Ava Fontenot Wife of/and Lindsey M. Fontenot, Individually and on behalf of the Estate of Lindsey R. Fontenot VS Progressive Paloverde Insurance Company, and Roy Bourg as Administrator of the Estate of Raymond Bourg (2012CA1763 Rehearing Decision Consolidated With 2012CA1764)
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FTRST CIRCUIT 2012 CA 1763 AVA FONTENOT WIFE OF LINDSEY M FONTENOT AND INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF LINDSEY R FONTENOT VERSUS PROGRESSIVE PALOVERDE INSURANCE COMPANY AND ROY BOURG AS ADMINISTRATOR OF THE ESTATE OF RAYMOND BOURG consolidated with 2012 CA 1764 SFlAREKA MATTHEWS AND ON BEHALF OF HER MINOR DAUGHTER ROBRIELLE SHORT VERSUS ROY BOURG AS ADMINISTRATOR OF THE ESTATE OF RAYMOND BOURG AND PROGRESSIVE PALOVERDE INSiJRANCE COMPANY Judgment Rendered OV R p Q On Appeal from the 32nd Judicial District Court In and for the Parish of Terrebonne State of Louisiana Trial Court No 164 c 164 095 w 219 The Honorable Randall L Bethancourt Judge Presiding John New H Denenea Jr Orleans Louisiana Attorney for Appellants Ava Fontenot wife of Lindsey and M Fontenot individually and on behalf of the estate of Lindsey R Fontenot Charles V Giordano Attorneys for Appellee Tasha W Hebert Progressive Paloverde Insurance ui st p Metairie Louisiana Company Keifer Jr Metairie Louisiana Attorney for Appellee Nat G Roy Bourg as administrator of the estate of Raymond Bourg BEFORE PARRO GUIDRY AND DRAKE JJ 2 DRAKE J Plaintiffs Ava Fontenot and Lindsey M Fontenot individually and on behalf of the estate of Lindsey R Fontenot appeal the trial court granting of s summary judgment dismissing their claims against defendant Progressive Paloverde Insurance Company Progressive Far the reasons stated herein the judgment of the trial court is vacated and the case is remanded far further proceedings FACTS AND PROCEDURAL HISTORY This matter arises out of an accident in which three people were killed on July 2 2010 in Tenebonne Parish On that date plaintiffs son Lindsey R Fontenot was a passenger in a 2007 Toyota Tacoma truck being driven by Raymond Bourg in a southerly direction on Louisiana Highway 24 Robert Short was driving another vehicle and was also travelling in a southerly direction on the same highway when the two vehicles collided All three occupants of the two vehicles Lindsey R Fontenot Raymond Bourg and Robert Short sustained fatal injuries At the time of the accident the vehicle driven by Raymond Bourg was insured by an automobile insurance policy issued by Progressive Plaintiffs filed suit against Roy Bourg as the administratar of the estate of Raymond Bourg and Progressive Progressive filed a motion for summary judgment which alleged that the policy did not provide either liability or uninsured motorist coverage UM for the accident in question because the policy contained a named driver exclusion endorsement excluding coverage for Raymond Bourg Prior to the summary judgment hearing all claims of liability against Raymond Bourg and his estate were voluntarily dismissed The motion for summary judgment was opposed by plaintiffs who argued that the named driver endorsement applied to the liability coverage of the policy 3 and not the UM coverage and did not act to eliminate UM coverage for a passenger occupying the vehicle The motion for summary judgment came on for hearing on June 15 2012 and the trial court subsequently signed a judgment granting Progressive motion for summary judgment s Plaintiffs appealed that judgment This court remanded the case to the trial court far the limited purpose of having the trial court sign a valid written judgment with appropriate decretal language An amended judgment was signed on May 7 2013 granting s Progressive motion far summary judgment and dismissing plaintiffs claims This appeal followed DISCUSSION Recently the Louisiana Legislature amended the law on summary judgment procedure to no longer require that a mover file his exhibits into the record provided the mover attaches the e to his motion for summary judgment or ibits memorandum Following the 2012 legislative session but prior to the 2013 legislative session a motion for summary judgment would be granted if the pleadings depositions answers to interrogatories and admissions together with the affidavits if any show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law La C art 966 P 2 B The legislature amended La C art 966 in 2013 to provide P B 2 The judgment sought shall be rendered forthwith if the pleadings depositions answers to interrogatories and admissions together with the affidavits if any admitted for purposes of the motion for summary judgment show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law 2013 La Acts No 391 1 Louisiana Code of Civil Procedure article 966 was also amended and 2 F enacted reto provide Evidence cited in and attached to the motion for summary judgment or memorandum filed by an adverse party is deemed 4 admitted for purposes of the motion for summary judgment Only evidence admitted for purposes of the motion for summary judgment may be considered by the court in its ruling on the motion 2013 La Acts No 1 391 Tbese amendments to La C art 966 are procedural and apply retroactively to P pending litigation See Trahan v Prudential Property Cas Ins Co 97 2470 La App 1 Cir 5739 So 2d 811 813 determining retroactive application 99 14 of La C art 966 when it was amended by 1997 La Acts No 483 P Summary judgment procedure is designed to secure the just speedy and inexpensive determination of every action except those disallowed by Article 969 La C art 966 Iones v Estate of Santiago 03 La P 2 A 1424 04 14 4 870 So 2d 1002 1005 The initial burden of proof remains with the mover to show that no genuine issue of material fact exists If the mover has made a prima facie showing that the motion should be granted the burden shifts to the moving non party to present evidence demonstrating that a material factual issue remains The failure of the non party to produce evidence of a material moving factual dispute mandates the granting of the motion Id at 1006 See La C P art 966 The review of the granting of a motion for summary judgment is 2 C de novo under the same criteria that govern the district court consideration of s whether summary judgment is appropriate Id This court must first determine whether the mover Progressive met its burden of proof of a prima facie case that the motion for summary judgment should be granted Progressive filed a motion for summary judgment with a supporting memorandum labeled A through K In the memorandum Progressive refers to exhibits Our thorough review of the entire record the trial court minutes and the hearing transcript reveals that none of the exhibits referred to by Progressive were filed with the trial court prior to the hearing Therefore the trial 5 court could not properly consider the content of those documents in determining the motion for summary judgment See Guilbeau v Custom Homes by Jim Russell Inc 06 La App 1 Cir 11 950 So 2d 732 735 This court 0050 06 3 is not permitted to deviate from the procedural and evidentiary rules for summary judgment established by our legislature As much as we or the parties might prefer we cannot subordinate adherence to proper civil procedure to considerations of judicial efficiency and convenience Id at 735 Citation 36 omitted Although La C art 966 has been amended to permit the P 2 F supporting evidence to be attached to the motion for summary judgment or the supporting memorandum no such evidence was attached in the present case by Progressive Even if this court were to review the policy in the record which plaintiffs filed in opposition to the motion for summary judgment there is no writing in the record evidencing an insured intent to include the named driver s exclusion in the policy Louisiana law requires that a named driver exclusion must be in writing and signed by an insured La R 32 Gilbert v Reynoso S 900 L 418 OS La App 3 Cir ll 917 So 2d 503 506 The insurer bears the OS 2 burden of showing policy limits or exclusions Schafer v Summers 12 La 0730 App 1 Cir 2113 So 3d 219 224 13 15 An appellate court must render its judgment upon the record on appeal La P C art 2164 Tranum v Hebert 581 So 2d 1023 1026 La App 1 Cir writ denied 584 So 2d 1169 La 1991 An appellate court cannot review evidence that is not in the record on appeal and cannot receive new evidence Id Progressive could have filed its e with the trial court prior to the hearing ibits Progressive also could have attached its exhibits to the motion for summary judgment or supporting memorandum According to the record Progressive did none of these things Therefare the trial court incorrectly considered the contents 6 of E A through K referred to by Progressive in its motion for summary ibits judgment Progressive did not carry its initial burden of proof CONCLUSION For the foregoing reasons the judgment of the trial court is vacated and this matter is remanded to the trial court Costs ofthe appeal are assessed to defendant Progressive Paloverde Insurance Company VACATED AND REMANDED 7
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