Jose A. Garay-Lara, Juan C. Cubas-Zaldiva, and Marco Antonio Enamorado VS Cornerstone National Insurance Company
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STATE OF LOUYSIANA COUf T QF APPF. L A FiRST NQ. IRC JIT AA f?# JOSE A. GAR 11°- LAAf2A, 119( . Q16 C 1BAS- ZALDIVA AND MARCO ANTONTQ ENR MORA[3Q . VERSIJS CORNERSTONE NATIONAL TNSURANCE COMPANY r l 7udgment rendered May 2, 2014. r f Appealed from the y nM1 YV 23 d Judicial Dlstricr Coart in and for the Pa ish of Ascension Louisiana Trial Co rt Nr. i03539 Hanorable Gu) ioldr dge, Judge IVAN A. ORIHUELA A ORNEYS FprR RYAN A. CREEL Rl INTiFFS-APPELLANTS OSe A. GARAY- LARA, JUAN C. KENNER, LA CUBAS- 7_ LDIVA AND MARCO A A lTGNIO ENAMQRADO AMANDA H. AUCOIN ATTORNEYS FGR ErENDANT-APPELLEE R. TODD MUSGRAVE NEW ORLE4NS, LA C RNERSTONE NATIONAL INSURANCE CQMPANY BEFORE: PETTIGREW, McDONALD, AND McCLENDON, J7. PETTIGREW, J. The salient issue in this app al is whet her the trial court erred in finding that plaintiff Jose A. Garay- Lara' s selectior tr reje nsns ared motor st coverage in his automobile insurance policy was valid, thus supporkis g the grant of summary judgment in favor of the defendant insurance company. After a tharough and de nouo review of the record, we find no error and affirm. BACKGROUND FACTS AND PROCEDURAL HISTORY On April 26, 2011, plaintiff, Jose A. Garay- Lara, was operating a 2001 Toyota Tundra truck, travelling westbound on La. iiwy, 427 ( aka Pericins Road), in Ascension His vehic(e was struck by a 2008 Volkswagen Beetle, owned by Shelia White Parish. Gautreau, and operated by Tammy Denise Dearr. It ds alleged that the collision caused property damage to the Tundra truck, and . personal enjuries to Mr. Garay- Lara and his passengers Juan C. Cubas- Zalvida and Nlarco Antonio namorado. Plaintiffs allege that Ms. Dean was at fault in causing the accident,l and Ms. Gautreau and Ms. Dean were uninsured and/ or underinsured for the collision and the resulting damages.2 On April 24, 2012, plaintiffs filed a petition for damages, naming as defendant Mr. Garay- Lara' s automobile liability insurer, Cornerstone National Insurance Company Cornerstone), alleging it provided him with a policy that included uninsured motorist coverage at the time of the accident. Corners o e filed a notion for summary judgment asserting that Mr. Garay-Lara completea a valid UM bod Iy injury rejection form, and consequently, the policy issued t h m did not praviae' UM coverage for the damages sought. The initial summary judgment motican v as denwed by judgment dated July 30, 2012. However, Cornerston subsequent9 filed a sec nd rnokion for summary judgment, on the same basis, together wifih competent su parting evidence. By } udgment dated March 6, 2013, the motion for summary judgment was granted and plaintifFs' claims were 1 It is alleged that Ms. Dean disregarded a stop sign on Magnolia Estate Drive and proceeded into the path of Mr. Garay- Lara's truck on La. Hwy. 427, causing the vehicles to collide. Z For purposes of the summary judgment at issue herein, the defendant insurer denies, but does not dispute plaintiffs' allegations as to Ms. Dean`s fault or the uninsured/ underinsured status of both Ms. Dean and Ms. Gautreau. 2 dismissed with prejudice. This appeal by the plaintiffs followed, asserting the trial court erred in granting summary judgment because the evidence presented established that Mr. Garay- Lara's seleckion to declire GN! c erage in the policy issued to him was not meaningful" and therefore, invalid. ARGUMENTS AND EVIDENGE PRESENTED IN SUPPORT OF AND IN OPPOSTTION TO Sl1MMA1t.Y] UDGMEMT Cornerstone submitted into evidence the automobile liability policy issued to Mr. Garay- Lara effective on the date of the accident. This application reflects that in the UM coverage section, the initials of Mr. an intent to reject such coverage. Garay- Lara, '°] AGL," appear on the line evidencing ( The lines preceding the rejection, applicable to selecting UM coverage in varying amounts, are typed in " NA.' Cornerstone also submitted a sworn affidavit by, the operational manager of Classic Insurance Agency ( Classic), ] essica Murillo, attesting that Mr. Garay- Lara had also been issued a prior Cornerstone insurance policy, in 2008, in which he also selected to reject UM coverage. Also ( apparently, in response to Mr. Garay- Lara' s assertions that he is a Spanish- speaking Hispanic, and because of that factb he does not speak, write, or read English fluently and did not fully understand th policy or what he was signing), Ms. Murillo' s affidavit attests that alf agents and employees of Classic are bilingual, being fluent in both Spanish and English. She additional y attested that it is the policy of Classic to have all agents and employees speak to their clients ir tne language in which the client is most fluent. She further a tested that et is Classic's policy to discuss coverage with their clients prior to the client completing an insurance application; the agent, based on the client's verbal selection, would then. fill out the application and obtain the appropriate signatures from the client. She attested that Mr. Garay- Lara' s prior policy had lapsed for nonpayment, and when he came into the office to complete a restart application, Classic proceeded according to those long- standing poficies. She further attested that Mr. GarayLara, again, declined UM covera e, and the appfication was completed and signed accordingly. 3 Cornerstone also submitted into ev idence Jessiea Murillo' s deposition, which was consistent with the attestations made in he afcrementioned affidavit. In addition, Ms. Murillo testified in her deposit¢ tYaat ti e company is a " Hispanic" establishment and on that 90 percent of their clientele are Hispa nic and speak Spanish, so the agents and employees at Classic are speaking Spanish on a daoly basis. She reiterated that it is standard protocol that all agents explain the policies and coverage available, including UM coverage in Spanish; they read the actual policies to their Hispanic clients in Spanish, and then fill out the applications with their clients' verbal responses. ( The deposition entered into evidence contains the discussion, with Spanish translation provided, that is customarily had with clients explaining the different types of coverage available, including UM coverage and the options for se{ection availabie to the clients, including the costs associated with the clients' choices.) The deposition testimony also confirmed that once a client verbally makes his selections, the form is printed out, noting those selections, and presented to the client to initial according to his selections. In Mr, Garay-Lara' s case, once coverage was discussed and he verbally made his selection to reject UM coverage, the application form was printed out, noting the date ( December 9, 2010) and " NA" for the UM coverage selections, with a blank for his initials, and another blank for his signature. The actual application submitted into evidence is consistent with the deposition testimony, reflecting Mr. Garay-Lara' s initials on the line rejecting UM coverage and his signature ne to the printed date. 3 In opposition to the motion for summary judgment, the plaintiffs submitted the sworn affidavit of Mr. Garay- Lara. In that affidaVit, he attested that he is of Hispanic descent, that his first language is Spanish, and that he does not speak, read, or write English fluently. He also stated that afl the documents presented to him for signing by the agent at the time he obtained his policy with Cornerstone were written in the English 3 Ms. Murillo explained that Mr. Garay- Lara initialed tlie form, selecting to rejed UM coverage, but the electronic signature in the computer system ( from Mr. Garay- Lara' s prior application) was used and transferred to his restart application as required by Cornerstone; however, it was placed on the new application in accordance with his verbal selection to reject UM coverage made at the time of the restart application. 4 language. Additionally, he attested thak he cauld nQt fuliy read or fully understand all the documents presented to him, and that he did not fully understand that he was waiving or rejecting UM function of explained coverage. Uf cev Further rage, and h a th t he doe st not fuily snderstand the 1 tai(s tha't i to him in either Spanish k r f he doc ¬ ments he wa Engiost; a. ma he d d siyn n rvere not ot fully understand the documents he was signing or the r aturE of.thc s ciocuments. He stated that he did not elect where to initial and/ or sign the documents, but was directed by the agent where to do so. Notably, however, he did not deny the attestations made by the affidavit or the deposition testimony of Ms. Murillo to the. effect that all communications with the agent at the time that he went to obtain th.e restart of his policy were in Spanish and that all agents read the actual policies to Hispanic clients in Spanish. Nor did he explain the reasons why he did not understand the nature or the contents of the documents he initialed and allowed to be signed. We also note that despite his assertions that he did not understand the nature or the contents of the documents he was signing, he did not assert that at any time prior to initialing or allowing his signature on the documents, that he asked any further questions or explair ed ta a yo that he dod not understand what he was signing. Additionally, we nate th t ne dicl n t refuse to Initiai the documents and did not allege that he did so under any ty+ of orce or cather duress. Finally, nowhere in pe Mr. Garay- Lara' s affidavit do s he s ate that he aesired Yo purchas UM c4verage and/ or that he was denied or prohibited fr m ma: ing tha : iee c a any way. APPLICABLE LAW/ A VALYSIS In Duncan v. USAA Insurance Companyf 006- 63 ( La. 11/ 29/ 06) 950 So. 2d 544, 551, the Louisiana Supreme Caur laid out the requirements necessary for a valid UM rejection form, involving six tasks: 1) Initialing the selection or rejection of coverage chosen; z) If limits lower than the policy limits are chosen ( available in options 2 and 4) then flling in the amount of coverage selected for each person and each accident; 3) Printing the name Qf the name ir. ured or iegal representative; s 4) Signing the name of the named nsu ed or legal representative; 5 5) Fidiiny i o i cy s e eLer;, nd the 6) Filling i the dat. Our Mr. de n. vo o Garay- La a satis initials rejecting UM . as required QP revievar th recorq es aii s x of waae overage ( uh cr! by Cornerstonej b f? aG confirmin ui emcnXS, ecessary oes rsn hat rej thE form campleted by is th a ve us d The f ncludes his r c? c); his sig ature electronic, n tior;,_the date ( December , 2010) the form and the rejectior were compietedo th@ Co nerstone policy number ( CLA01502586); and the insurer's designation, Cornerstone National Insurance Company. As such, the completed form creates a rebuttable presumption that the insured knowingly rejected coverage. See La. R.S. 22: 1295. Mr. Garay-Lara has not overcome that presumption. We reject his reliance on his first language being Spanish as a valid reason for his initialing and selection to re cct coverage to be render d invalid. The agent communicated with him in Spanish, and the evidence established that all the details of the avaiiable coverag were explained to him in his native language. f okvvithstanding his asse k ons that he did n t understand the document because it was written an Mr. Garay- Lara desired or, inten e gllsh, he recora s dsvoid f ar y evidence that v purchase UM cov rage, and was ndbfe to do sc for any reason. Indeed, the rec;ord reveals that aEl pri r pqiicies obtained by him did not provide UM coverage because he nad aiways rejected that coverage in the past. Moreover, even in opposition to the summary judgment motion herein, Mr. Garay- Lara does not ever assert that he desi ed liM coverage . The ecord aiso reveals khat Mr. Garay- Lara, despite having ample opportunit r, tc do sp, did not ever state that he did not understand anythsng aibout hE policy or th ccverage available or that he did not understand what he vvas initiai"sng or th form. Additionadly, the depositicn tes#imony and the affidavit submitted by the defer dant reveal trat the other blanks n the form were marked " NA" only after Mr. aray- 1,ara indicated ti?ak e desirec' to reject UNi coverage, rendering meritless his contentrian t at he was ? nable ko make a meaningful selectior on the form because onfy one blan C was left oper. 6 FinaVi, the j srisprudenc does not support his contenk'son t at the fac*, t t e i °: f1 swere ty ed on the form in the c any way invalidated is selectior ther on. See Harp r v9 Direct General Insurance Company, 2008- 2424 ( La. 2/ 20 09, a;3d 4a6, 42(9, hQlding tha a _yped name and date are insuffici nt to invalicia*.e ara qt4`+ rw; e vaii erv In this matter, the plaintiffs` eEi ce rejPction. n ' rr' o fa. that Mr. Garay- Lara' s primary language is Spanish and because of hat, he did root f aBly nderstand what he was doing is simply untenable, g+ ven that the agent comrnunicated with him entireiy in Spanish, obtair+ his choice and desire to rejeck UM coverage in Spanish, and then directed him ed on the form written in the English language; wh re his selectlon vras IocatEd and his initials were required. At no time, during tne S anlsh canversation, did Mr. Garay- Lara indicate that he desired to purchase UM cov rage r id he state that he did not understand the explanation he was given regardi g the availabiiity of that coverage. All evidence indicates that he willingly and kncwir gly reje ted UM overage, and the application form on which he made that s Eection ' is valid in accordance with Vaw. Moreover, as a matter of law, Mr. Garay-Lara es p esum2d to know and understand what he is signing or initialing, See Coleman v. Jim Walter Homes, Inc., 2008- 1221 ( La. 3/ 1/ 09), 6 So. 3d i79, 183. COfVCLl15IOPf For the foregoing reascans, there are no gen ia ; s es of cnakerial fa t. The rejection form initialed y and canta ing Mr. 4 a ai- Lar` s signature 6s v 9 d, and the trial court did not err in gran ing the defercaraz, Cc r erstc ne' se Accordingfy, that judgsnent s affirmed. otio for saas mary; udgment, Cc st , Qf . his . appeai are pi a i ntiffs/ a ppe l la nts. AFFIRMED. 7 sse sed to the
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