Blake C. Erdey VS Progressive Security Insurance Company
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2009 CA 1115 BLAKE C ERDEY VERSUS PROGRESSIVE SECURITY INSURANCE COMPANY Judgment Rendered On OEe 2 3 2009 Appeal from the Twenty First Judicial District Court In and for the Parish of Livingston State of Louisiana Docket No 110 986 Honorable Elizabeth P Wolfe Rodney Denham N Metairie Counsel for Plaintiff Erdey Springs Louisiana Renee Clark Blake C BEF RE Erdey Progressive Security Company DOWNING GAl DRY AND McCLENDO N I J Appellee Counsel for Defendant McGinty Louisiana L pC Judge Presiding L 4 c vt C S Appellant Insurance J 4 O McCLENDON J At issue whether is insured an policy under the policy can verbally cancel s terms and in light of LSA automobile an 5 R 22 885 The trial court found the verbal cancellation invalid and thus found that the policy insurance provided coverage for damages arising from a motor occurring several days after the verbal cancellation For the remained in effect and vehicle accident reasons expressed below we reverse FACTS AND PROCEDURAL HISTORY Blake C Erdey obtained Erdey policy of insurance from Progressive a Security Insurance Company Progressive with effective dates of June 15 2005 through June 2006 15 The Progressive policy insured a 2005 Chevrolet Silverado On October Saturday 15 2005 at 4 53 m p Erdey telephoned Progressive and informed the Progressive representative that he wanted to cancel his policy effective right cancel his Progressive policy because he had found insurer Erdey Brown of Ohio Brown was unable to Inc immediately obtain On October 16 2005 to Because it a new Progressive cancelled effective October 15 2005 subsequently made Erdey later indicated that he intended to now and sent a a better was the weekend policy with Erdey a policy with another Brown Brown notice that his refund direct however policy was deposit of 271 18 was Erdey s bank account for the refund of the unused premium On attempt Monday to obtain a October 17 new 2005 insurance not have all the information Brown called back at that time a Erdey contacted Brown Brown needed to finalize the purchased via credit card 2 an Erdrey indicated that he initially did policy few minutes later with the needed information he Brown in a policy but he Erdey alleges that liability policy from Brown Brown and Brown day Erdey Later that was involved in a motor Chevrolet Silverado sustained been cancelled to the accident as per prior March and effect on cancel the policy Erdey filed suit against Progressive for breach of 2006 1 the date of the accident was in Progressive had failed as in accord with Louisiana law and the terms of the Erdey alleged required the cancellation be requested The court without trial in to 10 000 damages 2 oral writing After testimony 11 167 00 for loss of attorney s fees in considering the LSA R S to pursuant s vehicle on 8 469 11 of the insured vehicle use Progressive has appealed contending that it had Erdey properly policy which pleadings law and exhibits submitted the trial court awarded Erdey for property force to the relevant facts of this matter and submitted parties stipulated to the case to Erdey s verbal request Erdey alleged that the insurance contract with Progressive contract the proof of loss a Progressive denied the claim indicating that that the policy had Progressive On vehicle accident and his 2005 Erdey submitted damage l effectively immediately Brown L10yds Insurers collectively no 22 658 and and 22 1220 3 policy of insurance insuring the date of the accident DISCUSSION Progressive Erdey on asserts that it did not have a October 17 Erdey s verbal request 2005 policy of insurance because it had been cancelled Progressive notes that Erdey even time of the accident he believed that he had cancelled his that he had no Progressive contends however that We note that there was some must Brown to 2 admitted that at the reached between Erdey on and Brown in writing policy provision mandates that Brown and Brown October 17 requested or Brown Erdey October 18 2005 and 8 250 00 with regard to Eventually a was paid by Brown Erdey The property the 3 was to Mr Progressive policy and have been no statute or dispute between whether the insurance became effective settlement pursuant Progressive policy insuring his vehicle Erdey posits that cancellation 1 in effect for damage totaled 9 469 11 but the court deducted the 1 000 deductible under policy Louisiana Revised Statutes 22 658 and 22 1220 22 1973 respectively by 2008 La Acts No 415 91 3 were renumbered effective January 1 as La 2009 R S 22 1892 and a writing is the exclusive manner in which an insurance policy Progressive notes that its policy provision by the insured cancellation and nonrenewal be cancelled can with regard to provides You may cancel this date that you wish policy by writing us and the to be effective cancellation stating the future Italics supplied LSA Moreover surrender 5 R 4 22 885 A entitled Cancellation by the Insured provides Cancellation by the insured of any policy which by its terms is cancellable at the insured s option or of any binder based on such policy may be effected by written notice thereof to the insurer and surrender of the policy or binder for cancellation prior to or on the effective date of such cancellation In event the policy or binder has been lost or destroyed and cannot be so surrendered the insurer may in lieu of such surrender accept and in good faith rely upon the insured s written statement setting forth the fact of such loss or destruction Emphasis added Progressive may as asserts that because both its opposed to shall neither its policy cancellation notice be are other ways the We 925 So 2d may an insured Estate and Ins 1979 cancel his can Louisiana renumbered Revised by a insured Statutes 2008 La Mitchell v 05 1963 22 885 A statute 308 So 2d that the statement to the s p La 4 4 06 16 utilizes the is is may permissive discretionary and has 108 109 See Gar Real La App 1 Cir physical tender of the policy agent that he no longer wanted the valid cancellation Although the statute 4 imply that there policy without written notice court concluded policy clearly manifests an the directives State v previously held that the coupled with the insured has held that the statute mandate that the mandatory and the word is Because LSA R S Agency wherein this shall 1 3 and Moss 1196 this court has found that nor Rather writing the word See LSA R S 1185 policy term policy may be cancelled including verbally note that permissive in policy and the statute utilize the s is discretionary Erdey points verbal 22 885 Acts No 415 request was 91 is insufficient to cancel formerly designated January 1 2009 effective 4 out that the Fifth Circuit as R S an 22 637 insurance but was policy Cir In Gandy 10 14 98 v United Servs 721 So 2d 34 Auto Ass writ denied 97 1095 n 98 2836 98 215 La 1 15 99 La 5 App 736 SO 2d 208 the court reasoned T he legislature has set out a mechanism for an insured to have valid cancellation of the 5 R 22 637 now 22 885 policy in it must have intended Although language permissive for the insured to perform some act a writing or surrender of the policy to cancel other than just a verbal request Otherwise the a there is the would be unnecessary Since we do not find that the legislature intended to enact an unnecessary law we find that a verbal request by the insured party to cancel the policy is not statute sufficient to effect cancellation by the insured prior to the insurable event at p Gandy 97 1095 98 215 We disagree with the Fifth Circuit found LSA writing a or surrender of the clear purposes of LSA R S in premium 22 885 B the If insurance cancel analysis s 5 R 22 885 would be unnecessary if insured absent an 8 721 SO 2d at 37 his an insurer is policy or an insured an unwilling or provides Accordingly premium methods of cancellation 22 885 A insofar are as it we contrast an liability insurance policy prior insurer is R S 5 22 1266 D Moreover be followed of a required if the by writing or policy to cancel an to 1 5th We note that cancels Circuit s a verbally date insured an of the to the analysis insured to cancel his policy v LSA a 5 R contact his insurer to by which the insured specific for the can return of his even provided in LSA if 5 R specific method for demanding premium insurer West surrender of the an verbal cancellation of a initiates cancellation of an Clarendon is correct and the policy automobile policy s anticipated termination date the give the insured the statutorily prescribed notice and one See policy accept method a his allowed other than those provides when s do not find the statute unnecessary cancellation and return of his unused By policy unable to request policy cancellation and provides unused to the extent that it policy could be cancelled by a insured is unable to the statute policy Gandy 22 885 is to address the return of the unused that event in Nat Ins provisions of LSA R S then the statute does not but would same 5 require both a Co See LSA 99 1687 p 6 22 885 A must provide the alternatives writing and surrender of the La 1 Cir App 7 31 00 to requirement is 767 So 2d 877 give the insured However when the insured is to any notice 1 Cir Chauvin writ denied an insured to cancel La 5 R 22 885 If the chance a to obtain alternate his we conclude that the the insurer to effect cancellation pursuant was to the insured the insured s Similarly may with duty to limit cancellation Moreover request there Progressive reasons For the we foregoing is reversed Insurance by requiring shall to the notice because the is no issue with regard to prior policy or conclude that on reasons Judgment is must required by was cancelled to notice and it cancelling his policy policy also used the permissive s we note to provided that the 6 term policy did requesting cancellation by written notice only not For the Erdey verbally cancelled his policy with October 17 policy of insurance with Progressive Erdey regard regard to cancellation by the insured Progressive prior to the accident no it did with to obtain alternate coverage because limit the insured to foregoing s App legislature intended in a manner other than those legislature had sought as La 1256 1978 policy other definitive directive coverage is not entitled 361 SO 2d 1255 the methods in the statute be met it could have used the word or some for the notice reason seeking cancellation of the policy he 363 So 2d 924 adopting LSA under the statute The Highlands Ins Co v In allow 881 on 2005 Accordingly Erdey had the date of the accident the trial court hereby rendered Company dismissing Erdey s claims 7 judgment in favor of Blake C in favor of Progressive Security s Costs of this appeal are assessed against Erdey REVERSED AND RENDERED 6 We note that that the Fourth Circuit has also found that an insured but without or Co 4 Cir 8 17 05 05 discussing 0185 La App analyzing LSA 5 R 22 885 915 So 2d 914 See Sperry writ denied v can cancel a policy verbally Nationwide Mut Fir Ins 2005 2302 La 3 10 06 925 So 2d 518 7 Progressive also assigned as error the trial court s award of loss of use damages when its policy had no rental provision the trial court s finding that Progressive was arbitrary and capricious and the trial court s failure to give Progressive credit for the amount Erdey received in settlement from Brown Brown However in light of our conclusions we pretermit these remaining assignments of error 6 STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2009 CA 1115 BLAKE C ERDEY VERSUS PROGRESSIVE SECURITY INSURANCE COMPANY DOWNING J concurs and assigns From the terms of the policy and endorsements themselves Progressive has eliminated evident that cancelled in writing R reasons The any requirement that the policy be contained the original policy it is following term CANCELLATION OF THIS POLICY t Ii 1 You may cancel this 1 delivering to advance written notice of cancellation or by not us policy by mailing paying a premium installment cancellation date can be your written day after no or when it becomes due earlier than 12 01 The a m on request is postmarked the Underline added The policy endorsement provides as follows in pertinent part CANCELLATION OF THIS POLICY is replaced with the following You may cancel this 1 to a us advance notice of cancellation premium can be Therefore the terms of the policy absurd consequences parties explicit language in the result no earlier than 12 01 requirement that The on the advance notice be oral notification of cancellation is acceptable under itself When the words of the search of the delivering by paying not after your written request The endorsement removed the written or or installment when it becomes due cancellation date day Policy by mailing no contract are clear and explicit and lead further interpretation may be made intent La of the insurance CC policy art 2046 Based and endorsement to by the courts on at no in the clear and issue I concur
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