Kimberly Griffin, Beroness Griffin, and Lisa McDowell VS Safeway Insurance Company
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2012 CA 1632 KIMBERLY GRIFFIN BERONESS GRIFFIN AND LISA MCDOWELL VERSUS SAFEWAY INSi COMPANY JRANCE Judgment Rendered U 2 92 On Appeal from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Trial Court No 573 313 The Honorable Janice Clark Judge Presiding Gail N Baton McKay Rouge Louisiana Attorney for Appellees Kimberly Griffin Beroness Griffin and Lisa McDowell Simone C Lafayette Dupre Attorney for Appellant Safeway Insurance Company Louisiana x BEFORE PARRO WELCH AND KLINE JJ Hon William F Kline Jr retired is serving as judge ad hoc by special appointment of the Louisiana Supreme Court vv vGJ W P S e c t2 cnC l ot Cc nrs o k Go o T r z KLINE J This is an appeal by defendant Safeway Insurance Company Safeway following a judge trial in which plaintiffs Kimberly Griffin Beroness Griffin and Lisa McDowell plaintiffs were found to be entitled to compensation far injuries they suffered as the result of an automobile accident For the following reasons we reverse and render FACTS AND PROCEDURAL HISTORY This matter arose out of a December 15 2007 automobile accident in West Feliciana Parish wherein the tortfeasor Ladd W Perritt caused a collision with a vehicle containing three occupants Beroness Griffin the driver Kimberly Griffin the owner of the vehicle and a passenger and Lisa McDowell a passenger Mr s Perritt vehicle was insured by State Farm Insurance Company State Farm with policy limits of 25 per person and 50 per accident 000 000 The Griffin vehicle was insured by Safeway pursuant to a liability policy containing uninsured UM coverage issued to Kimberly Griffin in underinsured the state of Mississippi The Safeway policy was issued by Foster Insurance Company of Gloster Inc an independent insurance agency located in Gloster Mississippi the policy provided UM coverage in the amount of 25 per person 000 and 50 per accident 000 At the time of the accident Mr Perritt address as indicated on the s accident report and on his Mississippi license was in Mississippi The vehicle operated by Mr Perritt was a Ford F registered in the state of Mississippi with 150 a Mississippi license plate and was insured in Mississippi by State Farm The Griffin vehicle also had a Mississippi license plate Both Kimberly Griffin and Lisa McDowell gave the police officer Mississippi addresses on the date of the accident 2 The plaintiffs settled their claims with Mr Perritt and State Farm on October 31 2008 for the policy limits of 50 with each plaintiff receiving one of 000 third that total Plaintiffs sent Safeway a demand letter on October 30 2008 which was received on November 4 2008 According to Safeway litigation supervisor s Margaret May the letter sent by plaintiffs was Safeway first notice of the s December 15 2007 accident and the claims of plaintiffs Ms May had no record of any call by Kimberly Griffin to Safeway following the accident and no collision claim was made for damages to the vehicle insured by Safeway Plaintiffs filed suit against Safeway on December 9 2008 in East Baton Rouge Parish seeking UM coverage under the policy issued to Kimberly Griffin In its pleadings Safeway contended that Mississippi law governed the applicability of IJM coverage and that Mississippi law precluded such coverage Tbe matter was tried before the judge on May 4 2010 At trial Lisa McDowell testified that her address was in Mississippi but that she worked at Angola State Penitentiary in Tunica Louisiana Angola Approximately twice a month Ms McDowell would stay at the BOQ Bachelors Quarters at Angola rather than drive home to Mississippi Ms McDowell admitted that she had never been a resident of West Feliciana Parish Kimberly Griffin testified that she was living in Mississippi at the time of the accident She also worked at Angola and spent some time at the BOQ rather than drive home to Mississippi Kimberly Griffin possessed a Mississippi driver s Kimberly Griffin testified that she contacted Safeway after the accident The policy issued to Kimberly Griffin required that notice be given to Safeway following an accident The policy also excludes UM coverage when the insured settles the bodily injury claim without the consent of Safeway Because we find Mississippi law applies and precludes UM coverage because the s tortfeasor vehicle is not an insured vehicle as defined by Mississippi we do not reach the issue of notice in this case 3 There were discxepancies in Kimberly Griffin deposition and trial testimony regarding s whether she stayed at the BOQ However this court finds the issue is not paramount because Kimberly Griffin was clearly not a resident of Louisiana as demonstrated by the entirety of the record 3 license had never had a Louisiana driver license and considered herself a s Mississippi resident The vehicle owned by Kimberly Griffin was registered in Mississippi was insured by a policy purchased through a Mississippi agency and issued to Kimberly Griffin in Mississippi Beroness Griffin testified at trial that at the time of the accident she had been living in an apartment with a friend in Baton Rouge Louisiana for approximately eight months even though she previously stated in deposition testimony that she had moved back to Mississippi a few months prior to the accident Beroness Griffin explained that she was nervous at her deposition but that she was tellin the truth as to her living arrangements at the trial She insisted that at the time of the accident she was living in Baton Rouge and going home on weekends Beroness Griffin also testified that at the time of the accident she considered the Mississippi address to be her residential address that she had a Mississippi driver s license and that she had never had a Louisiana license The Mississippi address used by Beroness Griffin was her parent address s Sabrina White a friend of Beroness Griffin also testified that at the time of the accident Beroness Griffin was living with her in Baton Rouge and had been since the beginning of 2007 Ms White further testified that Beroness Griffin started going home on weekends about four months before the accident and about a month after the accident Beroness found a job with a temporary employment service in Louisiana A judgment was ultimately signed on June 20 2012 in favar of the plaintiffs awarding the following amounts Kimberly Griffin 90 547 48 Beroness Griffin 56 090 48 4 I 91 264 47 Lisa McDowell It is from this judgment that Safeway appeals ASSIGNMENTS OF ERROR Safeway assigns numerous enors all of which involve the trial court committing legal errar as follows The 1 trial court erred in failing to rule on Safeway motion to s involuntarily dismiss plaintiffs claims since there was no evidence in the record that the tortfeasor was underinsured according to Louisiana law 2 The trial court erred in not applying Mississippi law 3 The trial court erred in not conducting a choice analysis law of The 4 trial court erred in failing to rule on Safeway motion to s involuntarily dismiss plaintiffs claims as to penalties and attorney sfees The 5 trial court erred in rendering a judgment against Safeway in excess of its policy limits This court begins its analysis with a choice analysis and the law of determination of whether Mississippi or Louisiana law applies STANDARD OF REVIEW The appellate jurisdiction of courts of appeal extends to both law and facts La Const art V B 10 Arias v Stolthaven New Orleans L 08 La C 1111 5109 5 9 So 3d 815 818 A court of appeal may not overturn a judgment of a trial court absent an error of law or a factual finding that was manifestly erroneous or clearly wrong Id citing Stobart v State Dept of Transp and Development 617 So 2d 880 882 n La 1993 When the court of appeal fmds that a 2 reversible legal error or manifest enor of material fact was made in the trial court it is required to redetermine the facts de novo from the entire record and render a judgment on the merits Id citing Rosell v ESCO 549 So 2d 840 844 La 1989 4 The trial judge left the record open to a11ow the defendant to supplement the record with excerpts of certain deposition testimony which was admitted into evidence after the trial 5 We find legal error on the part of the trial judge thus requiring that we conduct a de novo review on the choice issue After a de novo review of law of the record we find that Mississippi law applies to the facts of this case and pursuant to that law plaintiffs are not entitled to UM recovery Therefare we reverse the trial court and render judgment in favor of Safeway LAW AND ANALYSIS At issue in the present case is the interpretation of UM coverage afforded to the plaintiffs Plaintiffs assert that Louisiana law applies and Safeway asserts that Mississippi law applies The trial court rendered a judgment which comports with the application of Louisiana law he T appropriate starting point in a multistate case such as the present one is to first detennine that there is a I difference between Louisiana sUM law and the UM law of the foreign state and then to conduct a choice law of analysis as codified in Book IV of the Civil Code to determine which state law applies to the interpretation s of the LJM policy Champagne v Ward 03 La 3211 OS 19 1 893 So 2d 773 786 As noted hereinafter there is a difference between Louisiana UM law and the s UM law of Mississippi thus a choice analysis must be conducted The law of law of choice methodology is codified in La C arts 3515 and 3537 In Champagne the Louisiana Supreme Court held that Louisiana law does not automatically apply to UM claims under a policy issued in another state even though a Louisiana resident is involved in the accident and the accident occurs in Louisiana Rather a choice analysis is necessary Champagne 893 So 2d law of at 775 According to the conflict c laws provisions the court must balance the f competing interests between states to identify the state whose policies would be s If the trial court conducted a choice analysis and made factual determinations such that law of it concluded that based on those factual determinations Louisiana law applied those factual determinations are manifestly erroneous 6 most seriously impaired if its laws were not applied to the issue at hand Id at 786 Like the present case Champagne involved an automobile accident which occurred in Louisiana and a UM policy that was issued in Mississippi The relevant facts in Champagne were The 1 accident occurred in New Orleans Louisiana The 2 defendant was a Louisiana resident and the defendant automobile s liabIlity policy was issued to the defendant in Louisiana 3 The plaintiff was a Mississippi resident Mississippi 4 was the place of negotiation and formation of the plaintiff s insurance contract The 5 vehicle on which plaintiff purchased coverage was garaged and presumably registered in Mississippi PlaintifPs UM policy was a Mississippi contract 6 The Court in Champagne held that under the facts Mississippi had a more substantial interest in the uniform application of its laws governing insurance contracts than Louisiana did in providing a remedy to an out resident who state of was injured while transitorily within the borders of Louisiana Id at 789 The Court also noted that the plaintiff premium for UM coverage was based on the s application of Mississippi law to the contract Id Following Champagne this court applied a choice analysis to a law of similar set of facts in Wendling v Chambliss 09 La App 1 Cir 3 1422 10 26 36 So 3d 333 In that case the plaintiff argued that although he lived in Mississippi he was a Louisiana resident displaced after Hurricane Katrina and had abundant connections with Louisiana After a de novo review this court determined the following The 1 plaintiff was a Mississippi resident with a Mississippi address and Mississippi driver license s 7 The spolicy providing LTNI coverage was a Mississippi contract 2 plaintiff negotiated and purchased in Mississippi 3 The plaintiff vehicle was registered and principally garaged in s Mississippi The 4 tortfeasor was a Mississippi resident whose vehicle was registered in Mississippi The 5 accident occurred in Louisiana and the plaintiff post s accident medical treatment was in Louisiana Id at 338 Based upon the facts in Wendling this court held that Mississippi had a more substantial interest in the uniform application of its laws governing insurance contracts than did Louisiana in providing an insurance remedy to an out state of resident who was injured while in Louisiana The court noted that even though the plaintiff warked in Louisiana and was regularly in the state he was a Mississippi resident who purchased his insurance policy in Mississippi Furthermore the court noted that the plaintifPs premium was based on the applicarion of Mississippi law to the contract Therefore this court concluded that Mississippi law would be most seriously impaired if not applied to the contract ld at 338 339 La C art 3515 provides Except as otherwise provided in this Book an issue in a case having contacts with other states is governed by the 1aw of the state whose policies would be most seriously impaired if its law were not applied to that issue That state is determined by evaluating the strength and pertinence of the relevant policies of all involved states in the light o 1 the relationship of each state to the parties and the dispute and 2 the policies and needs of the interstate and international systems including the policies of upholding the justified expectations ofparties and of minimizing the adverse consequences that might follow from subjecting a party to the law of more than one state 8 La C art 3537 provides Except as otherwise provided in this Title an issue of conventional obligations is governed by the law of the state whose policies would be most seriously impaired if its law were not applied to that issue That state is determined by evaluating the strength and pertinence of the relevant policies ofthe involved states in the light of 1 the pertinent contacts of each state to the parties and the transaction including the place of negotiation formation and performance of the contract the location of the object of the contract and the place of domicile habitual residence or business of the parties 2 the nature rype and purpose of the contract and 3 the policies referred to in Article 3515 as well as the policies of facilitating the orderly planning of transactions of promoting multistate commercial intercourse and of protecting one party from undue imposition by the other s Louisiana conflict of law provisions as set forth above afford the balancing of competing interests between states Article 3515 instructs the court to examine the relationship of each state to the parties and the dispute Article 3537 invites analysis of the nature type and purpose of the contract The objective of these provisions is to identify the state whose policies would be most seriously impaired if its laws were not applied to the issue at hand See La C arts 3515 and 3537 see also Champagne 893 So 2d at 786 In the case at bar the law of the state applicable to the insurance contract and its iJM coverage is determined by evaluating the strength and pertinence of the relevant policies of Louisiana and Mississippi in light of the factors set forth in La C arts 3515 and 3537 See Champagne 893 So 2d at 786 There are competing public policies and interests that exist between the states of Louisiana and Mississippi in this case Louisiana has expressed as a public policy its intent to protect Louisiana residents and others when an accident occurs on Louisiana roads 9 The relevant Louisiana law La RS 22 states in pertinent part 1LN5 The following provisions shall govern the issuance of uninsured motorist coverage in this state i a 1 No automobile liability insurance covering liability arising out of the ownership maintenance or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motar vehicle designed for use on public highways and required to be registered in this state or as provided in this Section unless coverage is provided therein ar supplemental thereto in not less than the imits of bodily injury liability provided by the policy under provisions filed with and approved by the commissioner of insurance for the protection of persons insured thereunder who are legally entitled to recover nonpunitive damages from owners or operatars of uninsured or underinsured motor vehicles because of bodily injury siclrness ar disease including death resulting therefrom iii This Subparagraph and its requirement for uninsured motorist coverage shall apply to any liability insurance covering any accident which occurs in this state aad involves a resident of this state Emphasis added This court has previously noted that the statute is limited by the introductory language which states that the statute shall apply to the issuance of uninsured motorist coverage in this state Triche v Martin 08 La App 1 1220 Cir 5 13 So 3d 649 652 writ denied 09 La 9 18 So 3d 76 09 8 1284 09 25 quoting Champagne 893 So 2d at 786 The introductory language is clear and unambiguous and does not lead to absurd consequences Id quoting Champagne 893 So 2d at 786 As in Triche the policy at issue in this case was not issued for coverage in Louisiana and was not issued or delivered in Louisiana See Triche 13 So 3d at 652 Finally La R 22 limited to S 1295 iiiis a 1 accidents occurring in Louisiana involving a resident of Louisiana The purpose of Louisiana LTM legislation is to promote full recovery for s innocent automobile accident victims by mandating minimum liability insurance coverage and making such coverage available when the tortfeasor is uninsured or 10 underinsured See La R S 22 see also Martin v Champion Ins i a 1 3295 Co 95 La 6 656 So 2d 991 994 In Louisiana a liability policy 0030 95 30 providing UM coverage is not implicated until the underlying liability limits insuring the tortfeasor are e See La R S 22 In Mississippi austed b 2 1295 an uninsured motor vehicle is defined in pertinent part as An insured motor vehicle when the liability insurer of such vehicle has provided imits of bodily injury liability for its insured which are less than the limits applicable to the injured person provided under his uninsured motorist coverage Mississippi Code 1972 Section 83 Therefore UM coverage for the iii c 103 11 injured person pursuant to a Mississippi policy is only implicated if the bodily injury liability limits insuring the tortfeasor are less than the bodily injury limits of the injured person under his UM coverage The facts at trial clearly established that the tortfeasor bodily injury s liability limits issued by State Farm were 25 per person and 50 per 000 000 accident The LTNI coverage of the Safeway policy issued to Kimberly Griffin had policy limits of 000 25 per and person 000 50 per accident Therefore according to Mississippi law plaintiffs in the present case were not entitled to UM coverage under the Safeway policy There are three plaintiffs involved in the present case Our de novo review of the record reveals the following facts The accident occurred in West Feliciana Parish Louisiana I The tortfeasor Mr Penitt drove a vehicle registered in Mississippi the vehicle had a Mississippi license plate and Mr Perritt had a Mississippi s driver license 11 All three plaintiffs Kimberly GriYfin Beroness Griffin and Lisa McDowell had Mississippi addresses and driver licenses at the time of s the accident Lisa McDowell was a Mississippi resident who worked in Louisiana at the time of the accident Lisa McDowell spent about two nights a month at her place of employment in Louisiana Kimberly Griffin was a Mississippi resident who worked in Louisiana at the time of the accident Kimberly Griffin spent some nights at her place of employment in Louisiana The vehicle in which the plaintiffs were riding was purchased in Mississippi by Kimberly Griffm Kimberly Griffin had a Mississippi driver license and never had a s s driver license from Louisiana Kimberly Griffin had a Mississippi address and considered herself a Mississippi resident Kimberly Griffin purchased the Safeway insurance policy for the vehicle involved in the accident in Mississippi through a Mississippi insurance agent Prior to the accident Beroness Griffin lived in Baton Rouge for at least eight months at a friend apartment s At the trial although Beroness Griffin denied moving back to Mississippi a few months prior to the accident as she previously testified by deposition she testified that on the date of the accident she was living in an apartment with a friend in Baton Rouge Louisiana 12 Beroness Griffin used a Mississippi address and had a Mississippi license at the time of the accident Beroness Griffin never had a Louisiana license Beroness Griffin used a cell phone issued from a Mississippi area code and The address Beroness Griffin used in Mississippi was her parents address Af trial plaintiffs attempted to show that their working in Louisiana and Beroness Griffin living in an apartment in Baton Rouge gave them sufficient s contacts with Louisiana to have Louisiana law applied We agree residency is a factor to be considered in making the choice decision but it is not law of determinative Champagne 893 So 2d at 789 In the present case Kimberly Griffin and Lisa McDowell were Mississippi residents at the time of the accident We do not find that the Louisiana contacts of Kimberly Griffin and Lisa McDowell are sufficient to outweigh the substantial interest of Mississippi in the uniform applicaYion of its laws governing contracts Therefore we conclude that the Louisiana UM statute does not apply to the facts of their accident As to Beroness Griffin even if she were considered a Louisiana resident at the time of the accident it would not change this court analysis that Mississippi also has a s substantial interest in the uniform application of its own laws governing insurance contracts purchased and issued in Mississippi with regard to her claim We agree with the result in Collins v Downes 11 La App 4 Cir 1124 l2 25 1 83 So 3d 1177 which involved the determination of whether Louisiana law ar Ohio law applied to a UM claim Tl plaintiff and tortfeasor in Collins e were Louisiana residents the accident occurred in Louisiana and the tortfeasor s vehicle was garaged in Louisiana I policy providing LIM coverage on the he 13 vehicle being driven by the plaintiff was issued in Ohio The Fourth Circuit found that Ohio had a more substantial interest in the uniform application of its laws governing insurance contracts than Louisiana even though the accident occurred in Louisiana and involved Louisiana residents Collins 83 So 3d at 1183 Similarly as to all plainiiffs in the present case even if Beroness Griffin were considered to be a Louisiana resident this court finds that Mississippi has a more substantial interest in the uniform application of its laws governing insurance contracts than Louisiana Applying Louisiana law to the Mississippi policy would result in the impairment of Mississippi contracts The premium charged for the UM coverage in the policy was based on the application of Mississippi law to the contract Based on consideration of the factors listed in La C arts 3515 and 3517 we hold that Mississippi the state where the insurance policy was negotiated formed and purchased where the insured vehicle was licensed and garaged where the tortfeasor resided where two of the plaintiffs were residents and where all three plaintiffs had addresses and driver licenses bears the closer s relationship to the parties and the dispute Considering that Mississippi law applies to the policy providing UM coverage issued to Kimberly Griffin there is no UM coverage for the injuries sustained by plaintiffs See Mississippi Code 1972 Section 83 iii c 103 11 Because we reverse the trial court judgment which was based on the erroneous application of Louisiana law we need not address Safeway remaining s assignments of error CONCLUSION Far the foregoing reasons we reverse the judgment of the trial court and render judgment dismissing plaintiffs 14 claims against Safeway Insurance Company with prejudice Costs of this appeal are assessed to plaintiffs Kimberly Griffin Beroness Griffin and Lisa McDowell JUDGMENT REVERSED AND RENDERED I 15
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