Patricia Ashmore v. Stephen P. McBride

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-80

PATRICIA ASHMORE

VERSUS

STEPHEN P. MCBRIDE, ET AL.

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APPEAL FROM THE
PINEVILLE CITY COURT
PARISH OF RAPIDES, NO. 7-0828
HONORABLE J. PHILLIP TERRELL, JR., CITY JUDGE

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MICHAEL G. SULLIVAN
JUDGE

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Court composed of Oswald A. Decuir, Michael G. Sullivan, Billy Howard Ezell,
Judges.

REVERSED AND RENDERED.

Thomas O. Wells
Attorney at Law
Post Office Box 13438
Alexandria, Louisiana 71315
(318) 445-4500
Counsel for Plaintiff/Appellee:
Patricia Ashmore

Michael P. Corry
Jason R. Garrot
Briney & Foret
Post Office Box 51367
Lafayette, Louisiana 70505-1367
(337) 237-4070
Counsel for Defendant/Appellant:
Financial Indemnity Company

Mark J. Neal
Hudson, Potts & Bernstein
Post Office Drawer 3008
Monroe, Louisiana 71210-3008
(318) 388-4400
Counsel for Defendants/Appellees:
USAgencies Casualty Insurance Company
Stephen P. McBride

SULLIVAN, Judge.

Insurer appeals the denial of its motion for summary judgment in which it

sought a judgment recognizing that its policy does not provide uninsured motorist

(UM) coverage to the plaintiff and the grant of summary judgment in favor of the

plaintiff that the policy provides UM coverage to her. We reverse.

Facts

Patricia Ashmore filed suit to recover damages for injuries she sustained on

July 31, 2007, when the car she was driving which was owned by Patrick O’Neal, was

struck from the rear by a car driven by Stephen P. McBride. She sued Mr. McBride

and his insurer, USAgencies Casualty Insurance Company (USAgencies). She also

sued Financial Indemnity Company (Financial), alleging that a policy of insurance

it issued to Mr. O’Neal provided UM coverage to her for the accident.

Financial filed a Motion for Summary Judgment, alleging that it did not

provide UM coverage because Mr. O’Neal rejected UM coverage. After a hearing,

the trial court issued written reasons denying the motion. Financial filed a Notice of

Intention to Apply for Supervisory Writs.

Thereafter, Ms. Ashmore filed a Motion for Summary Judgment, seeking, in

part, a judgment declaring that Financial provided UM coverage to her in the amount

of the liability limits of its policy. After a hearing, the trial court granted the motion.

A judgment was signed on October 2, 2008; the judgment was designated a final

judgment as provided in La.Code Civ.P. art. 1915. Financial filed a devolutive

appeal, then sought to consolidate its writ application with its appeal. The motion to

consolidate was denied on the basis that the grant of summary judgment in favor of

Ms. Ashmore might constitute a final judgment which would be appealable.

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Thereafter, Financial’s writ application was denied because the judgment was an

appealable judgment, pursuant to La.Code Civ.P. art. 1915(A)(5). See Ashmore v.

McBride, an unpublished writ opinion bearing docket number 08-1211 (La.App. 3

Cir. 11/7/08).

Financial appeals the denial of its Motion for Summary Judgment and the grant

of Ms. Ashmore’s Motion for Summary Judgment.

Summary Judgment

Appellate courts review motions for summary judgments de novo to determine

whether any genuine issue of material fact exists and whether the mover is entitled

to judgment as a matter of law. La.Code Civ.P. art. 966(B). A motion for summary

judgment will be granted “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 mover is entitled to judgment as a matter

of law.” La.Code Civ.P. art. 966(B). The mover bears the initial burden of proof to

show that no genuine issue of material fact exists. La.Code Civ.P. art. 966(C)(2).

Discussion

One question is presented for determination herein: is there a genuine issue of

material fact as to whether the insurance policy Financial issued to Mr. O’Neal

provides UM coverage to Ms. Ashmore. Financial claims that Mr. O’Neal rejected

UM coverage by executing a valid UM selection form and selecting the option which

provides “I do not want UMBI Coverage.” Ms. Ashmore argues that the selection

was invalid because the UM selection form does not meet all the requirements

established by the Louisiana Insurance Commissioner. Specifically, she asserts that

Financial’s failure to place the binder number in the space designated on the form for

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the policy number and its failure to place its name in the lower left corner of the form

invalidated Mr. O’Neal’s rejection of UM coverage.

Louisiana Revised Statutes 22:1295(1)(a)(i) provides that no policy of

automobile liability insurance “shall be delivered or issued for delivery in this state”

without uninsured motorist coverage; however, UM coverage “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.”

Subsection (a)(ii) of La.R.S. 22:1295(1)(a) provides that the “rejection, selection of

lower limits, or selection of economic-only [UM] coverage shall be made only on a

form prescribed by the commissioner of insurance” and that “[a] properly completed

and signed form creates a rebuttable presumption that the insured knowingly rejected

[UM] coverage.”

A bulletin issued by the Commissioner of Insurance provides that the policy

number must be indicated in the lower right corner of the selection form, unless a

policy number is not available; in that case, “the space for the policy number may be

left blank or a binder number may be inserted.” Louisiana Insurance Rating

Commission Bulletin (LIRC) 98-03.

In Duncan v. U.S.A.A. Insurance Co., 06-363, p. 4 (La. 11/29/06), 950 So.2d

544, 547, the supreme court observed that strong public policy is embodied in the UM

coverage statute and that the statute is to be liberally construed, which “requires the

statutory exceptions to coverage be interpreted strictly.” For these reasons, “the

insurer bears the burden of proving any insured named in the policy rejected in

writing the coverage equal to bodily injury coverage or selected lower limits.” Id.

Thereafter, the supreme court identified six tasks which must be performed to

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complete the UM selection form prescribed by the Commissioner of Insurance in

order to reject UM coverage:

[T]he prescribed form involves 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.

Id. at 551. Failure to comply with one of these six tasks results in an invalid rejection

of UM coverage. Id.

In Carter v. State Farm Mutual Automobile Insurance Co., 07-1294 (La.

10/5/07), 964 So.2d 375, the supreme court granted an insurer’s application for writs

and granted summary judgment in favor of the insurer that urged it was entitled to

summary judgment, although its insured’s UM rejection form did not include the

policy number, because the policy number did not exist when the rejection form was

completed. The court noted that the facts therein were “distinguishable” from the

facts in Duncan, 950 So.2d 544, “because the Commissioner of Insurance’s

regulations specifically allow omission of the policy number if it does not exist at the

time [the] UM waiver form is completed.” Id. at 376.

The supreme court later observed in a footnote in Gray v. American National

Property & Casualty Co., 07-1670, p. 11 (La. 2/26/08), 977 So.2d 839, 847, with

regard to the six tasks identified in Duncan, that because “Insurance Commissioner

Bulletin LIRC 98-03 provides as follows: ‘In the case where a policy number is not

available, the space for the policy number may be left blank or a binder number may

be inserted,’” only five “tasks” must be completed for a valid UM selection when the

policy number is not available.

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A policy number did not exist when Mr. O’Neal executed the UM rejection

form; therefore, only five tasks had to be completed for a valid UM rejection. Id. See

also, Duncan, 950 So.2d 544. Pursuant to LIRC 98-03, placement of the binder

number on the policy was optional. Reading this provision in conjunction with the

supreme court’s footnotes in Duncan, 950 So.2d 544, and Gray, 977 So.2d 839, and

its holding in Carter, 964 So.2d 375, we conclude that inclusion of the optional

binder number in a place other than that provided for a policy number does not

invalidate the UM rejection.

Ms. Ashmore also argues that Financial’s failure to place its name in the lower

left corner of the rejection form resulted in an invalidated rejection. This claim was

recently denied by the supreme court in Gingles v. Dardenne, 08-2995 (La. 3/13/09),

4 So.3d 799. In Gingles, the supreme court held that although a bulletin issued by the

Commissioner of Insurance stated that the insurer’s name should appear in the lower

left corner of the UM selection form, the insurer’s failure to put its name in that

location did not invalidate the insured’s waiver of UM because the form designed by

the Commissioner did not include a space for the insurer’s name. The court

explained:

It is undisputed that the pertinent designated spaces on the form
were filled out. Additionally, the form at issue in these proceedings
satisfies all of the requirements of our opinion in Duncan. Under these
circumstances, we find [the insurer] has established it is entitled to
judgment as a matter of law.

Id. at 800. Pursuant to the supreme court’s holding in Gingles, Financial’s failure to

place its name in the lower left corner of the UM selection form did not invalidate

Mr. O’Neal’s rejection of UM coverage.

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For these reasons, we conclude that Financial has established that Mr. O’Neal

validly rejected UM coverage and that it is entitled to summary judgment as

requested. This determination means that the insurance policy issued by Financial

to Mr. O’Neal does not provide UM coverage to Ms. Ashmore as claimed.

Disposition

The judgments of the trial court are reversed, and summary judgment is granted

in favor of Financial Indemnity Company. Ms. Ashmore’s claim that its policy of

insurance provided UM coverage to her for the accident sued upon herein is

dismissed. Costs are assessed to Ms. Ashmore.

REVERSED AND RENDERED.

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