Opinion
No. 94-C-1296.
September 30, 1994.
In re Commercial Union Ins. Co.; — Defendant; applying for writ of certiorari and/or review; to the Court of Appeal, Fifth Circuit, No. 93-CA-0384; Parish of St. Charles, Twenty-Ninth Judicial District Court, Div. "D", No. 33,198.
Writ granted in part; denied in part.
The district court granted the defendant insurer's motion for summary judgment and dismissed plaintiffs' suit against the insurer, finding that the insured had validly rejected UM coverage. A divided five-judge panel of the court of appeal reversed and remanded. In an opinion authored by Judge Gothard, joined by Judge Dufresne, the two-judge plurality held that the insured's rejection of UM coverage was not effective and that the insurer provided $500,000 UM coverage, and remanded the case for "additional proceedings with respect to liability and damages." Chief Judge Kliebert concurred in part, finding that summary judgment was not appropriate and stating that he would remand for "trial on the merits on all issues, including liability, damages and insurance benefits . . . ". Judges Cannella and Bowes dissented, and would have affirmed the summary judgment granted by the trial judge for reasons assigned by Judge Cannella.
There is no majority decision of the court of appeal on the UM coverage issue; only a majority decision to vacate the trial court judgment and remand. We grant the writ in part to order, consistent with the "concurring" opinion, that the case be remanded for trial on the merits of all issues, including UM insurance coverage. Otherwise, the writ is denied.
CALOGERO, C.J., and HALL, J., dissent and would grant the writ and reinstate trial court judgment.
LEMMON, J. not on panel; recused.