Darius Troy Barras and Julie A. Barras v. Cardinal Services, LLC

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

19-530

DARIUS TROY BARRAS AND
JULIE A. BARRAS
VERSUS

CARDINAL SERVICES, LLC, ET AL.

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 129197
HONORABLE SUZANNE M. DE MAHY, DISTRICT JUDGE

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VAN H. KYZAR
JUDGE

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Court composed of John E. Conery, Van H. Kyzar, and Candyce G. Perret, Judges.

AFFIRMED IN PART; REVERSED IN PART;
RENDERED; AND REMANDED.

Eric T. Haik

Haik, Minvielle & Grubbs

P. O. Box 11040

New Iberia, LA 70562-1040

(337) 365-5486

COUNSEL FOR PLAINTIFFS/APPELLANTS:
Darius Troy Barras
Julie A. Barras

Kevin P. Merchant
Phillip M. Smith
NeunerPate
1001 West Pinhook Road, Suite 200
Lafayette, LA 70503
(318) 237-7000
COUNSEL FOR DEFENDANT/APPELLEE:
St. Paul Fire and Marine Insurance Company, Inc.

KYZAR, Judge.

The plaintiffs, Darius Troy Barras and Julie A. Barras, appeal from trial court
judgments granting summary judgment in favor of the defendant, St. Paul Fire and
Marine Insurance Company, Inc., denying their motion for partial summary
judgment, and dismissing their claims against St. Paul Fire and Marine Insurance
Company, Inc. with prejudice. For the following reasons, we affirm in part, reverse
in part, render judgment, and remand.

DISCUSSION OF THE RECORD

On January 29, 2016, Mr. Barras, an employee of Vesco Rental and Pressure
Control, LLC (Vesco Rental), was driving his work vehicle eastbound on US.
Highway 90 in Iberia Parish when he was struck by a westbound vehicle driven by
Roland Joseph. Mr. Joseph, who died as a result of his injuries, was found to have
a blood alcoho! content of 0.16%. He was further found to be the sole cause of the
accident, and his insurer, Imperial Fire and Casualty Insurance, tendered its policy
limits of $15,000.00 to Mr. Barras.

Mr. Barras, who was in the course and scope of his employment at the time
of the accident, suffered multiple fractures, underwent numerous surgeries, and
endured a lengthy rehabilitation period as a result of his injuries. He further suffered
an 87% loss of vision in his left eye.

On November 4, 2016, the Barrases filed suit against Cardinal Services, LLC
and Vesco Rental (referred to collectively as Cardinal Services)’ and their insurer,
St. Paul Fire and Marine Insurance Company, Inc. (St. Paul), seeking damages under

the uninsured/underinsured motorist (UM) provisions of their insurance policy with

' The St. Paul insurance application lists Cardinal Services as the first named insured in the
application. Listed as “other named insureds” in the application are Vesco Rental & Pressure
Control, LLC, Cardinal Slickline, and Cardinal Coil Tubing.

St. Paul. In the alternative, should St. Paul’s policy be insufficient to satisfy their
damages, the Barrases filed suit against their own insurer, State Farm Mutual
Automobile Insurance Company (State Farm), seeking damages under the UM
coverage provided by the State Farm policy.

State Farm answered the Barrases’ petition on November 28, 2016.
Subsequently on February 21, 2017, the Barrases filed a motion and order of
voluntary dismissal, dismissing, without prejudice, their claims against Cardinal
Services and Vesco Rental, but reserving their claims against St. Paul, State Farm,
and any unnamed insurers. On February 23, 2017, St. Paul filed peremptory
exceptions of no cause and no right of action, answered the Barrases’ petition, and
requested trial by jury.

On March 14, 2018, St. Paul moved for summary judgment, alleging that
Cardinal Services had properly rejected UM coverage in its policy; thus, the Barrases
were precluded from asserting such claims against St. Paul. Following a continuance
and further discovery, the Barrases filed a motion for partial summary judgment on
March 15, 2019, arguing that the UM rejection form signed by Cardinal Services
was invalid due to a material alteration and modification of the form, which included
the words: “Actual policy provisions may differ[.!”? They further argued that the
UM rejection form was invalid on its face and that it failed to indicate whether it
applied to Cardinal Services’ auto policy or its umbrella/excess coverage policy,
both of which were written by St. Paul.

In support of its motion for summary judgment, St. Paul introduced the
affidavits of the following persons: Andrew Smith, an underwriter for Travelers
Indemnity Company (Travelers); Jeffrey Allen DuBois, chief operating officer of

Cardinal Services; Dwight Andrus, IV, president of Dwight W. Andrus Insurance,

Inc.; and James Andrew Holleman, president of Cardinal Services. It also
introduced the deposition of Toyia Harper, a former claims adjuster for Travelers.

In his original and supplemental affidavits, Mr. Smith stated that St. Paul
received a commercial insurance application, No. ZPP-AP04235-15-N4, from
Dwight Andrus Insurance Inc. on behalf of Cardinal Services, which contained a
UM rejection form. He stated that St. Paul then issued the commercial insurance
policy, No. ZPP-81M32833-15-N4, effective May 29, 2015, to Cardinal Services
and that both the insurance application and policy attached to his affidavit were true
and correct copies and were maintained by St. Paul in the normal course of business.
Mr. Smith stated that options two and three on the UM form were marked “NA”
because St. Paul did not offer economic-only UM coverage on the type of policy
issued to Cardinal Services. He further stated that the UM form included in the
commercial policy applied to the entire policy, including the auto liability coverage
and the umbrella/excess endorsement. Mr. Smith stated that these coverages were
not separate policies, but were coverages provided in the one policy.

Mr. DuBois stated that he was authorized by Cardinal Services’ president, Mr.
Holloman, to select insurance coverage on behalf of Cardinal Services, which
included the authorization to reject UM coverage. During a May 19, 2015 meeting
with Mr. Andrus, he stated that they discussed Cardinal Services’ desire to obtain a
new insurance policy with St. Paul, as well as the “options regarding UM bodily
injury coverage, including but not limited to [Cardinal Services’] option to reject
UM bodily injury coverage.” Mr. DuBois stated that he executed a commercial
insurance application with St. Paul, in which he initialed, signed, and dated the UM
rejection form, rejecting UM coverage on behalf of Cardinal Services. Mr.
Holloman confirmed that he authorized Mr. DuBois to select insurance coverage on

behalf of Cardinal Services, which included the authorization to reject UM coverage.

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Mr. Andrus stated that he met with Mr. DuBois on May 19, 2015, to discuss
Cardinal Services’ application for a new insurance policy. Copies of the application
and the insurance policy were attached to Mr. Andrus’ affidavit. He stated that he
discussed Cardinal Services’ options regarding UM coverage and that Mr. DuBois
executed Cardinal Services’ commercial insurance application and initialed, signed
and dated the UM coverage form, rejecting UM coverage on Cardinal Services’
behalf.

Ms. Harper stated that she was a former senior claims adjuster for Travelers,
which is the parent company of St. Paul. She stated that she had no personal
recollection of the Barrases’ claim against Cardinal Services’ UM coverage. Her
notes, which were attached to her deposition, indicate that she received a letter of
representation from the Barrases’ counsel on March 16, 2016, requesting
information pertaining to the insurance coverage that St. Paul provided Vesco Rental
for the vehicle Mr. Barras was driving at the time of his accident.

Ms. Harper stated that she contacted Cardinal Services’ insurance agent on
March 24, 2016, and learned that UM coverage had been rejected by Cardinal
Services. An email received by Ms. Harper from DeLanya Patin, a claims assistant
with Dwight Andrus Insurance, contained Cardinal Services’ signed insurance
application, number ZPP-AP04235025-15-N4, including a signed UM rejection
form rejecting UM coverage. Ms. Harper stated that she emailed a coverage denial
letter to the Barrases’ counsel that same day, which stated that Cardinal Services’
insurance policy did not provide UM coverage for Mr. Barras’ accident.

In response to a March 29, 2016 letter from the Barrases’ counsel requesting
a copy of Cardinal Services’ liability policy and/or its UM rejection form, Ms.
Harper agreed that she sent an April 12, 2016 letter, with a copy of a UM rejection

form attached, to the Barrases’ counsel. Although the attached UM rejection form

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(Exhibit A-2), policy number ZPP-81M32833-15-N4, included the name of the
insured, “Cardinal Services, LLC,” it neither indicated, by the placement of initials,
whether Cardinal Services was accepting or rejecting UM coverage, nor was it
signed by the insured’s representative or dated. Ms. Harper, although she had no
personal recollection of sending this letter, stated that the sending of this copy of the
UM rejection form was a mistake because she had already received a copy of the
signed UM rejection form from Ms. Patin on March 24, 2016.

Attached to Ms. Harper’s deposition were four UM rejection forms, which
were provided to the Barrases by St. Paul. Exhibit A-2 was as described above.
Exhibit C, containing the notation “DEF-UNDERWRITING FILE 193,” was
formatted differently from the other three forms, and contained no information
identifying either the insured, the insurer, the policy number, the selection/rejection
of UM coverage, or the date.

Exhibit D, containing the notation “DEF-UNDERWRITING FILE 101,”
identified both St. Paul and Travelers as the insurer/insurers, identified the insured
as “Cardinal Services, LLC,” and contained the policy number, ZPP-APOQ4235025-
15-NR. However, the form did not indicate, by the placement of initials, whether
the insured was accepting or denying UM coverage, and it was neither signed by
Cardinal Services’ legal representative nor dated. This form also included the
following italicized language in the left margin of the form: “* This is not a certified
copy of any policy form. * Actual policy provisions may differ.*”

Exhibit E, containing the notation “ST PAUL 386,” identified the insurer[s],
St. Paul and Travelers; identified the insured, Cardinal Services; and, by the
placement of initials, the rejection of UM coverage by Cardinal Services’ legal
representative. The form also contained the indecipherable signature of Cardinal

Services’ legal representative, the insurance application number, ZPP-

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APO4235025-15-N4, and was dated May 19, 2015. It also contained the following
italicized language in the left margin: “* This is not a certified copy of any policy
form. * Actual policy provisions may differ.*”

When asked about the four UM rejection forms, Ms. Harper had no idea why
Cardinal Services’ file contained multiple UM rejection forms. Nor did she know
why the italicized language was located in the left margins of Exhibits D and E or if
this addition effectively altered the UM rejection forms. However, Ms. Harper
agreed that this superfluous language was not contained in the Louisiana
Commissioner of Insurance’s UM rejection form. When pressed, she stated that
from a general standpoint, “I would assume it’s raising awareness that there may be
a different form out there.” However, she said that she was not in a position to
interpret the language.

After reviewing a certified copy of Cardinal Services’ insurance policy, No.
ZPP-8 1M32833-15-N4, Ms. Harper agreed that the policy was in effect from May
29, 2015 through May 29, 2016. She stated that the Policy Form List, which she
likened to a table of contents, did not list the UM rejection form as part of Cardinal
Services’ policy. She said that despite this absence, the policy’s auto coverage
summary indicated that UM coverage was not provided by the policy.

With regard to the “umbrella/excess section” of the policy, Ms. Harper could
not explain why this section was labeled as a renewal or, if indeed, this section of
the policy was a renewal as opposed to a new policy. She further answered that she
neither knew nor recalled any instances where an “excess policy would renew and
there would be a different underlying policy written through a different carrier.” Ms.
Harper agreed that there was a difference between an excess policy and the
underlying policy. However, she did not know if separate UM rejection forms were

required for the excess policy and the underlying policy. She stated that different

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companies handled things differently, and she could not remember how Travelers
handled these UM rejection forms.

In support of their motion for partial summary judgment and in opposition to
St. Paul’s motion for summary judgment, the Barrases submitted excerpts and the
attachments from Ms. Harper’s deposition and St. Paul’s answers to their
interrogatories. In its June 2, 2017 answer to the Barrases’ fourteenth interrogatory,
St. Paul stated that it did not “currently possess the name and employment capacity
of the individual or individuals that signed the attached copy of the Commercial
Insurance Application (ST PAUL 31 1-389).”

Following an April 5, 2019 hearing, the trial court issued reasons for judgment,
finding that Cardinal Services had properly rejected UM coverage under St. Paul’s
policy and that only one UM rejection form was required because Cardinal Services
rejected UM coverage in both its auto and excess policy coverages. Judgment
granting summary judgment in favor of St. Paul, dismissing the Barrases’ claims
against it, with prejudice, was rendered on April 5, 2019. A separate judgment
denying partial summary judgment in favor of the Barrases was rendered that same
day. It is from these judgments that the Barrases appeal.

On appeal, the Barrases raise two assignments of error committed by the trial
court:

l. The trial court erred in granting St. Paul’s Motion for Summary
Judgment; and

2. The trial court erred in denying Appellants’ Motion for Partial
Summary Judgment.

OPINION
Summary judgment is a procedural device used when there is no genuine issue

of material fact. Murphy v. Savannah, 18-991 (La. 5/8/19), 282 So.3d 1034;

La.Code Civ.P. art. 966(A)(2). Appellate courts review summary judgment de novo

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using the same criteria that governs the trial court’s determination of whether
summary judgment is appropriate, i.e., whether there is any genuine issue of material
fact, and whether the movant is entitled to judgment as a matter of law. Wright v.
La. Power & Light, 06-1181 (La. 3/9/07), 951 So.2d 1058; La.Code Civ.P. art.
966(A)(3).

A material fact is one that “potentially insures or precludes recovery, affects
a litigant’s ultimate success, or determines the outcome of the legal dispute.” Hines
v. Garrett, 04-806, p. 1 (La. 6/25/04), 876 So.2d 764, 765 (per curiam). “A genuine
issue of material fact is one as to which reasonable persons could disagree; if
reasonable persons could reach only one conclusion, there is no need for trial on that
issue and summary judgment is appropriate.” Smitko v. Gulf S. Shrimp, Inc., \1-
2566, p. 8 (La. 7/2/12), 94 So0.3d 750, 755.

Although the mover bears the burden of proof for the motion, if it will not
bear the burden of proof at trial, then it need only point out to the trial court “the
absence of factual support for one or more elements essential to the adverse party’s
claim, action, or defense.” La.Code Civ.P. art. 966(D)(1). Once this occurs, the
burden shifts to “the adverse party to produce factual support sufficient to establish
the existence of a genuine issue of material fact or that the mover is not entitled to
judgment as a matter of law.” /d.

Typically, the interpretation of an insurance contract presents a question of
law, which can properly be resolved through a motion for summary judgment.
Cutsinger v. Redfern, 08-2607 (La. 5/22/09), 12 So.3d 945. “An insurance policy is
a contract between the parties and should be construed by using the general rules of
interpretation of contracts set forth in the Civil Code.” Bernard v. Ellis, 11-2377, p.

9 (La. 7/2/12), 111 So.3d 995, 1002.

In accordance with Louisiana law, all insurance policies that provide liability
coverage “arising out of the ownership, maintenance, or use of any motor vehicle,”
shall include UM coverage in amounts “not less than the limits of bodily injury
liability provided by the policy,” unless the insured “rejects coverage, selects lower
limits, or selects economic only coverage” on a form prescribed by the Louisiana
Commissioner of Insurance. La.R.S. 22:1295(1)(a)(i), (11). This mandate extends
to umbrella and excess policies if those policies cover liability “arising out of the
ownership, maintenance, or use of a motor vehicle.” S. Am. Ins. Co. v. Dobson, 441
So.2d 1185, 1190 (La.1983) (on rehearing) (quoting La.R.S. 22:1406(D)(1)(a))-

“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.” La.R.S. 22:1295(1)(a){ii).

Uninsured motorist coverage embodies a strong public policy,
which is to provide full recovery for innocent automobile accident
victims who suffer damages caused by a tortfeasor who has no coverage
or is not adequately covered by liability insurance. Cutsinger [v.
Redfern], (08-2607 (La. 5/22/09),] 12 So.3d 949 (citing Duncan v.
U.S.A.A. Ins. Co., 06-363 (La.11/29/06), 950 So.2d 544, 547). The
underlying purpose of uninsured motorist coverage “is to promote and
effectuate complete reparation, no more or no less.” /d. (citing Hoefly
v. Government Employees Ins. Co., 418 So.2d 575, 579 (La.1982)). To
carry out the objective of providing reparation for persons injured
through no fault of their own, the statute is liberally construed. /d. at
949-50 (citing Taylor v. Rowell, 98-2865 (La.5/18/99), 736 So.2d 812,
816; Roger v. Estate of Moulton, 513 So.2d 1126, 1130 (La.1987)).
Any exclusion in uninsured motorist coverage must be clear and
unmistakable. /d. at 950 (citing Duncan, 950 So.2d at 547).

Bernard, 111 So.3d at 1002-03.

* The original UM statute was numbered La.R.S. 22:1406(D). It was redesignated as
La.R.S. 22:680 by 2003 La. Acts No. 456, § 3. It has since been renumbered to its present iteration.
La.R.S. 22:1295, by 2008 La. Acts No. 415, § 1.

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In Duncan v. U.S.A.A. Insurance Co., 06-363, pp. 13 (La. 11/29/06), 950
So.2d 544, 552, the supreme court stated that the UM rejection form prescribed by
the commissioner of insurance involved six tasks to be completed by the insured:

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. Thus, the policy
number is relevant to the determination of whether the insured waived
UM coverage for the particular policy at issue.

The supreme court noted that although a rebuttable presumption arises with a
properly completed and signed UM waiver, the absence of this presumption does not
mean that the insurer is given the opportunity to actually prove that the insured
knowingly waived UM coverage:

This argument conflates the issues of form and intent. We find
that, “The expression of a desire not to have UM coverage, however
clear, does not necessarily constitute a valid rejection if the expression
of rejection does not meet the formal requirements of law,” as stated by
the First Circuit Court of Appeal in Cohn [v. State Farm Mutual
Automobile Insurance Co.], 03-2820 at p. 5 [(La.App. 1 Cir. 2/11/05)],
895 So.2d [600,] 602, citing Roger [v. Estate of Moulton], 513 So.2d
[1126,] 1131 [(La.1987)]. As stated above, the legislature gave the
commissioner of insurance the authority to create a form and stated that
“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.” Pursuant to that mandate, compliance with the form
prescribed by the commissioner of insurance is necessary for the UM
waiver to be valid. The insurer cannot rely on the insured’s intent to
waive UM coverage to cure a defect in the form of the waiver.

Td. at 553.
Thus, the failure of the insured to properly complete the UM waiver form invalidates
the UM waiver and causes UM coverage to be read into the policy equal to the limits

of bodily injury provided by the policy.

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In Duncan, the insured rejected UM coverage on the form prescribed by the
commissioner of insurance but failed to fill in the policy number on the form. The
supreme court found that this rendered the UM rejection form invalid and held that
the insured’s policy provided UM coverage at limits equal to the liability limits
provided by the policy. It further held that “reformation of a UM waiver is precluded
when the change adversely affects the rights of persons who, prior to the reformation,
would be able to recover damages under the UM coverage provisions.” /d. at 554.

A review of the supreme court opinions addressing UM waiver issues since
Duncan is helpful. In Gray v. American National Property & Casualty Co., 07-1670
(La. 2/26/08), 977 So.2d 839, a UM waiver form was sent to the representative of
the Beauregard Parish School Board, who signed and initialed the form, selecting
lower UM limits. The signed form was then returned to the insurance agent, whose
employee filled in the policy number, the date of the policy, and the $100,000.00
lower limits selected by the insured. The trial court granted summary judgment in
favor of the plaintiff, finding the school board’s UM waiver invalid, and denied the
insured’s cross motion for summary judgment. After writs were denied by this court,
the supreme court granted the insured’s application for supervisory writs. Gray v.
Am. Nat'l Prop. & Cas. Co., 07-592 (La.App. 3 Cir. 7/11/07) (unpublished writ),
writ granted, 07-1670 (La. 11/16/07), 967 So.2d 513.

In affirming the trial court’s grant of summary judgment in favor of the
plaintiffs, the supreme court stated:

We now hold that compliance with the form prescribed by the Insurance

Commissioner involves more than the rote completion of the “six tasks”

identified in Duncan by someone at sometime. Instead, we find that, in

order for the form to be valid, the six tasks must be completed before

the UM selection form is signed by the insured, such that the signature

of the insured or the insured’s representative signifies an acceptance of

and agreement with all of the information contained on the form. An

insurer who is unable to prove that the UM selection form was
completed before it was signed by the insured simply cannot meet its

1]

burden of proving by clear and unmistakable evidence that the UM
selection form is valid.

Id. at 849.

The supreme court further rejected the insured’s arguments that the form, as
completed by the insurance agent, reflected the insured’s intent to waive UM
coverage and that the subsequent actions of the insurance agent constituted a valid
reformation of the policy. It noted that neither the insured’s intent to waive UM
coverage nor reformation of the UM waiver would be sufficient to resurrect an
invalid UM rejection.

The supreme court stated that “[a]ny perceived unfairness to the insurer
resulting from this decision is, we believe, offset by the fact that the insurer had both
the authority and the opportunity to assure that the UM selection form in this case
was completed properly.” /d. It further noted that the “insurer, not the insured, has
the responsibility of assuring that the form is completed properly, and [the insurer]
did not fulfill that responsibility in this case.” /d. at 850. Thus, it stated that the
insurer, once it received the incomplete form from the insured, could have returned
the form to the insured, with instructions for its proper completion.

In Harper v. Direct General Insurance Co., 08-2874 (La. 2/13/09), 2 So.3d
418 (per curiam), the supreme court held that the insured’s waiver of UM coverage
was valid when it contained the printed name of the insured and the signature and
mitials of the insured’s representative, whose authority to sign the waiver was
established by affidavit. In doing so, the supreme court stated:

A review of our opinion in Duncan reveals that we used the disjunctive

“or” with regard to tasks # 3 and # 4: “(3) printing the name of the

named insured or legal representative; (4) signing the name of the

named insured or legal representative.” [emphasis added] Nothing in

Duncan links these two separate tasks into a single task, as the district

court suggested. To the contrary, as long as the name of the named

insured is printed and the legal representative signs the form, both tasks
are satisfied. Any other interpretation would lead to absurd results,

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because if the name of the corporate insured is printed as the named
insured, it is obvious the corporate insured cannot sign its name, but
must act through its legal representative.

Id. at 419-20; see also Banquer v. Guidroz, 09-466 (La. 5/15/09), 8 So.3d 559 (per
curiam), which presented the identical issue.

In Gingles v. Dardenne, 08-2995 (La. 3/13/09), 4 So.3d 799 (per curiam), the
supreme court held that a UM waiver by the insured was valid despite the fact that
it did not include the insurance company’s name. It noted that the commissioner of
insurance’s Bulletin 98-01 stated that for identification purposes, the insurance
company’s name had to be placed on the lower left-hand corner of the UM waiver
form. The supreme court held that because the UM waiver form satisfied all of the
tasks enunciated by Duncan, it was valid despite the absence of the insurer’s name.

In Lynch v. Kennard, 09-282 (La. 5/15/09), 12 So.3d 944 (per curiam), the
supreme court held valid a UM waiver despite the fact that the insured’s secretary
inserted the date on the form after the insured signed and initialed the form and then
walked out of the office. The supreme court held that because the form was properly
completed and signed, the plaintiff failed to rebut the presumption that that the
insured knowingly rejected UM coverage.

In Morrison v. USAA Casualty Insurance Co., 12-2334 (La. 1/11/12), 106
So.3d 95 (per curiam), the insured’s representative failed to initial whether he was
selecting or rejecting UM coverage prior to signing the form. The insurer returned
the incomplete form to the insured, who then initialed that he was rejecting UM
coverage. The supreme court, in finding that the insured’s rejection of UM coverage
was valid, held that the actions of the insured were consistent with its finding in Gray
and, “[a]lthough the exact date of the initialing is unclear, the evidence presented by

relator establishes it occurred prior to the subject accident.” /d. at 96.

In Tuson v. Rodgers, 15-1334, p. 4 (La. 10/30/15), 178 So.3d 127, 128 (per
curiam), the insured struck through the words “each person” on the UM waiver form
and inserted the word “CSL” (combined single limit) over the struck-through word
“person.” This court held that the UM waiver was invalid because the insured altered
the form, failed to initial his alteration, and the alteration was unnecessary because
the policy coverage was per accident and not per person. Tuson v. Rodgers, 15-66
(La.App. 3 Cir. 6/3/15), 165 So.3d 458. On appeal, the supreme court reversed and
held that the insurer should not be penalized for the commissioner of insurance’s
failure to provide an adequate UM waiver form. It further held that the UM waiver
form clearly reflected the insured’s decision to choose lower UM limits.

On August 29, 2008, the commissioner of insurance issued Bulletin No. 08-
02, which contained a revised UM waiver form. The commissioner stated:

The revision is in response to the myriad of issues that Louisiana courts

have recently examined regarding the current UM form, including, but

not limited to, what constitutes a properly completed form, what

information must be included prior to the insured’s signature, policy

identification, company identification and backdating. The revised UM

form incorporates changes designed to address these issues and assist

both insureds and insurers as well as Louisiana courts.

The bulletin provided the following changes and instructions as follows:

Important Form Changes

Option to “select” UMBI coverage — The revised UM form removes
the option to “select” UMBI coverage with the same bodily injury
liability limits set forth in the policy. An insured is not required to
“select” UMBI coverage at the same limit as the bodily injury liability
coverage set forth in the policy under LSA-R.S. 22:680, because such
coverage is statutorily presumed absent a properly completed and
signed UM form indicating a different choice.

Policy number and other policy identification information — The
revised UM form includes two boxes on the lower right hand corner of
the form.

The upper box contains an area that the insurer may use
for policy information purposes (e.g. policy number,
binder number [sic], application number, etc.). This box

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does not need to be filled in for the form to be properly
completed.

The lower box must contain one of the following: the
individual company name, the group name, or the
insurer’s logo.

Combined single limits — The revised form now provides an option for
combined single limits.

Other Information and Instructions

A policy effective date is not explicitly stated on the revised UM form
because the form is conclusively presumed to become part of the
insurance contract. The date on the insurance contract is sufficient for
identifying the effective date of the UM form.

The revised UM form does not have to be physically attached to the
policy to conclusively become part of the policy.

If an insurer offers economic-only UMBI, the insurer must make a form
filing and obtain approval from the Louisiana Department of Insurance.

The following tasks must be completed by the insured:
- His/Her signature
- His/Her printed name to identify his/her signature.
- The date the form is completed.
- Initials to select/reject UMBI coverage prior to signing the form.

If the insured selects lower limits (available in options 1 and 3 of the

revised UM form) the exact amount of coverage must be printed on the

appropriate line on the revised UM form prior to the insured signing the

form.

Based on the forgoing, the commissioner’s prescribed form now requires the
insured to complete only five tasks in order to waive UM coverage: 1) initialing the
selection or rejection of UMBI coverage; 2) if lower limits are selected, filling in the
amount of coverage selected; 3) signing the name of the insured or legal
representative; 4) printing the name of the insured or the legal representative; and 5)
filling in the date the form was completed. The commissioner further requires that

the first and second task be completed before the insured signs the UM waiver form.

Additionally, it is no longer necessary to include the policy number, binder number,

15

or application number on the form. However, the insurance company’s name, group
name, or logo must be placed in the lower box located in the bottom right-hand
comer of the form.

In Lachney v. Hanover Insurance Co., 04-2316, p. 5 (La.App. 1 Cir. 11/4/05),

927 So.2d 380, 382, writ denied, 05-2432 (La. 3/24/06), 925 So.2d 1238, the first

circuit held that even though the UM form contained “technical errors,”” the “form
employed comports in every substantial way with the required statutory form.” It
further held that it was clear from the UM form that “the insured intended to choose

UM coverage in a lesser amount than the liability policy limits.” Jd. The first circuit
further held:

After carefully reviewing the UM selection/rejection form signed
on July 27, 2001, by the president and legal representative, we conclude
that the method of rejecting and/or selecting UM coverage satisfies the
statutory requirements. The form clearly states that the policy will
include UMBI coverage at the same limits as bodily injury liability
coverage unless requested otherwise. The form clearly informs the
insured that it can select UM coverage in an amount equal to the bodily
injury limits of the policy, or an amount that will compensate for
economic and non-economic losses with limits lower than the bodily
injury liability coverage.

Although not exactly on point with this case, in Jones v. Jones,
36,040 (La.App. 2 Cir. 5/8/02), 817 So.2d 454, the court ruled that even
though the prescribed form requires that the insurance company name
and policy number be included on the UM form, this omission should
not invalidate an otherwise valid form because it was clear that the
insured wanted to reject UM coverage. Here, despite a number of
technical errors, it is clear that the insured intended to choose UM
coverage in a lesser amount than the liability policy limits. The form
employed comports in every substantial way with the required statutory
form.

Further, Blacks Law Dictionary (8 ed.2004) provides that
“prescribe” means to dictate, ordain, direct or to establish
authoritatively (as a rule or as a guideline). It defines “promulgate” as
to declare or announce publicly; to proclaim; to put a law into force and

* The UM form did not include the language, “This form was promulgated pursuant to La.
R.S. 22:1406D(1 )(a)Gi). This form may not be altered or modified.” It used the word “funeral
costs” instead of “funeral expenses”; in one instance, the word “policy” was used two times
successively; and the form contained the identification number 8089 in the left-hand corner.
Lachney, 927 So.2d at 381-82.

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effect. These words are not synonymous. Thus, even though plaintiffs
argue that the exact form promulgated by the Commissioner of
Insurance was not used, they introduced no evidence to show that every
word, including the superfluous language, was required by the
Commissioner to make the form valid.

ld.

In Scarborough v. Randle, 12-1061, pp. 5-6 (La.App. 3 Cir. 2/6/13), 109 So.3d
961, 965 (alteration in original), this court, after quoting Lachney, noted that the
supreme court declined to apply a hyper-technical interpretation in Banquer:

In Banquer, the plaintiffs also argued the invalidity of a UM rejection
based upon the form containing the signature without the printed name
of the legal representative of the corporate insured. Considering this
issue, the first circuit stated, “[A]s compliance with the form prescribed
by the commissioner of insurance is necessary for the UM form to be
deemed valid, see Duncan, 06-363 at 14, 950 So.2d at 553, the ACE
form must be deemed invalid for failure to include the printed name of
the person who signed the form.” Banquer v. Guidroz, 08-356, pp. 6-7
(La.App. 1 Cir. 12/23/08), 5 So.3d 206, 210. The supreme court
granted writs and reversed, finding that the Duncan requirements had
been satisfied. Notably, as pointed out in the dissent to the first circuit
opinion, that form also contained a “clerical error” in omitting a word;
yet, the supreme court found the rejection to be valid. /d. at 211.

See also Stone v. Allstate Prop. & Cas. Ins. Co., 18-547, p. 6 (La.App. 3 Cir. 3/7/19),
269 So.3d 961, 965 (“Clearly, according to the Louisiana Supreme Court and this
court, some alterations of the form do not rise to the level of invalidating the
insured’s selection or rejection of UM.”).”

In its April 10, 2019 reasons for judgment, the trial court stated the following:

The UM coverage form was initialed by a legal representative of
Cardinal Services rejecting coverage. The section of the form
discussing lower limits was filled out as not applicable. Cardinal
Services!’! information was printed as the name of the insured. The
form was signed by a legal representative of Cardinal Service[s]. The
form included the policy application number since a policy number was
not issued yet. The form included the date. The court finds all Duncan
[s]tandards to be satisfied.

The plaintiff argues that the form is invalid because [of] the
additional wording included [o]n the side of the form “Actual policy

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provisions may differ.” The court reviewed the policy and policy
application. The policy application included an additional area where
applicant initialed rejecting uninsured motorist coverage in addition to
the uninsured motorist coverage form at question. Also, nothing in the
actual policy indicated the uninsured motorist coverage was not
rejected and/or provided. The court finds that the actual policy
provisions did not differ from the policy application. Therefore, the
court does not find that the wording is a material alteration or
modification to the form that would render the form invalid.

A close reading of St. Paul’s UM rejection form reveals multiple alterations
from the 2008 revised UM rejection form. In the opening paragraphs of St. Paul’s
UM form, “which” is used in place of “that” on the fourth line of the form; commas
are inserted before and after “but are not limited to” on the tenth line of the form;
and “and” is inserted after “inconvenience,” and before “mental” on the eleventh
line of the form. The majority of the alterations contained in St. Pauls’ form are
located in the closing paragraph, which states:

The choice I made by my initials on this form will apply to all persons

insured under my policy. My choice shall apply to the motor vehicles

described in the policy and to any replacement vehicles, to all renewals

of my policy, and to all reinstatement or substitute policies until I make

a written request for a change in my Bodily Injury Liability Coverage

or UMBI Coverage.

The Commissioner’s form provides as follows:

The choice indicated and initialed on this form will apply to all persons

and/or entities insured under this policy. This choice shall apply to the

motor vehicles described in this policy and to any replacement vehicles,

to all renewals of this policy, and to all reinstatement, substitute or

amended policies until a written request is made for a change to the

Bodily Injury Liability Limits, the UMBI limits or UMBI Coverage.

The only other alteration is located in the left margin of St. Paul’s form: “* This is
not a certified copy of any policy form. * Actual policy provisions may differ. *”

After reviewing the record de novo, we find that the alterations to the UM
rejection form do not render Cardinal Services’ rejection of UM coverage invalid.

Despite the above noted alterations, which we find occur only in the explanatory

areas of the form, the substantive section of St. Paul’s form, that section where the

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insured selects or rejects UM coverage, is identical to the commissioner’s revised
form. Moreover, the five tasks deemed necessary by the commissioner for a valid
rejection of UM coverage were undisputedly fulfilled by Cardinal Services in that
its representative, Mr. DuBois, initialed his rejection of UM coverage, signed the
form, and filled in the date the form was completed. The form also contained the
name of the insured, Cardinal Services, and the name of the insurer, St. Paul, as well
as Travelers’ logo.

Accordingly, we find that Cardinal Services validly rejected UM coverage in
the auto section of its commercial insurance policy with St. Paul. Thus, the Barrases’
claims against that portion of St. Paul’s policy are dismissed with prejudice.
However, we find Cardinal Services’ UM waiver invalid with regards to the
umbrella/excess section of the policy.

As stated previously, UM coverage has been extended to umbrella and excess
policies that cover liability “arising out of the ownership, maintenance, or use of a
motor vehicle.” Dobson, 441 So.2d at 1190; La.R.S. 22:1295(1)(a)i). The
umbrella/excess section of Cardinal Services’ policy provides such coverage. In
Futch v. Commercial Union Insurance Co, 625 $o.2d 1019, 1021 (La.1993)
(citations omitted), the supreme court stated that “[b]ecause of the strong public
policy favoring UM coverage, formal rejection of that benefit is required. The
insurer has the burden of proving a legal rejection of UM coverage.” In Hayes v. De
Barton, 16-541, p. 8 (La.App. 3 Cir. 2/15/17), 211 So.3d 1275, 1281 (citations
omitted), writ denied, 17-458 (La. 5/1/17), 220 So.3d 743, this court stated that
“[t]he holdings in Dobson and Futch . . . illuminate the fact that auto policies and
umbrella policies are separate and distinct policies for the purpose of UM coverage.”

St. Paul obviously recognized this fact by placing a UM rejection form at the

end of the umbrella/excess section of its insurance application. This section, located

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just before the signature line, indicates that it is only applicable in Louisiana, New
Hampshire, Vermont, and Wisconsin. The Louisiana section provides (case and
formatting changed):

I acknowledge that UM coverage has been explained to me, and I have

been offered the option of selecting UM limits equal to my liability

limits, UM limits lower than my liability limits, or to reject UM

coverage entirely.

1. I select UM limits indicated in this application. or

(Initials)
2. I reject UM coverage in its entirety.
(Initials)

The second option, rejecting UM coverage in its entirety, was initialed by Mr.
DuBois, and he signed his name at the end of the form and filled in the date, May
19, 2015.

After reviewing this form, we find that it fails to comply with the

commissioner’s revised form. Bulletin No. 08-02 states that “[o]n or after January

1, 2010, all UM selection/rejections for new policies as well as modifications to the

limits of liability of in-force policies shall be executed on the revised UM form
issued with LDOI Bulletin No. 08-02.” St. Paul’s form in no way conforms to the
revised form as it reduces a full-page letter-sized document down to three lines. As
stated in Higginbotham v. USAgencies Casualty Insurance Co., Inc., 17-491, 17-497,
p. 11 (La.App. 3 Cir. 6/13/18), 247 So.3d 916, 923, writ denied, 18-1217 (La.
10/29/18), 254 So.3d 1213, “The intent of the parties is quite simply irrelevant where
a UM form does not meet the requirements of Louisiana law[.]” Here, we find that
St. Paul’s form does not meet the requirements of Louisiana law.

We further reject St. Paul’s argument and the trial court’s finding that only
one UM waiver was required for Cardinal Services’ policy because the
umbrella/excess coverage and the general liability coverage were part of the same

insurance policy. Because proof of a formal rejection of UM coverage is necessary

20

for an insurer to prove a legal rejection of UM coverage by its insured and because
of the separate and distinct nature of auto policies and umbrella policies for the
purposes of UM coverage, we find that Cardinal Services should have executed
separate UM waivers for its auto policy and its umbrella/excess policy, even if both
of those coverages were part and parcel of the same insurance policy.

We further find that the unfairness of this decision is offset, as stated in Gray,
by the fact that St. Paul had both the authority and the opportunity to ensure that
Cardinal Services completed the proper UM rejection form for the umbrella/excess
policy, especially since the supreme court’s decisions in Dobson and Futch were
rendered in 1983 and 1993, respectively. When it received the insurance application
from Dwight W. Andrus Insurance, St. Paul could easily have notified Mr. Andrus
that Cardinal Services needed to execute a separate UM rejection form under its
umbrella/excess policy. See Morrison, 106 So.2d 95.

Accordingly, we affirm in part the trial court’s judgment in favor of St. Paul,
finding that Cardinal Services executed a valid UM waiver under its commercial
auto policy; we reverse in part the judgment in favor of St. Paul, finding that Cardinal
Services’ executed a valid UM waiver under its umbrella/excess policy; and we
render judgment in favor of the Barrases, finding that Cardinal Services’
umbrella/excess policy provides UM coverage in amounts equal to the bodily injury
liability limits set forth in the umbrella/excess policy provided by St. Paul. For these
same reasons, we affirm in part, reverse in part the trial court’s judgment denying
the Barrases’ motion for partial summary judgment and render judgment in favor of
the Barrases.

DISPOSITION
Based on the foregoing reasons, the trial court judgments in favor of St. Paul

Fire and Marine Insurance Company and against Darius Troy Barras and Julie A.

21

Barras are affirmed in part and reversed in part, and judgment is rendered in favor
of Darius Troy Barras and Julie A. Barras, finding that UM coverage under Cardinal
Services, LLC’s umbrella/excess policy was not validly waived. This matter is
remanded to the trial court for further proceedings. The costs of this appeal are
assessed equally between the parties.

AFFIRMED IN PART; REVERSED IN PART; RENDERED; AND

REMANDED.

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