Opinion
No. 14246.
June 29, 1981.
APPEAL FROM TWENTY-FIRST JUDICIAL DISTRICT COURT, PARISH OF LIVINGSTON, STATE OF LOUISIANA, HONORABLE SAMUEL T. ROWE, J.
Stephen Wilson, Baton Rouge, for defendant Allstate Ins. Co.
Vincent Paciera, New Orleans, for plaintiff James Ashley Lee.
Before COVINGTON, CHIASSON and LEAR, JJ.
Plaintiff, James Ashley Lee, appeals the summary judgment dismissing his claim against defendant, Allstate Insurance Company.
Suit was filed for damages for personal injuries allegedly sustained by plaintiff who was involved as a pedestrian in a hit and run accident with an unidentified automobile on February 19, 1978, in the City of Denham Springs, Louisiana. Mr. Lee filed suit against defendant alleging that Allstate was his uninsured motorist insurer. Defendant answered stating that there did exist a policy issued to Evelyn F. Lee, the plaintiff's mother, but that plaintiff was not an insured thereunder.
Defendant moved for summary judgment arguing that plaintiff is not entitled to uninsured motorist coverage because he is not an insured, spouse of an insured, or resident of the insured's household. The plaintiff opposed the motion, arguing that he is a resident of the insured's household and, alternatively, that defendant wrongfully failed to provide coverage for him.
The law provides that a motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, 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. La.C.C.P. art. 966. The burden of showing that there exists no genuine issue as to material fact is upon the mover for summary judgment. Any doubt is resolved in favor of a trial on the merits and against the granting of a summary judgment. Emp. Surplus Line Ins. v. City of Baton Rouge, 362 So.2d 561 (La. 1978) and Morgan v. Matlack, Inc., 342 So.2d 167 (La. 1977).
Defendant filed no affidavit and failed to file the insurance policy or a copy thereof in the record of this suit. The only documents before the court are the pleadings and the depositions of plaintiff and his mother. Plaintiff's petition and the depositions on file state that Allstate insured plaintiff's automobile. Defendant has therefore failed to carry its burden of proof and summary judgment in its favor should not have been rendered.
For these reasons, the judgment of the trial court is reversed and set aside; Allstate Insurance Company's motion for summary judgment against James Ashley Lee is denied; and the case is remanded to the district court for further proceedings according to law and consistent with the views expressed herein. All costs incurred in connection with the motion for summary judgment are taxed against Allstate, and all other costs are to await the final disposition of the matter.
REVERSED, RENDERED AND REMANDED.