Hattie Denise McCoy v. U. S. Agencies Casualty Ins. Co.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-49

HATTIE DENISE MCCOY

VERSUS

USAGENCIES CASUALTY INSURANCE CO.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, DOCKET NO. 2013-142
HONORABLE DAVID A. RITCHIE, DISTRICT JUDGE
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SYLVIA R. COOKS
JUDGE

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Court composed of Sylvia R. Cooks, Marc T. Amy, and J. David Painter, Judges.

AFFIRMED.

Somer Brown
Cox, Cox, Filo, Camel & Wilson
723 Broad Street
Lake Charles, LA 70601
(337) 436-1166
ATTORNEY FOR PLAINTIFF/APPELLANT
Hattie Denise McCoy

Anthony Butler
5420 Corporate Boulevard, Suite 103
Baton Rouge, LA 70808
(225) 926-1810
ATTORNEY FOR DEFENDANT/APPELLEE
USAgencies Casualty Insurance Co.

COOKS, Judge.

FACTS AND PROCEDURAL HISTORY

On July 9, 2012, Plaintiff, Hattie Denise McCoy, was on her way to work at

L’Auberge Du Lac Casino and Resort in Lake Charles. According to Plaintiff, she

was run off the road by an unknown vehicle, which then fled the scene without

stopping. Her vehicle came to rest over the curb on the side of the road. Plaintiff

asserted she suffered bodily injury as a result of the incident.

Corporal Robert Janice, of the Lake Charles Police Department, arrived at

the scene of the incident approximately thirty minutes after it occurred. Corporal

Janice spoke with Plaintiff who informed him she had been run off the road by

another vehicle. There were no witnesses to the incident. Corporal Janice noted

that Plaintiff’s vehicle did not come into contact with any other vehicle. Plaintiff

maintained she suffered injuries as a result of the incident.

At the time of the incident, Plaintiff had a policy of insurance with

USAgencies. Through her uninsured/underinsured motorist coverage, Plaintiff

brought a claim against her policy alleging the driver of another vehicle caused the

accident that resulted in the injuries she sustained.

USAgencies opposed the claim, contending Plaintiff was unable to meet her

statutory requirement of proving the accident was the result of the actions of the

driver of the unknown vehicle. USAgencies filed a Motion for Summary

Judgment asserting Plaintiff was unable to meet that burden. The matter was

briefed and argued before the trial court, which determined that Plaintiff was

unable to satisfy her burden of proving the unwitnessed accident was caused by

another driver. Thus, finding no genuine issue of material fact existed that the

policy of insurance issued by USAgencies did not provide coverage for the

damages alleged by Plaintiff, the trial court granted summary judgment and

Plaintiff’s suit was dismissed with prejudice. This appeal followed.

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ANALYSIS

When an appellate court reviews a district court’s judgment on a motion for

summary judgment, it applies the de novo standard of review, “using the same

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

appropriate, i.e., whether there is a genuine issue of material fact and whether the

mover is entitled to judgment as a matter of law.” Supreme Serv. & Specialty Co.,

Inc. v. Sonny Greer, 06-1827, p. 4 (La. 5/22/07), 958 So.2d 634, 638. Summary

judgment is a favored procedure and is designed to secure the just, speedy, and

inexpensive determination of every action. La.Code Civ.P. art. 966.

It is well settled that liability insurers in Louisiana are required to offer

uninsured/underinsured motorist (UM) coverage in connection with the issuance of

liability coverage. If UM coverage is purchased, it serves to protect the insured

from other drivers who are not covered by liability insurance and also from other

drivers who do not carry sufficient limits of liability insurance to cover the

damages caused. See La.R.S. 22:1295. Additionally, in 1991, the legislature

required uninsured motorist policies to include “miss and run” coverage under

certain circumstances. This coverage provides protection against other drivers who

cause an accident and then flee the scene, even in the situation where the other

vehicle does not physically collide with the insured vehicle.

Louisiana Revised Statutes 22:1295(1)(f) sets forth the burden of proof for

establishing a “miss and run” claim:

Uninsured motorist coverage shall include coverage for bodily
injury arising out of a motor vehicle accident caused by an automobile
which has no physical contact with the injured party or with a vehicle
which the injured party is occupying at the time of the accident,
provided that the injured party bears the burden of proving, by an
independent and disinterested witness, that the injury was the result of
the actions of the driver of another vehicle whose identity is unknown
or who is uninsured or underinsured.

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The language of the USAgencies policy regarding uninsured/underinsured motorist

coverage follows closely the language of La.R.S. 22:1295(1)(f):

PART C - UNINSURED/UNDERINSURED MOTORIST
COVERAGE
....
Exclusions for part C, all Sections
....
2. We do not provide coverage under any Section of Part C:
a. For bodily injury or property damage which arises out of
the ownership, maintenance or use of a motor vehicle,
when the identity of the owner and operator of such
motor vehicle remain unknown and such motor vehicle
did not come into physical contact with a covered person
or a motor vehicle occupied by a covered person, unless
the covered person can prove by an independent and
disinterested witness that the actions of the unknown
driver were the cause of the bodily injury or property
damage.

Thus, under both La.R.S. 22:1295(1)(f) and the policy in question, the two

elements Plaintiff must prove in this case are: (1) the witness must be independent

and disinterested, and (2) the witness must prove that the injury was caused by the

driver of another vehicle.

The law is clear that the injured party bears the burden of proving that the

“miss and run” accident occurred. Snowden v. Voyager Indem. Ins. Co., 01-0359

(La.App. 1 Cir. 5/24/02), 825 So.2d 1223, writ denied, 02-1710 (La. 10/4/02), 826

So.2d 1127; Eudy v. State Farm Mut. Auto. Ins. Co., 620 So.2d 405 (La.App. 1

Cir.), writ denied, 625 So.2d 1041 (La.1993).

Both parties acknowledge the facts in this case are largely undisputed. The

issue on appeal is whether the testimony of Corporal Janice satisfies the burden of

proof required under La.R.S. 22:1295(1)(f) to prove the accident was caused by the

driver of another vehicle.

In brief, Plaintiff characterized the sole issue presented for review as

“whether a responding officer, when he is proven to be independent and

disinterested, satisfies the requirement of Louisiana Revised Statute 22:1295(1)(f)

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of proof ‘by an independent and disinterested witness’’ necessary to invoke

uninsured/underinsured motorist coverage.” We cannot determine from the record

if the trial court made any determination as to whether Officer Janice is an

“independent and disinterested witness.” The trial court took the matter under

advisement after the summary judgment hearing, and the judgment rendered states

only that “the law and evidence [is] in favor of the Defendant” and “there exists no

genuine issue of material fact that the policy of insurance issued . . . does not

provide coverage for the damages alleged by Plaintiff herein.” A determination

that Officer Janice is “independent and disinterested” is only relevant if his

testimony furthers Plaintiff’s burden of proving another driver caused the accident.

Plaintiff argues the case of Wheat v. Wheat, 03-173 (La.App. 1 Cir. 11/7/03),

868 So.2d 83, supports her argument that the corroborating testimony of a state

trooper is sufficient to meet her burden of proof under the statute. In Wheat, the

plaintiff argued he struck an object in the roadway, which caused him to lose

control of his vehicle, leave the roadway and sustain injury. The witness supplied

by the plaintiff was an investigating police officer who unequivocally stated “his

investigation revealed that the cause of the accident was a transmission left in the

roadway by another vehicle.” Id. at 86. It was noted by the court in Wheat that the

statute does not require that the independent and disinterested witness actually see

the accident occur, but that “the claimant prove, by an independent and

disinterested witness, that the injury was the result of the actions of the driver of

another vehicle.” Id. at 87.

In the instant case Corporal Janice acknowledged “there was nothing

anywhere else around” to help substantiate Plaintiff’s claim that she was run off

the road by another vehicle. Although Corporal Janice stated in his deposition and

report that he believed Plaintiff’s account that she was run off the road by another

vehicle, he noted he had no personal knowledge, simply what Plaintiff had relayed

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to him. The investigating officer in Wheat made an independent analysis of the

accident scene to determine that the cause of the accident was the vehicle hitting a

transmission that was left in the roadway. Clearly, there was no indication in the

instant case of any physical proof to support Plaintiff’s version of events, in

contrast to the trooper’s discovery of the transmission in Wheat.

Plaintiff argues there is nothing in Wheat which states that tangible, physical

evidence must exist to corroborate the injured driver’s story. While that may be

true, it is clear the appellate court in Wheat relied on the tangible, physical

evidence discovered to reach its ruling that the trooper’s testimony corroborated

Plaintiff’s allegation of a “miss and run” accident. There is no such corroboration

in the instant case.

We find no error in the trial court’s conclusion that Corporal Janice’s

testimony did not create any genuine issue of material fact that Plaintiff failed to

carry her burden of proving the injuries she suffered were caused by the actions of

another driver. Thus, we affirm the trial court judgment granting summary

judgment in favor of USAgencies. Costs of this appeal are assessed to Plaintiff-

Appellant, Hattie Denise McCoy.

AFFIRMED.

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