Thelma Irvin v. State Farm Mutual Auto Ins. Co.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

03-717

THELMA IRVIN, individually and on behalf of her minor child,
ROCHELLE JOHNLOUIS

VERSUS

STATE FARM MUTUAL AUTO INS. CO., STATE FARM INSURANCE
COMPANY, LISA M. REYNAUD, AND KIM REYNAUD

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 2001-6375
HONORABLE THOMAS R. DUPLANTIER, DISTRICT JUDGE

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NED E. DOUCET, JR.
CHIEF JUDGE

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Court composed of Ned E. Doucet, Jr., Chief Judge, Sylvia R. Cooks, and Michael G.
Sullivan, Judges.

AFFIRMED.

Alfred Frem Boustany II
P. O. Box 4626
Lafayette, LA 70502
Counsel for: Plaintiff-Appellant
Thelma Irvin

Kenny Layne Oliver
Terry L. Rowe
David Oliver Way
P. O. Drawer 80655
Lafayette, LA 70598-0655
Counsel for: Defendants-Appellees
State Farm Mutual Auto Ins. Co., Lisa Reynaud, and Kim Reynaud

Natasha Z. Wilson

Elizabeth C. Harper
701 Poydras St., Suite 4040
New Orleans, LA 70139
Counsel for: Defendant-Appellee
Continental Casualty Company

DOUCET, Chief Judge.

The Plaintiff, Thelma Irvin, appeals the dismissal, via summary judgment, of

the claim against her employer’s UM insurance carrier.

The underlying facts of the case are undisputed. Thelma Irvin was employed

by State Farm Insurance Company as a senior claims assistant. As a part of her job

duties she transported mail to attorneys’ offices and to another State Farm office. If

one was available she used a company owned vehicle, if no company car was

available she used her own car. On January 3, 2001, she was using her own car to

bring mail to State Farm’s attorney’s office. While stopped at a traffic light at the

corner of Johnston Street and Ridge Road in Lafayette, Louisiana, her vehicle was

struck from behind by a vehicle driven by Lisa M. Reynaud. As a result of injuries

allegedly sustained in that accident, she filed suit against Lisa Reynaud, and against

State Farm Mutual Automobile Insurance Co., which carried both her own

uninsured/underinsured motorist coverage and Lisa Reynaud’s liability insurance.

She claims damages both for her own personal injuries and for her minor child’s loss

of consortium. Additionally, she filed suit against her employer, claiming coverage

under its UM insurance.

State Farm Mutual Automobile Insurance , acting in its capacity of UM insurer

for Irvin’s employer, filed a motion for summary judgment alleging that no issue of

material fact remained but that the UM policy did not provide coverage to Ms. Irvin

for this accident. They argued both that Ms. Irvin was not an insured under the policy

because she was not driving a State Farm owned vehicle and that, even if she was

insured under the policy, Louisiana law prohibits stacking the employer’s UM policy

on her own UM. The trial court granted the motion for summary judgment finding

the anti-stacking statute applicable to prevent Ms. Irvin from making a claim against

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her employer’s UM insurance. Accordingly, the trial court dismissed this part of her

claim. Ms. Irvin appeals.

SUMMARY JUDGMENT

A motion for summary judgment is properly granted
only if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits submitted, if any show there is no genuine issue
of material fact such that the mover is entitled to judgment
as a matter of law. La. C.C.P. art. 966(B); Araujo v.
Eitmann, 99-1377 (La.App. 5th Cir.5/17/00), 762 So.2d
223, 225. Summary judgment declaring a lack of coverage
under an insurance policy may not be rendered unless there
is no reasonable interpretation of the policy, when applied
to the undisputed material facts shown by the evidence
supporting the motion, under which coverage could be
afforded. Reynolds v. Select Props, 93-1480 (La.4/11/94),
634 So.2d 1180, 1183. Appellate courts review summary
judgments de novo under the same criteria that govern the
district court's consideration of whether summary judgment
is appropriate. Reynolds, supra ; Schroeder v. Board of
Supervisors of La. State Univ., 591 So.2d 342, 345
(La.1991).

Vintage Contracting, L.L.C. v. Dixie Bldg. Material Co., Inc., 03-422, p. __ (La.App.

5 Cir. 9/16/03), ___ So.2d ____, ___, writ denied, 03-0995 (La. 5/30/03), 845 So.2d

1052.

COVERAGE

On appeal, Ms. Irvin is arguing that she is covered under her employer’s UM

policy because it provides UM coverage for non-owned vehicles used in the

employer’s business. However, we need not reach the question of coverage under the

policy, since we find that Louisiana’s anti-stacking statute prevents Ms. Irvin from

receiving benefits under her employer’s UM policy.

Louisiana’s anti-stacking statute, La.R.S. 22:1406(D) provides in pertinent part:

D. The following provisions shall govern the issuance of uninsured
motorist coverage in this state:

....

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(c)(i) If the insured has any limits of uninsured motorist coverage
in a policy of automobile liability insurance, in accordance with the
terms of Subsection D(1), then such limits of liability shall not be
increased because of multiple motor vehicles covered under said policy
of insurance and such limits of uninsured motorist coverage shall not be
increased when the insured has insurance available to him under more
than one uninsured motorist coverage provision or policy; provided,
however, that with respect to other insurance available, the policy of
insurance or endorsement shall provide the following:

(ii) With respect to bodily injury to an injured party while
occupying an automobile not owned by said injured party, resident
spouse, or resident relative, the following priorities of recovery under
uninsured motorist coverage shall apply:

(aa) The uninsured motorist coverage on the vehicle in which the
injured party was an occupant is primary;

(bb) Should that primary uninsured motorist coverage be
exhausted due to the extent of damages, then the injured occupant may
recover as excess from other uninsured motorist coverage available to
him. In no instance shall more than one coverage from more than one
uninsured motorist policy be available as excess over and above the
primary coverage available to the injured occupant.

(e) The uninsured motorist coverage does not apply to bodily
injury, sickness, or disease, including death of an insured resulting
therefrom, while occupying a motor vehicle owned by the insured if such
motor vehicle is not described in the policy under which a claim is made,
or is not a newly acquired or replacement motor vehicle covered under
the terms of the policy. This provision shall not apply to uninsured
motorist coverage provided in a policy that does not describe specific
motor vehicles.

In Pitts v. Fitzgerald, 01-0543, pp. 7-8 (La.App. 1 Cir. 5/10/02), 818 So.2d 847,

852-53 (citations omitted), the court explained stacking of insurance policies as

follows:

Stacking of UM coverages occurs when the amount available
under one policy is inadequate to satisfy the damages alleged or awarded
the insured and the same insured seeks to combine or stack one coverage
on top of another for the same loss covered under multiple policies or
under multiple coverages contained in a single policy.

....

The language of the anti-stacking statute limits the insured to
recovery under only one policy, not allowing the insured to combine or
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stack coverages. The question of stacking only arises once it is
determined that the person seeking to cumulate benefits on two or more
uninsured motorist coverages is an "insured" under the terms of those
policies.

Ms. Irvin’s accident falls clearly under the anti-stacking provision. Ms. Irvin

herself has UM insurance. Even if she were insured under her employer’s policy as

she argues here, under the language of the statute, she cannot increase her limits of

UM coverage because she has insurance available to h[er] under more than one

uninsured motorist coverage provision or policy. See La.R.S. 221406(D)(1)(c)(i).

Further, La.R.S. 22:1406(D)(1)(e) is also applicable to the argument advanced

by Ms. Irvin. The court inSoutherland v. Continental Casualty Co., 36,782 (La.App.

2d Cir 1/29/03), 837 So.2d 712, writ denied, 03-0955 (La. 5/16/03), 843 So.2d 1137,

addressed a similar situation. In that case a restaurant employee was involved in a

vehicular collision while in the course and scope of his employment. He asserted a

claim for UM benefits against his employer’s insurance company arguing that he

qualified as an insured under his employer’s policy and that as such he was entitled

to UM benefits under the policy. The court discussed his claim stating that:

Even assuming that Southerland would be an insured under the
liability endorsement, La.R.S. 22:1406(D)(1)(e) specifically states that
the mandatory UM coverage does not apply to bodily injury of the
insured while the insured is occupying a vehicle owned by the insured
but not described in the insurance policy. Southerland (the alleged
insured) was injured while driving a vehicle he owned that is not
described in Continental's policy. Therefore, this argument is without
merit.

Id. at 714.

Assuming that Ms. Irvin is correct in arguing that she is covered under the

liability portion of her employer’s policy, La.R.S. 22:1406(D)(1)(e) prevents her from

recovering under the UM portion of the policy because her vehicle is not described in

the policy. An examination of the vehicle schedule attached to the policy in question

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reveals that no 1999 Ford Escort was listed. Since her vehicle was not listed in the

policy, she cannot recover under the UM provisions of that policy.

Accordingly, we find no error in the trial court’s decision to grant the summary

judgment in this case, dismissing, pursuant to the anti-stacking statute, Ms. Irvin’s

claim against her employer’s UM insurer.

CONCLUSION

For these reasons, the judgment of the trial court is affirmed. Costs of this

appeal are assessed to the Plaintiff/Appellant, Ms. Thelma Irvin.

AFFIRMED.

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