Brandy L. Molbert v. Brandon L. Thomas

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-363

BRANDY L. MOLBERT, ET AL.

VERSUS

BRANDON L. THOMAS, ET AL.

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 110418-A
HONORABLE GERARD B. WATTIGNY, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, Jimmie C. Peters, and James T. Genovese,
Judges.

AFFIRMED IN PART, REVERSED IN PART.

Thomas Reginald Hightower, Jr.
Wade Kee
A Professional Law Corporation
P. O. Drawer 51288
Lafayette, LA 70505
(337) 233-0555
Counsel for Defendant/Appellant:
Shelter Mutual Ins. Co.

Kathy Ireland
Attorney at Law
P. O. Box 2187
Lafayette, LA 70502
(337) 231-1955
Counsel for Defendant/Appellee:

Brandon L. Thomas
Barton Willis Bernard
Bernard & Hart
345 Doucet Road, Suite 103-B
Lafayette, LA 70503-3407
(337) 593-1123
Counsel for Plaintiffs/Appellees:
Brandy L. Molbert
Ross Molbert

SAUNDERS, Judge.

This case addresses whether uninsured motorist (UM) coverage was validly

rejected when the date line was not properly filled in on a form prescribed by the

commissioner of insurance.

For the following reasons, we affirm the trial court’s denial of summary

judgment.

FACTS AND PROCEDURAL HISTORY

On March 2, 2007, Brandy Molbert was involved in an automobile accident

with Brandon Thomas. Mr. Thomas was not covered by liability insurance on the

vehicle he was driving because he was doing so without permission. The Molberts’

(hereinafter “Appellees”) vehicle had liability insurance coverage issued by Shelter

Mutual Insurance Company (hereinafter “Appellant”).

In May of 2005, Appellees filled out a form rejecting UM coverage. The form

was completely and accurately filled out with the exception that the date line on the

form was not filled in. When the form was subsequently forwarded to and printed by

Shelter Mutual, the printer added a line of text to the bottom of the form that showed

the date upon which the form was printed. This printed date sits a little more than an

inch below the line where the date was supposed to be filled in by Appellees.

Appellees filed suit in August of 2007. On August 29, 2007, Appellant filed

for summary judgment, alleging that it was free from liability since Appellees had

rejected UM coverage. In December of 2008, Appellant’s motion for summary

judgment was denied by the trial court based on the empty date line discussed above.

Appellant has appealed the trial court’s denial of summary judgment and

alleges the following assignment of error:

APPELLANT’S ASSIGNMENT OF ERROR:

The trial court erred in denying summary judgment filed on behalf of Shelter
Mutual Insurance Company in light of the fact that the selection form rejecting
uninsured motorist coverage was in conformity with the statutorily mandated
requirements and served to properly reject uninsured motorist coverage.

LAW AND DISCUSSION ON THE MERITS

The current matter has arrived before this court under unusual circumstances.

Appellant was denied its motion for summary judgment by the trial court. Such a

denial is not ordinarily an appealable judgment. However, as a result of the following

language used by the trial court in its denial of summary judgment, we have decided

to consider this appeal because of an improper granting of summary judgment to a

nonmoving party.

IT IS FURTHER HEREBY ORDERED, ADJUDGED AND
DECREED that the Underinsured/Uninsured Motorist Rejection Form
attached to the Defendant’s Motion for Summary Judgment does not
comply with the requirements of Louisiana law to effectively reject
underinsured/uninsured motorist insurance coverage, and is therefore an
invalid rejection of underinsured/uninsured insurance coverage.

Whether there was a valid rejection of UM coverage by the Appellee was not

an issue for the trial court to decide. “The Code of Civil Procedure does not authorize

the trial court to render a judgment on the merits in favor of the nonmoving party

upon denial of the moving party’s motion for summary judgment.” Smith v. Brooks,

96-1085, p. 5 (La.App. 3 Cir. 2/05/97), 689 So.2d 544, 547. Because of this, and the

foregoing discussion, we affirm the trial court’s denial of summary judgment to the

Appellant and reverse the ruling that there was a not valid rejection of UM coverage

by the Appellees.

Standard of Review

Appellate courts review summary judgments de novo under the same criteria

that govern the trial court’s consideration of whether summary judgment is

appropriate. Schroeder v. Bd. of Supervisors of La. State Univ., 591 So.2d 342

(La.1991). A motion for summary judgment shall be granted “if the pleadings,

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

affidavits, if any, show that there is no genuine issue of material fact, and that the

mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966.

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Discussion

Appellant argues that Appellees validly rejected UM coverage when they

completed the UM coverage form provided by Appellant. On the form Appellees

initialed the line indicating that they did not desire UM coverage, and they filled out

all the relevant blanks with the exception of the date line–the purpose of which is to

indicate the date upon which the waiver would become effective.

“Under Louisiana law, [UM] coverage is provided for by statute and embodies

a strong public policy.” A.I.U. Ins. Co. v. Roberts, 404 So.2d 948 (La.1981). “[T]he

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 v. U.S.A.A. Ins. Co., 06-363 (La. 11/29/06), 950 So.2d 544, 547. Louisiana

Revised Statutes 22:1295(1)(a)(ii) sets out the requirements for effectuating a valid

rejection of such coverage:

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.
. . . 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 Supreme Court of Louisiana in Duncan took the requirements a step

further. It stated that the insurance commissioner’s form requires six tasks, which are

pertinent in rejecting UM coverage. Duncan, 950 So.2d 544.

Essentially, the 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. (emphasis added.)

According to Duncan, not only must the date line be filled in, it must be done

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by the insured. Id. at 552. In the present matter, the date line is left blank. Appellant

claims that although the line is empty, the requirement is still satisfied. It argues that

the date listed near the bottom of the form, indicating when the form was printed, is

enough to satisfy the above requirement. This argument ignores the purpose behind

the need for the date–to signify when the waiver of coverage is to become effective,

not a marker of the day the form was brought into tangible existence. Even had the

date been printed by Appellant in the proper place, the requirement from Duncan

would still not be satisfied as it was not the named insured, i.e. Appellees, who

completed the date line.

The rules from La.R.S. 22:1295 and Duncan are to be applied strictly.

Appellant’s alternative arguments, that common sense and the apparent intentions of

the parties should be persuasive here, are not accepted. “The expression of a desire

not to have UM coverage, however clear, does not necessarily constitute a valid

rejection if the expression of rejection does not meet the formal requirements of law.”

Cohn v. State Farm Mut. Auto. Ins. Co., 03-2820, p. 5 (La.App. 1 Cir. 02/11/05), 895

So.2d 600, 602, writ denied 05-1000 (La. 6/17/05), 904 So.2d 705.

The matter before us demands only that we consider whether the UM rejection

form was completed sufficiently to effect a waiver of UM coverage. We find that it

was not. Whether UM coverage actually existed was not raised in the trial court and,

therefore, is not an issue before this court.

CONCLUSION

Appellant has been unable to show that Appellees validly effectuated a

rejection of UM coverage meeting the requirements of La.R.S. 22:1295 and Duncan.

Appellant is not entitled to judgment as a matter of law, and, therefore, we affirm the

trial court judgment denying summary judgment and reverse the ruling that there was

not a valid rejection of UM coverage by Appellees. All costs of this proceeding are

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to be paid by Appellant.

AFFIRMED IN PART, REVERSED IN PART.

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