Dalbert Fontenot and Catherine Ann Fontenot VS American Home Assurance Company
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2012 CA 0243 DALBERT FONTENOT and CATHERINE ANN FONTENOT Mi j 1 J VERSUS AMERICAN HOME ASSURANCE COMPANY Judgment Rendered NOY 15 2012 On Appeal from the 32nd Judicial District Court In and for the Parish of Terrebonne State of Louisiana Docket No 150 146 The Honorable David W Arceneaux Judge Presiding Mr Frank A Flynn Counsel for Plaintiffs Appellants Lafayette Louisiana Dalbert and Catherine Fontenot Ms Tara E Counsel for Defendant Appellee American Home Assurance Company Clement Mr Robert I Siegel New Orleans Louisiana Mr Todd A Hebert Houma Louisiana Counsel for Defendant Allstate Insurance Company BEFORE PARRO HUGHES AND WELCH JJ HUGHES I This is an appeal of a summary judgment dismissing the claims of plaintiffs appellants Dalbert and Catherine Fontenot against appellee defendant American Home Assurance Company American For the reasons that follow we affirm FACTS AND PROCEDURAL HISTORY This matter arose from an automobile accident involving a vehicle owned by Dollar General Corporation Dollar General Dollar General s employee Mr Dalbert Fontenot was driving the vehicle and was injured in the accident Mr Fontenot filed suit against Dollar General insurer s American among others Therein he alleged that the policy of insurance issued to Dollar General provided uninsured motorist UM underinsured insurance coverage to which he was entitled American moved for summary judgment arguing that Dollar General had rejected UM coverage In support of its motion American produced a copy of the applicable UM rejection form Mr Fontenot opposed the motion alleging that the form failed to satisfy the legal requirements and was therefore invalid After a hearing on the motion for summary judgment the trial court concluded that the UM rejection form was valid Thus summary judgment in favor of American was rendered Mr Fontenot appeals LAW AND ANALYSIS The summary judgment procedure is designed to secure the just speedy and inexpensive determination of every action except those disallowed by LSAC art 969 the procedure is favored and shall be P C The sole issue on appeal is the summary judgment dismissing the appellants claims against American 2 construed to accomplish these ends LSAC art 966 Summary P C 2 A judgment shall be rendered in favor of the mover if the pleadings depositions answers to interrogatories 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 C art P B 966 Appellate courts review summary judgments de novo under the same criteria that govern a district court consideration of whether summary s judgment is appropriate Samaha v Rau 2007 1726 pp 3 4 La 2 08 26 977 So 880 882 Allen v State ex rel Ernest N MorialNew Orleans 2d Exhibition Hall Authority 2002 1072 p 5 La 4 842 So 373 03 9 2d 377 Boudreaux v Vankerkhove 2007 2555 p 5 La App 1 Cir 08 11 8 993 So 725 72930 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 of the substantive law applicable to the case Richard v Hall 2003 1488 p 5 La 4 874 So 131 137 Dyess v American National 04 23 2d Property and Casualty Company 2003 1971 p 4 La App 1 Cir 04 25 6 886 So 448 451 writ d 2004 1858 La 10 885 2d enied 04 29 2d So 592 Cressionnie v Intrepid Inc 2003 1714 p 3 La App I Cir 04 14 5 879 So at 736 738 39 2d In Louisiana UM coverage is provided for by statute and embodies a strong public policy Duncan v U Ins Co 06 0363 p 4 La A S 06 29 11 950 So 544 547 The object of UM insurance is to provide a 2d full recovery for automobile accident victims who suffer damages caused by a tortfeasor not covered by adequate liability insurance Henson v Safeco Ins Companies 585 So 534 537 La 1991 see also Tugwell v State 2d 3 Farm Ins Co 609 So 195 197 La 1992 Under the UM statute the 2d requirement of UM coverage is an implied amendment to any automobile liability policy even when not expressly addressed as UM coverage will be read into the policy unless validly rejected Duncan 950 So at 547 2d The statute is to be liberally construed and a rejection of the coverage provided by law must be clear and unmistakable Roger v Estate of Moulton 513 So at 1126 1130 La 1987 Although the insurer bears 2d the burden of proof of a rejection of UM coverage once it produces a properly completed and signed form it is entitled to a presumption that the insured knowingly rejected the coverage LSAR 22 renumbered as S 680 LSAR 22 by 2008 La Acts No 415 Section 1 effective January S 1295 1 2009 The issue in this appeal is whether the UM rejection form produced by American is valid In Duncan 950 So at 551 the Louisiana Supreme 2d Court identified the six specific tasks that are required in order to complete a valid and enforceable UM rejection form as prescribed by the Commissioner of Insurance pursuant to former LSAR 22 S 680 Essentially the prescribed form involves six tasks 1 initialing the selection or rejection of coverage chosen 2 if limits lower than the policy limits are chosen available in options 2 and 4 then filling in the amount of coverage selected for each person and each accident 3 printing the name of the named insured or legal representative 4 signing the name of the named insured or legal representative 5 filling in the policy number and 6 filling in the date Those criteria were reiterated by the court in its more recent decision in Harper v Direct General Ins Co 20082874 La 2 2 So 418 09 13 3d The UM waiver form provided by American contains the following 1 Initials indicating that coverage is rejected tasks 41 and 42 4 2 A printed name task 3 3 A signature task 4 4 The policy number task 5 and 5 A date task 46 Thus all six Duncan requirements were addressed in this case and it therefore appears that American produced a properly completed and signed form However Mr Fontenot argues that the form does not meet the criteria set forth in Duncan in four respects 1 The corporation name is misplaced s 2 The form does not contain a statement or designation that the signatory acted as the legal representative of Dollar General 3 The printed name and signature are misplaced because they are inverted and 4 The printed name and signature are not clearly written In the case of National Interstate Insurance Company v Collins 2009 1214 La 11 21 So 316 decision clarified on rehearing 08 09 6 3d 0693 La App 1 Cir 5 12 So 316 reversed on other rog unds 09 09 4 3d 1214 La 11 21 So 316 the supreme court overruled this court 09 6 3d s opinion and squarely rejected Mr Fontenot sfirst argument that the name ofthe corporation must be written in the bottom right corner ofthe form In fact the court held that the corporation name need not be contained in the document at all Instead the court specified that the legal requirement is that either the name of the insured or the name of its legal representative appears on the form The court reasoned that the inclusion of the policy number task 5 removed any doubt as to which policy was involved As The 2 name of the corporation Dollar General is printed on the form in this case only not in the bottom right corner of the page 5 such the court concluded that the name of the corporation was not required We also note that Mr Fontenot sargument relies upon guidelines published in bulletins issued by the Commissioner of Insurance which are advisory only and not the law Moreover Mr Fontenot second argument is also implicitly rejected s as a result of the National Interstate opinion Again the supreme court upheld the validity of the rejection form notwithstanding that the representative capacity of the signatory was uncertain on the face of the form because the named insured was not noted on the form Mr Fontenot seeks to distinguish that case and all previous adverse opinions from the instant case arguing that in previous cases the signatory proved by affidavit his capacity and authority to complete the waiver Because no affidavit was produced by American in this case Mr Fontenot concludes that American has failed to meet its burden of proof that coverage was rejected Thus he argues that American is required not only to produce a completed form but also an affidavit attesting to the validity of that form We find that his position would impose upon American a task that is not required by law The UM statute does not require the execution of an affidavit to effectuate a valid waiver of coverage We are not persuaded that an error in the precise placement of the information on the form will invalidate an otherwise effective waiver In this case the representative signed his name in the space labeled printed name and printed his name in the space labeled signature Obviously he mistakenly inverted the two However the statute only requires that both versions of the name appear on the form No restrictions or other instructions regarding their placement andor sequence are mandated As such none should be imposed by this court Moreover it is not necessary 6 that the signature be perfectly legible in order to be effective And while the printed name on the form before us may not be the best example of penmanship it identifies the writer as the Director of Risk Management and clearly comports with the signature provided American produced a completed and signed form that addressed each legally required task As such it is entitled to the rebuttable presumption that Dollar General knowingly rejected UM coverage in its policy of insurance Mr Fontenot produced no evidence to rebut that presumption Accordingly American was entitled to summary judgment as a matter of law CONCLUSION For the foregoing reasons the judgment of the district court is affirmed All costs of this appeal are assessed to plaintiffsappellants Dalbert and Catherine Fontenot AFFIRMED 7
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