FRANK TUSON, ET AL. VERSUS MERLYN RODGERS, ET AL.
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1 STATE OF LOUISIANA COURT OF APPEAL THIRD CIRCUIT 66 15 FRANK TUSON ET AL Judgment rendered counsel on and mailed to all rehearing may 6e filed VERSUS parties or Applications for with the delays allowed by 2015 June 3 La Code Civ P art 2166 or La Code Crim P art 922 MERLYN RODGERS ET AL APPEAL FROM THE SEVENTH TWENTY JUDICIAL DISTRICT COURT PARISH OF ST LANDRY NO 12 D 1808 C HONORABLE MILDRED E METHVIN JUDGE PRO TEMPORE ELIZABETH A PICKETT JUDGE J p Court com p osed of John D Saunders Elizabeth A Pickett and PhY llis M Keat Y Judges REVERSED AND REMANDED Daniel G Brenner R Preston Mansour Jr Bolen Parker Brenner Lee Engelsman LTD P O Box 11590 1590 Alexandria LA 71315 8236 318 445 COUNSEL FOR DEFENDANT APPELLEE National General Assurance Company V Ed McGuire Plauche Smith III Nieset P O Drawer 1705 Lake Charles LA 70602 1705 0522 337 436 COUNSEL FOR DEFENDANT APPELLEE Progressive Security Insurance Company Donovan J O II Pry Jeansonne Remondet P O Box 91530 Lafayette LA 70509 4370 337 237 COUNSEL FOR PLAINTIFFS APPELLANTS Frank Tuson Willard Tolliver Lorenzo Ransaw Charles Brandt Kyle Sherman Kenneth M Habetz Jr Brandt Sherman LLP 111 Mercury Street Lafayette LA 70503 7171 337 237 COUNSEL FOR PLAINTIFFS APPELLANTS Keisha Harris Aleta Hayden 2 PICKETT Judge Five appeal plaintiffs in this suit for the trial court grant of summary s denial of their cross motions for summary liability available to 000 100 made was coverage for all claims properly automobile accident coverage in one amount lower an and limited the UM coverage from the accident arising insurer and its an The trial court held that judgment UM an in favor of judgment s defendant selection of uninsured motorist than its from damages resulting We reverse and remand FACTS This suit arises out of an automobile accident that occurred 2011 in Opelousas Louisiana The accident occurred when Merlyn Rodgers ended rear a vehicle Allstate Insurance which was owned Progressive Company Allstate by Shirley insured the vehicle On Supplemental and These Petition for Damages entitlement to UM coverage and as Rodgers and and Harris filed and Allstate Amending as a was owned was then plaintiffs naming Progressive the UM insurer of the vehicle that Bell Hayden Keisha Harris operated by Rodgers and Ransaw filed and Allstate Amending occupied by by Compass Compass April 12 2012 Tuson Tolliver Damages against Rodgers operated by Progressive Security Insurance Company operated by Bell which Behavioral Center of Crowley LLC vehicle Hayden and insured the vehicle Kennerson October 12 Bell and operated by Crystal Frank Tuson Willard Tolliver Lorenzo Ransaw Aleta a on on as a driving a Petition for filed defendant in its capacity when the accident occurred Thereafter they filed Petition for Intervention First April 18 2013 alleging Petition for Intervention in the above action defendants a alleging they a First were naming Supplemental entitled to UM coverage and of the naming Progressive Compass and Supplemental and vehicle Progressive Lastly from defendant in its Bell filed a Petition for Intervention then a combined which limit single provided liability 1 million On November 28 2007 executed Underinsured Uninsured Motorist Form issued by the a First naming Rodgers Allstate identified the initials and deposition signature The second of five on automobile insurance CSL coverage in the amount of Compass representative Mark Cullen Bodily Injury UMBI Coverage commissioner of insurance in Mr Cullen testified in his compliance that he did not recall the form options provided of Mr Cullen initials in the line s placement the UM insurer as defendants as Progressive an capacity Petition for Intervention Amending Compass purchased policy as a as on with La 22 S R 680 executing the form but his being the form provided on selected was the form by The the option reads I select UMBI which will compensate me for my economic and non losses with limits lower than my Bodily Injury economic Coverage limits Liability Coverage each person The 000 100 term Additionally over the word the phrase Coverage combined policy person in the was blank each preceding struck out and CSL single filed a motion for summary was judgment asserting Form selected UMBI coverage it issued to plaintiffs each inserted person handwritten person Progressive filed UMBI was each accident limits and that it was cross motions for summary 2 s Compass in the amount of entitled to Compass provided 100 000 that 000 100 judgment holding that the of CSL UMBI coverage judgment arguing Compass s The UMBI Coverage Form CSL coverage In the 000 provided 100 On judgment plaintiffs invalid therefore Progressive policy provided 1 million s was per person in combined September 29 2014 and granted cross the alternative the plaintiffs argued summary single limit in Progressive policy coverage the trial court heard the motions for summary judgment motions for summary in favor of The trial judgment s Progressive policy provided 100 000 and denied the Progressive court in CSL IJMBI coverage concluded that plaintiffs The appealed ISSUES FOR REVIEW The plaintiffs assign for summary Their judgment assignments 1 If error with the trial court grant of Progressive motion s s and denial of their cross motions for summary of error present the the following form mandatory issues for prescribed commissioner of insurance for the UMBI coverage in coverage does not an amount provide than the 2 If the to rejection or selection of selection for CSL coverage is a the form to an indicating amount an the lower coverage valid selection is valid does the insurance coverage LQUlslana s policy liability a select UMBI coverage in s policy liability review the by lower than s insured handwritten modification s insured intent our judgment policy provide in the amount of the lower limit per person or per using the accident DISCUSSION On appeal summary judgments are criteria the trial court considered when judgment as La 2 08 26 1 Before requested Gray 977 So 839 2d paying court v reviewed de novo determining Am l Nat whether to grant summary Prop Cross motions for summary costs Ms Bell dismissed her 3 same appeal Cas 1670 Co 07 judgment were filed in this matter there are Accordingly no issues of material fact and it is entitled to genuine matter of law determine whether either party has established must we Duncan A S U Ins v p 4 Co 06 363 judgment as La 11 06 29 a 950 2d So 544 547 The movant has the initial burden of proof to show that material fact exists La Civ art Code P the burden of adverse proof trial he need at s party claim factual support for Id He must 2 C f 966 I the not genuine issue of movant will not bear negate all essential elements show however elements essential one or more no to that there is the adverse of the absence of an claim s party Id If the movant meets this initial burden of proof the burden shifts to the adverse party to produce factual support sufficient satisfy his evidentiary burden Interpretation that can be properly Redfern 08 2607 Ins 886 Corp OS of an at by a 12 So 3d p 4 La 5 06 17 930 So 2d applicable coverage selects lower the an amount or This mandate policy or selects that issued for can only economic of this Section Id Item only on a form 4 Bonin v v Westport no policy be or bodily modified and UM policy either coverage in the ii a 1 of in this delivery not less than the limits of requires that the rejection selection of lower limits coverage shall be made citing when any insured named in the limits ii a 1 949 legal question 906 910 insurance shall be delivered injury liability provided by in Item 945 a judgment Cutsinger i a 1 1295 22 provides state without UMBI coverage in provided motion for summary La 5 09 22 liability coverage is not policy ordinarily involves p 4 Louisiana Revised Statutes automobile establish that he will be able to trial Id insurance resolved to rejects manner of La 22 S R 1295 selection of economic only prescribed by the commissioner of insurance and that that the insured presumption lower limit In selected or Duncan and a properly completed signed form creates a rebuttable coverage selected knowingly rejected UMBI only economic coverage 950 So at 547 2d quoting Roger 1126 1130 La the supreme 1987 court v Estate of Moulton observed that strong 513 So 2d public policy embodied in the Lt1VIBI coverage statute and that the statute is to be construed which requires the statutory exceptions to coverage For these reasons the insurer bears the burden of strictly named in the or coverage 609 So 2d in policy rejected writing the selected lower limits 195 which must be 197 a 1992 La performed to Id quoting Tugwell Thereafter complete commissioner of insurance in order to coverage proving equal v be is liberally interpreted any insured bodily injury to State Farm Ins Co the supreme court identified six tasks the UMBI Coverage reject LTNIBI Form prescribed by the coverage he T 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 Duncan 950 So at 551 Failure to 2d an invalid on the insured intent to waive s rejection comply of L coverage Id MBI UMBI with one of these six tasks results in he Importantly t coverage to cure a insurer cannot rely defect in the form of the waiver Id at 553 Before addressing the parties arguments automobile insurance policies Watts Sur v Aetna Cas 568 So 1089 2d are Co written with 574 So 2d 1990 La citing we split note that as a general rule limits of liability coverage 364 370 La 1 Cir App writ denied W McKenzie and H Johnson 15 Louisiana 5 Civil Law Treatise 1986 West Under is limited to Insurance specific occurrence Id a together Automobile a split limit policy the insurer s amount per person with policies single or combined a Section and Practice Law with a obligation 232 for 434 p bodily injury maximum amount per accident or separate limit for property damage liability coverage like s Compass limit per accident are written differently however or occurrence for liability with a and property damage coverage Id The Declarations coverage for policy Page Bodily Injury sets forth of the and s Progressive policy Progressive issued Property Damage Liability Limit of Liability as to Compass outlined 1 million CSL The for Combined Bodily Injury and Property Damage Limits stating in pertinent part will pay no more than the Limit of Liability shown for this coverage on the Declarations Page subject to the following We 2 Combined Bodily Injury and Property Damage Limits Subject to the terms of Section 1 above if your Declarations Page indicates that combined bodily injury and property damage limits apply for each accident or combined single limit applies the most we will pay for the aggregate of all damages and covered pollution cost or expense combined resulting from any one accident is the combined liability insurance limit shown on the Declarations Page Progressive Duncan when he argues that Mr Cullen completed the six tasks i I required by completed the UIVIBI Coverage Form therefore its policy only provides 100 000 in UMBI coverage for the accident waiver is invalid and that the only evidence Progressive The can use rejection of UM coverage is contained within the four Coverage Form executed by Mr Cullen The 6 plaintiffs plaintiffs to prove corners urge that argue the a valid of the UMBI Progressive has failed to show was valid selection of lower limits a altered when the above those terms each phrase 2 person CSL is not defined the blank preceding prohibits alteration of the form each accident effected because was was on stricken and CSL the UMBI left blank was It states 1 was the form inserted Coverage Form and 3 The UMBI Coverage Form This form may not be altered or modified Progressive App La 963 2 Cir relies Wart 7 So 3d 09 8 4 at issue pertained selected the same however he wrote in option to on a 865 CSL Insurance Progressive Security v writ denied 1058 09 support its motion for summary judgment to rejection to on In Co 43 954 La 9 09 4 Wart as 17 So 3d here the UM s policy The insured representative in Wart the IJMBI Coverage Form that Mr Cullen 000 30 before each person No other changes selected were made the form The trial court concluded in did not comply with the 2d So 839 because it s insurance requirements was directives Wart not The filled second as of the plaintiffs argue here that the form 2d Duncan 950 So 544 and Gray 977 out as circuit required by the commissioner of disagreed with the trial explaining At the time the Peterson policy was purchased the State of Louisiana allowed policyholders to choose whether to carry uninsured with lower limits than basic liability coverage limits in the coverage policy The decision to choose lower LTM coverage than the policy limits had to be clear and unambiguous If a purported election for the lesser coverage is unclear then the full policy limits would apply to IJM situations The problem is that the state had in effect a usable LJM coverage form for split policies but not for single policies limit limit such as Peterson Travelers policy at issue here s Accordingly at the time the representative of Peterson set out to address the issue of UM coverage there existed no form that fit hand in glove with a single 7 court limit Thus the insured and the agent sought to make an election of lower LTM limits on a form that was not designed for a policy limit single policy Travelers should not have failure to supply adequate and appropriate UM to suffer for the state s coverage forms s Peterson decision to elect lower limits of UM person could not be more representative clearly opted for As and clear UM a protection per s Peterson unambiguous limitation of 30 per 000 person aggregate UM limitation was inserted onto the form Travelers aggregate exposure could have been up to 1 million per no accident We quite understand the quandary of the language in Duncan trial court in examining this issue The supra requires and precise observance of form and procedure demanding s Notwithstanding Wart inventive alternative theories as to other possible interpretations of this UM selection we decline to elevate form over the triad of substance common sense and logic The UM election of lower limits by Peterson was clear and unambiguous When the UM election was made Peterson bought and Travelers sold UM 000 coverage of 3 0 per person but with 1 million UM accident In our view that is the logical way to interpret coverage per the form before this court We suggest that insurers and policy holders in Louisiana should be assisted by the Insurance Commissioner in and Wart supplying limit split policies 7 So at 869 3d 70 Contrary to per person Wart Mr Cullen did was not simply fill in Most struck and CSL was inserted above coverage to insert was to per accident 000 100 there importantly however modified because pursuant the terms of not blank a Instead the UMBI Coverage Mr Cullen did not initial the alteration of the form to alteration limit single footnotes omitted selection of lower UMBI limits when UM election forms for both was no Form was the altered person Moreover verify that he made the need for the form to be s policy CSL Mr Cullen needed only s Progressive policy per person Therefore in the blank before each accident to make lower UMBI coverage per accident in the amount of 100 000 8 indicating a the valid selection of r r these reasons For Coverage court Form granting was invalid summary find that we Accordingly judgment cross granted in favor of the we reverse in favor of motions for summary plaintiffs s Compass completion judgment the of the UMBI of the trial judgment Progressive and denying the Summary judgment is hereby plaintiffs DISPOSITION The judgment of the trial court granting Progressive Security Insurance Company of the plaintiffs 1 Compass s was is reversed Judgment is and summary denying granted judgment summary in favor of the in favor of judgment in favor plaintiffs holding selection of UMBI coverage in the amount of 100 per accident 000 invalid and 2 Progressive policy s LJMBI coverage in the amount of insurance issued to Compass provides of 1 million per accident The matter is remanded for further proceedings consistent assessed to Progressive Security with this Insurance REVERSED AND REMANDED 9 opinion All Company costs of this appeal are
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