Joey Higginbotham v. Usagencies Casualty Insurance Company

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-491

JOEY HIGGINBOTHAM
VERSUS
USAGENCIES CASUALTY INSURANCE COMPANY, INC., ET AL.

CONSOLIDATED WITH

17-497

JOEY HIGGINBOTHAM
VERSUS
USAGENCIES CASUALTY INSURANCE COMPANY, INC., ET AL.

**********

APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 13-2360
HONORABLE D. JASON MECHE, DISTRICT JUDGE

**********

PHYLLIS M. KEATY
JUDGE

**********

Court composed of Sylvia R. Cooks, Marc T. Amy, Shannon J. Gremillion, Phyllis
M. Keaty, and Candyce G. Perret, Judges.

Amy, J., dissents and assigns reasons.
Gremillion, J., dissents for the reasons provided by Judge Amy.

AFFIRMED. WRIT DENIED.

Michael D. Peytavin
John J. Danna, Jr.
William D. Dunn, Jr.
Gaudry, Ranson, Higgins & Gremillion, L.L.C.
401 Whitney Avenue, Suite 500
Gretna, Louisiana 70056
(504) 362-2466
Counsel for Defendant/Appellant:
Zurich American Insurance Company

Miles A. Matt
Law Offices of Matt & Allen, L.L.C.
Post Office Box 4405
Lafayette, Louisiana 70502-4405
(337) 237-1000
Counsel for Plaintiff/Appellee:
Joey Higginbotham

James M. Dill
The Dill Firm, APLC
Post Office Box 3324
Lafayette, Louisiana 70502-3324
(337) 261-1408
Counsel for Defendant/Appellant:
Zurich American Insurance Company

Jennifer L. Simmons
Melchiode, Marks, King, LLC
639 Loyola Avenue, Suite 2550
New Orleans, Louisiana 70113
(504) 336-2880
Counsel for Intervenor/Appellee:
Zurich American Insurance Company

Bradley J. Gadel
728 Jackson Street
Alexandria, Louisiana 71301
(318) 448-4406
Counsel for Intervenor/Appellee:
Louisiana Insurance Guaranty Association

Donald Mayeux
Post Office Drawer 1460
Eunice, Louisiana 70535
(337) 457-9610
Counsel for Defendant/Appellee:
Eddie J. Edmond

KEATY, Judge.

An employee of the insured transportation company was injured in an

automobile accident and sought recovery under the uninsured/underinsured (UM)

provisions of his employer’s trucker’s liability policy. The insurer denied the

plaintiff’s claims, alleging that its insured waived UM coverage. The plaintiff

challenged the validity of the UM waiver. The issue of UM coverage was

presented to the trial court in cross-motions for summary judgment. The trial court

granted the motion for partial summary judgment filed by the plaintiff and denied

the motion for summary judgment filed by the insurer, finding that the policy

provided UM coverage for the plaintiff’s damages. The insurer filed an appeal and

an application for supervisory writs challenging that judgment, which this court

consolidated. For the following reasons, we affirm.

Factual and Procedural History1

The plaintiff, Joey Higginbotham, was employed as a truck driver for Dupre

Logistics, LLC (Dupre), when he was involved in a January 25, 2013 on-the-job

automobile accident. He filed the underlying action for damages against the other

driver involved in the accident, as well as his insurer, USAgencies Casualty

Insurance Company. Later, the plaintiff filed a supplemental and amending

petition naming Dupre’s trucker’s liability insurer, Zurich American Insurance

Company (Zurich) as a defendant, seeking UM coverage under the policy it issued

to Dupre. In its answer to the amended petition, Zurich admitted that it issued

trucker’s liability insurance to Dupre, but denied coverage for the plaintiff’s claims

based upon its assertion that Dupre waived UM coverage.

1
While there are some workers’ compensation aspects to this case, none are relevant to
this appeal and writ.

Zurich filed a motion for summary judgment seeking dismissal of the

plaintiff’s claims against it, alleging that Dupre waived UM coverage in the initial

policy Zurich issued to it in October 2005, TRK 5916139-00, and in the renewal

policies issued to it over the next six years. Thereafter, the plaintiff moved for

partial summary judgment seeking a declaration that the Zurich policy afforded

UM coverage for his claims because the purported waiver did not comply with

Louisiana law.

At the close of a contradictory hearing, the trial court issued a ruling from

the bench denying Zurich’s motion for summary judgment and granting the motion

for partial summary judgment filed by the plaintiff. In oral reasons for ruling given

at that time, the trial court concluded that the 2005 UM form and the subsequent

UM forms executed in conjunction with the renewal policies issued by Zurich2

were not valid for the reasons stated by this court in Johnson v. Government

Employees Insurance Co., 07-1391 (La.App. 3 Cir. 4/9/08), 980 So.2d 870, writ

denied, 08-1031 (La. 8/29/08), 989 So.2d 105. The trial court explained that

Zurich’s insertion of “N/A” on the blanks of the UM forms “depriv[ed] its insureds

of the choice, making the rejection forms not clear and unmistakable from the face

of the rejection form limiting the choices available to the insured.” The trial court

later signed a “Final Judgment on Partial Summary Judgment” in conformity with

its oral reasons for judgment. Therein, the trial court decreed that:

[T]he policy of insurance issued by Zurich American Insurance
Company to Dupre Logistics, LLC, policy number TRK 5916139-07,
for the period of October 1, 2012 to October 1, 2013 provides
uninsured/underinsured motorist coverage for damages sustained by
2
Zurich does not rely on the UM form dated August 13, 2012, which was signed in
conjunction with the policy in effect at the time of the January 25, 2013 accident. That UM form
is dated and contains the signature of Dupre’s Administrative Manager, Robert Coussan. Zurich
does not contest, however, that Mr. Coussan did not initial the rejection selection at the time of
its completion.

2

Joey Higginbotham arising out of the accident occurring on or about
25 January, 2013 giving rise to claims in the captioned and numbered
cause.

The trial court designated the judgment as final and appealable pursuant to

La.Code Civ.P. art. 1915.

Zurich now appeals, asserting that:

A. The Court Erred in Granting Plaintiff Summary Judgment And
Declaring UM Coverage Exists When Dupre Executed Six UM
Waivers And Verified It Did Not Want UM Coverage.

B. The Court Erred In Holding An Incomplete Waiver For A
Seventh Renewal Voids Six Prior UM Waivers As Limits Did
Not Change[.]

C. If The Judgment Is Improperly Designated A “Final Judgment”
Under Art. 1915 It Is Reviewable By Supervisory Writ.

Zurich makes similar arguments in the corresponding writ application it filed

regarding the denial of its motion for summary judgment.

Discussion

“The summary judgment procedure is designed to secure the just, speedy,

and inexpensive determination of every action . . . . The procedure is favored and

shall be construed to accomplish these ends.” La.Code Civ.P. art. 966(A)(2). 3

“After an opportunity for adequate discovery, 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.” La.Code Civ.P. art. 966(A)(3).

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

3
We note that while the dates when the opposing motions for summary judgment were
filed requires reference to successive versions of La.Code Civ.P. art. 966, the result of this appeal
remains the same regardless of which version is applicable.

3

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.

La.Code Civ.P. art. 966(D)(1). “A dispute as to the issue of whether, as a matter of

law, the language of an insurance policy provides coverage to a party, can be

properly resolved within the framework of a motion for summary judgment.”

Pridgen v. Jones, 556 So.2d 945, 949 (La.App. 3 Cir. 1990). “Appellate courts

review summary judgments de novo under the same criteria that govern a district

court’s consideration of whether summary judgment is appropriate.” Larson v.

XYZ Ins. Co., 16-745, p. 6 (La. 5/3/17), 226 So.3d 412, 416.

While all automobile liability policies delivered or issued for delivery in

Louisiana include UM coverage, see La.R.S. 22:1295(1)(a), that statute provides

the following caveat:

(i) [H]owever, the coverage required under this Section is not
applicable when any insured named in the policy either rejects
coverage, selects lower limits, or selects economic-only coverage, in
the manner provided in Item (1)(a)(ii) of this Section. . . .

(ii) Such rejection, selection of lower limits, or selection of
economic-only coverage shall be made only on a form prescribed by
the commissioner of insurance. The prescribed form shall be
provided by the insurer and signed by the named insured or his legal
representative. The form signed by the named insured or his legal
representative which initially rejects such coverage, selects lower
limits, or selects economic-only coverage shall be conclusively
presumed to become a part of the policy or contract when issued and
delivered, irrespective of whether physically attached thereto. A
properly completed and signed form creates a rebuttable presumption
that the insured knowingly rejected coverage, selected a lower limit,
or selected economic-only coverage. . . .

The supreme court has explained that the object of UM coverage is to

provide full recovery for automobile accident victims who sustain damages by a

4

tortfeasor who lacks adequate liability insurance. Duncan v. U.S.A.A. Ins. Co., 06-

363 (La. 11/29/06), 950 So.2d 544. It described the public policy underlying the

UM coverage provision as a strong one and explained that “[t]he liberal

construction given the UM statute requires the statutory exceptions to coverage be

interpreted strictly.” Id. at 547. The Duncan court noted that “the insurer bears the

burden of proving any insured named in the policy rejected in writing the coverage

equal to bodily injury coverage or selected lower limits,” and that “[a]ny exclusion

from coverage in an insurance policy must be clear and unmistakable.” Id.

(Emphasis added).

Reviewing the UM form created by the Louisiana Commissioner of

Insurance for an insured’s waiver of UM coverage, the supreme court explained

that the following six tasks must occur:

(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 policy number; and (6) filling in the date.

Duncan, 950 So.2d at 551 (emphasis added).

In Johnson v. Government Employees Insurance Co., 05-476 (La.App. 3 Cir.

11/2/05), 916 So.2d 451, an insured, who was injured in an automobile accident,

settled his claims against the other driver and her insurer, leaving for resolution his

claim for UM coverage against his own automobile liability insurer, American

Century Casualty Company (ACCC). The trial court granted summary judgment

in favor of the plaintiff, and on ACCC’s appeal to this court, we reversed and

remanded, finding that genuine issues of material fact remained regarding whether

the plaintiff validly rejected UM coverage. Following a trial on the merits, the trial

5

court ruled in favor of the plaintiff based on its finding that the plaintiff “did not

make a meaningful rejection of UM Coverage.” Johnson, 980 So.2d at 872.

ACCC again appealed, and upon review of that judgment, this court noted:

Duncan[, 950 So.2d 544,] and Gray [v. American National
Property & Casualty Co., 07-1670 (La. 2/26/08), 977 So.2d 839,]
mandate that the form must be properly completed prior to any
discussion regarding whether the insured knowingly and
consciously waived UM coverage. The formalities mandated by
statute and jurisprudence are not merely procedural exercises or
‘‘rote’’ tasks, but rather are substantive requirements which must be
properly completed in order to effectuate a valid waiver of UM
coverage. Gray at p. 9, 977 So.2d at 845. In Gray, the supreme court
stated:

[T]his court distinguished failures to comply with the
UM selection form requirement established by the
Insurance Commissioner from other types of clerical
errors in insurance contracts that might be subject to
reform. The failure to comply with the requirements for
confecting a valid UM selection form are not subject to
reformation.

Gray at p. 15, 977 So.2d at 849.

Id. at 875-76 (emphasis added). Upon application of the law to the evidence

presented, this court stated:

[W]e find the insurer failed to comply with the first formality
which requires that the insured chose between types of UM
coverage and outright rejection of all UM coverage. Compliance
with this formality ensures that the insured by his own volition read
and reviewed each available selection and consciously and knowingly
made a decision by the placement of his initials on the blank reflecting
his choice. Mr. Johnson was not given any choice or option because
the form had only one available selection when it was presented to
him. The only blank which was left open, which Mr. Johnson was
asked to initial, was the selection which stated: “I do not want UMBI
Coverage.” All other blanks for the selection of UM coverage were
pre-filled and marked “N/A” by Ms. Bass prior to the presentation of
the form to Mr. Johnson. He initialed the only blank left open and
signed the form. . . . The “N/A” designation was typed into the blanks
which proves the blanks were filled in ahead of time and printed out
in anticipation of Mr. Johnson’s arrival shortly after closing. There is
not a scintilla of evidence to suggest the insured had access to the
form before it was presented to him or otherwise placed the computer

6

generated “N/A” in the blank spaces before the form was signed. This
evidence supports Mr. Johnson’s testimony that he arrived at the
agency with his check and was handed a pre-printed form to sign
which left him with no option except to reject UM coverage. He also
testified there was no discussion between him and Ms. Bass regarding
his selection. He did testify, which testimony was not refuted, that he
told Ms. Bass over the telephone he wanted “full coverage.” We have
examined the evidence presented and find there is nothing to indicate
Mr. Johnson made a conscious choice among several options. While
in Gray a post-filled form was found defective, we find in this case, a
form which is pre-filled by the agent leaving the insured with no
choice but to reject UM coverage is equally defective.

Id. at 876 (emphasis added). That being the case, this court “affirm[ed] the

decision of the trial court finding the insurer failed to establish a waiver of UM

coverage.” Id.

Prior to considering the parties’ arguments, we note that although both

parties reference the UM forms completed in relation to the renewals, the parties’

arguments chiefly pertain to the foundational consideration of the waiver

completed at the time of the issuance of the original policy in 2005 and that form

was focused on by the trial court. We, too, consider this the relevant point of

inquiry as La.R.S. 22:1295(1)(a)(ii) provides, in part:

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.

Accordingly, we turn to consideration of that original UM form pretermitting

consideration of the parties’ arguments regarding the relevance and validity of the

subsequent UM forms.

Does the Zurich Policy Provide UM Coverage?

In support of its argument that its policy did not provide UM coverage for

the plaintiff’s accident, Zurich attached to its motion for summary judgment the

7

affidavits of its Underwriting Manager, Jeffrey Benzin, and Dupre’s

Administrative Manager, Mr. Coussan.4 In his affidavit, Mr. Coussan stated that,

as the person who procured the trucker’s liability policies for Dupre, he

consistently told the insurance brokers/agents whom he did business with that

Dupre did not want to pay for UM coverage for the trucks it owned and operated.

Mr. Coussan confirmed that when he procured the initial policy at issue in this

case, Dupre was aware that it “had the option of selecting UMBI[ 5 ] insurance

coverage at the same level as the liability limits or at a lower level or at a minimum

limit or rejecting UMBI insurance coverage totally[.]” He explained that after he

told the Zurich representative that Dupre did not want UM coverage, he was given

“Louisiana UMBI Coverage Forms with the ‘N/A’ and/or ‘Not Available’ inserted

from the insurer.”6 With regard to each form, Mr. Coussan said that he initialed

the option rejecting UM coverage.7 In his affidavit, Mr. Benzin explained that he

prepared UM forms covering the times applicable to this case to reflect Dupre’s

wish to not have UM coverage by entering “N/A” in the blanks next to the options

that allowed for selection of some type of UM coverage. Moreover, pointing to the

first circuit’s decision in Hughes v. Zurich American Insurance Co., 13-2167

4
Zurich filed a Motion to Supplement and/or Amend its motion for summary judgment in
which it attached the 1442 deposition transcripts of Dupre and of Arthur J. Gallagher &
Company, Dupre’s insurance broker, as well as copies of discovery Zurich sent to the plaintiff
and his answers thereto. Because we hold that the intent of the parties is irrelevant to resolution
of this matter, such evidence need not be addressed herein.
5
In his affidavit, Mr. Coussan abbreviated “Uninsured/Underinsured Motorist Bodily
Injury to “UMBI.”
6
Exhibit A to Mr. Coussan’s affidavit was the initial UM form which bore policy number
TRK 5916139-00 with a policy period of October 1, 2005 to October 1, 2006. Exhibits B, C, D,
E, F, and G were the successive renewal policies that covered the time periods applicable to this
case.
7
In the policies, that option provided, “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.”

8

(La.App. 1 Cir. 8/20/14), 153 So.3d 477, writ denied, 14-2220 (La. 1/9/15), 157

So.3d 1107, Zurich asserted in its motion for summary judgment that “[a]

published opinion in an earlier case confirms [that] Dupre’s employees do not have

UM coverage under the Zurich American trucker’s policy.”

In opposition to Zurich’s motion and support of its motion for partial

summary judgment, the plaintiff asserted that the initial UM form and all of the

forms signed by Dupre in the renewal policies covering the time periods applicable

to this case are facially defective because of this court’s holding in Johnson, 980

So.2d 870, which he asserts is directly on point. The plaintiff submitted that

[T]he mental or express intent or desire of Dupre to select or reject
coverage, of Gallagher to facilitate UM coverage, and of Zurich to
provide UM coverage, is of absolutely no relevance, no materiality
and can not be considered by this Court until and unless Zurich shows
by “clear and unmistakable” evidence that the UM form of such
policy is valid. Then, and only then, can Zurich avail itself to the
“rebuttable presumption” afforded by La.R.S. 22:1295.

In its oral reasons for ruling, the trial court in this matter concluded that the

2005 form was invalid based on this court’s holding in Johnson, 980 So.2d 870.

Although it acknowledged the first circuit cases relied upon by Zurich,8 the trial

court remarked, “With all due respect to my brethren on the First Circuit, I feel that

the Third Circuit has the proper analysis and that the First Circuit is skipping the

formalities of form required on these UM waivers.” The trial court then quoted the

Duncan court’s pronouncement that “[t]he 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.” See

8
See Hughes, 153 So.3d 477; Lee v. Zurich Am. Ins. Co., 13-875 (La.App. 1 Cir.
12/21/11) (unpublished opinion); Walker v. Walker, 10-1865 (La.App. 1 Cir. 5/6/11)
(unpublished opinion).

9

Duncan, 950 So.2d at 553 (quoting Cohn v. State Farm Mut. Auto. Ins. Co., 03-

2820 (La.App. 1 Cir. 2/11/15), 895 So.2d 600, writ denied, 05-1000 (La. 6/17/05),

904 So.2d 705). In doing so, the trial court remarked that it found it interesting

that the supreme court “quoted a First Circuit case for [the foregoing] proposition.”

Thereafter, the trial court stated:

Again, I can’t speculate or read the minds of those judges that
rendered those decisions in the First Circuit. But I believe that they
are not properly addressing the significance of the insertion of the
letters “N/A” into the blanks. Rather, they are immediately going to
the supporting documents, affidavits, depositions, et cetera, and
discerning the parties’ intent to then explain the “N/A” rather than
following the clear mandates of Gray and Duncan and cases like
Johnson that say, “Don’t look past the form, look at the form first.”
On the form, the very first requirement -- the first of the six (6) that
were given to us by Duncan and Gray is that number one, the insured
must initial the selection or rejection chosen, chosen, to indicate that
the decision was made by the insured. As I said earlier, I feel that the
approach or the analysis by the Third Circuit was correct.

After having completed a de novo review of the parties’ cross-motions for

summary judgment, we are convinced that the plaintiff met his burden of proving

entitlement to partial summary judgment in his favor. The most telling evidence

that supports our finding is the following pre-printed language on the original UM

form, part of which we bold for emphasis: “(Economic-only UMBI Coverage may

not be available from your insurance company. In this case, your company will

have marked options 3 and 4 below as “Not Available.”).” Thereafter, “N/A” was

typed on the four blanks that include some type of UM coverage. Thus, it is

preposterous for Zurich to suggest that the pre-printed UM form that it presented to

Dupre made Dupre aware of coverage options that the form said were not

available. Moreover, as the plaintiff correctly points out, the 2005 UM form is

facially invalid, and Dupre’s intent to waive UM coverage is irrelevant and cannot

cure any defect in that form. Zurich’s attempts to distinguish this matter from

10

Johnson, 980 So.2d 870, are unpersuasive. The intent of the parties is quite simply

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

which the supreme court laid out in Duncan and which this court correctly applied

in Johnson. Accordingly, we conclude that the trial court did not err in denying

Zurich’s motion for summary judgment, in granting the plaintiff’s motion for

partial summary judgment, and in holding that the trucker’s liability policy that

Zurich issued to Dupre provides UM coverage for the damages suffered by the

plaintiff in the January 25, 2013 accident. Thus, Zurich’s first assignment of error

lacks merit, and we need not discuss its remaining assigned errors or the errors

asserted in its writ application as they are moot.

DECREE

For the foregoing reasons, the trial court’s judgment is affirmed in its

entirety. Costs of this proceeding are assessed to the defendant-appellant.

AFFIRMED. WRIT DENIED.

11