Shannon Spencer VS US Agencies Casualty Insurance Company
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NOT DESIGNATED FOR PUBLICATION COURT OF APPEAL STATE OF LOUISIANA FIRST CIRCUIT 2008 CA 0950 SHANNON SPENCER VERSUS USAGENCIES CASUALTY INSURANCE COMPANY 2008 CW 0677 SHANNON SPENCER VERSUS 7 USAGENCIES CASUALTY INSURANCE COMPANY DEe 2 3 ZOOB Judgment rendered On Appeal from the 19th Judicial Parish of East Baton Rouge District Court State of Louisiana Suit Number C559 398 Division J Section 25 The Honorable Curtis A Calloway Judge Presiding Gregory J Miller Baton Rouge LA Counsel for PlaintiffAppellee Brad J Brumfield Counsel for DefendanUAppeIlant Baton USAgencies Casualty Company Rouge EFORE B Shannon LA CARTER C J tY AmaM Spencer Insurance PPLE AND DOWNING JJ r 4 tJbY rtd DOWNING J Casualty USAgencies judgment that Shannon granted recognizing Spencer s Insurance Spencer s cross appeals motion for summary a judgment level of underinsured motorist insurance UM coverage USAgencies also filed 10 000 00 US Agencies Company writ a seeking review of the trial court s as denial of its motion for summary judgment For the Spencer following reasons we reverse level of UM coverage s 10 000 00 as motion for summary judgment based the summary on Also judgment recognizing grant USAgencies we the merits PERTINENT FACTS AND PROCEDURAL HISTORY Shannon Spencer was involved in a At the time of the accident 2006 automobile insurance company to motion for summary judgment Spencer then filed trial in court pertinent part USAgencies for this accident In its judgment to UM coverage 1 was coverage existed in by Spencer the trial a of policy own Insurance Spencer s policy due to USAgencies filed Accordingly case on a a its merits the hold that her level of UM coverage afforded by partial summary 10 000 00 court s cross the minimum December 17 judgment asking motion for was judgment and granted Spencer Spencer sued her seeking dismissal of the a cross on claim under her UM coverage USAgencies denied that UM UM coverage waiver executed vehicle accident USAgencies had provided Thereafter Spencer USAgencies asserting a motor denied motion amount of USAgencies motion for summary thereby recognizing that her level of 10 000 00 This judgment has been remanded twice to the district CQUIi It was first remanded because it lacked sufficient However this amended The judgment was amended and the case was returned to this couti decretal language judgment for that that had not been designated as final per La cc P art 1915B so we remanded it On review we agree with the The judgment has now been properly certified and returned in that resolution of the issues involved does not delay the litigation and tends to simplify and clarify the was a partial judgment reason designation ongoing proceeding reverse on FUliher faj ure to consider the matter here would create two adverse USAgencies writ application that dismisses Spencer insurance coverage for Spencer if ve did not reverse s Claim and the that judgment here 2 one on judgme nts appeal the one ve that would find USAgencies following appeals the judgment of the trial now court and assigns the as error 1 The trial court erred in facts undisputed granting Spencer demonstrate s that motion where the waived Spencer uninsuredunderinsured motorist coverage on a properly completed and signed form provided by the Louisiana Commissioner of Insurance 2 The trial was court presented Further as to granting Spencer The writ court s motion where the tortfeasors insurance USAgencies has filed review of the trial judgments erred in s writ a was referred application to this proof status with this Court judgment denying USAgencies application no seeking motion for summary panel for consideration DISCUSSION Reviewing courts reView criteria that govern the trial the movant is entitled 3 La 2 26 08 to judgment USIng the same oflaw Samaha matter v Rau 07 1726 p 977 So 2d 880 882 83 s insurance minimum level allowed s Policy with policy by law coverage up to liability novo genuine issue of material fact and whether as a Spencer Spencer judgments de determination of whether summary judgment is s whether there is any ie appropriate court summary Limits USAgencies carried These coverage limits insurance included 10 000 for each person and up to at the bodily injury 20 000 for each accident Waiver USAgencies bases its appeal policy s UM coverage completed Coverage a of UM Coverage on a waiver Spencer executed in regard In connection with her automobile Agencies asserts UM coverage 3 was an her liability policy Spencer State of Louisiana UninsuredlUnderinsured Motorist Form which US to Bodily Injury effective and valid waiver of Spencer contends however that the form used by US Agencies certain choices because Options 2 the and 4 each dealt with reasons on the belief that stated below US Choosing Option lower than the to policy select economic liability s available not as selecting components coverage limit in the insured bodily injury liability argument marked were not Agencies 2 certain providing permits was bodily injury liability of UM coverage lower than s insured of the 2000 0339 In order to be protection provided choose UM coverage with limits coverage p 4 La I Cir App Statutory Bar On the form which available next to Options valid a 4 allows Option policy 3 28 01 to s an insured bodily injury Spencer s as 2 and 4 In this These instructions should be marked as Dardar 521 The Spencer contends that by to 3 and 4 to be marked case as not language v York remaining as Not Available not allowing In 4 some as these available of the form which states in may not be available from language This is interpreted not Spencer alleges your company will have marked Not Available be not become invalid Available contends this Spencer 3 and 4 may be marked can inform the Spencer completed US Agencies had marked basis for this argument is the Not must on Below Minimum pertinent part that Economic Only UMBI Coverage and 4 below available Spencer to UM Coverage only Options your insurance company option it options 808 So 2d 519 particular options USAgencies caused the form that the form allows form rejection and of the available legally available options were offered and 4 2 and 4 coverage compulsory form Options However for Options to offer The UM coverage waiver did however offer every other the bases her policy Spencer lower than the UM coverage only to invalid choices two options is unlawful legally unable insured an These was options means simply not the that only case meaning that only Options instances an 3 3 insurance company will offer Economic not This language is clear and unambiguous 3 and 4 Options unavailable does as marking Not Available are not available In the less next to that case than economic i at n no bar Options event a Just because i policy coverage is selected limits of as allowable minimum an were not than to set policy s As such US Agencies marked Spencer s 2 and 4 rights but from The when an policy not a specifically was in be unless Supreme Court has applicant elects to option of selecting a by law 1215 at the lower next to no policy 32 900 is foreclosed available matter way amount these an legally of legally increased way to inform her of which options available of UM assignment of Spencer RS bodily injury limits This notation merely i a 691 So 2d 1213 Therefore in our review of the summary level to options as a uninsured motorist limits allowable the those in the her I thereby legally barring her from choosing options Options limitation of Not Available authorized herein Authement 96 1662 p 4 La 4 8 97 Spencer had chosen barred preempted when the other liability limits required under UM coverage at limits lower UM coverage insurer is able are La R S 22 1406 D formerly purchase only the minimum bodily injury v company an they that marked were specifically addressed this issue explaining that Daigle particular mean This makes customers options especially 2 and 4 shall the the minimum only other not its to by law La R S 22 680 1 of law states UMBI coverage 3 and 4 not available to any customer of that Options mark Only s coverage error at and will 10 000 00 reverse we judgment recognizing Spencer find merit in the lower favor 5 court s USAgencies judgment s first rendered in Writ Application Reviewing USAgencies was we judgment claims of valid will As error Insurance and US Agencies form the judgment the We will render as also find merit provided by trial on Accordingly USAgencies is reverse we discussed above Spencer waived signed Therefore motion for summary USAgencies for and of properly completed Commissioner coverage application by writ specifications on a coverage the court in erred in denying The waiver of UM the merits entitled to USAgencies favor UM the Louisiana judgment as judgment denying USAgencies motion for judgment In prayed summary dismissing Spencer s against US Agencies with prejudice DECREE For the plaintiff we enter foregoing Sharon reasons we reverse the summary Spencer recognizing her UM coverage judgment in favor of at in favor of appellee Sharon Spencer WRIT GRANTED RENDERED 6 Further 10 000 00 USAgencies dismissing all of Spencer against US Agencies with prejudice Costs of this appeal REVERSED judgment are s assessed claims against SHANNON SPENCER STATE OF LOUISIANA COURT OF APPEAL VERSUS FIRST CIRCUIT U S AGENCIES CASUALTY INSURANCE COMPANY NUMBER 2008 CA 0950 CONSOLIDATED WITH SHANNON SPENCER STATE OF LOUISIANA COURT OF APPEAL VERSUS FIRST CIRCUIT NUMBER 2008 CW 0677 US AGENCIES CASUALTY INSURANCE COMPANY WHIPPLE J concurring Although I agree that the result reached herein is hearing appeals of this Associates Cir 6 29 05 App APLC nature v promotes piecemeal litigation correct unreported opinion v D in my view See generally Daigle Lafavette Insurance Company 2004 0915 916 So 2d 1078 and Baumann 1st Cir 2 8 08 legally J Fill Inc La App 2007 1480 lst La
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