Vial Rodney Johnson v. Safeway Ins. Co. of Louisiana

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-646

VIAL RODNEY JOHNSON

VERSUS

SAFEWAY INS. CO. OF LOUISIANA

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-20102187
HONORABLE MARILYN CARR CASTLE, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Oswald A. Decuir, Elizabeth A. Pickett, and Shannon J.
Gremillion, Judges.

AFFIRMED.

Barry Warries Bolton
Attorney at Law
712 Louisiana Avenue
Bogalusa, LA 70427
(985) 735-9093
Counsel for Plaintiff-Appellant:
Vial Rodney Johnson

Jeanne R. Perrin
Borne & Wilkes
P. O. Box 4305
Lafayette, LA 70502-4305
(337) 232-1604
Counsel for Defendant-Appellee:
Safeway Ins. Co. of Louisiana

PICKETT, Judge.

The plaintiff, Vial Rodney Johnson, appeals a judgment of the trial court

granting the motion for summary judgment filed by Safeway Insurance Company

of Louisiana.

STATEMENT OF THE CASE

Johnson purchased car insurance from Safeway in 2002 and renewed the

policy every six months. On January 13, 2010, he was injured in a car wreck.

When the other driver’s liability insurance was insufficient to cover his damages,

Johnson filed a claim on his uninsured/underinsured (UM) coverage with Safeway.

Safeway denied the claim because Johnson had signed a waiver of UM coverage.

Johnson filed suit against Safeway.

Following some discovery, both parties filed motions for summary

judgment. Safeway claimed that it had on file a valid UM waiver signed by

Johnson on August 20, 2005. Johnson claimed that when he insured two new

vehicles with Safeway in September 2008, a new policy was created for which he

did not waive UM coverage.

The trial court heard both motions on March 9, 2011. At the conclusion of

the hearing, the trial court granted Safeway’s motion for summary judgment and

denied Johnson’s motion. A judgment dismissing Johnson’s case with prejudice

was signed on the same date. Johnson now appeals.

ASSIGNMENTS OF ERROR

On appeal, Johnson asserts four assignments of error:

1. The trial court erred when it concluded a finding of no genuine issue
of material fact based solely upon appellant’s prior history of signed
rejection forms without considering that the addition of vehicles
occurred at the beginning of a policy renewal period.

2. The trial court erred when it failed to consider the effect of appellant’s
active policy at the time of the incident and the fact that he had added

two additional, different vehicles to his policy without signing a new
rejection form while the amount of the policy increased.

3. The trial court erred when it found that appellant had rejected
uninsured motorist coverage.

4. The trial court was unreasonable in concluding that regardless of
whether the policy amount increased, as long as an agent does not
change the policy number, a vehicle is substituted even if deletions
and additions of cars are made during separate renewal periods.

DISCUSSION

We review summary judgments de novo. Doerr v. Mobil Oil Corp., 00-947

(La.12/19/00), 774 So.2d 119. The reviewing court “asks the same questions as

does the trial court in determining whether summary judgment is appropriate:

whether there is any genuine issue of material fact, and whether the mover-

appellant is entitled to judgment as a matter of law.” Smith v. Our Lady of the

Lake Hosp., Inc., 93-2512, p. 26 (La.7/5/94), 639 So.2d 730, 750

The crux of Johnson’s argument is that when he insured two additional

vehicles with Safeway in September 2008, he intended to create a new insurance

policy. A new policy would require Johnson to execute a new UM waiver form.

His argument ignores the plain text of La.R.S. 22:1295(1)(a)(ii) (emphasis added):

(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 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
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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. For the purpose of this Section,
a new policy shall mean an original contract of insurance which an
insured enters into through the completion of an application on the
form required by the insurer.

In this case, the evidence is clear that Johnson signed a form, approved by

the commissioner of insurance, rejecting UM coverage on five different occasions:

September 24, 2004, September 30, 2004, February 14, 2005, May 31, 2005, and

August 20, 2005. Each of these forms listed Johnson as the insured and the policy

number as 1028462. Johnson substituted, added, or removed vehicles several

times, but from September 24, 2004, to the date of the accident, all vehicles were

insured by Safeway under the same policy number. While the number of vehicles

changed, at no time did the limits of liability change. Therefore, the valid UM

rejection form Johnson signed on August 20, 2005, was still valid when he added

two new vehicles to the policy on September 12, 2008. Thus, on the date of the

accident, there was a rebuttable presumption that the Safeway insurance policy did

not include UM coverage. Johnson presented nothing to the court below to rebut

that presumption. We find no genuine issue of material fact. This is exactly the

situation covered by La.R.S. 22:1295. The cases cited by Johnson, which reference

the statute before it was amended in 2000, are irrelevant to the disposition of this

case.

The judgment of the trial court is affirmed. Costs of this appeal are assessed

to the appellant, Vial Rodney Johnson.

AFFIRMED.
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