Mark Strickland VS Joshua Mason, Carl W. Mixon and State Farm Mutual Automobile Insurance Company
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2011 CA 1895 F U MARK STRICKLAND VERSUS JOSAUA MASON CARL W MIXON AND STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Judgment Rendered MAY 2 3 2012 On Appeal from the 19Judicial District Court For the Parish ofEast Baton Rouge State of Louisiana Docket No 583 Section 23 226 The Honorable William A Morvant Judge Presiding Sean D Fagan Locke Meredith Counsel for Plaintiff Appellant Mark Strickland Corey Orgeron Baton Rouge Louisiana Henry G Terhoeve Counsel for Defendant Appellee Brad M Boudreaux Baton Rouge Louisiana State Farm Mutual Automobile Insurance Company BEFORE GAIDRY McDONALD AND AUGHES JJ HUGHES J This is an appeal from a summary judgment rendered against appellant plaintiff Mark Strickland and in favor of defendants appellees Carl Mixon and State Farm Mutual Automobile Insurance Company State Farm For the reasons that follow we reverse and remand FACTS AND PROCEDURAL HISTORY On August 12 2008 Mr Mark Strickland applied for and was issued a policy of insurance by State Farm effective August 12 2008 On his application Mr Strickland advised State Farm that his driver license was s issued on August 28 2007 less than three years prior to the date of the application and he provided his mailing address to State Farm as follows Southern University SU Box 13716 Baton Rouge La 70813 3716 State Farm does not dispute that Mr Strickland address was s incorrectly entered into its database as follows Southern University Southern University Baton Rouge La 70813 0001 State Farm later determined that it could not continue Mr Strickland s insurance because he had not been a licensed driver for three years State Farm attempted to mail a notice of cancellation to Mr Strickland on August 25 2008 stating that his insurance coverage would terminate effective September 24 2008 at 12 a However due to State Farm error the 01 m s notice was sent to the erroneous address contained in State Farm database s rather than the correct address on the application While the application indicates a DY of August 11 2008 it also indicates an App Purch Date of August 12 2008 We will assume that the application was completed and accepted by State Fann on August 12 2008 Z We note that Mr Strickland license issue date was evident on the face of Mr Strickland s s application and was therefore known to the agent at the tune the policy was issued 2 On October 5 2008 Mr Strickland as a passenger in his vehicle was involved in an accident severe injuries He was ejected from the vehicle and suffered State Farm denied coverage to Mr Strickland under the underinsured uninsured motorist portion of his August 12 2008 policy on the basis that the policy had been terminated on September 24 2008 Mr Strickland filed suit against State Farm and Carl Mixon the insurance agent through whom Mr Strickland procured the policy alleging that State Farm failure to mail the notice of cancellation to his correct s address rendered the cancellation ineffective State Farm alleged that even though it admittedly mailed the cancellation to an incorrect address it was ultimately delivered to Mr Strickland Thus State Farm contended that the notice of cancellation was effective and there was no policy of insurance issued to Mr Strickland by State Farm on the date of the accident that would provide coverage to him for the injuries he sustained State Farm filed a motion for summary judgment arguing that there were no genuine issues of material fact as to whether it had met the statutory and contractual requirements of mailing the notice of cancellation to Mr Strickland After a hearing on the motion for summary judgment the trial court granted judgment in favor of both Carl Mixon and State Farm Strickland appeals urging the following assignments of error 1 The trial court erred as a matter of law in finding that State Farm satisfied the policy contractual requirements s for cancellation of coverage 2 The trial court erred as a matter of law in finding that State Farm satisfied the statutory requirements for cancellation of coverage 3 The tc erred as a matter of law by dismissing rial ourt sclaims against Carl Mixon plaintiff 3 Mr LAW AND ANALYSIS The summary judgment procedure is designed to secure the just speedy and inexpensive determination of every action except those disallowed by LSA art 969 the procedure is favored and shall be P C construed to accomplish these ends LSA art 966 Summary P C 2 A judgment shall be rendered in favor of the mover if the pleadings depositions answers to intenogatories and admissions on file 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 LSA art P C B 966 Appellate courts review summary judgments de novo under the same criteria that govem a district court consideration of whether summary s judgment is appropriate Samaha v Rau 2007 pp 3 La 2 1726 4 08 26 977 So 880 882 Allen v State ex rel Ernest N Morial Orleans 2d New Exhibition Hall Authority 2002 p 5 4 842 So 373 1072 La 9 03 2d 377 Boudreaux v Vankerkhove 2007 p 5 App 1 Cir 2555 La 08 11 8993 So 725 729 2d 30 In ruling on a motion for summary judgment the judge role is not to s evaluate the weight of the evidence or to determine the truth of the matter but instead to determine whether there is a genuine issue of triable fact All doubts should be resolved in the moving s non party favor Hines v Garrett 2004 p 1 6876 So 764 765 per curiam 0806 La 25 04 2d A fact is material if it potentially insures or precludes recovery affects a litigant ultimate success or determines the outcome of the legal dispute s A genuine issue is one as to which reasonable persons could disagree if reasonable persons could reach only one conclusion there is no need for trial 4 on that issue and summary judgment is appropriate Id 04 at p 1 0806 876 So at 765 2d 66 On motion for summary judgment the burden of proof remains with the movant And only if the moving party will not bear the burden of proof n c the issue at trial can he point out an absence of factual support for one or more elements essential to the adverse party claim action or defense such s that the non party must then produce factual support sufficient to moving establish that he will be able to satisfy his evidentiary burden of proof at trial See LSA art 966 P C 2 C When a motion for summary judgment is made and supported as provided in LSA art 967 an adverse party may not rest on the mere P C allegations or denials of his pleadings but his response by affidavits or as otherwise provided in LSA art 967 must set forth specific facts P C showing that there is a genuine issue for trial If he does not so respond ummary judgment if appropriate shall be rendered against him LSA P C art 967 See also Board of Supervisors of Louisiana State B University v Louisiana Agricultural Finance Authority 2007 p 9 0107 La App 1 Cir 2 984 Sa2d 72 79 Cressionnie v Intrepid 08 8 80 Inc 2003 p 3 App 1 Cir 5 879 So 736 738 1714 La 04 14 2d Because it is the applicable substantive law that determines materiality whether a particular fact in dispute is material can be seen only in light ofthe substantive law applicable to the case Richard v Hall 2003 1488 p 5 4874 So 131 137 Dyess v American National La 23 04 2d Property and Casualty Company 2003 p 4 App 1 Cir 1971 La 04 25 6 886 So 448 451 writ denied 2004 La 10 885 2d 1858 04 29 2d So 592 Cressionnie v Intrepid Inc 2003 at p 3 879 So at 1714 2d 39 738 5 1 Assignments of Error Numbers One and Two Whether State Farm met the statutory and contractual requirements to effectively terminate coverage Louisiana Revised Statutes 22 governs the cancellation of insurance 887 policies and states in pertinent part that A Cancellation by the insurer of any policy which by its terms is cancellable at the option of the insurer or of any binder based on such policy may be effected as to any interest only upon compliance with either of the following a 1 Written notice of such cancellation must be actually delivered or mailed to the insured or to his representative in charge of the subject of the insurance not less than thirty days prior to the effective date of cancellation except when termination of coverage is for nonpayment ofpremium 2 Like notice must also be so delivered or mailed to each mortgagee pledgee ar other known person shown by the policy to have an interest in any loss which may occur thereunder For purposes of the Paragraph delivered includes electronic transmittal facsimile or personal delivery B The mailing of any such notice shall be effected by depositing it in a sealed envelope directed to the addressee at his last address as known to the insurer or as shown by the insurer records with proper prepaid s postage affixed in a letter depository of the United States Post Office The insurer shall retain in its records any such item so mailed together with its envelope which was returned by the post office upon failure to find or deliver the mailing to the addressee Emphasis added The language of the policy of insurance issued to Mr Strickland by State Farm essentially mirrors the statutory requirements The policy states in pertinent part that 6 8 Cancellation 1 We may cancel this policy by mailing or delivering a written notice to the most recent policy address that we have on record for the named insured 2 The date cancellation is effective will be at least b 30 days after the date we mail or deliver the cancellation notice if the cancellation is because of any other reason than for non payment Emphasis added Thus there are two ways by law that State Farm could have effected notice of cancellation in this matter 1 Actual delivery 30 days prior to the cancellation or 2 Mailed delivery of the notice to the statutorily required address State Farm accomplished neither Its only evidence of actual receipt is Mr Strickland own testimony In oral reasons for judgment the trial s court stated Igot the record reflecting proof of notice of mailing as ve required proof of receipt prior to the effective date of cancellation Thus it concluded that w was sought to be accomplished was accomplished hat This is true only from the perspective of the insurance company The record does not contain proof of receipt prior to the date of cancellation What was sought to be accomplished was to give Mr Strickland a chance to buy other insurance and to protect the public from uninsured drivers These are the goals of the statute and they were not accomplished The trial court judgment in this case relied on its erroneous s conclusion that the evidence proved Mr Strickland received the notice prior to the effective date of cancellation However Mr Strickland actually testified that he received a letter from State Farm less than a week before the October 5 2008 accident which is not 30 days prior to the September 24 7 2008 cancellation date State Farm cannot rely on the testimony of Mr Strickland to prove actual notice and then ignore his testimony as to when it was received Thus the trial court erred in its conclusion The purpose of a notice of cancellation is to make known to the insured that his policy is being terminated and to afford him sufficient time to obtain other insurance protection Fidelity Broadway 285 So 536 539 La 1973 citin American 2d Casualty Company v Knox 164 FW La 1958 3 Supp D Mareover it is undisputed that the notice was mailed to the incorrect address Evidence of improper mailing of a notice of cancellation creates an issue for the fact finder to resolve Johnson v Farm Bureau 2011 0476 La 5 60 So 607 608 see also Doucet v State Farm 1999 11 6 3d 663 La App 5 Cir 11 748 So 1228 wherein the trial court found 99 30 2d and the appellate court affirmed that State Farm did not properly cancel an s insured coverage because it did not meet the minimum requirement to mail the notice to the named insured at the insured address but instead mailed s the notice to her fiancé Thus the court held that the policy was in effect at the time the accident occurred State Farm cannot rely on its own screw in its internal database to up deny coverage when it received the correct address on its application State Farm did not meet its evidentiary burden ofproof in this case It failed to prove actual receipt prior to termination and it admits improper mailing Thus State Farm is not entitled to summary judgment These assignments of error have merit 2 Assignment of Error Number Three Mixon liability Mr s In his third assignment of enor Mr Strickland argues that the trial court erred in dismissing his claims against Carl Mixon the agent through whom he applied for and was issued the policy of insurance 8 As stated earlier at the time of his application Mr Strickland told Mr Mixon that his s tlriver license had been issued on August 28 2007 and that he had not been licensed to drive far three years and the application so reflected Thus Mr Mixon accepted two months ofpremium payments from Mr Strickland and issued him a policy of insurance for which he knew Mr Strickland was not qualified for Moreover Mr Strickland also argues that Mr Mixon possessed his correct mailing address and that it was Mr Mixon who inconectly entered his address into the State Farm database Thereafter Mr Mixon was sent a courtesy copy of Mr Strickland snotice of cancellation These facts raise the issue of whether if Mr Mixon knew the correct address and he knew that the notice was issued to the wrong address should he have personally notified Mr Strickland that his insurance was to be terminated In brief to this court State Farm argues that LSA 22 is clear that Mr SH R 887 Mixon was under no duty to personally notify Mr Strickland of the cancellation While we agree Mr Mixon was not primarily responsible for giving any notice of cancellation to Mr Strickland he should have known Mr Strickland did not qualify for the insurance he was issued and he may be responsible for the incorrect address used in this case We cannot foreclose the possibility that under the facts of this case he may have had some duty to correct his own enors when they became apparent to him 3 L Revised Statutes 22 ouisiana Hprovides that Notice of cancellation or nonrenewal 887 given by the insurer in accordance with this Chapter shall be deemed sufficient The producer shall not be required to give any separate or additional notice of cancellation or nonrenewal Producer is defined in LSA 22 S 13 R 46 1as a person required to be licensed under the laws of this state to sell solicit or negotiate insurance and includes all persons or business entities otherwise refened to in this Code as insurance agenY agent insurance broker broker insurance solicitor solicitor or surplUS lines broker 9 Because there remain genuine issues of material fact relating to Mr s Mixon issuance of the policy and fault in entering an incorrect address or to ii the database summary judgment in favor of Carl Mixon is also precluded in this case This assignment of error has merit CONCLUSION For the reasons assigned herein the judgment of the Nineteenth Judicial District Court granting the motion for summary judgment in favor of the defendants State Farm Mutual Automobile Insurance appellees Company and Mr Carl Mixon is reversed This case is remanded to the district court for further proceedings consistent with this opinion The costs of this appeal are to be borne by State Farm Mutual Automobile Insurance Company and Mr Carl Mixon REVERSED AND REMANDED 10
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