Genevia Washington VS Allstate Insurance Company

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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2009 CA 2157 GENEVIA WASHINGTON VERSUS ALLSTATE INSURANCE COMPANY DATE OF JUDGMENT JUL 1 2 2010 ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT NUMBER 554 DIVISION O SECTION 8 224 PARISH OF EAST BATON ROUGE STATE OF LOUISIANA HONORABLE WILSON E FIELDS JUDGE Timothy J Martinez Counsel for Plaintiff Appellee Baton Rouge Louisiana Genevia Washington J Ryan Brehm Jeffrey J Guidry Baton Rouge Louisiana Counsel for DefendantAppellant Allstate Insurance Company BEFORE PARRO KUHN AND McDONALD JJ Disposition REVERSED ANDRENDERED KUHN J The issue presented in this appeal is the uninsuredunderinsured motorist bodily injury coverage form form validity of an UM coverage which purports to waive uninsured motorist underinsured UM coverage but bears the binder number on the application instead of a policy number The trial court found that defendant Allstate Insurance Company Allstate had not established the unavailability of a policy number at the time the policy was issued and thus the UM waiver was invalid and the Allstate policy provided UM coverage in favor of plaintiff Genevia Washington The trial court ordered judgment in favor of Ms Washington and against Allstate in the amount of the policy limit of 10 plus legal interest and costs 000 Allstate has appealed and we find manifest error in the trial court finding that Allstate failed s to establish the unavailability of the policy number when the UM coverage form was signed by Ms Washington husband George Washington Jr s Thus we conclude that the UM coverage form was properly completed under La R S ii a l 680 22 and we find that Allstate established a valid waiver of UM coverage by Mr Washington Accordingly we reverse the trial court sjudgment According to the allegations of the petition on February 5 2006 Ms Washington was driving a 1990 Cadillac Deville As she approached the intersection of a state highway a vehicle driven by Matthew Garcia struck her Plaintiff does not dispute that the UM coverage form at issue was in the form prescribed by the commissioner of insurance See La S 680 R 22 as redesignated ii a 1 La S R ii a 1 1295 22 by authority of 2008 La Acts No 415 1 effective January 1 2009 Regarding the manner in which the form was executed plaintiff does not assert any deficiencies based on the dictates of Duncan v U Ins Co 06 363 p 4 La 11 950 So A S 06 29 2d 544 547 other than the policy number does not appear on the form Plaintiff stipulated that the form was otherwise valid 2 vehicle resulting in injuries to Ms Washington Ms Washington settled her claims against Mr Garcia and filed suit against her own insurer Allstate alleging that its policy named her as an insured and provided UM coverage In its answer Allstate denied that its policy provided such coverage At trial the parties stipulated that 1 Mr Garcia was one hundred percent at fault for the motor vehicle accident 2 Ms Washington sdamages exceeded the liability policy limits applicable to the vehicle driven by Mr Garcia and 3 no other insurance coverage other than the alleged Allstate UM coverage was available The parties further stipulated to the authenticity and the admissibility of the following items that were introduced into evidence 1 the Allstate policy in effect at the time of the accident which designated Mr and Ms Washington as named insureds 2 the Allstate coverage application and binder provision signed by Mr Washington dated December 2 2003 and 3 the UM coverage form that was signed and initialed by Mr Washington on December 2 2003 Ms s Washington counsel further stipulated that the binder number on the application was the same number reflected on the UM coverage form The parties stipulated to the amount of Ms Washington medical expenses and the nature of her s injuries Further while the parties did not dispute that the Allstate policy remained in effect as of the date of the accident they disputed whether the policy provided UM coverage In support of their respective positions both parties offered the testimony of Stephanie Hebert who owned an independent Allstate agency and had worked as an Allstate agent for fourteen and onehalf years as of 2 The 1990 Cadillac Deville was one oftwo vehicles covered under the policy 3 This application resulted in the issuance of the Allstate policy at issue 3 the date of trial The parties did not contest that an agent within her office had processed Mr Washington sapplication and UM coverage form Ms Hebert acknowledged that the UM coverage form signed by Mr Washington contained a binder number instead of the applicable policy number on the line on the UM coverage form for the policy number She explained that the Allstate computer system prints an application along with a binder number and coverage is bound immediately The binder number was used on the UM coverage form because there is never a policy number available at the time the application is prepared Ms Hebert explained that the policy number is generated after the application is processed by one of Allstate service centers She testified that s when Mr Washington signed the application and the UM coverage form the policy number was not available Initially she stated that the process of generating a policy number took two to three days from the time the application was submitted but she later acknowledged that one of Allstate service centers s had probably generated the policy number within twentyfour hours She explained that her general practice was to put aside the applications after transmitting them by facsimile to Allstate and about three days later she would check her applications by going into the Allstate computer system and pulling up the relevant policy numbers to confirm coverage for each respective applicant Ms Hebert further testified that from the time Mr Washington initially applied for coverage in 2003 his policy had been renewed without any changes in the limits or type of coverage Ms Hebert stated there were probably four to five Allstate service centers within the country but she did not know which service center had actually processed Mr Washington application s 4 Under La R 22 the requirement of UM coverage is an implied S 680 amendment to any automobile liability policy even when not expressly addressed as UM coverage will be read into the policy unless validly rejected Duncan v A S UIns Co 06 363 p 4 La 11 950 So 544 547 However the 06 29 2d coverage required by the UM statute is not applicable when any insured named in the policy either rejects coverage selects lower limits or selects economiconly coverage in the manner provided therein La R 22 The statute S 680 i a 1 provides in part that a properly completed and signed form creates a rebuttable presumption that the insured knowingly rejected coverage selected a lower limit or selected economiconly coverage La R 22 Further the form S 680 ii a l signed by the insured or his legal representative which initially rejects coverage selects lower limits or selects economiconly 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 Id In Duncan the supreme court addressed whether the UM coverage form prescribed for selection of UM coverage by the commissioner of insurance must contain the insurance policy number in order for a waiver to be effective Therein the UM coverage form which was executed by the insured contained a blank line for the policy number no policy number appeared on this line Id at p 3 950 2d So at 546 The supreme court found that the UM statute requires that the blank for the policy number contained on the insurance commissioner form be filled in s to effectuate a valid waiver of UM coverage Id at p 1 13 950 So at 545 2d 554 The supreme court concluded that the failure to fill in the policy number on 5 the form prescribed by the commissioner of insurance invalidates the UM waiver and consequently the UM coverage is equal to the liability limits of the policy Id 06363 at p 13 950 So at 554 2d Since Duncan the supreme court has concluded however that filling in the policy number is not essential to a valid UM coverage waiver where the evidence establishes that no policy number was available at the time of the execution of the UM coverage form See Carter v State Farm Mut Auto Ins Co 07 1294 P 1 La 10 964 So 375 376 Insurance Commissioner Bulletin LIRC 98 03 07 5 2d specifically provides Ithe case where a policy number is not available the n space for the policy number may be left blank or a binder number may be inserted Further in Gray v American Nat Property Cas Co 07 1670 p 1 l n 2 La 2 977 So 839 847 n 2 the supreme court stated 08 26 2d Following Duncan this court acknowledged in Carter v State Farm Mutual Automobile Ins Co 07 1294 La 10 964 So 375 97 5 2d that the Commissioner of Insurance regulations specifically allow s omission ofthe policy number if it does not exist at the time the UM waiver form is completed The record in this case indicates that the policy number was available when the UM selection form were s signed Therefore we will continue to refer to the six tasks necessary for a valid UM selection form in this case We note however that a case where the policy number is not available only five tasks would be necessary for a valid UM selection form Because the question of whether the policy number was available at the time the UM coverage form was executed is a factual issue the trial court finding s regarding this issue is subject to the manifest error standard of review See Reed v State Farm Mut Auto Ins Co 03 0107 p 14 La 10 857 So 03 21 2d 1012 1021 To reverse a factfinder determination under this standard of review s an appellate court must undertake a twopart inquiry 1 the court must find from no the record that a reasonable factual basis does not exist for the finding of the trier of fact and 2 the court must further determine that the record establishes that the finding is clearly wrong Stobart v State Department of Transportation and Development 617 So 880 882 La 1993 Ultimately the issue to be resolved 2d by the reviewing court is not whether the trier of fact was right or wrong but whether the factfinder conclusion was a reasonable one s Id If the factual findings are reasonable in light of the record reviewed in its entirety a reviewing court may not reverse even though convinced that had it been sitting as the trier of fact it would have weighed the evidence differently Id at 882 883 This is not to say however that factual determinations cannot ever or hardly ever be upset Brewer v J Hunt Transport Inc 091408 091428 p 13 La 3 35 B 10 16 3d So 230 240 Although deference to the factfinder should be accorded because appellate courts have a constitutional duty to review both law and facts they have the right and the obligation to determine whether a trial court factual finding is s clearly wrong based on the evidence or clearly without evidentiary support Id Based on the evidence in the present case we find that the record lacks evidentiary support for the trial court finding that Allstate failed to establish the s unavailability of the policy number at the time Mr Washington executed the UM coverage form We find the trial court finding in this respect to be unreasonable s and clearly wrong Ms Hebert testimony which established that the UM policy s number was never available when the insurance application was processed was uncontradicted The evidence establishes Mr Washington executed the UM coverage form on the same date that he completed the application for insurance Further Ms Washington submitted no evidence establishing that a policy number 7 was available when Mr Washington executed the UM coverage form Because the evidence establishes the policy number was not available when the UM coverage form was completed the insertion of the binder number on the application on the UM coverage form in the space designated for a policy number did not invalidate the UM coverage form See Carter 071294 at p 964 So l 2d at 376 Clement v State Farm Mut Auto Ins Co 080014 p 7 La App 1st Cir 6 992 So 506 509 writ denied 081503 La 10 992 So 08 2d 08 3 2d 1020 The UM coverage form was properly completed and signed creating a rebuttable presumption that Mr Washington knowingly rejected coverage See La R 22 This presumption was not rebutted by Ms Washington S 680 ii a 1 and the waiver by Mr Washington is effective as to Ms Washington See La S 680 R 22 Thus we reverse the trial court judgment in favor of Ms i a 1 s Washington and dismiss her claims with prejudice Appeal costs are assessed against Ms Washington REVERSED AND RENDERED E

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