Randall Francis v. Travelers Property Casualty Company of America

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

22-124
consolidated with 21-816

RANDALL FRANCIS

VERSUS

TRAVELERS PROPERTY CASUALTY
COMPANY OF AMERICA, ET AL.

**********

APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2020-0851
HONORABLE CLAYTON DAVIS, DISTRICT JUDGE

**********

JOHN E. CONERY
JUDGE

**********

Court composed of Sylvia R. Cooks, Chief Judge, John E. Conery, and Charles G.
Fitzgerald, Judges.

AFFIRMED.

Gregory P. Marceaux
Marceaux Law Firm
2901 Hodges Street
Lake Charles, Louisiana 70601
(337) 310-2233
COUNSEL FOR PLAINTIFF/APPELLEE:
Randall Francis

Charles B. Cappel
Law Office of Charles B. Cappel, LLC
712 Division Street
Lake Charles, Louisiana 70601
(337) 491-6996
COUNSEL FOR PLAINTIFF/APPELLEE:
Randall Francis

Brian T. Butler
Collin J. LeBlanc
Keogh, Cox & Wilson, Ltd.
Post Office Box 1151
Baton Rouge, Louisiana 70821
(225) 383-3796
COUNSEL FOR DEFENDANT/APPELLANT:
Travelers Property Casualty Company of America

Jacinda L. Denison
Plauché, Smith & Nieset, LLC
Post Office Drawer 1705
Lake Charles, Louisiana 70602
(337) 436-0522
COUNSEL FOR DEFENDANT/APPELLEE:
Shelter Mutual Insurance Company

CONERY, Judge.

Plaintiff Randall Francis sought recovery under his employer’s

underinsured/uninsured motorist coverage policy on the company truck he was

driving after he was involved in a collision in Calcasieu Parish between the company

truck and a vehicle driven by Billy Cornes. The trial court considered cross motions

for summary judgment filed by Plaintiff and the insurer of the company truck,

Travelers Property Casualty Company of America (Travelers), on the issue of

whether Travelers obtained a valid UM coverage waiver from its insured, Plaintiff’s

employer. Following a hearing, the trial court granted judgment in favor of Plaintiff

finding UM coverage under the policy. Travelers filed an appeal from the trial

court’s granting of the motion for partial summary judgment and an application for

supervisory writ from the denial of Travelers’ motion for summary judgment. For

the following reasons, we maintain the trial court’s judgments in favor of Plaintiff.

FACTS AND PROCEDURAL HISTORY

This UM coverage dispute arises from a September 12, 2019 motor vehicle

accident between Plaintiff and Billy Cornes, the opposing driver. The Ford F-150

truck driven by Plaintiff was owned by his employer, Targa Downstream Services,

LLC (Targa), and insured by a commercial liability policy issued by Travelers. As

a result of the accident, Plaintiff sustained serious bodily injury, including injuries

requiring leg amputation. Plaintiff filed suit in February 2020, naming Travelers as

a defendant in its alleged capacity as Targa’s UM insurer.1

1
Mr. Francis also named his personal UM coverage provider and the unopened succession
of the other driver involved in the accident as defendants. These latter defendants are not relevant
for purposes of this appeal and writ application.

In August 2021, Plaintiff filed a Motion for Partial Summary Judgment,

asserting that Targa’s $3 million policy provided UM coverage for his injuries due

to Travelers’ failure to obtain a valid UM rejection form. Plaintiff noted that the

UM selection form corresponding to the “10/31/18 to 10/31/19” policy year for the

Targa Policy bears the signature of Julie Jackson, Targa’s Vice-President of Risk

Management in Insurance and its designee for insurance selection. Plaintiff asserted,

however, that the purported 2018 UM waiver produced by Travelers is not valid as

it does not bear Ms. Jackson’s initials by the selection indicating: “I do not want

UMBI Coverage. I understand that I will not be compensated through UMBI

coverage for losses arising from an accident caused by an uninsured/underinsured

motorist.” See Duncan v. U.S.A.A. Ins. Co., 06-363 (La. 11/29/06), 950 So.2d 544.2

Rather, the subject 2018 UM selection form produced by Travelers includes a

check mark by the selection box for a waiver of coverage, not Ms. Jackson’s initials.

Moreover, Ms. Jackson confirmed by deposition that she did not even place the

check mark on the form, but that Targa’s insurance broker did so before it was sent

to Ms. Jackson for signature, initialing, and dating. Plaintiff submitted email

2
In Duncan, the supreme court identified six tasks required for a valid rejection or selection
of UM Coverage. The Commissioner of Insurance thereafter released Bulletin No. 08-02 which
included a revised UM selection form. This court has recognized that the revised UM selection
form—like the ones used in this case—requires the performance of the following 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.

Barras v. Cardinal Servs., LLC, 19-530, p. 15 (La.App. 3 Cir. 4/1/20), 297 So.3d 877, 888, writ
denied, 20-00978 (La. 11/04/20), 303 So.3d 631. Jurisprudence continues to refer to the required
tasks as the Duncan factors. This matter involves only the initialing requirement.

2

correspondence from the broker to Ms. Jackson confirming Ms. Jackson’s account.3

Travelers conceded that the 2018 form is invalid for purposes of a waiver.4

Travelers thereafter filed a cross Motion for Summary Judgment, also

maintaining that no genuine issues of material fact remain and further seeking a

dismissal of Plaintiff’s claim against it. While Travelers conceded that the

uninitialed 2018 selection form is invalid for purposes of waiver, it instead relied on

the original, 2011 UM waiver form, which bears Ms. Jackson’s initials by the waiver

selection and otherwise satisfies the Duncan requirements. Travelers contended that

from 2011 to the date of the subject accident, Travelers did not issue a new policy

to Targa nor did Targa change the liability limits. Rather, according to Travelers,

the policies after 2011 were merely renewals and, thus, “the 2011 waiver defeats

plaintiff’s claim for UMBI benefits against Travelers by dictate of La.R.S.

22:1295(1)(a)(ii)[.]” That provision indicates that changes in a policy, other than

changes in the limits of liability, “do not create a new policy and do not require the

completion of new uninsured motorist selection forms.” La.R.S. 22:1295(1)(a)(ii).

Travelers also relied on appellate court jurisprudence indicating that resort may be

3
In an October 23, 2018 email, Mary Oliver of Marsh Wortham Insurance, forwarded UM
selection forms to Ms. Jackson for completion stating, in part, that:

As in the past, we marked up the forms to assist with Targa’s completion and
execution. Enclosed are the following:

1. Helpful Hints (state options) and the Travelers cover letter

2. UM/UIM Election Forms for states that require signed forms effective
10/31/18 with selections checked based upon Targa’s prior elections.

(Emphasis added.)
4
Plaintiff further references the fact that during discovery, Travelers produced multiple
versions of the 2018 UM selection form, including one bearing the initials “JJ” on the UM waiver
selection box. Travelers, however, later admitted that its own employee inserted the initials on
that version of the 2018 form. As the trial court noted at the hearing, “it has no significance to this
issue before the Court today.”

3

made to an earlier, valid waiver if a subsequent waiver is deficient. See, e.g., Doyle

v. Allstate Ins. Co., 10-1020 (La.App. 3 Cir. 3/2/11), 58 So.3d 606, writ denied, 11-

0677 (La. 5/20/11), 63 So.3d 980.

Plaintiff challenged Travelers’ reliance on the waiver contained in the 2011

UM selection form, citing the supreme court’s recent opinion in Baack v. McIntosh,

20-1054 (La. 6/30/21), 333 So.3d 1206. In Baack, as discussed in more detail below,

the insured, JBS, increased the liability limits of its pre-existing liability policy with

its insurer, Zurich, in 2011 and validly rejected UM coverage at that time. On annual

renewal, Zurich provided new UM selection forms. JBS’s representative signed and

dated the UM selection forms, but, as in this case, failed to initial the waiver selection

to select UM coverage with limits lower than the policy’s bodily injury limits. Id.

While Zurich argued that it could rely on the earlier, 2011 waiver, the supreme

court rejected that position. Baack, 333 So.3d 1206. The supreme court pointed out

that although no new UM selection form was required to be completed at the time

of renewal, in fact, Zurich sent new forms to JBS upon renewal and, in turn, TBS

submitted new UM forms. While TBS’s representative signed and dated the forms,

she did not initial them. Id. The supreme court explained that the “plain language”

of La.R.S. 22:1295 dictates that such a “failure to initial any of the options available

on the UM form necessarily results in statutory UM coverage.” Id. at 1213-14.

Given that mandate, Zurich could not rest on JBS’s earlier, valid waiver or JBS’s

intent to thereafter maintain the waiver of UM coverage. Rather, had Zurich

suspected that “the failure to make a selection on the forms was a mistake, it was

incumbent on Zurich to follow up with JBS to make any necessary corrections.” Id.

at 1213. As Zurich did not do so, the supreme court maintained the court of appeal’s

determination that UM coverage existed at the time of the subject accident. Id.

4

In response to Plaintiff’s position, Travelers argued that Baack is inapplicable

to the present situation. It noted that the supreme court specifically remarked that

the Baack case did not involve a matter of “minor mistake or omission.” See Baack,

333 So.3d at 1214. Travelers argues that this case does involve such a minor mistake

or omission. Travelers pointed to the fact that JBS failed to initial the UM selection

form on three consecutive renewals in Baack. However, in this case, on the single

UM selection form returned after 2011, Targa expressed an affirmative desire to

maintain the waiver. In particular, Travelers noted that the box to reject UM

coverage was checked and, furthermore, Ms. Jackson explained by deposition and

affidavit that Targa never sought UM coverage. Given those circumstances,

Travelers argued “there are no facts which would support any finding by a trier of

fact that the insured intended UMBI coverage.”

Plaintiff and Travelers presented their cross motions for summary judgment

to the trial court with a substantial evidentiary record, including the subject policies

and UM waiver forms. Following a hearing, the trial court ruled in favor of Plaintiff,

rejecting Travelers’ attempt to factually distinguish Baack on the basis of the single

“check mark on the UM rejection line in the 2018” UM selection form. Rather, the

trial court remarked that it was not a distinction that makes a legal difference under

the reasoning of Baack. Accordingly, the trial court granted Plaintiff’s motion for

partial summary judgment, finding that the Travelers policy provides up to $3

million of UM coverage. The trial court denied Travelers’ cross motion for summary

judgment. The trial court designated the judgment as final for purposes of La.Code

Civ.P. art. 1915.

Travelers appealed the granting of the partial summary judgment in favor of

Plaintiff and filed an application for supervisory writ from the denial of its cross

5

motion for summary judgment. This court thereafter granted Travelers’ motion to

consolidate the matters for consideration. We discuss both collectively herein and

render dispositive language in the writ application under separate cover. See Francis

v. Travelers Prop. Cas. Co. of Am., 21-816 (La.App. 3 Cir. _ / _/22), _ So.3d _.

ASSIGNMENTS OF ERROR

By its appeal, Travelers assigns the following as error:

1. The Trial Court’s ruling failed to adhere to the express language
of La. R.S. 22:1295(1)(a)(ii).

2. The Trial Court’s ruling misapplied or disregarded the rules of
statutory construction set forth by the Civil Code and the
governing law of Louisiana.

3. The Trial Court erred when it established a new legal rule in
Louisiana that even minor mistakes or omissions in a Louisiana
UM waiver form negates all prior, valid UM waivers in
contravention of La.R.S. 22:1295(1)(a)(ii) and controlling case
law.

4. The Trial Court erred when it failed to follow controlling Third
Circuit cases which hold that a prior, valid UM waiver will
govern when there is a minor error or mistake in a subsequent
UM waiver form.

5. The Trial Court erred when it misapplied Baack and disregarded
express language from the Supreme Court’s decision which
expressly limited the Court’s holding only to cases where there
was an overt act on the part of the insured to affirmatively select
UM coverage.

6. The Trial Court erred when it failed to give effect to a valid 2011
UM waiver in contravention to settled law and La. R.S.
22:1295(1)(a)(ii).

7. The Trial Court erred when it granted the “Cross Motion” for
Partial Summary Judgment of plaintiff.

(Footnote omitted.) Travelers echoes the substance of these arguments in its writ

application.

6

LAW AND DISCUSSION

Summary Judgment

Louisiana Code of Civil Procedure Article 966(A)(3) provides that “a motion

for summary judgment shall be granted if the motion, memorandum, and supporting

documents show that there is no genuine issue as to material fact and that the mover

is entitled to judgment as a matter of law.” With regard to the applicable burden of

proof, Article 966(D)(1) provides:

The burden of proof rests with the mover. Nevertheless, if the mover
will not bear the burden of proof at trial on the issue that is before the
court on the motion for summary judgment, the mover’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 the absence of factual support for one or more elements essential
to the adverse party’s claim, action, or defense. The burden is on 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.

Turning to review of the trial court’s rulings on the parties’ respective motions

for summary judgment, we are mindful that an appellate court applies the de novo

standard of review using the same criteria applied by the trial court. See Jenkins v.

Arbors on the Lake Apartments, 21-01662 (La. 3/22/22), 334 So.3d 746.

Louisiana Revised Statutes 22:1295(1)(a)(ii)

Louisiana Revised Statutes 22:1295 provides the statutory basis for UM

coverage in Louisiana and mandates UM coverage equal to the liability limits of an

automobile liability policy. An insured may, however, reject UM coverage, select

lower limits of UM coverage, or select economic-only coverage. La.R.S.

22:1295(1)(a)(i). The insured must do so “in the manner provided in Item (1)(a)(ii)

of this Section.” Id. Travelers’ foundational argument stems from that latter

provision.

7

Louisiana Revised Statutes 22:1295(1)(a)(ii) sets forth the prescribed form for

UM selection as follows:

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.

Likewise, pertinent in this case, La.R.S. 22:1295(1)(a)(ii) further indicates that:

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.

(Emphasis added.)

Travelers contends that the language of this provision is “crystal clear” in

providing that a new UM waiver is required only when a new insurance application

is made or the limits of liability are changed. As neither of those circumstances is

present in this case, Travelers suggests that the trial court erred in failing to apply

both the language of the statute and rules for statutory interpretation. Citing

La.Civ.Code art. 9; La.Civ.Code art. 11. Travelers maintains that the trial court was

required to determine that the 2011 UM waiver remains valid for the life of the policy

as a matter of law.

8

Travelers accurately identifies that the 2011 UM waiver satisfied the Duncan

factors and that La.R.S. 22:1295(1)(a)(ii) affirmatively indicates that the completion

of a new selection form is not required upon renewal. Those observations are

unquestioned.

Travelers’ argument does not, however, account for the fact that the supreme

court has differentiated La.R.S. 22:1295’s statement that an insured is not required

to complete a new UM selection form at the time of renewal with the circumstance

where an insured has, in fact, submitted a new UM selection form at the time of

renewal. That differentiation is at the core of Baack, with the supreme court

repeatedly contrasting the statute with the fact specific question before it.

The significance of that differentiation is reflected in the supreme court’s

identification of the pertinent inquiry as “whether an insured’s initial

uninsured/underinsured bodily injury (“UM”) coverage waiver remains valid where,

upon consecutive renewals, the insured submitted new signed and dated UM forms

without initialing the blanks provided to reject UM coverage.” Baack, 333 So.3d at

1209 (emphasis added). The supreme court thereafter specifically referred to La.R.S.

22:1295 in explaining that “Based on our interpretation of the UM statute, we find

such a subsequently submitted form changes the prior rejection and operates to

provide UM coverage.” Id. (emphasis added).

The supreme court began its analysis by identifying the parameters of La.R.S.

22:1295 within the context of the facts before it, explaining that after JBS’s 2011

UM waiver, “Zurich sent UM forms to JBS yearly even though they were not legally

required.” Baack, 333 So.3d at 1213. (Emphasis added.) Thereafter, “[JBS’s

representative] executed UM forms three times (2012, 2013, and 2014) before the

accident without making a selection rejecting UM coverage and each time Zurich

9

issued the insurance policies without objection, request for clarification, or

comment.” Id. at 1213. The supreme court determined that JBS’s failure to initial

any of the options available on the UM selection form “necessarily results in

statutory UM coverage.” Id. at 1213-14.

Such a result was required, the supreme court explained, as La.R.S.

22:1295(1)(a)(ii) explicitly provides that an insured may change an initial rejection

of UM coverage “by submitting a new uninsured motorist selection form to the

insurer on the form prescribed by the commissioner of insurance.” The form

provides only four selections, none of which allow an insured to actively select UM

coverage on the form.5 The supreme court reasoned that, “[t]hus, the only way to

‘select’ UM coverage on the form is to not initial any of the provided choices. Under

the statute, a signed and dated UM form with no selection equates to a selection of

UM coverage.” Id. at 1212 (emphasis added).

As in this case, Zurich sent JBS the UM form at the time of renewal, and the

insured, JBS, failed to initial the selection form. The supreme court explained that

Zurich “should have known that signing and submitting these forms could have

specific legal consequences. If Zurich believed the failure to make a selection on

the forms was a mistake, it was incumbent on Zurich to follow up with JBS to make

any necessary corrections.” Baack, 333 So.3d at 1213 (footnote omitted). In so

stating, the supreme court quoted Gray v. American National Property & Casualty

Co., 07-1670, pp. 15-16 (La. 2/26/08), 977 So.2d 839, 849-50, for the proposition

that “the insurer [has] both the authority and the opportunity to assure that the UM

5
The supreme court related the four choices as: “[1] UMBI coverage at lower limits than
liability coverage; [2] economic-only coverage with same limits; [3] economic-only UMBI
coverage at lower limits; or [4] no UMBI coverage.” Baack, 333 So.3d at 1212.

10

selection form [is] completed properly . . . . The insurer, not the insured, has the

responsibility of assuring that the form is completed properly.”

The supreme court’s reasoning undercuts Travelers’ position that the trial

court’s application of Baack is contrary to the clear wording of La.R.S.

22:1295(1)(a)(ii). Rather, the supreme court interpreted the UM statute in light of

the facts before it. Baack, 333 So.3d 1206. As indicated by the hearing transcript,

the trial court identified the facts in the present case to be substantially similar.

Significantly, in this case, Travelers required the execution of the UM

selection waiver form at the time the policy was renewed in 2018, despite the fact

that it was not required to do so. Its insistence that Targa complete the form is well

established in the record. First, Targa’s Vice-President of Risk Management in

Insurance, Ms. Jackson, testified that Targa’s insurance broker, Marsh Wortham,

annually forwarded a UM selection packet for review and completion prior to the

time of renewal. The UM selection packet included forms for each state covered by

Targa’s policy.6

6
Ms. Jackson explained as follows on questioning by Plaintiff’s counsel:

Q. Okay. On the - - on the yearly renewals that you told us about, it looks like
Targa will make UM selections on a yearly basis?

A. It depends on which states require it yearly. Some states, they don’t make
us do it every year but some states do.

Q. And who is “they” that makes you do this?

A. I guess it’s the carrier, whoever the carrier is, be it Travelers or Chubb now,
would be the ones to say, okay, these are the forms that you need to fill out for these
specific states that require an annual election, but not every state requires an annual
election.

Q. So the - - whether or not a UM selection has to be made, that’s not a decision
that Targa would make?

A. No.

Q. It would be something that’s told to Targa by the insurance company?

11

Plaintiff further submitted the corresponding October 23, 2018 email from

Marsh Wortham’s employee, Mary Oliver, by which Ms. Oliver informed Ms.

Jackson that Travelers mailed the UM selection packet and its cover letter to Targa

in July, 2018. Ms. Oliver advised that the forms were “presented for signature” but

were “only for those states that require completion of a new election form.” Ms.

Oliver did not advise that the Louisiana UM form must be initialed but, to the

contrary, advised that: “As in the past, we marked up the forms to assist with Targa’s

completion and execution.” (Emphasis added.) Ms. Jackson confirmed that Marsh

Wortham placed the checkmark on the UM selection form and that no one initialed

the form.7

A. In terms of which states require an annual election.

Q. Correct.

A. Yes.
7
In reviewing the 2018 UM selection form at her deposition, Ms. Jackson acknowledged
signing and dating the form, but explained as follows regarding the checkmark on questioning by
Plaintiff’s counsel:

Q. And then under No. 4 where it says, I do not want UMBI coverage, there’s
a checkmark but there’s no initials.

A. Yes, they - - they never instructed me that I had to initial.

Q. Okay.

A. We just always checkmarked everything.

Q. Okay.

A. They checkmarked it.

Q. And they being Marsh checkmarked it?

A. Yes.

Q. That was not a check put by you?

A. No.

12

As referenced in Ms. Oliver’s email, the correspondence included Travelers’

July 2, 2018 cover letter advising Targa:

Enclosed are those forms reflecting the legal requirements currently in
effect, relating to primary Uninsured/Underinsured Motorists Coverage
which either the law dictates that we must provide you annually or
which have been modified since your most recent election as a result of
a change in the law or the interpretation thereof. We strongly
recommend that you complete all of these forms as set forth herein even
though you have previously made elections on other forms reflecting
the legal requirements in effect at that time.

....

We are forwarding these forms approximately ninety (90) days prior to
the renewal date of your policy for your review and elections. If you
want these elections to apply as of the effective date of your renewal
policy, it is important you return completed forms in a timely manner,
utilizing the date in which you wish your elections to be effective.
PLEASE NOTE, if we receive your elections within ninety (90) days
before or thirty (30) days after your renewal date, your elections will be
effective as of the renewal date of the policy. If we receive them more
than thirty (30) days after the renewal date of your policy or the
signature date, your elections will be effective on the date the forms are
received by us. Until then, your prior elections will apply to the extent
they are in compliance with the legal requirements in effect at this time.
Where no elections have been made, we will be required to issue the
policy with the mandatory single limits, where available.

(Emphasis added.)

Finally, the Travelers’ UM selection packet included two pages of “Helpful

Hints” providing “Important information for completing the Selection forms.” The

two-page document classifies Louisiana as a “Policy Limits Default State[]” and a

“State[] which allow[s] you to reject UM.” Specific to Louisiana, the “Helpful Hints”

instructed Targa that:

• You must INITIAL your selection for it to be a properly
executed form.

• Effective 01/01/10 the Minimum Financial Responsibility limits
is $30,000 CSL or $15,000/30,000 split limits.

13

• The Resolution form has recently been withdrawn and is not a
required form as noted in the cover letter.

Finally, the “Helpful Hints” more generally advised that: “Statutory mandatory

limits may apply for any designated contradictory states until we received [sic]

properly executed forms from you.” (Emphasis original.)

As shown above, Travelers both provided the UM form to Targa on renewal

and instructed Targa to complete that form. Although Marsh Wortham did not

advise as to the necessity of initialing the UM selection form, Travelers specifically

advised that initialing was required for proper execution and that, absent proper

execution, statutory mandatory limits “may apply.” Like Zurich in Baack, Travelers

“should have known that signing and submitting these forms could have specific

legal consequences.” Id. at 1213. Travelers thereafter received the uninitialed UM

selection form from Targa. Had it believed that the failure to so initial was a mistake,

the onus was on Travelers to seek “any necessary corrections” so as to bring the UM

selection form into accord with Duncan and the instructions provided both by the

UM selection form itself and with Travelers’ own instructions. Id. Like Zurich in

Baack, Travelers failed to do so in this case.

Affirmative Choice to Select UM Coverage

As it argued before the trial court, Travelers attempts to differentiate this

matter from Baack in noting that JBS, the insured in Baack, failed to reject or even

attempt to reject UM coverage for several years.8 Travelers asserts that: “The Baack

Court interpreted the act of signing and dating multiple UM waiver forms—with no

8
While JBS failed to initial the UM selection forms in 2012, 2013, and 2014, we observe
that the supreme court referred “specifically” to the “2014 form” as having been part of the Zurich
policy in effect at the time of the accident. Baack, 333 So.3d at 1214.

14

attempt to reject UM coverage—as an affirmative choice by the name insured to

select UM coverage.”

As recognized by the trial court, however, the supreme court in Baack did not

state that JBS’s failure to initial the UM waiver form was an “affirmative act” of

choosing UM coverage; nor did it find that JBS made such an affirmative choice.

Neither the circuit opinion nor the supreme court’s opinion in Baack suggests that

the insured actually sought to acquire UM coverage after its earlier rejection thereof.

The supreme court instead analyzed La.R.S. 22:1295, as well as the

Commissioner of Insurance’s selection form, finding that by JBS returning an

uninitialed form, it did “exactly what is statutorily required to change its prior

rejection of UM coverage.” Baack, 333 So.3d at 1214 (emphasis added.)9 Baack

accordingly addresses UM coverage by statutory presumption resulting in that case

from an absence of action. See La.R.S. 22:1295(1)(a)(ii)(“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.”) (Emphasis

added.) After the return of the uninitialed form in Baack, Zurich failed to seek

clarification of the form. Baack, 333 So.3d 1206. In light of that series of

occurrences, the supreme court stated only that JBS’s “2014 form was part of the

Zurich policy in effect at the time of the accident and clearly meets all the statutory

requirements to change JBS’s 2011 rejection of UM coverage.” Id. at 1214.

9
While not pertinent in this case, the supreme court in Baack found no merit in Zurich’s
reliance on La.R.S. 22:1295(1)(b) in arguing that there could be no UM coverage under its policy
because JBS had not submitted a written request to revoke its previous UM waiver. The supreme
court explained that Paragraph (1)(b) instead simply allows an insured to increase its UM limits
by written request. Zurich’s interpretation was determined to be “contrary to the clear wording of
La.R.S. 22:1295(1)(a)(ii).” Baack, 333 So.3d at 1213.

15

“Minor mistake or omission”

In a further attempt to distinguish this matter from Baack, Travelers points out

in this case that the supreme court in Baack expressly provided that the matter before

it was “not a case where a minor mistake or omission on the UM form occurred.”

Baack, 333 So.3d at 1214. Travelers, in turn, characterizes Targa’s failure to initial

the 2018 UM waiver in this case as a “minor mistake or omission,” stating:

In 2011, Targa completed a UM waiver form which fully
satisfied the “Duncan” factors. Targa did not execute any other
Louisiana UM waiver form from 2011 until 2018 when it placed a
check on the form consistent with its desire not to select UM. In the
Trial Court, the evidence established without contradiction that Targa
never paid for Louisiana UM, never desired Louisiana UM, and,
importantly, affirmatively acted to waive Louisiana UM coverage at all
times. When, as here, a subsequent waiver form is invalid because of
a minor mistake or omission, a party such as Travelers properly relies
upon the validity of an earlier valid UM waiver.

(Emphasis added.)

Travelers’ characterization fails in a number of respects. First, Travelers’

argument does not account for the fact that the supreme court contrasted the failure

to initial the UM selection form with a minor mistake or omission. More importantly,

Targa’s “desire” to continue to waive UM coverage is an inappropriate consideration.

The supreme court notably instructed in Baack that an insurer cannot rely on

an insured’s intent—doing so in the same paragraph before its statement regarding

minor mistake or omission—as follows:

The plain language of the UM statute dictates that the failure to
initial any of the options available on the UM form necessarily results
in statutory UM coverage. “In directing the commissioner of insurance
to prescribe a form, the legislature gave the commissioner the authority
to determine what the form would require.” Duncan, 06-0363, pp. 12-
13, 950 So.2d at 552. “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.” Id.,
06-0363, p. 14, 950 So.2d at 553; Cadwallader [v. Allstate Ins. Co., 02-

16

1637, p. 4, 848 So.2d 577,] 580 (“Courts lack the authority to alter the
terms of insurance contracts under the guise of contractual
interpretation when the policy’s provisions are couched in
unambiguous terms.”); see also Washington v. Savoie, 92-2957 (La.
4/11/94), 634 So.2d 1176, 1180 (“public policy precludes reformation
of . . . UM coverage when the change adversely affects the rights of
third persons insured under the policy to recover damages under the
UM coverage provisions before the change”). This is not a case where
a minor mistake or omission on the UM form occurred. Rather, the
forms signed by [JBS’s representative] in 2012, 2013, and, specifically,
2014 demonstrate that JBS did exactly what is statutorily required to
change its prior rejection of UM coverage.

Id. at 1213-14. See also Higginbotham v. USAgencies Cas. Ins. Co., 17-491, p. 11

(La.App. 3 Cir. 6/13/18), 247 So.3d 916, 923 (“The intent of the parties is quite

simply irrelevant where a UM form does not meet the requirements of Louisiana

law[.]”), writ denied, 18-1217 (La. 10/29/18), 254 So.3d 1213.

Moreover, Travelers’ own instruction to Targa regarding the critical nature of

“initialing” the selection form undermines its present argument that the insured’s

failure to do so is minor in nature. Instead, Travelers specifically brought the

initialing requirement to Targa’s attention. Conspicuously, the “Helpful Hints”

included in Travelers’ renewal packet instructed that: “You must INITIAL your

selection for it to be a properly executed form.” (Emphasis in the original.) It

warned on the same document that:

This insert does not constitute any guarantee of coverage. Properly
executed forms are required. If there is a contradictory selection
made for any state(s), a copy of the original signed application(s) will
be returned. A blank application will be attached for any that need
clarification. Statutory mandatory limits may apply for any
designated contradictory states until we received [sic] properly
executed forms from you.”

(Emphasis in the original.)

Finally, the mandatory nature of the initialing task is also identifiable on the

UM selection form forwarded by Travelers as it instructs the insured to “initial” one

17

of the four options available and further provides that: “The choice indicated and

initialed on this form will apply to all persons and/or entities insured under this

policy.” (Emphasis added.) This requirement is delineated in the Commissioner of

Insurance’s Bulletin No. 08-02, which was provided to insurers at the time the form

was created and is contained in this record. The bulletin provides, in part:

• 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 them.

(Emphasis added.) See also Duncan, 950 So.2d 544; Barras, 297 So.3d 877. Yet,

armed with this knowledge and its own instructions to the insured, Travelers failed

to seek clarification or a corrected form after Targa returned the 2018 UM selection

form uninitialed. Travelers could not merely rely upon Targa’s intent at that point

as “‘[t]he insurer, not the insured, has the responsibility of assuring that the form is

completed properly.’” See Baack, 333 So.3d at 1213 (quoting Gray, 977 So.2d at

850).

Circuit Jurisprudence

Travelers also points out that the supreme court did not explicitly overrule

circuit jurisprudence Travelers advances for the proposition that an insurer may rely

on a previously executed UM waiver form. See Doyle, 58 So.3d 606; McElroy v.

Continental Cas. Co., 43-868 (La.App. 2 Cir. 6/24/09), 15 So.3d 377; Rashall v.

Pennington, 08-0001 (La.App. 3 Cir. 4/30/08), 982 So.2d 301, writ denied, 08-1543

(La. 10/10/08), 993 So.2d 1286; and LeBlanc v. Guntenaar, 07-904 (La.App. 5 Cir.

3/25/08), 984 So.2d 136, writ denied, 08-0841 (La. 6/6/08), 983 So.2d 923.

18

Travelers contends that the trial court erred in failing to account for that

jurisprudence in its application of Baack. The trial court, however, explained that

Travelers’ argument would have the court “ignore Baack because there’s no real true

distinction factually on the significant point in Baack versus this case.”

The trial court also pointed out that, like here, the insurer in Baack required

the insured to complete a new UM selection form.10 That fact pattern was not only

addressed by the supreme court but expressly remarked upon by this court’s

underlying opinion in Baack v. McIntosh, 19-657 (La.App. 3 Cir. 7/29/20), 304

So.3d 881. In fact, the panel referenced the insurer’s demand for the completion of

a new form in differentiating it from Rashall, one of the circuit opinions cited by

Travelers. The panel explained that “[w]hile we agree with our holding in Rashall,

we reach a different result under the facts before us.” Id. at 896. (Emphasis added.)

See also Hart v. Mabou, 21-28 (La.App. 3 Cir. 6/23/21), 323 So.3d 939, writ denied,

21-1479 (La. 12/21/21), 329 So.3d 826.

Travelers also suggests that Hughes v. Zurich American Insurance Co., 13-

2167 (La.App. 1 Cir. 8/20/14), 153 So.3d 477, writ denied, 14-2220 (La. 1/9/15),

10
Travelers’ counsel suggested at the hearing that this matter differs from Baack in that it
only sent a new UM selection form to Targa in 2018, whereas Zurich made annual demand on its
insured in Baack. When the trial court noted that Travelers “sent a policy every year to Targa[,]”
Travelers’ counsel confirmed that it did so, “but not with the UM.” The trial court moved quickly
through Travelers’ attempt to distinguish this matter on that basis, responding only that: “Okay.
They did in 2018.”

The trial court correctly recognized that the single demand for a new UM selection form
does not differentiate this matter from Baack. As stated above, the supreme court recognized that,
although Zurich delivered annual forms to its insured in Baack, the supreme court noted that it was
the final, 2014 UM form that attached to the policy in place at the time of the accident. Furthermore,
in this case, the frequency with which Travelers provided UM selection forms to Targa is unclear.
Ms. Jackson explained that the UM selection forms were delivered on an annual basis. The email
correspondence from Marsh Wortham suggests the same. As this matter is resolved purely with
regard to the 2018 UM selection waiver form, any inconsistency in the account does not create a
genuine issue of material fact.

19

157 So.3d 1107 is persuasive under the facts of this case as the first circuit

determined that the insured’s failure to initial a UM form on renewal does not equate

to a selection of UM coverage in light of the insured’s earlier, valid UM waiver. The

supreme court in Baack, however, plainly rejected that reasoning and instead quoted

from Judge Pettigrew’s dissent in Hughes by which he explained that the insurer

demanded the completion of a new UM selection form but that the insured failed to

initial its intent to waive UM coverage. Judge Pettigrew reasoned that the insured

therefore failed to reject UM coverage and, by law, the policy provided UM coverage.

After quoting that dissent, the supreme court explained in Baack that “[t]his is

exactly what happened in this case.” Baack, 333 So.3d at 1213 n.4. Given the

common facts in this case, Travelers’ continued adherence to Hughes is, at best, in

tension with Baack.

In light of the applicability of Baack, we find no merit in Travelers’ position

that the trial court in this case was required to account for the circuit jurisprudence

relied upon by Travelers. The trial court instead correctly observed that to rely on

the jurisprudence cited by Travelers “would be to ignore Baack[,]” an opinion of a

superior court. See Oliver v. Magnolia Clinic, 11-2132, p. 7 (La. 3/13/12), 85 So.3d

39, 44 (“[T]rial courts and courts of appeal are bound to follow the last expression

of law of the Louisiana Supreme Court.”). Explaining that there is “no real true

distinction factually in Baack versus this case,” the trial court observed that “there’s

a new UM form. Travelers sent it to Targa. Targa signed it, sent it back. It wasn’t

done in a way that would properly reject UM coverage, just like in Baack. And that

has legal consequences. That’s why they cited [Judge] Pettigrew’s dissent in the

early case.”

20

Finding no error in the trial court’s observations and application of the law to

the facts of this case, we affirm the trial court’s rulings. Like the trial court, we do

not speculate as to the supreme court’s intent as to the continuing persuasiveness of

the earlier circuit jurisprudence advanced by Travelers. Rather, “[t]he Supreme

Court of this State is not required to ferret out all previously decided cases of the

intermediate appellate courts of the state in conflict with a decision being announced

and specifically overrule them.” Helverson v. Rapides Par. Police Jury, 391 So.2d

516, 519 (La.App. 3 Cir. 1980), writ denied, 396 So.2d 1325 (La.1981).

By decree below and by writ ruling in the consolidated matter, we maintain

the trial court’s decision rendering partial summary judgment in favor of plaintiff

and its denial of Travelers’ motion for summary judgment.

DECREE

For the foregoing reasons, we affirm the trial court’s judgment of November

10, 2021 granting the Motion for Summary Judgment filed by Plaintiff/Appellant

Randall Francis. Costs of this proceeding are assessed to Defendant/Appellee

Travelers Property Casualty Company of America.

AFFIRMED.

21