Brian Barbera Versus Alexander Andrade, State Farm Mutual Automobile Insurance Company and Geico Indemnity Company

BRIAN BARBERA NO. 22-CA-147

VERSUS FIFTH CIRCUIT

ALEXANDER ANDRADE, STATE FARM COURT OF APPEAL
MUTUAL AUTOMOBILE INSURANCE
COMPANY AND GEICO INDEMNITY STATE OF LOUISIANA
COMPANY

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 790-543, DIVISION "L"
HONORABLE DONALD A. ROWAN, JR., JUDGE PRESIDING

November 30, 2022

MARC E. JOHNSON
JUDGE

Panel composed of Judges Marc E. Johnson,
Robert A. Chaisson, and John J. Molaison, Jr.

AFFIRMED
MEJ
RAC
JJM

COUNSEL FOR PLAINTIFF/APPELLANT,
BRIAN BARBERA
John D. Sileo
Casey W. Moll

COUNSEL FOR DEFENDANT/APPELLEE,
GOVERNMENT EMPLOYEES INSURANCE COMPANY
Stephen D. Cronin

JOHNSON, J.

Appellant, Brian Barbera, appeals the 24th Judicial District Court’s February

4, 2022 judgment granting GEICO Indemnity Company’s (“GEICO”) motion for

summary judgment, denying his cross-motion for summary judgment, and

dismissing his claims against GEICO with prejudice. In this matter, arising from a

2017 motor vehicle accident, the district court determined that the GEICO

insurance policy in effect at the time of the accident did not provide UM coverage.

For the following reasons, we affirm the district court’s judgment.

FACTS AND PROCEDURAL HISTORY

Mr. Barbera sustained “significant injuries and damages” as a result of a

motor vehicle accident that occurred on December 23, 2017 in Port Allen, LA. He

resolved his claims against the other driver and his insurer. Brian Barbera was

listed as an additional insured/additional driver under a GEICO insurance policy

issued to his father, Thomas Barbera, in 1991. He disputes the district court’s

finding that the GEICO insurance policy in effect at the time of the accident did

not provide him with uninsured motorist bodily injury (“UMBI”) coverage of

$100,000/$300,000.

In 2001, Thomas Barbera signed an uninsured motorist (UM) rejection form

declining UMBI coverage under the GEICO policy. GEICO’s business records

indicate that the insurer mailed Mr. Barbera’s father a letter on November 24, 2014

that contained a new UM rejection form and requested that the form be returned

within fifteen days. According to Mr. Barbera, GEICO has provided no proof that

the UM rejection form sent in November 2014 was completed and returned to

GEICO.

Mr. Barbera claims that, starting 15 days after November 24, 2014 to the

present, “per Louisiana Statute, UM coverage was required to be automatically

adjusted and read into the Barbera policy to provide UM coverage equal to the

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liability limits of $100,000 per person, $300,000 per occurrence.” Therefore, at the

time of the accident, the UM coverage would be equal to $100,000/$300,000

liability limits. Further, Mr. Barbera alleges that, upon providing GEIGO with

sufficient proof of loss due to his severe injuries, GEICO has failed to make him an

unconditional tender.

Mr. Barbera and GEICO filed cross-motions for summary judgment. The

district court heard the motions for summary judgment on January 24, 2022. At

the end of the hearing, the district court found that Mr. Barbera did not have UM

bodily injury coverage at the time of the accident. The court found that the

declarations page for the period of coverage during the time period the accident

occurred noted that UMBI coverage had been rejected by the insured and

concluded that the family had notice that there was no coverage. The judge agreed

with GEICO that the letter sent on November 24, 2014 was in reference to property

damage, and thus observed that the family’s failure to return the form enclosed

with the letter resulted in them obtaining property damage coverage at the limits

mandated by the state. The court found that the waiver of UMBI coverage in 2001

was for the duration of the policy. The court also found that GEICO acted in good

faith. The district court granted GEICO’s motion for summary judgment “based

upon the totality of all the evidence presented in the circumstances, that there is no

genuine issue of fact as it applies to the UM bodily injury [coverage.]”

ASSIGNMENTS OF ERROR

Mr. Barbera alleges that the district court erred when it found that the

GEICO insurance policy in effect at the time of the accident did not provide him

with UM bodily injury coverage on the date of the subject motor vehicle accident.

Further, he maintains that GEICO was arbitrary and capricious in failing to make

an unconditional tender unto him, and therefore acted in bad faith. Thus, Mr.

Barbera argues that the district court erred in granting GEICO’s motion for

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summary judgment, denying his cross-motion for summary judgment, and

dismissing his claims against GEICO with prejudice.

Mr. Barbera avers that genuine issues of material fact remain and the burden

of proof is on GEICO regarding Mr. Thomas Barbera’s alleged rejection of UM

coverage in 2014. He also states that because the UM rejection form sent in 2014

was not completed and returned to GEICO in the time frame specified by the

company, the policy’s UM limits automatically adjusted to match the minimum

$100,000/$300,000 bodily injury liability coverage Louisiana requires.

Mr. Barbera finally alleges that the district court “assigned its own

assumptions” not supported by evidence in the record as part of its judgment. He

claims there was no evidence submitted by any party regarding the amount of

premiums paid under the Barbera policy, or to support the district court’s finding

that the policy premium did not increase after December 9, 2017, the deadline

given to opt out of the UM coverage according to the November 24, 2017 letter

sent to Mr. Thomas Barbera. Mr. Barbera also takes exception to the court’s

statement that the fact his premium did not increase served to constructively notice

Mr. Barbera that he did not have UM coverage, so he should have called GEICO to

request coverage.

GEICO counters that the actual material facts of the case are that Thomas

Barbera executed an Option Form rejecting UMBI coverage on December 5, 2001;

the November 24, 2014 letter was directed to uninsured motorist/property damage

(UMPD) coverage and not UMBI coverage; and the UMBI coverage selection

under the Barbera policy has not lapsed or been adjusted since December 5, 2001.

GEICO notes that no evidence was offered to prove that the Barberas received the

November 24, 2017 letter, or an option form.1 GEICO maintains that, because the

1
GEICO states, “It is telling that Thomas and Carol Barbera did not sign an affidavit that attested to
receipt of the purported Option Form in opposition to GEICO's Motion, or in support of the Plaintiffs
(sic) Motion.”

22-CA-147 3

December 2001 Option Form “was/is presumed valid,” the burden of proof shifts

to Mr. Barbera to show the form was not valid or applicable. GEICO argues that

Mr. Barbera “provided no evidence that a change in the GEICO policy had

occurred between December 5, 2001 and the date of the accident that would have

required the execution of a new option form under La. R.S. 22:1295.” Finally,

GEICO prays that if this Court finds that the district court committed error when it

found UMBI coverage did not exist under the policy, the district court’s judgment

regarding “bad faith” on GEICO’s part be affirmed, as “reasonable and legitimate

issues of coverage” exist in this case. GEICO prays that the district court’s

judgment be affirmed and Mr. Barbera be cast with all costs related to the instant

appeal.

LAW AND DISCUSSION

“A motion for summary judgment is a procedural device used when there is

no genuine issue of material fact.” Duncan v. U.S.A.A. Ins. Co., 06-363 (La.

11/29/06), 950 So.2d 544, 546. Appellate courts review summary judgment de

novo on appeal, using the same criteria that govern the district court's

determination of whether summary judgment is appropriate; i.e., whether there is

any genuine issue of material fact, and whether the movant is entitled to judgment

as a matter of law. Samaha v. Rau, 07-1726 (La. 2/26/08), 977 So.2d 880, 882–83.

Interpretation of an insurance policy ordinarily involves a legal question that can

be properly resolved by a motion for summary judgment. Cutsinger v. Redfern, 08-

2607 (La. 5/22/09), 12 So.3d 945, 949. The burden of proving a valid rejection

of UM coverage lies with the party seeking to enforce rejection of UM liability.

Walden v. Permanent Gen. Assur. Corp., 00-1033 (La. App. 5 Cir. 10/31/00), 774

So.2d 1018, 1019, writ denied sub nom. Walden v. Permanent Gen. Assurance

Corp., 00-3238 (La. 2/16/01), 786 So.2d 97.

22-CA-147 4

Thomas Barbera executed a valid waiver of UMBI coverage in 2001. A

review of the record supports the finding that the Barberas received a letter on

November 24, 2014 that requested another coverage selection form (see below),

which was enclosed along with a return envelope, to be returned to GEICO.

The Barberas did not execute the UM selection waiver form they received in

2014. This case turns on whether GEICO’s 2014 unfulfilled request that a new UM

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selection waiver form be executed and returned to the company led to the default

selection, UMBI coverage at limits dictated by the State, being read into the

Barbera policy, thereby negating Thomas Barbera’s 2001 waiver of UMBI

coverage, which was otherwise valid over the life of the Barbera policy.

“La. Acts 1999, No. 732, § 1 added the following sentence to La. R.S.

22:1406(D)(l)(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.’ This language remained unchanged in La. R.S. 22:1295(1)(a)(ii),

which was redesignated from La. R.S. 22:1406(D) by La. Acts 2003, No. 456 § 3.”

Johnson v. Bass, 21-139 (La. App. 1 Cir. 12/22/21), 340 So.3d 28, writ denied, 22-

156 (La. 4/5/22), 335 So.3d 836 n.5.

If an insurer requires that the insured submits a new UM selection waiver

form upon each policy renewal, then it is the insurer’s responsibility to verify the

submitted waiver form is properly executed, else UM coverage will be read into

the policy. See Baack v. McIntosh, 20-1054 (La. 6/30/21), 333 So.3d 1206, 1213–

14; Francis v. Travelers Prop. Cas. Co. of Am., 22-124 (La. App. 3 Cir. 9/28/22).

In the instant case, there was an existing policy with a valid UM selection form

executed in 2001. The language of La. R.S. 22:1295(1)(a)(ii) explicitly provides

the method to change an initial rejection of UM coverage “‘by submitting a new

uninsured motorist selection form to the insurer on the form prescribed by the

commissioner of insurance.’” Baack, 333 So.3d at 1213. Mr. Barbera admits that

the family did not complete and return the waiver form GEICO sent in 2014. The

November 24, 2014 letter that accompanied the form is ambiguous. The letter

could be interpreted to mean that no response from the Barberas would lead to UM

coverage being read into the policy by default. However, there was already a valid

UM waiver selection form signed by Thomas Barbera that was part of the policy.

22-CA-147 6

The 2001 waiver form and La. R.S. 22:1295(1)(a)(ii) patently state that an initial

rejection of UM coverage can only be changed via the named insured’s (or his

legal representative’s) written request.

Last, we note that the Louisiana supreme court “has long held that the intent

of the parties does not control in this area of the law.” Gray v. Am. Nat. Prop. &

Cas. Co., 2007-1670 (La. 2/26/08), 977 So.2d 839, 849. The competent evidence

provided by Mr. Barbera proving that a few GEICO personnel also believed that

his family’s failure to respond to the request for a UM selection waiver form in

2014 would result in UM coverage becoming part of the policy is not dispositive of

the issue of UM coverage. “The law imposes UM coverage in this state

notwithstanding the language of the policy, the intentions of the parties, or the

presence or absence of a premium charge or payment.” Gray v. Am. Nat. Prop. &

Cas. Co., 07-1670 (La. 2/26/08), 977 So.2d 839, 849 citing Roger v. Estate of

Moulton, 513 So.2d 1126, 1132 (La. 1987) (emphasis added). Because there was a

valid UM waiver executed in 2001 that was part of the existing policy, and no

event occurred that required the execution of a new UM selection waiver form,

summary judgment was appropriate.

We find that GEICO met its burden in proving that there was a valid UMBI

waiver for the Barbera Policy in effect at the time of Brian Barbera’s December 23,

2017 accident. Accordingly, we find that GEICO had a reasonable basis to defend

against the claim and acted on good faith reliance on its defense. See, La. R.S.

22:1973; Baack, 333 So.3d at 1217.

DECREE

Considering the foregoing, the district court’s judgment rendered January

24, 2022 and signed February 4, 2022 granting GEICO’s motion for summary

judgment, dismissing Mr. Barbera’s claims with prejudice, and denying Mr.

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Barbera’s motion for summary judgment is affirmed. We order each party to bear

its own costs of this appeal.

AFFIRMED

22-CA-147 8

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
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NOVEMBER 30, 2022 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL
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22-CA-147
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE DONALD A. ROWAN, JR. (DISTRICT JUDGE)
CASEY W. MOLL (APPELLANT) STEPHEN D. CRONIN (APPELLEE)

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