Summary
noting that providing liability coverage for "any auto" is "all inclusive vis a vis restrictive" and provides coverage for "all conceivable autos for which there might be liability exposure"
Summary of this case from Bennett v. Hartford Ins. Co. of the MidwestOpinion
No. CA 89 0013.
June 20, 1989. Writ Denied October 13, 1989.
APPEAL FROM 22ND JUDICIAL DISTRICT COURT, PARISH OF ST. TAMMANY, STATE OF LOUISIANA, HONORABLE STEPHEN A. DUCZER, J.
Thomas Loehn, New Orleans, for plaintiff, appellant.
Joseph Maselli, Jr., New Orleans, for defendant, appellee.
Before COVINGTON, C.J., and LOTTINGER and FOIL, JJ.
This is a wrongful death and survival action filed by Cindy Fay, individually and on behalf of her minor children, Shannon Fay, Sheridan Fay and Shane Fay, and as representative of the estate of Gary Fay against Dalton Willis, Donald P. Trosclair, The Greater New Orleans Expressway Commission, Liberty Mutual Insurance Company, State Farm Automobile Insurance Company, and Federal Insurance Company (Federal). Pacific Indemnity Insurance Company intervened in the suit to recover workers compensation benefits. From a judgment granting summary judgment in favor of Federal on the question of uninsured motorist coverage, the plaintiffs appeal.
FACTS
On February 13, 1987, Gary Fay, Vice-President and Loan Officer of First National Bank of Covington, was driving his car on the Greater New Orleans Expressway (Causeway) when he noticed Dalton Willis driving in a careless and reckless manner, indicating to anyone that Dalton Willis was intoxicated. Gary Fay gained the attention of a Causeway policeman in order to inform him of Dalton Willis' approaching auto. Gary Fay and Deputy Trosclair pulled to a stop in the right lane of the Causeway. Fay and Trosclair got out of their cars and stood between their vehicles in order for Fay to point out Willis' vehicle. Dalton Willis lost control of his vehicle, which struck the police car, turned over and struck Gary Fay's car and in the process of doing so knocked Gary Fay into the air and into Lake Pontchartrain. Rescue efforts by Deputy Trosclair (not injured in the accident) failed, and Gary Fay drowned. Dalton Willis had a .23 blood alcohol level.
Dalton Willis was uninsured. The plaintiffs claim uninsured motorist coverage under the business auto policy issued to First National Bank of Covington. Federal's motion for summary judgment on the issue of uninsured motorist coverage was granted by the trial court. The plaintiffs now appeal.
ASSIGNMENT OF ERROR
Plaintiffs contend the trial court erred in granting Federal's motion for summary judgment.
I
La.R.S. 22:1406 D(1)(a) provides:
This is what the statute provided at the time of the accident. It has since been amended several times.
D. The following provisions shall govern the issuance of uninsured motorist coverage in this state.
(1)(a) No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability provided by the policy, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom; provided, however, that the coverage required under this Subsection shall not be applicable where any insured named in the policy shall reject in writing the coverage or selects lower limits. Such coverage need not be provided in or supplemental to a renewal or substitute policy where the named insured has rejected the coverage or selected lower limits in connection with a policy previously issued to him by the same insurer. Any document signed by the named insured or his legal representative which initially rejects such coverage or selects lower limits shall be conclusively presumed to become a part of the policy or contract when issued and delivered, irrespective of whether physically attached thereto.
In Giroir v. Theriot, 513 So.2d 1166, 1168 (La. 1987), the Supreme Court said:
In order to effect a valid selection of lower UM limits, the selection must be in writing and signed by the named insured or his legal representative. A document evidencing a selection of lower limits must be clear and unambiguous. Moreover, the statute imposes UM coverage "notwithstanding the language of the policy, the intentions of the parties, or the presence or absence of a premium charge or payment." Roger v. Estate of Tad Moulton, 513 So.2d 1126 (La. 1987), rehearing granted on other grounds, (La. June 24, 1987). (footnote omitted).
Absent a written waiver of UM coverage, UM coverage is in an amount not less than the limits of bodily injury liability coverage. Arcemont v. Voisin, 468 So.2d 785 (La.App. 1st Cir.), writ denied, 474 So.2d 947 (La. 1985).
II
The basis of defendant's argument is simply that Gary Fay was neither a named insured under the policy, nor was he operating an insured auto.
The policy names as the insured: First National Corporation, First National Bank, and First Argicultural [Agricultural] Credit Corporation. The liability coverage provided by the policy is in the amount of $1,000,000.00. The declaration page listing schedule of coverages and covered autos provides:
Thus, for liability purposes, ANY AUTO is covered. We note significantly for liability purposes, ANY AUTO is covered as compared to covering "owned autos only," "owned private passenger autos only," "owned autos other than private passenger autos only," "specifically described autos," "hired autos only," or "non-owned autos only." The ANY AUTO category is all inclusive vis a vis restrictive. We conclude that the named insured intended liability coverage of all conceivable autos for which there might be liability exposure. Therefore, the auto Gary Fay owned and was operating is a covered auto under the liability portion of the policy.
III
The insurance policy attempts to limit the UM coverage to OWNED AUTOS ONLY, a more restrictive definition of covered auto than that found in the liability portion of the policy. Additionally, the amount of UM coverage is less than that provided for liability coverage. Admittedly, there is no signed waiver. We read La.R.S. 22:1406 D(1)(a) to require UM coverage for all vehicles covered by the liability portion of the policy unless properly waived. Without a signed waiver of UM coverage, we hold this attempt to lessen UM coverage by restricting the autos covered is in violation of La.R.S. 22:1406 D(1)(a) and thus invalid. Therefore, the Fay auto is covered for UM purposes at the amount of the liability coverage.
IV
Defendant conceded in the trial court that for the purposes of the motion for summary judgment, Gary Fay met the definition of "occupying" as found in Paragraph A2 of the UM endorsement.
Therefore, for the above and foregoing reasons, the judgment of the trial court granting the motion for summary judgment is reversed, and IT IS NOW ORDERED that the motion for summary judgment be denied, and this matter is remanded for further proceedings. All costs of the appeal are assessed to defendant, Federal Insurance Company.
REVERSED AND REMANDED.