Wafaa Elwakil Versus Burlington Insurance Company, Go Auto Insurance Company, and Yecenia Y. Barrera

WAFAA ELWAKIL NO. 22-C-401

VERSUS FIFTH CIRCUIT

BURLINGTON INSURANCE COMPANY, COURT OF APPEAL
GO AUTO INSURANCE COMPANY,
AND YECENIA Y. BARRERA STATE OF LOUISIANA

ON APPLICATION FOR SUPERVISORY REVIEW FROM THE
TWENTY-NINTH JUDICIAL DISTRICT COURT
PARISH OF ST. CHARLES, STATE OF LOUISIANA
NO. 87,549, DIVISION "C"
HONORABLE CONNIE M. AUCOIN, JUDGE PRESIDING

November 17, 2022

FREDERICKA HOMBERG WICKER
JUDGE

Panel composed of Judges Susan M. Chehardy,
Fredericka Homberg Wicker, and Jude G. Gravois

WRIT GRANTED; MOTION TO STAY TRIAL COURT PROCEEDINGS
DENIED AS MOOT
FHW
SMC
JGG

COUNSEL FOR PLAINTIFF/RELATOR,
WAFAA ELWAKIL
Stephen M. Chouest, Sr.
J. Rand Smith, Jr.
Kylie D. Faure

COUNSEL FOR DEFENDANT/RESPONDENT,
THE BURLINGTON INSURANCE COMPANY
Kristopher T. Wilson
Shaundra M. Schudmak

COUNSEL FOR DEFENDANT/RESPONDENT,
APPALACHIAN UNDERWRITERS, INC.
Sean P. Mount
Anne E. Medo

COUNSEL FOR DEFENDANT/RESPONDENT,
GO AUTO INSURANCE COMPANY
Michele Trowbridge Barreca
Nancy L. Cromartie

Wicker, J.

In this writ application, relator-plaintiff Wafaa Elwakil, seeks review of the
trial court’s denial of her motion for partial summary judgment on the issue of
uninsured/underinsured motorists’ coverage in connection with an insurance policy
issued by The Burlington Insurance Company (“TBIC”) to Car Plug, L.L.C., a
business alleged to be engaged in the sale of used vehicles. The question presented
in this writ application is whether the UM waiver form at issue which does not list
the company name or logo as now designated on the prescribed UM form renders
the waiver invalid as a matter of law. For the following reasons, we find that the
prescribed UM form 08-02, effective January 1, 2010, requires the company name
or logo to be placed in the designated box or space provided on the UM form.

On February 18, 2020, plaintiff filed suit against TBIC1 for damages related
to a July 19, 2019 rear-end motor-vehicle accident. Plaintiff was a passenger in the
vehicle owned by Car Plug, L.L.C. and driven during a test drive by a customer,
Melvin Winans, Jr. The petition further alleged that plaintiff is the owner,
managing member, and registered agent for Car Plug, L.L.C. TBIC issued a policy
of insurance to Car Plug, L.L.C, effective December 28, 2018, with policy limits in
the amount of $300,000 per accident. However, the trial court previously
determined that TBIC policy’s Salvage Titled Auto Endorsement “is clear and
unambiguous and limits any coverage available under the Policy to, at most,
$15,000 per person and $30,000 per accident for the July 19, 2019 automobile
accident at issue in this case.”

On July 28, 2022, this Court denied plaintiff’s writ application and found no
error in the trial court’s granting of TBIC’s motion for partial summary judgment
finding the “Salvage Titled Auto Endorsement” applicable to limit recovery under
the policy. This Court declined to consider the issue of whether UM coverage
applied, finding the issue was not properly raised or considered first at the trial
court level. On November 1, 2022, the Louisiana Supreme Court denied plaintiff’s
writ application. Elwakil v. Burlington Ins. Co., 22-01318 (La. 11/2/22), —So.3d
—, 2022 WL 16570287.

On March 14, 2022, plaintiff filed a motion for partial summary judgment as
to the issue of UM coverage under the TBIC policy. In support of her motion,
plaintiff attached the TBIC policy as well as the UM form executed in connection
with the policy. The UM form at issue reflects plaintiff’s initials rejecting UMBI
coverage, as well as her signature and printed full name. The form at issue
contains two boxes on the lower left corner of the form, one titled <Optional
Information for Policy Identification Purposes Only> and the other titled
<Individual Company Name; Group Name; or Logo,> with both boxes left blank.

In support of her motion for partial summary judgment, plaintiff argued that
the insurer’s failure to complete the designated section of the form for the insurer’s
company name or logo renders the waiver invalid as a matter of law. In
opposition, TBIC contended that the precedent of the Louisiana Supreme Court in
Gingles v. Dardenne, 08-2995 (La. 3/13/09), 4 So.3d 799 and this Court’s holding
in Flores v. Doe, 08-1259 (La. App. 5 Cir. 6/23/09), 19 So. 3d 1196—which held
that the omission of a company name or logo does not render invalid an otherwise
complete UM waiver form—is binding. Plaintiff, in response, contended that the
cases relied upon by TBIC are not instructive because they considered the issue of
1
Plaintiff also named Yecenia Barras, the defendant-driver involved in the accident and Ms. Barras’ insurer, Go
Auto Insurance Company.

the omission of a company name or logo on the former prescribed UM form
rendered in connection with Louisiana Department of Insurance Bulletin 08-01.
Plaintiff asserted that the new prescribed UM form, rendered pursuant to Louisiana
Department of Insurance Bulletin 08-02 and effective January 1, 2010, now
contains a designated space or box within the form for the company name or logo.
Plaintiff argued that the designated space for the company name or logo on the
newer prescribed UM form is an additional “required task” necessary to effectuate
a valid and complete UM waiver.

On July 13, 2022, the trial court denied plaintiff’s motion for partial
summary judgment, finding that UM coverage had been properly and effectively
waived. In her reasons for judgment, the trial judge found Gingles and Flores to
be binding precedent requiring a finding that the omission of the insurer
company’s name or logo is not fatal to a valid UM waiver and, thus, plaintiff had
validly rejected UM coverage under the policy at issue. Plaintiff subsequently
filed the instant writ application seeking review of the trial court’s July 13, 2022
denial of her motion for partial summary judgment.

Concerning the general UM statutory structure, the Louisiana Supreme
Court has recently stated:

No automobile liability insurance [policy] ... shall be delivered or
issued in ... [Louisiana] unless [UM] coverage is provided.” La.
R.S. 22:1295(1)(a)(i). However, UM coverage is not required “if any
insured named in the policy either rejects coverage, selects lower limits,
or selects economic-only coverage, in the manner provided in Item
1(a)(ii) of this Section.” Id. “Such rejection ... shall be made on a form
prescribed by the commissioner of insurance” that is “provided by the
insurer and signed by the named insured or his legal
representative.” La. R.S. 22:1295(1)(a)(ii). Accordingly, “the
requirement of UM coverage is an implied amendment to any
automobile liability policy ... as UM coverage will be read into the
policy unless validly rejected.” Duncan, 06-0363, p. 4, 950 So.2d at
547. The UM statute is liberally construed such that “[a]ny exclusion
from coverage must be clear and unmistakable.” Id., 06-0363, pp. 4-5,
950 So.2d at 547. Exclusions are strictly construed and the insurer bears
the burden of proving any insured named in the policy rejected, in
writing, the UM coverage. Id., 06-0363, p. 5, 950 So.2d at 547.

Baack v. McIntosh, 20-01054 (La. 6/30/21), 333 So.3d 1206, 1211–12.

It is incumbent upon the insurer to ensure that the UM waiver form is
properly completed. See Baack, 333 So.3d at 1213, citing Gray v. American Nat.
Property & Cas. Co., 07-1670, pp. 15-16 (La. 2/26/08), 977 So.2d 839, 849-50
(“the insurer [has] both the authority and the opportunity to assure that the UM
selection form [is] completed properly .... The insurer, not the insured, has the
responsibility of assuring that the form is completed properly.”); see also Morrison
v. USAA Cas. Ins. Co., 12-2334, pp. 1-2 (La. 1/11/12), 106 So.3d 95, 95-96.

La. R.S. 22:1295 provides that a waiver or rejection of UM insurance “shall
be made only on a form prescribed by the commissioner of insurance.” The
Louisiana Supreme Court has held that in “directing the commissioner of insurance
to prescribe a form, the legislature gave the commissioner the authority to
determine what the form would require.” Duncan v. U.S.A.A. Ins. Co., 06-363 (La.
2

11/29/06), 950 So.2d 544, 552. Compliance with the prescribed form is “necessary
for the UM waiver to be valid.” Baack, 333 So.3d at 1214. The proper completion
of the form is required and the parties’ intent may not be considered in determining
the validity of a UM waiver. Gray v. Am. Nat. Prop. & Cas. Co., 07-1670 (La.
2/26/08), 977 So.2d 839, 849.

A review of Louisiana jurisprudence reflects that the designated tasks
provided on the insurance commissioner’s prescribed form appear to control the
analysis for the determination of the validity of a UM form. In Duncan v. U.S.A.A.
Ins. Co., 06-363 (La. 11/29/06), 950 So. 2d 544, 551, the Louisiana Supreme Court
examined the requirements for a valid UM waiver and started its analysis with
“what the prescribed form entails.” Duncan, 950 So.2d at 551. The court
in Duncan examined the applicable UM form prescribed by the commissioner of
insurance and found that it outlined 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. Duncan,
950 So.2d at 551.

In Gingles, the Louisiana Supreme Court considered a nearly identical issue
as the one presented in this writ application—whether the failure to include the
company name or logo rendered the UM waiver form invalid as a matter of law. In
Gingles, the Court considered the validity of the applicable UM form at that time,
prescribed by the insurance commissioner pursuant to Bulletin 98-01. In that case,
the Louisiana Supreme Court found that although the language provided in
Bulletin 98-01 indicated that the insurer’s name must appear in the lower left
corner of the UM selection form, the prescribed form did not include a space for
the insurer’s name and, thus, failure to include that information on the form was
not fatal to the form’s validity. In so holding, the Louisiana Supreme Court looked
to the required tasks provided on the form and pointed out that, “[i]t is undisputed
that the pertinent designated spaces on the form were filled out.” Gingles, 4 So.3d
at 800.2

Pursuant to the authority granted under La. R.S. 22:1295(1)(a)(ii), the
Commissioner promulgated Bulletin 08-02 together with a revised UM form,
effective on or after January 1, 2010. The revised Bulletin 08-02 states the
intended purpose of the revised Bulletin and form as follows:

The purpose of LOOI Bulletin No. 08-02 is to issue the revised UM form.
The revision is 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, what information must be
included prior to the insured’s signature, policy identification, company
identification and backdating. The revised UM form incorporates changes
designed to address these issues and assist both insureds and insurers as well
as Louisiana courts.

The revised Bulletin 08-02 provides in relevant part:

2
This Court, in Flores, relied on Gingles and found that the failure to include the company’s name or logo did not
invalidate the UM waiver form. Again, however, the UM form examined and at issue in Flores was the prescribed
form under Bulletin 98-01 and did not have a designated space on the form for the company’s name or logo at that
time.
3

Important Form Changes

***

• 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).

Thus, the revised prescribed form, effective January 1, 2010, changed the
“required tasks” since the Gingles decision to include a designated space for the
mandatory “<Individual Company Name, Group Name, and/or Logo>” of the
insurer. Other Louisiana circuit courts of appeal and federal district courts have
found that La. Bulletin 08-02 and the new UM form prescribed by the
commissioner of insurance supercedes the prior jurisprudence concerning the
required tasks to be completed for an effective UM waiver form. See Berkley v.
Willis, 20-354 c/w 20-355 (La. App. 4 Cir. 9/29/21), 328 So.3d 567; Dotson v.
Price, 17-14063 (E.D. La. 6/19/19), 399 F.Supp.3d 617; Guillory v.
Commonwealth Ins. Co. of America, No. 2:19-CV-01679 (W.D. La. Jan. 15, 2021),
2021 WL 149474; Meziere v. State Farm Mut. Auto. Ins. Co., 21-430 (La. App. 3
Cir. 2/9/22), reh’g denied (3/23/22), 2022 WL 390448.

The Fourth Circuit recently considered this issue in Berkley v. Willis and
held, that the UM form was invalid, because it did not contain the insurer’s name,
group name, and/or logo on the UM form, as required by Louisiana law, which is
consistent with La. R.S. 22:1295(1)(a)(ii) that “selection of lower limits, or
selection of economic-only coverage shall be made only on a form prescribed by
the commissioner of insurance.” Berkley, 328 So.3d 567 at 577.3 The Fourth
Circuit further considered other more recent federal jurisprudence—which
analyzed a similar issue relating to the required tasks of the updated UM form—
and found that “these courts read Bulletin 08-02 as superceding Gingles, and we
agree.”

Upon thorough review of the writ application, attachments thereto, and the
applicable jurisprudence, we find that the revised UM form prescribed by the
insurance commissioner, LOOI Bulletin No. 08-02, controls and requires that the
company’s name, group name, or logo be placed within the designated box or
space on the prescribed UM form. The executed UM form in connection with the
policy at issue did not provide any company name or logo in the designated box
and, thus, is an incomplete and invalid waiver. Accordingly, we grant this writ and
vacate the July 13, 2022 judgment of the trial court denying plaintiff’s motion for

3
The Louisiana Supreme Court has recently granted a writ of certiorari in the Berkley case and that matter will be
docketed.
4

partial summary judgment on the issue of the validity of the UM waiver form
executed in connection with the TBIC policy at issue in this case.

Next, in this writ application, plaintiff seeks a judgment finding that the UM
coverage in effect provides coverage up to the $300,000.00 policy limits. The trial
court has previously determined that TBIC policy’s Salvage Titled Auto
Endorsement “is clear and unambiguous and limits any coverage available under
the Policy to, at most, $15,000 per person and $30,000 per accident for the July 19,
2019 automobile accident at issue in this case.” Moreover, both this Court and the
Louisiana Supreme Court have denied writs on this issue.

Accordingly, for the reasons provided herein, we grant this writ, vacate the
trial court’s denial of plaintiff’s motion for partial summary judgment, and render
judgment granting in part the motion for partial summary judgment—finding that
the UM waiver form executed in connection with the TBIC policy at issue is
unenforceable and invalid as a matter of law and, further, per the previous
judgment on this issue mentioned above, that the TBIC policy at issue provides
plaintiff with UM coverage in the amount “at most, [of] $15,000 per person and
$30,000 per accident for the July 19, 2019 automobile accident at issue in this
case.” Further, the Motion to Stay Trial Court Proceedings is denied as moot.

WRIT GRANTED; MOTION TO STAY
TRIAL COURT PROCEEDINGS DENIED AS
MOOT

5

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
INTERIM CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
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NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
NOVEMBER 17, 2022 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL
PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

22-C-401
E-NOTIFIED
29TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE CONNIE M. AUCOIN (DISTRICT JUDGE)
J. RAND SMITH, JR. (RELATOR) STEPHEN M. CHOUEST, SR. (RELATOR) SHAUNDRA M. SCHUDMAK
ANNE E. MEDO (RESPONDENT) SEAN P. MOUNT (RESPONDENT) (RESPONDENT)

MAILED
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