Guidry v. GEICO General Insurance Company, et al, No. 2:2015cv01518 - Document 16 (E.D. La. 2015)
Court Description: ORDER AND REASONS. The Court GRANTS defendant's 8 Motion for Summary Judgment. Plaintiff's claims against National under policy number 73 APS 050064 are DISMISSED WITH PREJUDICE. Signed by Judge Sarah S. Vance. (gec)
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Guidry v. GEICO General Insurance Company, et al Doc. 16 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA KIRK GUIDRY CIVIL ACTION VERSUS NO: 15-1518 GEICO GENERAL INSURANCE COMPANY, ET AL. SECTION: R ORD ER AN D REASON S Defendant National Liability & Fire Insurance Com pany ("National") m oves for sum m ary judgm ent on plaintiff's claim s for uninsured m otorist ("UM") benefits in relation to policy num ber 73 APS 0 50 0 64. The Court GRANTS the m otion because the policyholder waived UM coverage and the waiver is valid and enforceable under Louisiana law. I. BACKGROU N D This case arises out of an October 17, 20 14 car accident involving plaintiff and another m otorist, Kenneth Brown.1 On Decem ber 18, 20 14, plaintiff filed suit in the Civil District Court for the Parish of Orleans against Brown and his insurer, Geico General Insurance Com pany ("Geico"), as well as National, which issued an autom obile insurance policy to plaintiff's 1 R. Doc. 1-1. Dockets.Justia.com em ployer, Luxe Lim ousine, LLC ("Luxe").2 On February 19, 20 15, the state court dism issed plaintiff's claim s against Brown and Geico with prejudice, leaving National as the only defendant in this case.3 Plaintiff alleges that National owes him UM coverage under Luxe's policy and seeks paym ent of benefits.4 On May 7, 20 15, National rem oved the case to this Court on the basis of diversity jurisdiction.5 National then filed a m otion for sum m ary judgm ent.6 Citing a waiver of UM coverage that Guillerm o Lizardo signed on behalf of Luxe, National contends that it does not owe plaintiff UM coverage and that it is entitled to judgm ent as a m atter of law.7 Plaintiff does not dispute that Luxe executed a UM waiver form .8 He argues, however, that because the form 2 Id.; see also R. Doc. 9 at 1 (plaintiff's opposition to National's m otion for sum m ary judgm ent, noting that Luxe Lim ousine, LCC is plaintiff's em ployer). 3 R. Doc. 1-2. 4 R. Doc. 1-1 at 4. 5 R. Doc. 1. 6 R. Doc. 8. 7 Id. at 3. 8 R. Doc. 9 at 2-3. 2 was signed without a policy num ber, Luxe's waiver of UM coverage was "am biguous" and unlawful.9 II. LEGAL STAN D ARD Sum m ary judgm ent is appropriate when "the pleadings, the discovery and disclosure m aterials on file, and any affidavits show that there is no genuine issue as to any m aterial fact and that the m ovant is entitled to judgm ent as a m atter of law." Fed.R.Civ.P. 56(c)(2); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 10 69, 10 75 (5th Cir. 1994). When assessing whether a dispute as to any m aterial fact exists, the Court considers "all of the evidence in the record but refrains from m aking credibility determ inations or weighing the evidence." Delta & Pine Land Co. v. Nationw ide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 20 0 8). All reasonable inferences are drawn in favor of the nonm oving party, but "unsupported allegations or affidavits setting forth 'ultim ate or conclusory facts and conclusions of law' are insufficient to either support or defeat a m otion for sum m ary judgm ent." Galindo v. Precision Am . Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); Little, 37 F.3d at 10 75. 9 Id. 3 If the dispositive issue is one on which the m oving party will bear the burden of proof at trial, the m oving party "m ust com e forward with evidence which would 'entitle it to a directed verdict if the evidence went uncontroverted at trial.'" Int'l Shortstop, Inc. v. Rally 's, Inc., 939 F.2d 1257, 1263-64 (5th Cir. 1991). The nonm oving party can then defeat the m otion by either countering with sufficient evidence of its own, or "showing that the m oving party's evidence is so sheer that it m ay not persuade the reasonable fact-finder to return a verdict in favor of the m oving party." Id. at 1265. If the dispositive issue is one on which the nonm oving party will bear the burden of proof at trial, the m oving party m ay satisfy its burden by m erely pointing out that the evidence in the record is insufficient with respect to an essential elem ent of the nonm oving party's claim . See Celotex, 477 U.S. at 325. The burden then shifts to the nonm oving party, who m ust, by subm itting or referring to evidence, set out specific facts showing that a genuine issue exists. See id. at 324. The nonm ovant m ay not rest upon the pleadings, but m ust identify specific facts that establish a genuine issue for trial. See, e.g., id. at 325; Little, 37 F.3d at 10 75; Isquith ex rel. Isquith v. Middle South Utils., Inc., 847 F.2d 186, 198 (5th Cir. 1988), cert. denied, 488 U.S. 926 (1988). III. D ISCU SSION 4 National contends that Luxe's waiver of UM coverage bars recovery by plaintiff.10 Plaintiff argues that the waiver was "am biguous" and therefore unlawful.11 Thus, the central issue is whether the waiver form that Luxe executed is valid and enforceable under Louisiana law. "Louisiana statutes and jurisprudence evince a strong public policy in favor of UM coverage." Hotard v. State Farm Fire and Cas. Co., 286 F.3d 814, 819 (5th Cir. 20 0 2). The Suprem e Court of Louisiana has held that the statute addressing UM coverage, Louisiana Revised Statute 22:1295, is to be "liberally construed" and that "UM coverage will be read into an insurance policy unless validly rejected." Gray v. Am . N at. Prop. & Cas. Co., 977 So. 2d 839, 845 (La. 20 0 8). Nonetheless, an insurance policy will not be construed as providing UM coverage if any insured nam ed in the policy rejects coverage in the m anner provided by law. La. Stat. Ann. § 22:1295(1)(a)(i). Louisiana Revised Statute 22:1295, provides that a rejection of UM coverage m ust be m ade "on a form prescribed by the com m issioner of insurance." § 22:1295(1)(a)(ii). It further provides that "[a] properly com pleted and signed form creates a rebuttable presum ption that the insured knowingly rejected coverage." Id. 10 R. Doc. 8-3 at 3. 11 R. Doc. 9 at 2-3. 5 The Suprem e Court of Louisiana has held that Louisiana Revised Statute 22:1295 vests the com m issioner of insurance with authority to determ ine the requirem ents of a valid UM waiver. In Duncan v. U.S.A.A. Insurance Com pany , an insured purported to waive UM coverage on the form that the com m issioner had prescribed, but one of the blanks on the form , which called for the insurance policy num ber, was not filled in. 950 So. 2d 544, 549 (La. 20 0 6). The insurer argued that the waiver was nonetheless valid because the UM statute requires only that the waiver be m ade on "a form prescribed by the com m issioner," not that the form be com pleted in its entirety. Id. at 551. The court rejected this argum ent, reasoning that "[i]n directing the com m issioner of insurance to prescribe a form , the legislature gave the com m issioner the authority to determ ine what the form would require." Id. at 552. Because the com m issioner's then-existing regulations m andated that the form include the policy num ber, the court held that the UM waiver was invalid. Id. at 554. The court returned to this issue in Carter v. State Farm Mutual Autom obile Insurance Com pany , reiterating the prim acy of the com m issioner's form s and regulations. 964 So. 2d 375, 376 (La. 20 0 7). There, an insured executed a UM waiver form before the insurer had generated a policy num ber. Id. The court noted that Duncan invalidated a UM waiver for failure to include the policy num ber but concluded that Duncan was "factually 6 distinguishable." Id. Because "the Com m issioner of Insurance's regulations specifically allow om ission of the policy num ber if it does not exist at the tim e the UM waiver form is com pleted," the Court held that the UM waiver was valid and lawful. Id.; see also Gray , 977 So. 2d at 845 n.5 (concluding that, consistent with the com m issioner's regulations, when the waiver is com pleted before the policy num ber exists, the num ber need not be included). Together, these cases illustrate that Louisiana's UM statute requires waivers to conform to the com m issioner of insurance's form s and regulations, not any set of judicially-crafted rules. See Clark v. Savoy , 20 14-0 30 8, 20 14 WL 530 5887, *3 (La. App. 1 Cir. 20 14), w rit denied, 20 14-2388 (La. 20 15) (interpreting Duncan "to require com pliance with the Com m issioner's current regulations and form s," not the specific "tasks set forth in Duncan"). Since Duncan and Carter were decided, the com m issioner of insurance has m odified its waiver form and regulations. On August 29, 20 0 8, the com m issioner issued Louisiana Departm ent of Insurance Bulletin No. 0 8-0 2, in order to "issue a revised UM form " and to clarify "what constitutes a properly com pleted form [and] what inform ation m ust be included. . . ." See 7 Louisiana Departm ent of Insurance, Bulletin No. 0 8-0 2 (Aug. 29, 20 0 8).12 Under the heading "Im portant Form Changes," the Bulletin provides: The revised UM form includes two boxes on the lower right hand corner of the form . . . . The upper box contains an area that the insurer m ay use for policy inform ation purposes (e.g. policy num ber, binder num ber num ber [sic.], application num ber, etc.). This box does not need to be filled in for the form to be properly com pleted. . . . Id. (em phasis in original). Thus, under the com m issioner's current regulations, the policy num ber is optional; the num ber need not be present in order for a UM waiver form to be valid. See Chicas v. Doe, 166 So. 3d 238 (La. 20 15) (noting that "in light of [Bulletin 0 8-0 2], the absence of a blank box for the policy num ber does not create a question of fact concerning the form 's validity"); Clark, 20 14 WL 530 5887, *3 ("With the publication of LDOI Bulletin 0 8– 0 2, the Com m issioner no longer requires that the policy num ber be present on the UM selection form for the form to be considered valid."). Instead, an UM waiver form is valid if it contains: (1) "[the insured's] signature"; (2) "his/ her printed nam e to identify his/ her signature"; (3) "the date the form is com pleted"; and (4) "initials to select/ reject UMBI coverage prior to signing the form ." Louisiana Departm ent of Insurance, Bulletin No. 12 National Fire subm itted a certified copy of Bulletin No. 0 8-0 2 as exhibit six to its m otion for sum m ary judgm ent. See R. Doc. 8-9. 8 0 8-0 2 (Aug. 29, 20 0 8). Under the Bulletin's term s, these rules apply to all UM coverage waivers executed "[o]n or after J anuary 1, 20 10 ." Id. Here, Lizardo executed a UM waiver form on behalf of Luxe on J uly 17, 20 14, well after Bulletin 0 8-0 2's effective date. Although the form does not contain the optional policy num ber, it has all of the requirem ents of a valid waiver under the com m issioner of insurance's regulations. Specifically, the form contains Lizardo's printed nam e and signature, the date on which the form was signed, and Lizardo's initials beside a line that states : "I do not want UMBI Coverage. I understand that I will not be com pensated through UMBI cover age for losses ar isin g fr om an accid en t cau sed by an uninsured/ underinsured m otorist."13 Thus, the form is valid and enforceable under Louisiana law. Plaintiff adm its that Luxe's waiver satisfies the com m issioner's regulations but argues that the waiver is nonetheless "am biguous" and unlawful. Plaintiff argues that unless the form contains a policy num ber, "it is im possible for an insured to determ ine which policy is being lim ited." This argum ent fails for two reasons. First, while plaintiff argues in general term s about alleged deficiencies in the com m issioner's form , he has offered no 13 R. Doc. 8-6. 9 evidence dem onstrating that the insured in this case, Luxe, m isunderstood the scope of its insurance coverage. Thus, plaintiff's allegation that the UM waiver is "am biguous" is conclusory and without factual support. Second, plaintiff ignores the UM statute's delegation of regulatory authority. As noted, Louisiana Revised Statute 22:1295 vests the com m issioner of insurance with the authority to "prescribe[]" the requirements of a valid waiver form . La. Rev. Stat. § 22:1295. Plaintiff has not cited, and the Court has not found, any case in which Louisiana courts have invalidated the com m issioner's regulations or supplem ented the com m issioner's form with additional requirem ents.14 On the contrary, Louisiana courts have consistently applied the com m issioner's form s and regulations as written, including prior regulations that allowed insurers to om it the policy num ber in certain situations. See e.g., Gray , 977 So. 2d at 845 n.5 (adopting the com m issioner's rule allowing om ission of the policy num ber if it does not exist at the tim e the UM waiver form is com pleted); Carter, 964 So. 2d at 376 (sam e). 14 The two cases that plaintiff does cite, Tugw ell v. State Farm Ins. Co., 60 9 So.2d 195 (La. 1992), and Degruise v. Houm a Career New spaper Corp., 657 So.2d 580 , 588 (La. App. 1 Cir. 1995), are both distinguishable because both pre-date the current UM statute, which m andates that the com m issioner create a uniform UM waiver form to be used by all insurers. See Duncan, 950 So.2d at 548 (noting that "[i]n 1997, the legislature recognized the problem s inherent in allowing the insurers to design their own UM form s and am ended" the law to require use of a form "prescribed by the com m issioner of insurance"). 10 Here, the com m issioner exercised his authority under the UM statute by prescribing a UM waiver form . National provided the prescribed form to the insured, Luxe, which com pleted it in com pliance with the com m issioner's regulations. Thus, the waiver is valid, and National is entitled to a presum ption under Louisiana Revised Statute 12:1295(1)(a)(ii) that Luxe knowingly waived UM coverage. Because plaintiff has produced no evidence to rebut this presum ption, there is no dispute of m aterial fact, and National is entitled to judgm ent as a m atter of law. IV. CON CLU SION For the foregoing reasons, the Court GRANTS defendant's m otion for sum m ary judgm ent. Plaintiff's claim s against National under policy num ber 73 APS 0 50 0 64 are DISMISSED WITH PREJ UDICE. 16th New Orleans, Louisiana, this _ _ _ day of Decem ber, 20 15. _______________________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 11
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