David Faulkner and Amy Faulkner v. Megan Elizabeth Tyler

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

22-532

DAVID FAULKNER AND AMY FAULKNER
VERSUS

MEGAN ELIZABETH TYLER, ET AL.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 269572
HONORABLE PATRICIA KOCH, DISTRICT JUDGE

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VAN H. KYZAR
JUDGE

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Court composed of Van H. Kyzar, Guy E. Bradberry, and Wilbur L. Stiles, Judges.

AFFIRMED IN PART; REVERSED IN PART;
AND REMANDED.

William P. Worsley
Robert I. Siegel
Gieger, Laborde & Laperouse, L.L.C.
701 Poydras Street, Suite 4800
New Orleans, LA 70139
(504) 561-0400
COUNSEL FOR DEFENDANT/APPELLANT:
National Union Fire Insurance Company of Pittsburgh, Pennsylvania

John Hoychick, Jr.

Cotton, Bolton, Hoychick & Doughty, L.L.P.

P. O. Box 857

Rayville, LA 71269

(318) 728-2051

COUNSEL FOR PLAINTIFFS/APPELLEES:
David Faulkner
Amy Faulkner

Tracy L. Oakley

P. O. Box 92807

Lafayette, LA 70509

(877) 323-8040

COUNSEL FOR DEFENDANT/APPELLEE:
Safeway Insurance Company of Louisiana

Jeffrey S. Ingram

2757 Hwy 28 East

Pineville, LA 71360

(318) 484-3911

COUNSEL FOR DEFENDANT/APPELLEE:
State Farm Automobile Insurance Company

KYZAR, Judge.

The defendant, National Union Fire Insurance Company of Pittsburg,
Pennsylvania, appeals from a trial court judgment denying it summary judgment and
granting summary judgment in favor of the plaintiffs, David and Amy Faulkner, on
the issue of uninsured/underinsured motorist coverage. For the following reasons,
we affirm in part, reverse in part, and remand.

FACTS AND PROCEDURAL HISTORY

On February 5, 2020, Mr. Faulkner, an employee of LaSalle Corrections
Transport, L.L.C. (LaSalle Corrections), was traveling south on Louisiana Highway
28 (Highway 28) in Rapides Parish, while in the course and scope of his
employment. The accident occurred when the van he was driving was struck by a
vehicle driven by Megan Elizabeth Tyler, when she failed to stop at a stop sign
located at the intersection of Louisiana Highway 3128 with Highway 28.

On December 7, 2020, the Faulkners filed suit seeking damages for the
injuries and loss of consortium suffered by them as a result of the accident. Named
as defendants were Ms. Tyler and her insurer, State Farm Auto Insurance Company,
the Faulkners’ insurer, Safeway Insurance Company of Louisiana (Safeway), and
National Union Fire and Casualty Insurance Company of Pittsburgh, Pennsylvania
(National Union), the insurer of LaSalle Management Company, L.L.C. (LaSalle
Management).'

After answering the Faulkners’ petition, National Union moved for summary
judgment on the grounds that LaSalle Management had __ rejected
uninsured/underinsured (UM) coverage in its original business auto policy, issued

by Illinois National Insurance Company (Illinois National), an American

The record contains no information regarding the connection between LaSalle
Management and LaSalle Corrections.

International Group, Inc. (AIG) member company, on March 23, 2015. In support
of its motion, National Union attached the affidavits of Erica Moon, an underwriter
for AIG, and Ryan Horvath, LaSalle Management’s director of lega! affairs and risk
management; a certified copy of LaSalle Management’s original business auto
policy, effective March 26, 2015; certified copies of its renewal policies, effective
December 1, 2015, June 1, 2017, June 30, 2018, and June 30, 2019; its March 23,
2015 and November 24, 2015 rejection of UM coverage on the State of Louisiana
UM bodily injury coverage form; and the Louisiana Department of Insurance’s
Bulletin No. 08-02 (Bulletin No. 08-02). In opposing National Union’s motion, the
Faulkners attached the following exhibits to their opposition: the affidavit of Erica
Moon; certified extracts from LaSalle Management’s original and renewal policies;
LaSalle Management’s March 23, 2015 and November 24, 2015 rejection of UM
coverage; and Bulletin No. 08-02.

The Faulkners also filed a cross motion for summary judgment, arguing that
they were entitled to judgment on the grounds that LaSalle Management’s rejection
of UM coverage was invalid as it failed to comply with Bulletin No. 08-02. In
support of their motion, the Faulkners stated that they submitted “all exhibits
attached to the Motion for Summary Judgment by National Union[,]” as well as Mr.
Faulkner’s affidavit and National Union’s responses to discovery requests. In
opposition to the Faulkners’ motion, National Union attached a certificate from the
Louisiana Secretary of State regarding the business filings of AIG Property Casualty
Insurance Agency, Inc. (AIG Property).

Following a hearing on the cross motions, the trial court orally ruled that the
UM coverage forms rejecting UM coverage on behalf of LaSalle Management were
invalid. Written judgment denying National Union’s motion and granting summary

judgment in favor of the Faulkners was rendered on April 19, 2022. The judgment
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was further certified as a final judgment. It is from this judgment that National
Union moved for suspensive appeal.

On appeal, National Union asserts that the trial court erred in granting the
Faulkners’ motion and denying its motion on the validity of LaSalle Management’s
rejection of UM coverage.

OPINION

Summary judgment is a procedural device properly 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 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., 11-2566, p. 8 (La. 7/2/12), 94 So.3d 750, 755.

At the hearing on the summary-judgment motion, the burden of proof rests
with the mover; however, if the mover will not bear the burden of proof at trial, he
need only point out “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.” Jd.

Appellate courts review summary judgments de novo 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).

In its recent opinion, Berkley Assurance Co. v. Willis, 21-1554, pp. 2-3 (La.
12/9/22), _ So.3d_, _ (alterations in original), the supreme court laid out the law
pertaining to UM coverage:

“UM Coverage is determined not only by contractual provisions, but
also by applicable statutes.” Duncan [v. U.S.A.A. Ins. Co.], 06-0363
[(La. 11/29/06)], p. 4, 950 So.2d [544,] 547. Thus, whether coverage
exists turns on the interpretation of the policy and UM statute. Both are
questions of law subject to de novo review. Baack v. McIntosh, 20-
1054, p. 4 (La. 6/30/21), 333 So.3d 1206, 1211 (internal citations
omitted). Similarly, appellate courts review the grant or denial of a
motion for summary judgment de novo using the same criteria as trial
courts. Bernard v. Ellis, 11-2377, p. 10 (La. 7/2/12), 111 So.3d 995,
1002.

“No automobile liability insurance [policy] ... shall be delivered
or issued in ... [Louisiana] unless [UM] coverage is provided.” La. R.S.
22:1295(1)(a)(i). However, UM coverage is not required “if any
insured named in the policy either rejects coverage, selects lower limits,
or selects economic-only coverage, in the manner provided in [La. R.S.
22:1295(1)(a)(ii)}.” Jd. “Such rejection ... shall be made on a form
prescribed by the commissioner of insurance” that is “provided by the
insurer and signed by the named insured or his legal representative.”
La. R.S. 22:1295(1 (a)(ii). “The form signed by the named insured or
his legal representative which initially rejects such coverage ... shall be
conclusively presumed to become a part of the policy” and 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.” /d. As “[t]he requirement of UM coverage
is an implied amendment to any automobile liability policy, “UM
coverage will be read into the policy unless validly rejected.” Duncan,
06-0363, p. 4, 950 So.2d at 547. It is well-settled that the UM statute
is liberally construed and exceptions to coverage are interpreted strictly.
Id.

With regard to the proper completion of the UM form, the supreme court held:

The UM form dictates the requirements for a valid rejection or
selection of lower limits of coverage. See Duncan, 06-0363, pp. 11-12,
950 So.2d at 551 (deriving the tasks required for rejecting coverage
based on what the UM form entails); Gingles [v. Dardenne], 08-2995,
p. 1 [(La. 3/13/09)], 4 So.3d [799,] 799 (observing “the pertinent UM
rejection form did not expressly provide for the insurer’s name”).
Waiver of UM coverage “shall be made on a form prescribed by the
commissioner of insurance” and only a “properly completed and signed

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form creates a rebuttable presumption that the insured knowingly
rejected coverage.” La. R.S. 22:1295(1)(a)(ii) (emphasis added). “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.”
Id., 06-0363, p. 14, 950 So.2d at 553.

The current UM form, prescribed under Bulletin 08-02,
mandates the insurer’s name, group name, or logo is necessary for a
valid waiver of coverage. In relevant part, the form states: “If you wish
to reject UMBI Coverage, select lower limits of UMBI Coverage, or
select Economic-Only UMBI Coverage, you must complete the form
and return it to your insurance agent or insurance company.”
Completion requires filling out the UM form in its entirety except
where otherwise indicated on the face of the form. See La. C.C. art.
2047 (“words of a contract must be given their generally prevailing
meaning”). Unlike the prior iteration of the UM form at issue in
Gingles, a designated box in the current version of the form expressly
provides for the entry of the insurer’s name. See Gingles, 08-2995, p.
1, 4 So.3d at 799. Thus, Bulletin 08-02 made specific changes to the
UM form by mandating the inclusion of the two boxes on the lower
right corner of the form. As correctly noted by the court of appeal,
while the descriptive “Optional” appears in the box provided for
“Information for Policy Identification Purposes Only,” no such
language appears in the box provided for the insurer’s name. [Berkley
Assurance Co. v. Willis, 20-0354, pp. 14-15 [(La.App. 4 Cir. 9/29/21)],
328 So.3d [567,] 576. What is not optional is mandatory. Berkley had
the authority, opportunity, and responsibility to assure the UM form
was properly completed. Gray v. American Nat. Property & Cas. Co.,
07-1670, pp. 14-15 (La. 2/26/08), 977 So.2d 839, 849-50; see also
Stone v. Allstate Property and Casualty Ins. Co., 18-0547 (La.App. 3
Cir. 3/7/19), 269 So.3d 961 (UM form valid where insured initially
rejected coverage with a check mark but supplemented with initials
upon request of insurer). It was not. A requirement mandated on the
face of the UM form itself can never be hyper-technical nor its absence
considered a minor deviation.

The tasks mandated by the current UM form, prescribed under
Bulletin 08-02, are as follows: 1) initialing the selection or rejection of
coverage chosen; 2) if limits lower than the policy limits are chosen,
then filling in the amount of coverage selected for each person and each
accident; 3) printing the name of the named insured or legal
representative; 4) signing the name of the named insured or legal
representative; 5) filling in the insurer’s name, the group name, or the
insurer’s logo; and 6) filling in the date. Failure to properly complete
the UM form results in an invalid rejection or selection of lower limits
of UM coverage. Duncan, 06-0363, pp. 14-15, 950 So.2d at 553.
Consequently, by operation of statute, UM coverage is equal to the

liability limits of the policy. /d., 06-0363, p. 16, 950 So.2d at 554; La.
R.S. 22:1295(1)(a)().

Berkley Assurance, __ So.3d at __ (alterations ours) (footnotes omitted).
National Union’s Motion for Summary Judgment

In accordance with the strict construction requirement applicable to coverage
exclusions, National Union bears the burden of proving that “any insured named in
the policy rejected in writing the coverage equal to bodily injury coverage or selected
lower limits.” Duncan v. U.S.A.A. Ins. Co., 06-363 (La. 11/29/06), 950 So.2d 544,
547.

A review of the March 23, 2015 and November 24, 2015 UM forms executed
in conjunction with LaSalle Management’s March 26, 2015 and December 1, 2015
business auto policies establishes that it complied with the first, third, fourth, and
sixth tasks required by Bulletin 08-02. On both forms, Mr. Horvath initialed the
blank indicating rejection of UM coverage, printed and signed his name, and dated
the form. The UM forms also contain the optional policy number, (948306 on the
March 23, 2015 form, and CA 0948306 on the November 24, 2015 form). The only
task at issue concerns the box pertaining to the identity of the insurer. As noted in
Bulletin 08-02, the Insurance Commissioner stated that the box located in the lower
right-hand corner of the revised UM form “must contain one of the following: the
individual company name, the group name, or the insurer’s logo.” LaSalle
Management’s two UM rejection forms contain the pre-printed name “Chartis
Insurance.”

LaSalle Management’s original policy, effective March 26, 2015, was issued
by Illinois National Insurance Company and stated that it was purchased “from a
member company of [AIG].” The second, renewal, policy issued to LaSalle

Management, effective December 1, 2015, was issued by the Insurance Company of

the State of Pennsylvania. This policy also contains the information that it was
purchased “from a member company of [AIG].” Renewal policies were also issued
to LaSalle Management by National Union, effective June 1, 2017, June 30, 2018,
and June 30, 2019 (the policy at issue), and all indicated that they were purchased
from an AIG member company.

In her affidavit, Ms. Moon states that as an AIG underwriter, she has personal
knowledge of the policies issued by AIG and its affiliated companies: AIG Property,
Illinois National, the Insurance Company of the State of Pennsylvania (Insurance
Company of Pennsylvania), and National Union. She further indicates that AIG
Property was formerly known as Chartis Insurance (Chartis) and that Illinois
National, the Insurance Company of Pennsylvania, and National Union were all AIG
Property member companies.

As stated in Berkley Assurance, __ So0.3d at __, “A requirement mandated on
the face of the UM form itself can never be hyper-technical nor its absence
considered a minor deviation.” Based on the Insurance Commissioner’s
determination that a properly completed UM form must contain either the insurer’s
name, group name, or logo, we find that a genuine issue of material fact exists as to
whether the UM forms executed on behalf of LaSalle Management were properly
completed.

Although the UM forms contain Chartis’s pre-printed name in the box
reserved for the insurer’s name, group name, or logo, none of LaSalle Management’s
policies indicate Chartis’s status with regard to the issuing insurers. Rather, all of
the policies indicate that the insurers are AIG member companies, rather than AIG
Property member companies. Moreover, although Ms. Moon indicates that all of
the insurers and AIG Property are affiliated with AIG and that the insurers are also

AIG Property member companies, she has presented no evidence indicating the

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actual relationship of Chartis to AIG or even when and under what circumstances
Chartis ceased to be known by that name and began using AIG Property, if indeed
it did so. Accordingly, we find that the existence of a genuine issue of material fact
precludes the grant of summary judgment in favor of National Union. Accordingly,
the judgment denying National Union’s motion for summary judgment is affirmed.
The Faulkners’ Motion for Summary Judgment

As the Faulkners will not bear the burden of proof at the trial on the merits on
the issue of LaSalle Management’s rejection of UM coverage, they are only required
to “point out to the trial court the absence of factual support for one or more elements
essential to” National Union’s claim that LaSalle Management properly rejected UM
coverage. La.Code Civ.P. art. 966(D)(1). If they are successful in doing so, the
burden would then shift to National Union “to produce factual support sufficient to
establish the existence of a genuine issue of material fact or that the” Faulkners are
“not entitled to judgment as a matter of law.” /d.

In support of their motion, the Faulkners stated that they were submitting “all
exhibits attached to the Motion for Summary Judgment by National Union[,] as well
as Mr. Faulkner’s affidavit and National Union’s responses to interrogatories
propounded by Safeway, which included the motor vehicle accident report.

In Huggins v. Amtrust Insurance Co. of Kansas, Inc., 20-516, p. 5 (La.App. 1
Cir. 12/30/20), 319 So.3d 362, 366, the first circuit, in performing a de novo review
on the grant of summary judgment in favor of the plaintiffs, held:

The trial court, and this court, on de novo review, may only
consider evidence that is admissible under the express provisions of La.
C.C.P. Arts. 966-67. Horrell v. Alltmont, 19-0945 (La. App. 1 Cir.
7/31/20), 309 So.2d 754, 761-62. We may consider only those
documents filed in support of or in opposition to the motion for
summary judgment and shall consider any documents to which no
objection is made. La. C.C.P. Art. 966D(2) (emphasis added). The

only documents that may be filed in support of or in opposition to the
motion are pleadings, memoranda, affidavits, depositions, answers to

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interrogatories, certified medical records, written stipulations, and
admissions. La. C.C.P. Art. 966A(4).

Although the Faulkners’ and National Union’s motions were heard at the same
time, the only evidence that the trial court was allowed to consider with regard to the
Faulkners’ motion were those exhibits filed in conjunction with their motion. As the
Huggins court noted:

We recognize the duplicative nature of requiring the Hugginses
to include their own copies of the USAA and Technology policies in
the record, when the very same policies already appear in the record,
albeit, attached to their opponent’s cross motion for summary
judgment. Under prior summary judgment law, in a case where cross
motions for summary judgment were filed, the district court was able
to consider each party’s motion as an opposition to the other party’s
motion and to consider all evidence offered on the cross motions. See
Bouquet v. Williams, 16-0134 (La. App. 1 Cir. 10/28/16), 206 So.3d
232, 236-37; also see Smart v. Calhoun, 49,943 (La. App. 2 Cir.
7/29/15), 174 So.3d 168, 172-73 (finding that former La. C.C.P. Art.
966F(2) did not require a separate opposition pleading when the parties
filed cross motions for summary judgment on the same issue).
However, under current La. C.C.P. Art. 966D(2), in reviewing the grant
of summary judgment to the Hugginses, we may consider only those
documents specifically filed in support of or in opposition to the
Hugginses’ motion for summary judgment.

Id. at 367.

Thus, although the Faulkners attempted to submit National Union’s exhibits
in support of their own motion, the only exhibits that we may consider are those that
were actually attached to their motion.

In his affidavit, Mr. Faulkner stated that he was driving a van owned by his
employer, LaSalle Corrections, at the time of his accident, that he was driving in a
safe and proper manner when he was struck by Ms. Tyler’s vehicle, and that Ms.
Tyler’s policy limits were insufficient to cover the amount of his damages. The
accident report attached to National Union’s responses to interrogatories establishes

that Mr. Faulkner was driving a 2020 Chevrolet van owned by LaSalle Corrections,

which was insured by National Union (Policy Number CA 4257175). It further
establishes that Ms. Tyler’s vehicle was insured by State Farm.

After reviewing this evidence, we find that the Faulkners failed to present
evidence pointing out the absence of factual support for National Union’s claim that
LaSalle Management properly rejected UM coverage. Thus, the burden never
shifted to National Union to establish the existence of a genuine issue of material
fact or that the Faulkners were entitled to judgment as a matter of law. Accordingly,
the trial court’s grant of summary judgment in favor of the Faulkners is reversed,
and the matter is remanded to the trial court for further proceedings.

DECREE

For the foregoing reasons, the judgment of the trial court denying summary
judgment in favor of National Union Fire Insurance Company of Pittsburg,
Pennsylvania is affirmed; the judgment granting summary judgment in favor of
David and Amy Faulkner is reversed; and the matter is remanded for further
proceedings. The costs of this appeal are assessed equally between the parties.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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