Oswalda Rangel, Indiv. v. Felipe Vega-Ortz

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

16-146

OSWALDA RANGEL, ET AL.

VERSUS

FELIPE VEGA-ORTIZ, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 20146386
HONORABLE MARILYN C. CASTLE, DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of Sylvia R. Cooks, John D. Saunders, and Marc T. Amy, Judges.

AFFIRMED.

Ivan A. Orihuela
Riguer Silva, LLC
3213 Florida Avenue, Suite C
Kenner, LA 70065
(504) 466-7507
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Oswalda Rangel
Leila Medina
Hayley Medina
Joselyn Medina

Sean P. Rabalais
Casler, Bordelon & Lawler
11550 Newcastle Avenue, Suite 200
Baton Rouge, LA 70816
(337) 347-0096
COUNSEL FOR DEFENDANT/APPELLEE:
Progressive Mountain Insurance Company

AMY, Judge.

This matter concerns an automobile accident that resulted in the death of

Cesar Medina. Individually and on behalf of Mr. Medina’s three minor children,

Mr. Medina’s wife filed suit against the driver of the other vehicle, the insurer of

the other vehicle, and the insurer of Mr. Medina’s vehicle. The insurer of Mr.

Medina’s vehicle filed a motion for summary judgment on the basis that their

policy did not include uninsured/underinsured motorist coverage. The plaintiff

filed no opposition to that motion. The trial court granted the motion for summary

judgment, dismissing the insurer. The trial court subsequently denied the

plaintiff’s motion for new trial. The plaintiff appeals. For the following reasons,

we affirm.

Factual and Procedural Background

The allegations giving rise to this litigation stem from an automobile

accident that caused the death of Cesar Medina. Mr. Medina’s spouse, Oswalda

Rangel, filed this matter on her own behalf and on behalf of her minor children,

Leila Medina, Hayley Medina, and Joselyn Medina, naming as defendants the

driver of the other vehicle, Felipe Vega-Ortiz; the owner of Mr. Vega’s vehicle,

Luz Alvarez; the insurer of Mr. Vega’s vehicle, Affirmative Insurance Company;

and the insurer of the vehicle driven by Mr. Medina, Progressive Mountain

Insurance Company.

Thereafter, Progressive filed a motion for summary judgment seeking to be

dismissed from the litigation on the basis that it did not provide

uninsured/underinsured motorist coverage on the date of the accident. Therein,

Progressive asserted that the vehicle driven by Mr. Medina was owned by Blanca

Medina-Ramon.1 Progressive contended that it had issued a policy of insurance on

the vehicle to Ms. Medina-Ramon in the State of Georgia and that Ms. Medina-

Ramon rejected UM coverage, as evidenced by an attached waiver form. The

record indicates that Ms. Rangel neither filed an opposition to the motion for

summary judgment nor appeared at the hearing. 2 The trial court granted the

motion and dismissed Progressive from the litigation.

Thereafter, Ms. Rangel filed a motion for new trial, arguing that the trial

court failed to make a choice-of-law determination and, for the first time, asserted

that the subject UM rejection was not valid. The trial court denied the motion for

new trial without a hearing, noting that Ms. Rangel did not file an opposition to the

motion for summary judgment or appear at the hearing and that Georgia law

governed.3

Ms. Rangel appeals, asserting that:

The Trial Court erred when it granted Progressive’s motion
when:

i. The Trial Court made no conflict of laws determination prior to
granting Progressive’s motion,

ii. The Trial Court applied Georgia law without conducting a
proper conflict of law analysis,

iii. The relevant UM rejection is invalid under Louisiana law,

1
The surname of the insured is referred to as “Medina-Ramon,” “Medina,” and
“Ramon.” We use the form included on the declarations sheet of the policy.
2
While the judgment indicates that Ms. Rangel’s attorney was present at the hearing,
both the minutes and the transcript indicate that her attorney did not appear.
3
The trial court inscribed the rule to show cause submitted with Ms. Rangel’s motion for
new trial as follows:

Denied. The plaintiffs failed to file an opposition to the motion for
summary judgment or make any appearance. The insurance contract in question
was confected in the State of Georgia and the law of Georgia governs the validity
of the UM rejection which was executed in Georgia.

2

iv. The relevant UM rejection is invalid under Georgia law, and

v. Progressive failed to meet its burden of showing that it is
entitled to summary judgment.

Discussion

Summary Judgment

Although Ms. Rangel breaks her assignment of error into several parts, all of

her arguments concern the propriety of the trial court’s grant of summary judgment

in favor of Progressive. “A motion for summary judgment is a procedural device

used when there is no genuine issue of material fact for all or part of the relief

prayed for by a litigant.” Reynolds v. Bordelon, 14-2371, pp. 2-3 (La. 6/30/15),

172 So.3d 607, 610. The motion for summary judgment shall be granted when

there is no genuine issue of material fact and the movant is entitled to judgment as

a matter of law. La.Code Civ.P. art. 966(B)(2).4 Further,

The burden of proof remains with the movant. 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). We note that, even when no opposition is filed to a

motion for summary judgment, the court must still determine whether the movant

has met its burden of proof on the motion. National Collegiate Student Loan Trust

4
The Legislature enacted 2015 La.Acts No. 422 which amended La.Code Civ.P. art. 966,
effective January 1, 2016. As the hearing on this matter occurred on September 28, 2015, we
reference the version of the statute in effect at that time.

3

2003-1 v. Thomas, 48,627 (La.App. 2 Cir. 11/20/13), 129 So.3d 1231. See also

Caceres v. United Auto. Ins. Co., 14-0418 (La.App. 4 Cir. 11/5/14), 154 So.3d 584.

On appeal, summary judgments are reviewed de novo, using the same

criteria that the trial court uses to determine whether summary judgment is

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

the moving party is entitled to judgment as a matter of law. Reynolds, 172 So.3d

607.

Conflicts of Law

Ms. Rangel first re-urges the argument she raised in the motion for new trial

and suggests that the trial court erred in failing to apply Louisiana law to the

executed UM waiver. She contends that, if the trial court had considered pertinent

statutory 5 and jurisprudential 6 law, the Georgia waiver could not be viewed as

evidencing a clear and unmistakable rejection of mandatory UM coverage.

5
Entitled “Uninsured motorist coverage[,]” La.R.S. 22:1295 provides, in part, that:

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; however, the coverage required under this Section is not
applicable when any insured named in the policy either rejects coverage, selects lower
limits, or selects economic-only coverage, in the manner provided in Item (1)(a)(ii) of
this Section. In no event shall the policy limits of an uninsured motorist policy be less
than the minimum liability limits required under R.S. 32:900, unless economic-only
coverage is selected as authorized in this Section. Such coverage need not be provided in
or supplemental to a renewal, reinstatement, or substitute policy when the named insured
has rejected the coverage or selected lower limits in connection with a policy previously
issued to him by the same insurer or any of its affiliates. The coverage provided under
this Section may exclude coverage for punitive or exemplary damages by the terms of the
policy or contract. Insurers may also make available, at a reduced premium, the coverage
provided under this Section with an exclusion for all noneconomic loss. This coverage
shall be known as “economic-only” uninsured motorist coverage. Noneconomic loss

4

Louisiana Revised Statutes 22:1295 (formerly contained within La.R.S.

22:1406) requires that all automobile liability policies delivered or issued for

delivery in Louisiana, include UM coverage unless the insured expressly rejects

that coverage or chooses a lower limit by designated form. Recognizing that the

statute is applicable to policies “delivered or issued for delivery in this state,” the

supreme court determined in Champagne v. Ward, 03-3211 (La. 1/19/05), 893

So.2d 773, that the provision is not necessarily applicable to a foreign insurance

policy in a multistate case, even though the accident occurs in Louisiana and

involves a Louisiana resident. The supreme court instead explained that, “even

when the accident occurs in Louisiana and involves a Louisiana resident[,]” the

means any loss other than economic loss and includes but is not limited to pain, suffering,
inconvenience, mental anguish, and other noneconomic damages otherwise recoverable
under the laws of this state.

(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 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.
6
Citing Dyess v. American National Property and Casualty Co., 03-1971 (La.App. 1 Cir.
6/25/04), 886 So.2d 448, writ denied, 04-1858 (La. 10/29/04), 885 So.2d 592, Ms. Rangel
chiefly questions the form’s inclusion of an electronic “X” (rather than the insured’s initials) by
the choice to “reject Uninsured Motorist Coverage entirely and understand that my policy does
not include this coverage.”

5

Louisiana Civil Code’s foundational, choice of law provisions supply “the

appropriate methodology for determining which state’s law applies to the

interpretation of UM contracts in multistate cases[.]” Id. at 775.

In this regard, La.Civ.Code art. 3515 sets forth the general and residual

conflict of law rules, stating that:

Except as otherwise provided in this Book, an issue in a case
having contacts with other states is governed by the law of the state
whose policies would be most seriously impaired if its law were not
applied to that issue.

That state is determined by evaluating the strength and
pertinence of the relevant policies of all involved states in the light of:
(1) the relationship of each state to the parties and the dispute; and (2)
the policies and needs of the interstate and international systems,
including the policies of upholding the justified expectations of parties
and of minimizing the adverse consequences that might follow from
subjecting a party to the law of more than one state.

Similarly, La.Civ.Code art. 3537, which addresses conflict of laws as relevant to

conventional obligations, states that:

Except as otherwise provided in this Title, an issue of
conventional obligations is governed by the law of the state whose
policies would be most seriously impaired if its law were not applied
to that issue.

That state is determined by evaluating the strength and
pertinence of the relevant policies of the involved states in the light of:
(1) the pertinent contacts of each state to the parties and the
transaction, including the place of negotiation, formation, and
performance of the contract, the location of the object of the contract,
and the place of domicile, habitual residence, or business of the
parties; (2) the nature, type, and purpose of the contract; and (3) the
policies referred to in Article 3515, as well as the policies of
facilitating the orderly planning of transactions, of promoting
multistate commercial intercourse, and of protecting one party from
undue imposition by the other.

The identified objective of both Articles is to “identify the state whose

policies would be most seriously impaired if its laws were not applied to the issue

at hand.” Champagne, 893 So.2d at 786. Those policies are identified by

6

“evaluating the strength and pertinence of the relevant policies of the involved

states in light of the factors set forth in those Civil Code articles.” Id.

Referring to the competing public policies and interests of the involved

states as “profound,” the supreme court stated that the purpose of Louisiana’s “UM

legislation is to promote full recovery for innocent tort victims.” 7 Champagne,

893 So.2d at 788. Conversely, the foreign insurer, in this case Georgia, “has an

interest in the regulation of its insurance industry and in the contractual obligations

that are inherent parts thereof.” Id. In this regard, the supreme court remarked that

“[t]he integrity of the contract is a substantial and real interest. The fact that

Congress has allowed fifty states to have their own uniform system of regulations

governing insurance strongly suggests this is a legitimate public purpose.” Id.

After identification of the competing state policies, we turn to de novo

consideration of the pertinent contacts with the respective states. Id.

Reference to the subject policy submitted by Progressive in support of its

motion for summary judgment indicates that it was issued in Georgia, is identified

as a “Georgia Auto Policy[,]” and was issued to Ms. Medina-Ramon at a Georgia

address. The policy further indicates the covered vehicles, including the 1999

7
It further identified various factor’s supporting Louisiana’s interest in promoting full
recovery for innocent accident victims as:

(1) there are economic interests involved, which include costs of medical care (which are
more likely to be paid if there is sufficient insurance); (2) there is significant involvement
of the facilities of the Department of Public Safety and Corrections and the judicial
system; and (3) the issuing states of the insurance policy often have credit and reduction
provisions in their UM coverage, thereby reducing limits and serving to prevent full
recovery by the innocent accident victims. Zuviceh v. Nationwide Ins. Co., 2000-0773
(La.App. 1st Cir.5/11/01), 786 So.2d 340, 345, writ denied, 2001-2141 (La.11/09/01),
801 So.2d 373. Any credit reducing the UM limits by the amount of liability insurance
of the adverse driver is clearly contrary to the underinsured motorist protection required
by Louisiana's statute. Id. at 345-346, quoting William Shelby McKenzie and H. Alston
Johnson, III, Insurance Law and Practice § 119, p. 293, in Louisiana Civil Law Treatise
(2nd ed.1996).

Champagne, 893 So.2d at 788.

7

Cadillac involved in the subject accident, are all garaged in Georgia. The policy

lists the “Garaging ZIP Code” as “31082” and further includes that same ZIP code

in Ms. Medina-Ramon’s listed Sandersville, Georgia address. The policy

declarations page reports that “Uninsured Motorist” was “Rejected” for each of the

listed vehicles, including the vehicle driven by Mr. Medina in the accident.

Additionally, the executed UM form is attached, bearing an “X” by the option

indicating that: “I reject Uninsured Motorist Coverage entirely and understand that

my policy will not include this coverage.”

On the other hand, and reflective of Ms. Rangel’s lack of submission in

opposition to the motion for summary judgment, the record is sparse as to

Louisiana’s contacts with the dispute at hand. Certainly, it is significant that the

accident occurred in Lafayette Parish. However, Mr. Medina’s presence in

Louisiana at the time of the accident is vague on the record before the court. While

Ms. Rangel suggests in her brief to this court, as she did in her motion for new

trial, that Mr. Medina was a Louisiana resident, she did not allege that important

fact in the petition8 nor did she submit evidence as to that fact at the hearing on the

motion for summary judgment. Progressive has not conceded that fact in the

filings before this court. Even upon consideration of the accident report that Ms.

Rangel submitted at the time of her motion for new trial, the factual allegation of

Mr. Medina’s residency remains unclear. While the report lists a Scott, Louisiana

address for Mr. Medina, it contrarily provides that he was driving under the

authority of a Georgia driver’s license at the time of the accident. The designated

record before this court contains no additional evidence in this regard.

8
Ms. Rangel did, however, allege in the petition that she and her children, as well as the
driver of the other vehicle involved in the accident, Mr. Felipe Vega-Ortiz, were Louisiana
residents.

8

Based on Louisiana’s and Georgia’s respective relationships to the issue, and

as revealed through the limited facts before us, we find no error in a determination

that Georgia is “the state whose policies would be most seriously impaired if its

laws were not applied to that issue.” See La.Civ.Code art. 3537. Simply, the

Georgia insurance policy was issued to an insured at a Georgia address on a

vehicle garaged in Georgia. That vehicle’s presence in Louisiana, as well as that

of its driver, Mr. Medina, remains unclear on the record before us. Although the

evidence is not sufficiently clear to find that Mr. Medina was only “transitorily

within the borders of Louisiana[,]” as was the situation of the plaintiff in

Champagne, 893 So.2d at 789, the slim record before us does not evidence

otherwise. It does, however, establish multiple contacts with Georgia. Thus, based

on the presented evidence, we conclude that Georgia’s “policies will be most

seriously impaired if its law is not applied to the insurance policy.” 9 Id.

Accordingly, we find that the trial court did not err in finding that Georgia

law is applicable in this case. Ms. Rangel’s assignment of error in this regard is

without merit.

Waiver of Uninsured/Underinsured Motorist Coverage

Ms. Rangel also argues that the trial court erred in granting summary

judgment because, even if Georgia law was applicable, the waiver of

uninsured/underinsured motorist insurance was not valid. Ms. Rangel contends

9
While we make this determination regarding Georgia’s greater interest, it is worth
pointing out that both Louisiana and Georgia require a signed rejection of uninsured motorist
coverage to prove that coverage was declined; the issue herein is only which formalities are
required for such a rejection form to be valid. Rios v. Pierce, 14-730, p. 4 (La.App. 4 Cir.
1/7/15), 158 So.3d 856, 859 (wherein the fourth circuit remarked that, while there was a
difference of the required formalities, there was “no true conflict of policies” in a case involving
Mississippi as the foreign insurer where both states required a signed rejection form in order to
prove that coverage was declined), writ denied, 15-256 (La. 4/17/15), 168 So.3d 404. See also
Ga. Code Ann. § 33-7-11.

9

that Georgia law requires that the insured be given the option of rejecting

uninsured/underinsured motorist coverage; obtaining a lower amount of

uninsured/underinsured motorist coverage, or obtaining uninsured/underinsured

motorist coverage at the policy limits. She argues that Ms. Medina-Ramon,

Progressive’s insured, had “no option but to reject UM coverage[,]” as the

selection rejection coverage was “pre-filled.”

The relevant Georgia statute addressing rejection of uninsured/underinsured

motorist coverage is Ga. Code Ann. § 33-7-11. That statute states, in relevant part,

that:

(3) The coverage required under paragraph (1) of this
subsection shall not be applicable where any insured named in the
policy shall reject the coverage in writing. The coverage required
under paragraph (1) of this subsection excludes umbrella or excess
liability policies unless affirmatively provided for in such policies or
in a policy endorsement. The coverage need not be provided in or
supplemental to a renewal policy where the named insured had
rejected the coverage in connection with a policy previously issued to
said insured by the same insurer. The amount of coverage need not be
increased in a renewal policy from the amount shown on the
declarations page for coverage existing prior to July 1, 2001. The
amount of coverage need not be increased from the amounts shown on
the declarations page on renewal once coverage is issued.

Thus, pursuant to Ga. Code Ann. § 33-7-11, Georgia law requires that an

insured be given the option of “rejecting uninsured/underinsured motorist

coverage, selecting minimum coverage or selecting coverage up to the limits of

liability under the policy[.]” Georgia Farm Bureau Mut. Ins. Co. v. North, 311

Ga.App. 281, 283, 714 S.E.2d 428, 431 (2011).

However, it is equally true . . . that there are no formal, statutory
requirements or appellate court decisions governing how and in what
manner the insurer must offer the available options for uninsured
motorist coverage, just as there are no formal requirements governing
the manner in which such coverage must be rejected, beyond
requiring that rejections must be in writing[.]

10

Id. The burden of showing that the insured made an affirmative choice to reject

UM coverage lies on the insurer. McGraw v. IDS Prop. & Cas. Ins. Co., 323

Ga.App. 408, 744 S.E.2d 891 (2013).

Here, although Ms. Rangel asserts that Progressive failed to meet its burden

of proof with regard to a valid waiver of UM coverage, our review of the record

indicates that Progressive submitted a copy of the insurance policy into evidence,

including a waiver of UM coverage signed and dated by its insured. Progressive

also included an affidavit from one of its employees attesting that

“Uninsured/Underinsured motorist coverage was rejected by valid waiver signed

by named insured Blanca Medina.” Ms. Rangel does not contest that Ms. Medina-

Ramon signed the waiver.

After review, we conclude that this evidence is sufficient such that

Progressive has met its burden of proving that Ms. Medina-Ramon waived UM

coverage as contemplated by Georgia law. See Lambert v. Alfa Gen. Ins. Co., 291

Ga.App. 57, 660 S.E.2d 889 (2008). Although Ms. Rangel argues before this court

that the waiver form is invalid because the “rejected” option was “pre-filled,” thus

depriving Ms. Medina-Ramon from a real choice in the matter, she has not offered

any evidence to support her assertion that Ms. Medina-Ramon was forced to

decline that coverage. Further, we find no merit to Ms. Rangel’s citation to North,

714 S.E.2d 428, in support of this argument. Therein, the Georgia Court of

Appeals determined that the form provided by the insurer to its insured only had

the option to select coverage at the policy limits or to reject coverage altogether.

Id. Noting that the options provided by the insurer did not include all of the options

from which the insured was allowed to select by law, the Georgia Court of Appeals

found that it was impermissible for the insurer to carve out exclusions which the

11

law did not allow. Accordingly, the court found that the rejection of UM coverage

was invalid. Id. Our review of the waiver form submitted into evidence reveals

that all of the options available to the insured by law are included therein.

Thus, we conclude that, although the trial court’s reasons for judgment were

brief, the trial court appropriately granted the motion for summary judgment,

dismissing Progressive from the litigation. This assignment of error is without

merit.

DECREE

For the foregoing reasons, the trial court’s grant of the motion for summary

judgment in favor of Progressive Mountain Insurance Company is affirmed. Costs

of this appeal are assessed to the plaintiff, Oswalda Rangel, individually and on

behalf of Leila Medina, Hayley Medina, and Joselyn Medina.

AFFIRMED.

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