the district

court with instructions to grant plaintiff an appeal from the October 7, 2020

judgment since the judgment contained a certification pursuant to La. C. C. P. art.

1915( B). 2 Alfred v. Trapp, 20- 1055 ( La. App. 1st Cir. 1/ 13/ 21) ( unpublished). In

accordance therewith, the district court signed an order granting plaintiff an appeal.

On appeal, plaintiff argues in two assignments of error that the district court erred in

failing to find the limits of her UM coverage to be the same as the $ 500, 000 liability

limits due to the invalidity of the UM coverage form.

APPEALABILITY OF JUDGMENT

An appeal panel has the authority, and indeed the duty, to review, overrule,

modify, and/ or amend a writ panel' s decision on an issue when, after reconsidering

1 The parties had previously filed cross- motions for summary judgment, which the district court
denied on January 2, 2014. Plaintiff appealed that judgment, and this court dismissed the appeal
on the grounds it was taken from an interlocutory judgment that did not determine the merits in
whole or in part. Alfred v. Trapp, 14- 0574 ( La. App. 1 st Cir. 9/ 8/ 14) ( unpublished).

2 Louisiana Code of Civil Procedure article 1915( B)( 1) provides:

When a court renders a partial judgment or partial summary judgment or sustains
an exception in part, as to one or more but less than all of the claims, demands,
issues, or theories against a party, whether in an original demand, reconventional
demand, cross- claim, third -party claim, or intervention, the judgment shall not
constitute a final judgment unless it is designated as a final judgment by the court
after an express determination that there is no just reason for delay.
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the issue to the extent necessary to determine whether the writ panel' s decision was

correct, the appeal panel finds the writ panel' s decision was in error. Atchafalaya

Basinkeeper v. Bayou Bridge Pipeline LLC, 18- 0417, pp. 3- 4 ( La. App. 1st Cir.

2/ 22/ 19),
272 So. 3d 567, 570; Joseph v. Ratcliff, 10- 1342, p. 4 ( La. App. 1st Cir.
3/ 25/ 11), 63 So. 3d 220, 223. The prior ruling should be overruled or modified,

however, only when it is manifestly erroneous or application of the law of the case

doctrine would result in an obvious injustice. Atchafalaya Basinkeeper, 18- 0417 at

p. 4, 272 So. 3d at 570; Joseph, 10- 1342 at p. 4, 63 So. 3d at 223.

This court' s appellate jurisdiction extends only to final judgments and

interlocutory judgments expressly provided by law. La. C. C. P. art. 2083. In this

case, because the judgment denying plaintiff's motion for summary judgment did

not determine the merits or terminate the suit, it is interlocutory in nature, rather than
final. See La. C. C. P. art. 1841; G.D. v. Moore, 20- 1227, p. 1 ( La. App. 1st Cir.

4/ 16/ 21), 323 So. 3d 394. Although the judgment includes a certification that the

judgment is final and appealable, the certification is in contravention of the

legislature' s express provision that an appeal does not lie from the denial of a motion

for summary judgment. See La. C. C. P. art. 968. Because no right to appeal the

denial of a motion for summary judgment exists, such a judgment cannot properly

be certified as appealable under Article 1915( B). See Acadian Properties

Northshore, L.L.C. v. Fitzmorris, 19- 1549, p. 4 ( La. App. 1st Cir. 11/ 12/ 20), 316 So.

3d 459 48 n.4; Beverly Construction, L.L.C. v. Wadsworth Estates, L.L.C., 19- 0909,

p. 3 ( La. App. 1st Cir. 2/ 21/ 20), 297 So. 3d 1, 3.

Accordingly, the writ panel' s previous ruling instructing the district court to

grant plaintiff an appeal was in error, since the denial of plaintiff' s motion for

summary judgment is not appealable under Article 968. Moreover, the discretionary

law of the case doctrine does not bar us from reconsidering the writ panel' s prior

ruling, especially when the prior ruling is clearly erroneous and would result in an

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inappropriate review under our appellate jurisdiction of a non -appealable judgment.

See Atchafalaya Basinkeeper, 18- 0417 at p. 4, 272 So. 3d at 570; Joseph, 10- 1342

at p. 4, 63 So. 3d at 223- 24.

The proper procedural vehicle to challenge an interlocutory judgment is an

application for supervisory writs. Bernard Lumber Company, Inc. v. Louisiana

Insurance Guaranty Association, 563 So. 2d 261, 263 ( La. App. 1st Cir.), writ

denied, 566 So. 2d 981 ( La. 1990). Although plaintiff initially sought review by

filing a writ application within the thirty -day delay provided for seeking supervisory
writs, the prior writ panel erroneously ordered that an appeal be granted. See La.

Uniform Rules -Courts of Appeal, Rule 4- 3. Given the circumstances, we exercise

our discretion to convert this appeal to an application for supervisory writs, and

consider the merits of this appeal under our supervisory jurisdiction. See Matter of

Abram, 21- 0291 ( La. App. 1st Cir. 10/ 18/ 21), 2021 WL 4844743, at * 2

unpublished).

SUMMARY JUDGMENT LAW

A motion for summary judgment shall be granted only if the motion,

memorandum, and supporting documents admitted for purposes of the motion for

summary judgment 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). In

determining whether summary judgment is appropriate, appellate courts review

evidence de novo under the same criteria that govern the district court' s

determination of whether summary judgment is appropriate. Alvarado v. Lodge at

the Bluffs, Inc., 16- 0624, p. 5 ( La. App. 1 st Cir. 3/ 29/ 17), 217 So. 429, 432, writ

denied, 17- 0697 ( La. 6/ 16/ 17), 219 So. 3d 340.

The burden of proof rests with the mover. La. C. C. P. art. 966( D)( 1).

Nevertheless, if the mover will not bear the burden of proof at trial on the matter

before the court on the motion, the mover' s burden does not require that all essential

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elements of the adverse party' s claim, action, or defense be negated. Instead, after

establishing the material facts by its supporting affidavits, the mover must 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. See Jenkins v. Hernandez, 19- 0874, p. 4
La. App. 1st Cir. 6/ 3/ 20), 305 So. 3d 365, 370, writ denied, 20- 00835 ( La.

10/ 20/ 20), 303 So. 3d 315.
Thereafter, if the adverse party fails to produce factual

evidence sufficient to establish the existence of a genuine issue of material fact, the

mover is entitled to summary judgment as a matter of law. La. C. C. P. art. 966( D)( 1);

Alvarado, 16- 0624 at p. 5, 217 So.3d at 432.

DISCUSSION

Plaintiff argues she is entitled to summary judgment holding the limits of her

UM coverage are the same as her policy' s $ 500,000 liability limits because State

Farm cannot sustain its burden of proving she signed a valid UM coverage form

selecting lower UM coverage limits in accordance with the requirements of Duncan

v. U.S. A.A. Insurance Company, 06- 363 ( La. 11/ 29/ 06), 950 So. 2d 544. She

contends the coverage form she signed is invalid because portions of the form were

blank when she signed it, violating the requirement that the form be completed

before it is signed by the insured. She maintains an unknown person printed her

name on the form and wrote in the amount of UM coverage and the policy number

after she signed the incomplete coverage form.

In Louisiana, UM coverage is determined not only by contractual provisions

but also by applicable statute, currently La. R.S. 22: 1295, which embodies a strong

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

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

liability insurance. Thus, the UM statute is liberally construed, while the statutory

exceptions to coverage must be interpreted strictly. Any exclusion from coverage

must be clear and unmistakable. Moreover, the insurer bears the burden of proving

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an insured rejected in writing UM coverage, selected lower limits, or selected

economic -only coverage. Gray v. American National. Property & Casualty,

Company, 07- 1670, pp. 8- 9 ( La. 2/ 26/ 08), 977 So. 2d 839, 845; Duncan, 06- 363 at

p. 5, 950 So. 2d at 547.

Under La. R.S. 22: 1295, UM coverage will be read into an automobile

insurance policy unless the insured either validly rejects coverage, selects lower

limits, or selects economic -only coverage. See La. R.S. 22: 1295( 1)( a)( i); Gray, 07-

1670 at p. 8, 977 So.2d at 845; Duncan, 06- 363 at p. 4, 950 So. 2d at 547. An insured

may reject UM coverage or select lower limits " only on a form prescribed by the

commissioner of insurance." La. R.S. 22: 1295( 1)( a)( ii). If a coverage form is

properly completed and signed, it "creates a rebuttable presumption that the insured

knowingly rejected coverage, selected a lower limit, or selected economic -only

coverage." La. R.S. 22: 1295( 1)( a)( ii).

In Duncan, the Louisiana Supreme Court explained that the following six

tasks are required for completion of a valid UM coverage form: ( 1) initialing the

selection or rejection of coverage chosen; (
2) if limits lower than the policy limits

are chosen, 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;3 and (6) filling in the date. Duncan, 06- 363 at pp. 11- 12, 950 So. 2d at 551.

More is required, however, than the mere rote completion of the tasks enumerated

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Following the Duncan decision, the Supreme Court acknowledged the policy number is not
essential to a valid UM coverage form when the evidence establishes no policy number was
available at the time the UM coverage form was executed. Carter v. State Farm Mutual.
Automobile Insurance Company, 07- 1294 ( La. 10/ 5/ 07), 964 So. 2d 375, 376. In the present case,
no evidence was presented by the parties that a policy number was unavailable when plaintiff
signed the UM coverage form on September 27, 2004. Subsequent to plaintiff' s 2007 automobile
accident, however, the Commissioner of Insurance published Louisiana Department of Insurance
Bulletin No. 08- 02, which provides that the policy information does not have to be included in
order for the UM coverage form to be properly completed. See Chicas v. Doe, 15-
0147 ( La. 5/ 1/ 15), 166 So. 3d 238 ( per curiam); Bagala v. Tregre, 20- 0600, p. 7 ( La. App. 1st Cir.
12/ 30/ 20), 319 So. 3d 308, 313.

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in Duncan by someone at some time. Gray, 07- 1670 at p. 14, 977 So. 2d at 849. For

the coverage form to be valid, the required tasks must be completed before the UM

coverage form is signed by the insured, so that the insured' s signature signifies an

acceptance of and agreement with all of the information contained on the form. An

insurer who is unable to prove a UM coverage form was completed before it was

signed by the insured simply cannot meet its burden of proving by clear and
unmistakable evidence that the UM coverage form is valid. Gray, 07- 1670 at p. 14,

977 So. 2d at 849.

In support of her motion for summary judgment, plaintiff submitted a copy of
the UM coverage form, which she signed and initialed on September 27, 2004. 4

According to the UM coverage form, plaintiff initialed the option to select lower

UM limits in the amount of 100, 000/ 300, 000. 5 In addition to the UM coverage form,

Plaintiff also submitted her own affidavit to establish the coverage form was

improperly completed and, therefore, was invalid. Specifically, in her affidavit,

plaintiff stated:

S] he contacted the office of Rod Tregle, who was her State Farm
insurance agent, and requested that her policy limits be increased to
500, 000. She understood and requested that the $ 500, 000 increased
limits would be for liability coverage and also for UMBI coverage.

She went into the office on or about September 27 2004 and met
with one of the ladies that worked there.

She was provided with a form and asked to sign and initial where
it was marked.

This form was blank and was not filled in at all and it had some
sticky tabs/ arrows pointing to areas on the form where the lady at [ her
insurance agent' s] office told her to sign and initial, which is what she
did. It was her understanding that signing this form was necessary to

4 Although she admitted signing a similar form, when plaintiff was presented with the coverage
form at issue during her deposition, she indicated she was " not sure" whether it was her signature
on the form since some of the letters were a " little outside the way" she wrote. State Farm
subsequently hired a handwriting expert, who opined the signature of the coverage form was that
of plaintiff. Plaintiff does not dispute this conclusion.

5 The UM Coverage form contains two options: either selection of UMBI with limits lower than
liability coverage limits or UMBI with the same limits as liability coverage. Plaintiff does not
dispute that she initialed next to the option selecting UMBI with limits lower than liability
coverage.

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obtain the increase in her policy to the $ 500, 000 limits for both liability
and UMBI coverages. ...

There were no dollar amounts of insurance written on the form,
nor was her name written or printed on the form, nor was a policy
number written on the form she signed. Those areas were blank at the
time she signed the form.

The form ... as it appears now, was not, at the time of her signing,
filled in with dollar amounts, a policy number nor her printed or written
name.
She does not know who filled those in or when, but is sure they
were not filled in at the time of her signing the form.

Thus, plaintiff' s affidavit does not dispute that she signed and initialed the

form; rather, she contends that key portions of the form were not completed at the

time she signed/ initialed the form. As previously noted, a completed and signed

UM coverage form is presumed valid. Plaintiff's affidavit, while setting forth facts

indicating that the UM coverage form was not properly completed at the time she

signed the form, does not affirmatively establish the invalidity of the UM coverage

form, but rather, creates a genuine issue of material fact as to whether the UM

coverage form was properly completed and therefore, valid. Furthermore,

consideration of plaintiff' s affidavit testimony necessarily involves an evaluation of

her credibility, which is not an appropriate consideration on a motion for summary

judgment.' See Red Star Consultants, LLC v. Ferrara Fire Apparatus, Inc., 17- 0847,

p. 8 ( La. App. 1st Cir. 2/ 8/ 18), 242 So. 3d 608, 613.

From our de novo review, we find that plaintiff failed to establish that there

was no genuine issue of material fact and that she is entitled to summary judgment

6 Plaintiff's affidavit testimony contradicted her undisputed selection on the UM coverage form.
Plaintiff stated in her affidavit that "[ s] he did not knowingly agree to any lower limits for UM
coverage on the [ vehicle involved in the accident], and expected that liability limits of $500, 000
and the UMBI coverages were both for $500,000." However, in initialing the UM coverage form,
plaintiff initialed next to the section stating " I select UMBI Coverage which will compensate me
for my economic and non -economic losses with limits lower than my Bodily Injury Liability
Coverage limits:" rather than initialing next to the section stating " I select UMBI Coverage which
will compensate me for my economic and non -economic losses with the same limits as my Bodily
Injury Liability Coverage." As such, the selection on the form substantively contradicts her
affidavit testimony stating that she expected her UMBI limits to be the same as her liability limits
and calls into question plaintiff' s credibility.
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in her favor. Therefore, we find no error in the district court' s judgment denying her
motion for summary judgment.

CONCLUSION

For the foregoing reasons, we convert this appeal to an application for

supervisory writ and deny the writ. All costs of this appeal are assessed to Charlyne

Alfred.

APPEAL CONVERTED TO WRIT APPLICATION; WRIT DENIED.

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CHARLYNE R. ALFRED FIRST CIRCUIT

COURT OF APPEAL
VERSUS
STATE OF LOUISIANA

JOSEPH J. TRAPP, ET AL. NO. 2021 CA 0563

CHUTZ, J., agreeing in part and dissenting in part.
WAC,
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W, agree with the portion of the majority opinion converting plaintiff's appeal

to an application for supervisory writs. I disagree, however, from that portion of the

opinion denying the writ application.

Since State Farm would bear the burden of proving the validity of the UM

coverage form at trial, plaintiff was only required to point out the absence of factual

support for at least one element essential to State Farm' s defense. La. C. C. P. art.

966( D)( 1). An insurer unable to prove a UM coverage form was completed before

it was signed by the insured cannot meet its burden of proving the validity of the

form. Gray v. American National. Property & Casualty. Company, 07- 1670 ( La.

2/ 26/ 08), 977 So. 2d 839, 849. Plaintiff' s affidavit provided evidence the UM

coverage form was not properly completed before she signed it. See Gray, 977

So. 2d at 849. For purposes of summary judgment, a court generally must accept an

affiant' s affidavit as true unless it contains substantive contradictions or

discrepancies that would ordinarily tend to call his credibility into doubt if presented

to a fact -finder. Hines v. Garrett, 04- 0806 ( La. 6/ 25/ 04), 876 So. 2d 764, 768- 69;

Plant Performance Services, LLC v. Harrison, 17- 1286 ( La. App. 1 st Cir. 4/ 6/ 18),

249 So. 3d 1, 8.

The majority concluded the statement in plaintiff's affidavit that she did not

knowingly" agree to lower UM limits was " substantially contradict[ ed]" by the fact

that she initialed the coverage form next to the section providing for lower UM

limits. I disagree with this conclusion since plaintiff' s statement that she did not

knowingly" select lower UM limits is consistent with her additional statement that

she merely initialed the coverage form where she was told to do so. For that reason,

her initialing of the coverage form next to the section selecting lower limits does not

substantively contradict her statement that she did not knowingly select lower UM

limits. Accordingly, I believe under the general rule applicable to affidavits for

summary judgment purposes, plaintiff' s statement that the UM coverage form was

incomplete when she signed it must be accepted as true. Further, in response to

plaintiffs affidavit, State Farm failed to come forth with any evidence creating a

genuine issue of material fact regarding whether the coverage form was incomplete

when plaintiff signed it. See La. C. C. P. art. 977( D)( 1). Given the unrebutted

evidence that the coverage form was not properly completed when it was signed,

State Farm is not entitled to a rebuttable presumption that plaintiff knowingly

selected UM coverage limits lower than the limits of her liability coverage. See

Bagala v. Tregre, 20- 0600 ( La. App. lst Cir. 12/ 30/ 20), 319 So. 3d 308, 314- 15.

Accordingly, I believe plaintiff was entitled to summary judgment in her favor, and

I respectfully dissent from the majority' s denial of her writ application.

2