Progressive Security Insurance Co. v. Jeffrey Alton Barrett

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 05-310

JEFFREY ALTON BARRETT, ET AL.

VERSUS

PROGRESSIVE SECURITY INSURANCE CO., ET AL.

Consolidated with
CA 05-311

PROGRESSIVE SECURITY INSURANCE CO., ET AL.

VERSUS

JEFFREY ALTON BARRETT, ET AL.
**********

APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 211,858 CONSOLIDATED WITH 211,970
HONORABLE F. RAE SWENT, DISTRICT JUDGE

**********

JOHN D. SAUNDERS
JUDGE

**********

Court composed of John D. Saunders, Jimmie C. Peters, and Billy Howard Ezell,
Judges.

AFFIRMED.

Philip Gardiner Hunter
Hunter & Morton
P. O. Box 11710
Alexandria, LA 71315-1710
(318) 487-1997
Counsel for Plaintiffs/Appellees:
Jeffrey Alton Barrett
Michael Glenn Barrett
Pamela Barrett Nordrum
Kathryn Barrett Colson

Ian Alexander Macdonald
Perret, Doise
P. O. Drawer 3408
Lafayette, LA 70502-3408
(337) 262-9000
Counsel for Defendant/Appellant:
Progressive Security Insurance Co.

SAUNDERS, Judge.

Stephen Barrett was killed in an automobile accident by an underinsured driver.

His heirs filed suit, and the trial judge granted partial summary judgment in their

favor ruling that Mr. Barrett had $500,000.00 of UM coverage because no UM

selection form requesting a lower amount of coverage was ever executed. We affirm.

FACTS AND PROCEDURAL HISTORY

In January of 2002, Stephen Barrett obtained automobile insurance coverage

in the amount of $500,000.00 (combined single limit) from Progressive Security

Insurance Company (hereinafter referred to as “Progressive”) through the Crick

Insurance Agency (hereinafter referred to as “Crick”). The policy period began on

January 14, 2002. Mr. Barrett properly executed a written form rejecting UM

coverage. Subsequently, on January 21, 2002, Mr. Barrett contacted Crick and asked

that $500,000.00 in UM coverage be added to the policy. The requisite paperwork for

this change in coverage, including an Uninsured/Underinsured Motorist Bodily Injury

(“UMBI”) Coverage form stating, in pertinent part, that this election:

shall apply . . . to all renewals of my policy, and to all
reinstatement or substitute policies until I make a written
request for a change in my Bodily Injury Liability
Coverage or UMBI Coverage.

was prepared for Mr. Barrett’s signature. He signed the documents on January 22,

2002.

Then, on March 13, 2002, a person identifying herself as Georgia called Crick

and requested that the policy address for Mr. Barrett be changed to a post office box.

Crick changed the address in accordance with this request. On April 5, 2002, a

person identifying himself as Mr. Barrett called Crick requesting elimination of the

UM coverage and a reduction in the bodily injury liability limits of the policy from

$500,000.00 to $10,000.00 per person and $20,000.00 per accident. The caller was

informed that the waiver of UM coverage required a written waiver but that the

reduction in liability limits could be implemented immediately. A modified policy

reflecting the lower liability limits and reduction of UM coverage to the new liability

limits pending execution of the written waiver of UM coverage was mailed to the new

policy address requested by Georgia. The UM waiver form was also sent to that same

address but was never returned to Crick.

Mr. Barrett was subsequently killed in an automobile accident caused by a

drunk, underinsured driver. The accident occurred on June 15, 2002. Mr. Barrett’s

heirs then filed suit for damages against, among others, Progressive. Both parties

filed motions for partial summary judgment on the amount of UM coverage with

Plaintiffs arguing that there was $500,000.00 in coverage and Progressive arguing

that only $10,000.00 of coverage was provided. These motions were heard on March

15, 2004, and the trial judge ruled in favor of Plaintiffs. Progressive appealed that

ruling. We affirm.

ASSIGNMENT OF ERROR

The trial court erred as a matter of law in concluding that Progressive’s policy
provides Mr. Barrett’s heirs with UM limits of $500,000.00.

STANDARD OF REVIEW

Appellate courts conduct a de novo review of rulings on motions for summary

judgment. “It is well established that a summary judgment shall be rendered if the

pleadings, depositions, answers to interrogatories, and admissions on file, together

with the affidavits, if any, show that there is no genuine issue as to material fact, and

that the mover is entitled to judgment as a matter of law.” Alfred Palma, Inc., v.

Crane Servs. Inc., 03-0614, p. 3 (La.App. 3 Cir. 11/5/03), 858 So.2d 772, 774;

La.Code Civ.P. art. 966(B).

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LAW AND ANALYSIS

Our analysis must begin with La.R.S. 22:680, which provides, in pertinent part:

(1)(a)(i) No automobile liability insurance covering
liability arising out of the ownership, maintenance, or use
of any motor vehicle shall be delivered or issued for
delivery in this state with respect to any motor vehicle
designed for use on public highways and required to be
registered in this state or as provided in this Section unless
coverage is provided therein or supplemental thereto, in not
less than the limits of bodily injury liability provided by the
policy, under provisions filed with and approved by the
commissioner of insurance, for the protection of persons
insured thereunder who are legally entitled to recover
nonpunitive damages from owners or operators of
uninsured or underinsured motor vehicles because of
bodily injury, sickness, or disease, including death
resulting therefrom; however, the coverage required under
this Section is not applicable when 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. In no event shall the policy
limits of an uninsured motorist policy be less than the
minimum liability limits required under R.S. 32:900 unless
economic-only coverage is selected as authorized herein.
Such coverage need not be provided in or supplemental to
a renewal, reinstatement, or substitute policy when the
named insured has rejected the coverage or selected lower
limits in connection with a policy previously issued to him
by the same insurer or any of its affiliates. The coverage
provided under this Section may exclude coverage for
punitive or exemplary damages by the terms of the policy
or contract. Insurers may also make available, at a reduced
premium, the coverage provided under this Section with an
exclusion for all noneconomic loss. This coverage shall be
known as “economic-only” uninsured motorist coverage.
Noneconomic loss means any loss other than economic
loss and includes but is not limited to pain, suffering,
inconvenience, mental anguish, and other noneconomic
damages otherwise recoverable under the laws of this state.

(ii) 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. The
prescribed form shall be provided by the insurer and signed
by the named insured or his legal representative. The form
signed by the named insured or his legal representative

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which initially rejects such coverage, selects lower limits,
or selects economic-only coverage shall be conclusively
presumed to become a part of the policy or contract when
issued and delivered, irrespective of whether physically
attached thereto. 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. The form signed by the
insured or his legal representative which initially rejects
coverage, selects lower limits, or selects economic-only
coverage shall remain 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 insured by the same
insurer or any of its affiliates. An insured may change the
original uninsured motorist selection or rejection on a
policy at any time during the life of the policy by
submitting a new uninsured motorist selection form to
the insurer on the form prescribed by the commissioner
of insurance. 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.

[Emphasis added]. Based upon the clear wording of this statute, we can resolve this

issue without examining whether Crick’s mailing of the new policy to the address

provided by Georgia satisfied La.R.S. 22:628, requiring that modifications be sent to

the “last known address as shown on such policy or evidence of insurance or is

personally delivered to such holder.” Because the new policy was not mailed to the

address shown on the original policy or personally delivered to Mr. Barrett, it could

be argued that the new policy was not binding whatsoever. The trial judge, however,

granted summary judgment without ruling on that issue and we affirm on the same

basis.

Progressive argues that no new selection form was required because the UM

coverage was merely lowered to the statutory minimum. Progressive’s position is that

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reversion to the statutory minimum amount of UM coverage supercedes the statutory

requirement for a new selection form. For the reasons discussed below, this argument

lacks merit.

The statute quoted above states that a new uninsured motorist selection form

is not required when a policy’s liability limits are not changed. In the case sub judice,

the policy’s liability limits were changed. Accordingly, a new uninsured motorist

selection form was required; however, no new form was ever completed. Mr. Barrett

properly waived UM coverage when he initially obtained coverage. He also properly

changed his initial choice by completing a new selection form choosing $500,000.00

in UM coverage. Subsequently, the liability limits of the policy were changed. This

change triggered the exception in La.R.S. 22:680 requiring completion of a new

uninsured motorist selection form before any change in UM coverage from the

previous selection could become effective. No such form was ever completed;

therefore, the previous selection form remained in effect. Pursuant to that form, Mr.

Barrett had $500,000.00 in UM coverage. The trial judge granted partial summary

judgment to this effect. We affirm.

CONCLUSION

The trial judge’s grant of partial summary judgment is affirmed. Costs of this

appeal are assessed against Defendant.

AFFIRMED.

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