Jimmy L. Smith, Jr. v. Alan C. Hampshire

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-1462

JIMMY L. SMITH, JR.

VERSUS

ALAN C. HAMPSHIRE, ET AL.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 229,581
HONORABLE HARRY F. RANDOW, DISTRICT JUDGE

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OSWALD A. DECUIR
JUDGE

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Court composed of Oswald A. Decuir, James T. Genovese, and Shannon J.
Gremillion, Judges.

REVERSED AND REMANDED.

Bonita Pruett-Armour
Rebecca Boyett
Armour Law Firm
1744 Jackson Street
Alexandria, LA 71301
(318) 442-6611
Counsel for Defendant/Appellant:
State Farm Mutual Automobile
Insurance Company

Roy S. Halcomb, Jr.
Broussard, Halcomb & Vizzier
P. O. Box 1311
Alexandria, LA 71309-1311
(318) 487-4589
Counsel for Plaintiff/Appellee:
Jimmy L. Smith, Jr.

Andrew Parker Texada
Stafford, Stewart & Potter
P. O. Box 1711
Alexandria, LA 71309
(318) 487-4910
Counsel for Defendants/Appellees:
GEICO
Alan C. Hampshire

Donna M. Johnson
Attorney at Law
P. O. Box 11817
Alexandria, LA 71315
(318) 880-0087
Counsel for Defendants/Appellees:
GEICO
Alan C. Hampshire

Barbara Bell Melton
Attorney at Law
P. O. Box 12730
Alexandria, LA 71315
(318) 442-9533
Counsel for Defendant/Appellee:
Joy Smith

DECUIR, Judge.

On August 23, 2007, Alan Hampshire rear-ended Joy Smith’s 2004 Pontiac

Grand Am. Joy and her two children, Elisa and Shawn, were injured in the crash.

Elisa died as a result of her injuries. Hampshire’s insurance coverage was inadequate.

Joy Smith had both primary and uninsured motorist coverage on her vehicle through

Shelter Insurance Company. Jimmy Smith, Joy’s ex-husband and the father of the

children, filed this suit against State Farm, his uninsured motorist coverage carrier,

asserting wrongful death and survival action claims related to Elisa’s death as well

as a claim for penalties and attorney fees. Joy and Shawn, having exhausted the

Shelter policy limits, also intervened seeking recovery from State Farm under

Jimmy’s policy.

State Farm tendered its $25,000.00 per person policy limit in UM benefits for

Jimmy’s wrongful death claim and Elisa’s survival action. It has not tendered any

medical benefits or UM benefits to Joy or Shawn because the accident did not occur

in Jimmy’s vehicle. State Farm filed a motion for summary judgment raising four

issues, two of which were denied and two of which were granted in light of the

plaintiffs’ failure to file an opposition. State Farm appeals the trial court’s denial of

its motion for summary judgment. The trial court certified its judgment as a final

judgment for purposes of appeal.

POLICY LIMITS

State Farm alleges that the trial court erred in denying its motion for summary

judgment. Specifically, State Farm contends that the court erred in finding that

Jimmy Smith and Joy Smith are entitled to recover separate single person policy

limits of $25,000.00 for Elisa’s survival action and their wrongful death actions. We

agree.

We review a summary judgment determining insurance coverage de novo,

using the same criteria for these insurance issues as those governing 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).

The State Farm policy provides that payment will be made under the UM

portion of the policy subject to certain conditions:

We will pay nonpunitive damages for bodily injury an insured is legally
entitled to collect from the owner or driver of an uninsured motor
vehicle. The bodily injury must be sustained by an insured and caused
by accident arising out of the operation, maintenance, or use of an
uninsured motor vehicle.

“Bodily injury” is defined in the policy as “physical bodily injury to a person

and sickness, disease or death which results from it.” Further, the policy outlines

which damages are included under the single “Each Person” limit versus the

aggregate “Each Accident” limit of the policy as follows:

The amount of coverage is shown on the declarations page under
“Limits of Liability--U--Each Person, Each Accident.” Under “Each
Person” is the amount of coverage for all damages due to bodily injury
to one person. “Bodily injury to one person” includes all injury and
damages to others resulting from this bodily injury, and all emotional
distress resulting from this bodily injury sustained by other persons who
do not sustain bodily injury. Under “Each Accident” is the total amount
of coverage, subject to the amount shown under “Each Person,” for all
damages due to bodily injury to two or more persons in the same
accident.

State Farm and the trial court in its written reasons agree that, with regard to

the policy language in this case, the supreme court in Hebert v. Webre, 08-60 (La.

5/21/08), 982 So.2d 770, resolved this very issue in State Farm’s favor. However, the

trial court found that the supreme court did not consider whether the policy language

was in contravention of La.R.S. 22:1295. Louisiana Revised Statutes 22:1295

provides in pertinent part:

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

(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. (Emphasis added)

The trial court found that State Farm’s policy language improperly restricted UM

coverage because it refers to “physical bodily injury” rather than “bodily injury” as

provided in the statute. The trial court reached that conclusion despite the fact that

State Farm’s policy language was expressly approved by the supreme court in Hebert.

We disagree with the trial court’s finding. Louisiana Revised Statutes 22:1295

provides that UM coverage must not be less than the underlying liability policy. The

statute does not purport to define “bodily injury” for all policies. An insurance policy

is the contract between the parties and should be construed using the general rules

of interpretation of contracts set forth in the Civil Code. Hebert, 982 So.2d 770.

State Farm’s policy language has been approved by the highest court in this state.

The trial court erred in denying State Farm’s motion for summary judgment.

State Farm’s remaining assignment alleges the trial court erred in finding that

the claim of Joy Smith for the wrongful death of Elisa was not barred by the “other

insurance” provision of its policy and the anti-stacking statute. We need not reach

these issues having found that Jimmy and Joy Smith are entitled only to the single

person policy limit of $25,000.00, which has been exhausted.

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DECREE

For the foregoing reasons, the judgment of the trial court is reversed insofar as

it denied State Farm’s motion for summary judgment. Summary judgment is hereby

granted in favor of State Farm with regard to the foregoing issues. The case is

remanded for further proceedings regarding plaintiff’s claim for penalties and

attorney fees. All costs of these proceedings are taxed to appellants, Jimmy and Joy

Smith.

REVERSED AND REMANDED.

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