Summary
In Morrison v. USAA Casualty Insurance Co., 12-2334 (La. 1/11/12), 106 So.3d 95 (per curiam), the insured's representative failed to initial whether he was selecting or rejecting UM coverage prior to signing the form.
Summary of this case from Barras v. Cardinal Servs.Opinion
No. 2012–CC–2334.
2012-01-11
Edward MORRISON v. USAA CASUALTY INSURANCE COMPANY, Megan Everett, and Zurich American Insurance Company.
PER CURIAM.
[2012-2334 (La. 1]In this matter, we are called upon to decide whether a rejection of uninsured motorist (“UM”) coverage is valid, where the insured fails to initial the selection on the form rejecting UM coverage prior to signing it, but later initials the form prior to the accident at issue.
In Duncan v. U.S.A.A. Ins. Co., 06–0363 (La.11/29/06), 950 So.2d 544, we identified six tasks the insured must perform for the UM rejection to be valid, one of which is “initialing the selection or rejection of coverage chosen.” Although Duncan did not address the timing of the completion of the six tasks, that issue was addressed in Gray v. American National Property & Cas. Co., 07–1670 (La.2/26/08), 977 So.2d 839. In contrast to the instant case, Gray involved a situation in which the UM selection form was initialed and signed in blank by a representative of the insured, and subsequently completed and backdated by an insurance agency employee. In finding the rejection to be invalid, we held the six tasks must be completed before the UM selection form is signed by the insured, such that the signature of the insured or the insured's representative signifies an acceptance of, and agreement with, all of the information contained on the form. We observed that the insurer, not the insured, has the responsibility of assuring the form was properly completed, and noted “once the incomplete form was received from [the insured], nothing prevented the agent [2012-2334 (La. 2]from returning the form [to the insured's representative] with instructions for properly completing the form.” 07–1670 at 16, 977 So.2d at 850.
In the instant case, it is undisputed the insured's representative attempted to complete the required tasks to reject UM coverage, but mistakenly failed to initial the line rejecting UM coverage at the time he returned the form to the insurer. Consistent with our suggestion in Gray, the insurer returned the incomplete form to the insured's representative. The insured's representative then initialed the line rejecting UM coverage and returned the form to the insurer, thereby confirming an acceptance of, and agreement with, all of the information contained on the form. Although the exact date of the initialing is unclear, the evidence presented by relator establishes it occurred prior to the subject accident. Therefore, the rejection of UM coverage is valid.
Accordingly, the writ is granted. The judgment of the district court is reversed, and relator's motion for summary judgment is granted. KNOLL, J., dissents with reasons.
KNOLL, J., dissenting.
[2012-2334 (La. 1]I respectfully dissent from the majority opinion, which reverses the Trial Court and grants summary judgment in favor of relator, Zurich American Insurance Company (“Zurich”). In my view, this case should not be decided on summary judgment in favor of either party, as the question of whether Zurich's insured executed a valid UM waiver prior to the accident at issue necessarily involves credibility determinations.
When entertaining a motion for summary judgment, a court cannot decide credibility issues. E.g., Hines v. Garrett, 04–0806, p. 6 (La.6/25/04), 876 So.2d 764, 769 (per curiam); Brooks v. Minnieweather, 44,624, p. 9 (La.App. 2 Cir. 8/19/09), 16 So.3d 1244, 1250;Mouton v. Sears Roebuck, 99–669, p. 9 (La.App. 3 Cir. 11/3/99), 748 So.2d 61, 67,writ denied,99–3386 (La.2/4/00), 754 So.2d 232. Although a court ruling on a motion for summary judgment must assume all witnesses are credible, Independent Fire Ins. Co. v. Sunbeam Corp., 99–2181, 99–2257, p. 16 (La.2/29/00), 755 So.2d 226, 236, this general rule is inappropriate “where the mover's testimony absolving himself from liability contains substantive contradictions or discrepancies that would ordinarily tend to call his credibility into doubt if presented to a fact-finder.” Hines, 04–0806 at 6, 876 So.2d at 768–69. Here, Zurich's summary judgment evidence is ambiguous and does not definitively pinpoint when the insured's representative initialed the UM waiver. For instance, [2012-2334 (La. 2]the waiver itself contains no indication of when it was initialed, and the insured's representative admitted he could not “give ... the exact date” he initialed the waiver, stating it could have been anywhere from 30 to 60 days after the policy was issued, but no later than his birthday, which was 11 days before the accident. If presented to a fact-finder, the ambiguous and self-serving nature of this evidence would tend to call into doubt the credibility of Zurich's witnesses. Id.; see also Dibos v. Bill Watson Ford, Inc., 622 So.2d 677, 681 (La.App. 4 Cir.1993), writ denied,629 So.2d 1178 (La.1993) (summary judgment precluded where credibility of insured's representative who executed UM waiver was at issue). It is sound policy that such credibility determinations should only be made at trial, where, unlike summary judgment proceedings, the fact-finder has the added benefit of viewing demeanor evidence along with live testimony. Adhering to this policy, I would not grant summary judgment in favor of either party.
Notwithstanding, because the majority has ruled the UM waiver was valid, I will address this issue as well. Again, I respectfully disagree with the majority, as the insured's UM waiver was invalid under the standards articulated by this Court in Duncan v. U.S.A.A. Ins. Co., 06–363, pp. 11–12 (La.11/29/06), 950 So.2d 544, 551 and Gray v. American Nat. Property & Cas. Co., 07–1670, p. 14 (La.2/26/08), 977 So.2d 839, 849. The formalities mandated in Duncan and Gray are not merely procedural exercises or rote tasks, but rather are substantive requirements meant to prevent “abuse, confusion, and uncertainty ... [in] a process designed to prevent those exact concerns.” Gray, 07–1670 at 13, 977 So.2d at 848. In this case, the insured's representative did not complete one of Duncan's six enumerated tasks—initialing the selection or rejection of coverage chosen—before signing the UM selection form. Id. at 849. Validating this waiver, despite the insured's failure to strictly adhere to Duncan and Gray, invites uncertainty into an area where none should exist.