James Bergeron v. Liberty Mutual Insurance Co.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 12-86

JAMES BERGERON

VERSUS

LIBERTY MUTUAL INSURANCE CO.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF VERMILION, NO. 84104-A
HONORABLE JOHN DAMIAN TRAHAN, DISTRICT JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of Jimmie C. Peters, Elizabeth A. Pickett, and Shannon J.
Gremillion, Judges.

AFFIRMED.

Harry Karl Burdette
300 Stewart St.
Lafayette, LA 70501
(337) 233-1471
COUNSEL FOR PLAINTIFF/ APPELLANT:
James Bergeron

Judy Y. Barrasso
Edward R. Wicker, Jr.
Kristin L. Beckman
Barrasso, Usdin, Kupperman, Freeman & Sarver, L.L.C.
900 Poydras St., 24th Floor
New Orleans, LA 70112
(504) 589-9700
COUNSEL FOR DEFENDANT/ APPELLEE:
Liberty Mutual Insurance Company

PETERS, J.

The plaintiff, James Bergeron, appeals the trial court’s grant of summary

judgment in favor of the defendant, Liberty Mutual Insurance Company,

dismissing his claims against the insurer because its policy at issue did not provide

underinsured/uninsured motorist (UM) coverage for the vehicle involved in the

accident sued upon. For the following reasons, we affirm.

DISCUSSION OF THE RECORD

On December 21, 2004, Mr. Bergeron was proceeding westward on

Highway 14 in Abbeville, Louisiana, in a 2003 Ford Crown Victoria furnished to

him by his employer, Murphy Oil USA, Inc. (Murphy Oil), and insured by Liberty

Mutual Insurance Company (Liberty Mutual). While stopped at a red light, his

vehicle was struck from behind by a vehicle driven by Barbara Montet. Mr.

Bergeron sustained personal injuries as a result of the accident.

On January 19, 2005, Mr. Bergeron and his wife, Angela Bergeron, filed a

petition to recover the damages they sustained in the accident.1 In their suit, they

named as defendants Barbara S. Montet and her husband, Leo Montet; the

Montet’s liability insurer, State Farm Insurance Company (State Farm); Murphy

Oil; and Liberty Mutual in its capacity as the UM coverage carrier for the vehicle

Mr. Bergeron was driving at the time of the accident.

The issue now before us arises from an October 27, 2010 motion for

summary judgment filed by Liberty Mutual wherein it asserted that the policy it

issued to Murphy Oil did not provide UM coverage. By this time, Liberty Mutual

was the only defendant remaining in the litigation.2 Following an August 29, 2011

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It appears that Angela Bergeron died while this lawsuit was pending. Accordingly, we
refer to Mr. Bergeron as the sole plaintiff throughout the opinion.
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The Bergerons settled their claims against the Montets and State Farm, and those
defendants were dismissed from the litigation on March 9, 2006. Additionally, after significant

hearing, the trial court rendered judgment granting Liberty Mutual’s motion for

summary judgment and dismissing the insurer from the litigation.

In his appeal, Mr. Bergeron asserts seven assignments of error addressing

the correctness of the trial court’s determination that the Liberty Mutual policy did

not provide for UM coverage for the December 21, 2004 accident.

OPINION

The motion for summary judgment is a procedural device whose purpose is

to avoid a full-scale trial when there is no genuine issue of material fact. Kay v.

Carter, 243 La. 1095, 150 So.2d 27 (1963). Summary judgment procedure is

designed to secure the just, speedy, and inexpensive determination of every action,

except certain domestic actions; the procedure is favored and shall be construed to

accomplish those ends. La.Code Civ.P. art. 966(A)(2); Racine v. Moon’s Towing,

01-2837 (La. 5/14/02), 817 So.2d 21. The burden of proof on the motion for

summary judgment remains with the movant. La.Code Civ.P. art. 966(C)(2).

However, if the movant will not bear the burden of proof at trial on
the matter that is before the court on the motion for summary
judgment, the movant’s burden on the motion does not require him to
negate all essential elements of the adverse party’s claim, action, or
defense, but rather to point out to the court that there is an absence of
factual support for one or more elements essential to the adverse
party’s claim, action, or defense. Thereafter, if the adverse party fails
to produce factual support sufficient to establish that he will be able to
satisfy his evidentiary burden of proof at trial, there is no genuine
issue of material fact.

La.Code Civ.P. art. 966(C)(2). The motion for summary judgment should be

granted if the pleadings, depositions, answers to interrogatories, and admissions on

file, together with any affidavits, 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(B). Appellate review of a summary judgment is de novo, applying the

litigation at the trial level which need not be considered to resolve the issue now before us, the
trial court executed an order on August 30, 2010, dismissing Murphy Oil as a party defendant.
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same standard as the trial court. Smith v. Our Lady of the Lake Hosp., Inc., 93-

2512 (La. 7/5/94), 639 So.2d 730.

UM insurance is provided for by a statute, La.R.S. 22:1295, that embodies a

strong public policy to give full recovery for the automobile accident victims.

Tugwell v. State Farm Ins. Co., 609 So.2d 195 (La.1992). “Thus, under the UM

statute, the requirement of UM coverage is an implied amendment to any

automobile liability policy, even when not expressly addressed, as UM coverage

will be read into the policy unless validly rejected.” Duncan v. U.S.A.A. Ins. Co.,

06-363, p.4 (La. 11/29/06), 950 So.2d 544, 547.

Our supreme court has held that the UM statute must be liberally construed,

which requires a strict interpretation of the statute’s exceptions to coverage.

Duncan, 950 So.2d 544. The insurer bears the burden of proving that the insured

rejected the UM coverage or selected a lower limit. Id. UM coverage may be

rejected “only on a form prescribed by the commissioner of insurance.” La.R.S.

22:1295(1)(a)(ii). The form the commissioner of insurance has prescribed

involves specific tasks, all of which are related to the rejection of UM coverage:

The insured initials the selection or rejection chosen to indicate that
the decision was made by the insured. If lower limits are selected,
then the lower limits are entered on the form to denote the exact limits.
The insured or the legal representative signs the form evidencing the
intent to waive UM coverage and includes his or her printed name to
identify the signature. Moreover, the insured dates the form to
determine the effective date of the UM waiver. Likewise, the form
includes the policy number to demonstrate which policy it refers to.

Duncan, 950 So.2d at 552. If the insurer uses the prescribed form and “makes

certain that it is properly completed and signed, then the insurer receives a

presumption that the insured’s waiver of coverage was knowing.” Id. at 552.

The issue before the court in this matter relates to the authority of the

individual who executed the rejection form on behalf of Murphy Oil. Mr.

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Bergeron argues that Murphy Oil’s rejection is invalid because there is no evidence

that the Murphy Oil employee who executed the rejection form for Murphy Oil,

John W. Dumas, had specific written authority to sign the UM rejection form on its

behalf.

In support of its motion for summary judgment, Liberty Mutual introduced

two affidavits: one executed by Mr. Dumas, Murphy Oil’s Director of Corporate

Insurance; and one executed by Walter K. Compton, Murphy Oil’s Vice President

and General Counsel. In his affidavit Mr. Dumas stated that he had held his

position with Murphy Oil since October 1998, and that in 2001 he was a legal

representative of Murphy Oil authorized to accept or reject UM coverage on behalf

of his employer. His further stated in his affidavit that it was his practice and

policy to sign UM rejection forms only after they had been completed, and that he

would not have signed a blank, inaccurate, or incomplete UM rejection form. Mr.

Compton stated in his affidavit that in 2001 he was Murphy Oil’s Corporate

Secretary and Mr. Dumas had corporate authority to make insurance decisions for

Murphy Oil. Liberty Mutual also introduced Mr. Dumas’ deposition, taken on

June 17, 2011, in which Mr. Dumas was questioned about the UM form and his

authority to reject UM coverage.

Mr. Bergeron relies on this court’s decision in Holloway v. Shelter Mut. Ins.

Co., 03-896 (La.App. 3 Cir. 12/10/03, 861 So.2d 763, writ denied, 04-87 (La.

3/19/04), 869 So.2d 854, to assert that the UM rejection form was not properly

completed because there was no written authorization from Murphy Oil giving Mr.

Dumas the authority to reject UM coverage for the corporation. In Holloway, the

insured’s mother had executed the insurance documents on her son’s behalf,

including signing the form rejecting UM motorist coverage. The insured was

deceased, and the insurer submitted affidavits from the insured’s mother and the
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insurance agent who wrote the policy, asserting that she had the insured’s

authorization to reject UM coverage on his behalf. This court held that the

insured’s mother was not acting as a “legal representative” within the meaning of

La.R.S. 22:1406(D)(1)(a) because the authority of representation was not conferred

in writing. However, we find that Holloway is distinguishable from the facts in

this case, because here the insured is a corporation and the person who signed the

form rejecting UM coverage is an employee of that corporation who has the

authority to accept or reject insurance coverage for it. A corporation acts only

through its officers, employees, and other agents. Kevin Associates, L.L.C. v.

Crawford, 03-211 (La. 1/30/04), 865 So.2d 34. In Harper v. Direct General

Insurance Company, 08-2874, (La. 2/13/09), 2 So.3d 418, and Banquer v. Guidroz,

09-466 (La. 5/15/09), 8 So.3d 559, our supreme court recognized that when a

corporation is rejecting UM coverage, the requirement that the insured or the

insured’s legal representative sign the form is met when an officer or employee of

the corporation who has the authority to reject UM coverage signs the form. Mr.

Bergeron attempts to distinguish Harper and Banquer by asserting that in those

cases the court did not explicitly reach the question of whether the corporation’s

authorization for an officer or employee to waive UM coverage must be in writing.

We reject this distinction; in this case, as in Harper and Banquer, the issue is

whether the person who signed the form was authorized by the corporation to

reject UM coverage.

DISPOSITION

For the foregoing reasons, we affirm the trial court judgment. We assess all

costs of this appeal to the plaintiff, James Bergeron.

AFFIRMED.

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