Deborah Verneuil v. Go Auto Insurance Company

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2024 CA 0068

DEBORAH VERNEUIL

VERSUS

GOAUTO INSURANCE COMPANY

Judgment Rendered: JUN 0 3 2024

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On Appeal from the
Nineteenth Judicial District Court

In and for the Parish of East Baton Rouge

State of Louisiana
No. 730982, Div. 22

The Honorable Beau Higginbotham, Judge Presiding

Charlotte C. McDaniel
Baton Rouge, Louisiana

Chase Tettleton

Adrian P. Smith
Stephen Babcock
Benjamin C. O’Connor
Baton Rouge, Louisiana

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Attorney for Plaintiff/Appellant
Deborah Verneuil

Attorneys for Defendant/Appellee
GoAuto Insurance Company

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BEFORE: WELCH, WOLFE, AND STROMBERG, JJ.

STROMBERG, J.
The plaintiff, Deborah Verneuil, appeals from a trial court judgment
granting a motion for summary judgment in favor of the defendant, GoAuto

Insurance Company, dismissing her claims with prejudice. For the reasons that

follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On January 24, 2022, the plaintiff was struck on the passenger side of her
automobile by Lois Clausen in Ponchatoula. On April 13, 2023, the plaintiff filed
a petition for personal injuries and bad faith against the defendant, her insurer,
alleging that she was injured in the accident and received treatment for her injuries.
The accident was caused by the negligence of Lois Clausen and her insurer, State
Farm Mutual Automobile Insurance Company, accepted liability for the accident
and paid the full policy limits of $15,000.00 to the plaintiff. The plaintiff
requested that her insurer, the defendant, pay the limits of her
uninsured/underinsured motorist (UM) coverage for her damages.’ The defendant
became the plaintiff's insurer in February 2018, and she purchased both
comprehensive and collision insurance coverage. At the time of the purchase of
the insurance policy, the plaintiff rejected uninsured motorist bodily injury (UMBI)
coverage. However, in 2020 she changed her insurance policy to include
$25,000.00 for uninsured motorist property damage (UMPD) coverage, and she
dropped comprehensive and collision coverage. The plaintiff alleged that the
change in her coverage without executing a new UM selection form rejecting
UMBI coverage resulted in the defendant being required to include UM coverage

at the same limits as the original coverage.

' At the time of the accident, the plaintiff had an effective policy with the defendant under
insurance number 599916-18.

On June 30, 2023, the defendant filed a motion for summary judgment to
dismiss the plaintiff's claim against it with prejudice. The defendant asserted that
there was no genuine issue of material fact that the defendant was entitled to
summary judgment as a matter of law because the insurance policy in question did
not provide UM coverage for the plaintiff's claim at the time of the accident. The
defendant argued that although the plaintiff had an insurance policy in effect at the
time of the accident, she rejected UMBI coverage when she applied for insurance
in 2018, and that rejection was still in effect when the plaintiff's accident occurred.
The defendant further argued that although the plaintiff renewed her policy several
times, the initial rejection of UMBI coverage remained valid for the life of the
policy. The only change that the plaintiff made to her policy was to substitute
comprehensive and collision coverage for UMPD coverage in March 2020. The
defendant argued that this change in coverage was not a change in the limits of
liability and therefore a new UMBI selection form was not required.

In support of its motion for summary judgment, the defendant attached to its
motion the plaintiff's insurance policy, as well as her UMBI selection form,
wherein she rejected UMBI coverage and acknowledged that she understood that
she would “not be compensated through UMBI coverage for losses arising from an
accident caused by an uninsured/underinsured motorist.” The defendant also
submitted the affidavit of Shelly Brooks, the underwriting manager for the
defendant, who attested that “[a]t no time between [the plaintiffs] initial
application for insurance on February 22, 2018, and the January 24, 2022, collision
at issue, did [the plaintiff] submit a new [UM] selection form to [the defendant.]”
Shelly Brooks further attested that the plaintiff did not change her limits of liability
coverage under her insurance policy between her initial application for insurance

on February 22, 2018, and January 24, 2022, when the accident occurred.

The plaintiff opposed the defendant’s motion for summary judgment,
arguing that there were genuine issues of material fact remaining that precluded
summary judgment. Specifically, the plaintiff argued that consistent with public
policy, when she changed her insurance coverage to include UMPD coverage, the
defendant had a duty to provide the plaintiff with a new UM selection form. The
plaintiff argued that because a new UM selection form was not provided to her, the
law automatically required the defendant to include coverage at the same limits as
the original coverage provided to her.

On September 25, 2023, the trial court held a hearing on the defendant’s
motion for summary judgment. After counsel for the parties argued, the trial court
orally ruled that although the plaintiff changed her insurance coverage to include
UMPD coverage, she did not add coverage for UMBI. Therefore, the trial court
found the plaintiff's original waiver of UMBI coverage to be valid. On September
29, 2023, the trial court signed a judgment in accordance with its oral ruling
granting summary judgment in favor of the defendant, dismissing the plaintiff's
claim with prejudice. The plaintiff subsequently appealed.

STANDARD OF REVIEW AND APPLICABLE LAW

Appellate courts review the granting of a summary judgment de novo using
the same criteria governing the trial court’s consideration of whether summary
judgment is appropriate, i.e., whether there is any genuine issue of material fact
and whether the mover is entitled to judgment as a matter of law. See La. C.C.P.
art. 966(A)(3); Lucas v. Maison Insurance Company, 2021-1401 (La. App. 1
Cir. 12/22/22), 358 So.3d 76, 83-84.

The summary judgment procedure is expressly favored in the law and is
designed to secure the just, speedy, and inexpensive determination of non-domestic
civil actions. See La. C.C.P. art. 966(A)(2). The purpose of a motion for summary

judgment is to pierce the pleadings and to assess the proof in order to see whether

there is a genuine need for trial. Hines v. Garrett, 2004-0806 (La. 6/25/04), 876
So.2d 764, 769 (per curiam). After an adequate opportunity for discovery,
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). The
only documents that may be filed in support of or in opposition to the motion are
pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified
medical records, certified copies of public documents or public records, certified
copies of insurance policies, authentic acts, private acts duly acknowledged,
promissory notes and assignments thereof, written stipulations, and admissions.
La. C.C.P. art. 966(A)(4).?

On a motion for summary judgment, the initial burden of proof rests with the
mover. See La. C.C.P. art. 966(D)(1); Lucas, 358 So.3d at 84. If, however, the
mover will not bear the burden of proof at trial on the matter that is before the
court on the motion, the mover’s burden on the motion does not require that all
essential elements of the adverse party’s claim, action, or defense be negated.
Instead, after meeting its initial burden of showing that there are no genuine issues
of material fact, the mover may point out to the court that there is an absence of
factual support for one or more elements essential to the adverse party’s claim,
action, or defense. Thereafter, summary judgment shall be granted unless the
adverse party can produce factual evidence 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. See La. C.C.P. art. 966(D)(1); Lucas, 358 So.3d at 84.

2 We note that La. C.C.P. art. 966 was amended by 2023 La. Acts No. 317, § 1, and 2023 La.
Acts No. 368, § 1, which became effective on August 1, 2023. However, the analysis of the
motion for summary judgment in this matter is the same under either version; therefore, we
pretermit any analysis on this amendment.

In ruling on a motion for summary judgment, the court’s role is not to
evaluate the weight of the evidence or to make a credibility determination, but
instead to determine whether there is a genuine issue of material fact. Collins v.
Franciscan Missionaries of Our Lady Health System, Inc., 2019-0577 (La.
App. 1 Cir. 2/21/20), 298 So.3d 191, 194, writ denied, 2020-00480 (La. 6/22/20),
297 So.3d 773. A fact is material if it potentially ensures or precludes recovery,
affects a litigant’s ultimate success, or determines the outcome of the legal dispute.
Hines, 876 So.2d at 765. A genuine issue is one as to which reasonable persons
could disagree; if reasonable persons could reach only one conclusion, summary
judgment is appropriate. Hines, 876 So.2d at 765-766. Any doubt as to a dispute
regarding a material issue of fact must be resolved against granting the motion and
in favor of a trial on the merits. Collins, 298 So.3d at 195.

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. Johnson v. Bass, 2021-0139 (La. App. 1 Cir.
12/22/21), 340 So.3d 28, 31, writ denied, 2022-00156 (La. 4/5/22), 335 So.3d 836.
As an insurer seeking to avoid coverage through summary judgment, the defendant
bears the burden of proving that some provision or exclusion applies to preclude
coverage. Id.

In all automobile liability insurance policies delivered in this state covering
vehicles registered in this state, Louisiana law requires UM coverage in the same
amount as the bodily injury liability coverage, unless “any insured named in the
policy either rejects coverage, selects lower limits, or selects economic-only
coverage|[.]” La. R.S. 22:1295(1)(a)(i); Johnson, 340 So.3d at 31. “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” for that purpose and

be “signed by the named insured or his legal representative.” La. RS.

22:1295(1)(a)(ii); Johnson, 340 So.3d at 31-32. “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.” Id. The
provisions governing UM coverage further provide:

Any changes to an existing policy, regardless of whether these

changes create new coverage, except changes in the limits of

liability, do not create a new policy and do not require the

completion of new uninsured motorist selection forms. For the

purpose of this Section, a new policy shall mean an original contract

of insurance which an insured enters into through the completion of

an application on the form required by the insurer.
La. R.S. 22:1295(1)(a)(ii) (Emphasis added.)

DISCUSSION

Louisiana Revised Statutes 22:1295 addresses UM coverage in Louisiana
and the statute is to be liberally construed. Hughes v. Zurich Am. Ins. Co., 2013-
2167 (La. App. 1 Cir. 8/20/14), 153 So.3d 477, 479, writ denied, 2014-2220 (La.
1/9/15), 157 So.3d 1107. Given the liberal construction, any statutory exceptions
to coverage must be strictly interpreted. Id. Insurers in Louisiana are required to
include UM coverage unless specifically rejected by the insured. Id. It is the
rejection of UM coverage, and not its acceptance, that must be the affirmative act
of the insured. Id.

In this case, it is undisputed that the plaintiff validly rejected’ UM coverage
when she first acquired automobile insurance with the defendant in 2018. Once
coverage was validly rejected on the prescribed form, it remains “valid for the life

of the policy and shall not require the completion of a new selection form when a

renewal, reinstatement, substitute, or amended policy is issued to the same named

3 Rejection of coverage shall be made on a form prescribed by the commissioner of insurance.
La. R.S. 22:1295(1)(a)Gi). A properly completed UM rejection form must meet six
requirements: (1) initialing the selection or rejection of coverage chosen; (2) if limits lower than
the policy 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 numbers; and (6) filling in
the date. Hughes, 153 So.3d at 479 n.1.

insured by the same insurer or any of its affiliates.” La. R.S. 22:1295(1 )(a)(ii).
“Any changes to an existing policy, regardless of whether these changes create
new coverage, except changes in the limits of liability, do not create a new policy
and do not require the completion of new uninsured motorist selection forms.” Id.

The plaintiff argues on appeal that the defendant changed her UM coverage
in 2020, and the defendant failed to provide her with a new UM selection form.
The record reveals that the plaintiff changed her UM coverage in 2020 to include
$25,000.00 in UMPD coverage. Louisiana Revised Statutes 22:1295(1)(a)(ii)
recognizes that only changes in the “limits of liability” to an existing policy will
create a new policy that requires the completion of a new UM selection form.
UMPD coverage is not mentioned anywhere on the UMBI coverage form. Nor can
we equate “limits of liability” to UMPD coverage. See Pendarvis v. Liberty
Mut. Ins. Co., 2007-2092 (La. App. 1 Cir. 5/2/08), 991 So.2d 505, 509-510, writ
denied, 2008-1184 (La. 10/3/08), 992 So.2d 1013. Thus, we find that because the
plaintiff's policy limits of liability did not change, a new UM selection form was
not required to be completed by the plaintiff and the plaintiff's UM selection form
executed in 2018 was valid for the life of the policy. See Johnson, 340 So.3d at
33-34.

After a de novo review, we find that the language of La. R.S. 22:1295 is
clear and unambiguous; only changes in the “limits of liability” to an existing
policy will create a new policy that requires the completion of a new UM selection
form. Pendarvis, 991 So.2d at 509-510. The only change the plaintiff made to her
insurance policy was the addition of UMPD coverage. There was no change to the
limits of liability and a new policy was not created. See Williams v. Mosley,
2019-0578 (La. App. 1 Cir. 1/9/20), 294 So.3d 1060, 1065. Accordingly, we find
that there is no genuine issue of material fact that with no change in the limits of

liability, pursuant to La. R.S. 22:1295, a new UM selection form is not required.

Therefore, summary judgment in favor of the defendant was appropriate. See
Johnson, 340 So.3d at 35.
CONCLUSION
For the foregoing reasons, we affirm the September 29, 2023 judgment of
the trial court, granting summary judgment in favor of the defendant, GoAuto
Insurance Company, and dismissing, with prejudice, all claims filed by the
plaintiff, Deborah Verneuil. All costs of this appeal are assessed against Deborah

Verneuil.

AFFIRMED.