Bieller v. Atlantic Specialty Insurance Company

Filing 41

AMENDED ORDER AND REASONS: IT IS ORDERED that Defendant's 22 motion for summary judgment is DENIED as set forth in document. Signed by Judge Ivan L.R. Lemelle on 2/7/2017.(mmv)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ADRIANNE L. BIELLER

CIVIL ACTION

VERSUS

NO. 16-512

ATLANTIC SPECIALTY INSURANCE
COMPANY

SECTION “B”(4)

AMENDED ORDER AND REASONS
Before the Court is Defendant Atlantic Specialty Insurance
Company’s motion for summary judgment, seeking dismissal of all
claims against it on the grounds that there are no genuine issues
of

material

fact

concerning

Plaintiff

Adrianne

L.

Bieller’s

ability to rebut the presumed validity of the uninsured motorist
waiver

executed

Sheriff’s

by

Office.

Defendant’s
Rec.

Doc.

22.

insured,

St.

Plaintiff

Tammany

timely

Parish

filed

an

opposition memorandum. Rec. Doc. 26. Defendant then requested (see
Rec. Doc. 29), and this Court granted (see Rec. Doc. 30), leave to
file a reply memorandum (Rec. Doc. 31). For the reasons enumerated
below,
IT IS ORDERED that the motion is DENIED.
I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
This case arises out of a September 15, 2014 motor vehicle

accident. Rec. Doc. 14-3 at 1. On that date, Adrianne L. Bieller
(“Plaintiff”) was traveling south on U.S. Highway 21 in St. Tammany
Parish and, while stopped in traffic, was rear-ended by a vehicle
driven by Ashley E. Miller. Id. At the time of the accident,
1

Plaintiff was on duty and in a marked patrol car for the St.
Tammany Parish Sheriff’s Office (“STPSO”). Id. Plaintiff alleges
that Ms. Miller was an uninsured or underinsured motorist (“UM”),
but that Atlantic Specialty Insurance Company (“Defendant”) had
previously issued automobile insurance to the STPSO that covered
Plaintiff’s vehicle for the negligence of an owner and/or operator
of an uninsured or underinsured vehicle. Id. at 1-2. Consequently,
on December 7, 2015 Plaintiff filed suit against Defendant in the
22nd Judicial District Court for the Parish of St. Tammany. Id. at
1-2.
On January 21, 2016, Defendant filed a notice of removal
pursuant to 28 U.S.C. § 1332. Rec. Doc. 1 at 1. Thereafter, on
January 28, 2016, Defendant filed a motion to dismiss for failure
to state a claim upon which relief could be granted, alleging that
the STPSO waived UM coverage. Rec. Doc. 5. Plaintiff argued that
the waiver was invalid, because it was not signed by the named
insured or anyone with authorization to act as the insured’s legal
representative. Rec. Doc. 9.1 Defendant replied that the documents
attached to its motion to dismiss supported the claim of a valid
UM waiver. Rec. Doc. 12. On March 9, 2016, this Court found that
only the insurance policy, not the UM waiver, was mentioned in the

The argument made in opposition to the instant motion for summary judgment is
largely similar.
1

2

original petition. Rec. Doc. 16 at 3-4.2 Plus, the UM waiver was
central to Atlantic’s defense, not to Plaintiff’s claims, so it
was not appropriate to consider in the context of a motion to
dismiss. Id. at 4. Accordingly, we denied the motion to dismiss,
but explicitly informed the parties that they could revisit the
issue on a motion for summary judgment once further discovery was
conducted. Id. at 5.
II.

THE PARTIES’ CONTENTIONS
In the memorandum in support of its motion for summary

judgment, Defendant explains that Plaintiff deposed Debbie Jo
Taylor, a former employee of the STPSO who completed and signed
the UM waiver, on August 4, 2016. Rec. Doc. 22-1 at 3 (citing Rec.
Doc. 22-2 at 12-13).3 During the deposition, Ms. Taylor testified
that she signed the UM waiver form. Rec. Doc. 22-2 at 3. “Following
the deposition, Ms. Taylor reviewed the [STPSO] file for the
Atlantic policy at issue, and executed an affidavit affirmatively
stating ‘that the policy number and the name of the insurance
company were included on the form . . . when she filled out and
signed the form on June 30, 2014.’” Rec. Doc. 22-1 at 3 (quoting

The policy even noted that certain “non-policy” forms were sent with the
policy, including the “UM/UIM BODILY INJURY COVERAGE SELECTION FORM.” Rec. Doc.
5-5 at 3. Even though Louisiana Revised Statute § 22:1295(1)(a)(ii) provided
that the form “shall be conclusively presumed to become a part of the policy or
contract when issued and delivered,” there was no evidence at that time that
the form was issued and delivered. Rec. Doc. 16 at 4.
3 References to the excerpted deposition testimony of Ms. Taylor contained in
Rec. Doc. 22-2 will be cited by referring to the record document page number,
rather than the page number of the deposition transcript.
2

3

Rec. Doc. 22-3). Further, Defendant argues that former Sheriff
Jack Strain authorized Ms. Taylor to execute the waiver on behalf
of the STPSO. Id. at 4 (citing Rec. Docs. 5-7 at ¶ 7, affidavit of
R. Jack Strain, Jr.; 22-2 at 7-12). Thus, Defendant concludes that
“Plaintiff has conducted discovery involving Atlantic regarding
the rebuttable presumption of validity for the UM waiver and is
unable to present any facts or evidence that would rebut said
presumption of validity.” Id.
In response, Plaintiff argues that there exists a genuine
issue of material fact as to whether Ms. Taylor had the legal
authority to execute the UM waiver on behalf of former Sheriff
Jack Strain. Rec. Doc. 26 at 2.
In its reply, Defendant asserts that Plaintiff did not dispute
that

the

UM

waiver

complied

in

form

and

substance

with

the

requirements of Louisiana law. Rec. Doc. 31 at 1. Defendant then
argues that Terrell v. Fontenot, 11-1472 (La. App. 4 Cir. 6/27/12);
96 So. 3d 658 is controlling authority. Id. at 2.
III. LAW AND ANALYSIS
Under Federal Rule of Civil Procedure 56, summary judgment is
appropriate

only

interrogatories,

if
and

“the

pleadings,

admissions

on

depositions,
file,

together

answers

to

with

the

affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as
a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
4

(1986) (quoting FED. R. CIV. P. 56(c)). See also TIG Ins. Co. v.
Sedgwick James of Washington, 276 F.3d 754, 759 (5th Cir. 2002).
A genuine issue exists if the evidence would allow a reasonable
jury to return a verdict for the nonmoving party. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant must
point to “portions of ‘the pleadings, depositions, answers to
interrogatories,

and

admissions

on

file,

together

with

the

affidavits, if any,’ which it believes demonstrate the absence of
a genuine issue of material fact.” Celotex, 477 U.S. at 323. If
and when the movant carries this burden, the non-movant must then
go beyond the pleadings and present other evidence to establish a
genuine issue. Matsushita Elec. Indus. Co., Ltd. V. Zenith Radio
Corp., 475 U.S. 574, 586 (1986).
However, “where the non-movant bears the burden of proof at
trial, the movant may merely point to an absence of evidence, thus
shifting to the non-movant the burden of demonstrating by competent
summary judgment proof that there is an issue of material fact
warranting trial.” Lindsey v. Sears Roebuck & Co., 16 F.3d 616,
618 (5th Cir. 1994). Conclusory rebuttals of the pleadings are
insufficient to avoid summary judgment. Travelers Ins. Co. v.
Liljeberg

Enter.,

Furthermore,

at

Inc.,
the

7

F.3d

summary

1203,

judgment

1207

(5th

stage,

Cir.

this

1993).

Court

is

prohibited from weighing the evidence. Deville v. Marcantel, 567
F.3d 156, 164 (5th Cir. 2009) (noting that district courts must
5

“refrain from making credibility determinations or weighing the
evidence” when deciding a motion for summary judgment) (quoting
Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir.
2007)).
In our earlier Order denying Defendant’s motion to dismiss,
we stated that the UM waiver created a “rebuttable” presumption
that the insured knowingly rejected coverage. Rec. Doc. 16 at 4
(citing LA. REV. STAT. Ann. § 22:1295(1)(a)(ii)). At the time,
Plaintiff had not presented evidence to rebut that presumption,
but

we

felt

constrained

out

of

fairness

to

offer

her

the

opportunity to develop and subsequently present such evidence. Id.
at 5. Nonetheless, we found that the majority opinion in Terrell
v. Fontenot, 11-1472 (La. App. 4 Cir. 6/27/12); 96 So. 3d 658 was
controlling authority. Id.
In

Terrell,

the

Louisiana

Fourth

Circuit

explained

that

“Louisiana has a strong public policy favoring UM coverage.” 111472, p. 4; 96 So. 3d at 661 (citing Duncan v. U.S.A.A. Ins. Co.,
06-363, p. 4 (La. 11/29/06); 950 So. 2d 544, 547). Consequently,
“UM coverage is an implied amendment to an automobile liability
policy, even when not specifically addressed therein, and it will
be read into a policy unless validly rejected.” Id. (citing Kurz
v. Milano, 08-1090, p. 4 (La. App. 4 Cir. 2/18/09); 6 So. 3d 916,
919 (quoting Duncan, 06-363, p. 4; 950 So. 2d at 548)). In a
similar vein, the rejection of such coverage must be “clear and
6

unambiguous,” the insurer bears the burden of proving that the
insured rejected such coverage in writing, and the rejection must
be made upon a form prescribed by the Louisiana commissioner of
insurance. Id. (citing Daigle v. Authement, 96-1662, p. 2 (La.
4/8/97); 691 So. 2d 1213, 1214; Kurz, p. 5; 6 So. 3d at 919;
Duncan, 06-363, p. 5; 950 So. 2d at 547; LA. REV. STAT. Ann. §
22:1295(1)(a)(ii)). A properly completed form creates a rebuttable
presumption that the insured knowingly rejected such coverage. Id.
(citing § 22:1295(1)(a)(ii)). In Duncan, the Louisiana Supreme
Court outlined what is required to properly complete a form
rejecting UM coverage:
Essentially, the prescribed form involves six tasks:
(1) initialing the selection or rejection of coverage
chosen; (2) if limits lower than the policy limits are
chosen . . . then filling in the amount of coverage
selected for each person and each accident; (3) printing
the name of the named insured or legal representative;
(4) signing the name of the named insured or legal
representative; (5) filling in the policy number; and
(6) filling in the date.
Duncan,

06-363,

pp.

11-12;

950

So.

2d

at

551;

see

also

§

22:1295(1)(a)(ii).
Here, the “UNINSURED/UNDERINSURED MOTORISTS BODILY INJURY
COVERAGE FORM” contains the initials “DJT” next to a statement
that “I do not want UMBI Coverage. I understand that I will not be
compensated through UMBI coverage for losses arising from an
accident caused by an uninsured/underinsured motorist.” Rec. Doc.
5-6 at 1. Further, the name “Debbie Jo Taylor” is clearly printed
7

below the signature of Debbie Taylor; the policy number is preprinted as 791000777; and the date is handwritten as “6-30-14.”
Id. Ms. Taylor’s deposition testimony and subsequent affidavit
also establish that all of these form requirements were satisfied.
Rec. Docs. 22-2 at 2-4; 22-3 at ¶ 6. Thus, it appears that the
form was properly and completely filled out.4 The only issue before
us today is whether or not Ms. Taylor had the authority to sign
the waiver as a “legal representative.”
The court in Terrell explained that it understood the words
“legal representative” in Revised Statute § 22:1295(1)(a)(ii), and
presumably as used by the Louisiana Supreme Court in Duncan, “to
mean an individual authorized on behalf of an entity.” 11-1472, p.
6; 96 So. 3d at 662. Further, the court found that “[n]o Louisiana
law exists requiring the governing body of an entity or a president
or chief executive officer of an entity to formally and in writing
specify who has authority to decline UM coverage.” Id. at p. 7;
663. See also Bergeron v. Liberty Mut. Ins. Co., 12-86, pp. 4-5
(La. App. 3 Cir. 6/6/12); 92 So. 3d 645, 648-49.
Nonetheless, Plaintiff argues that Terrell is not controlling
in this case, because the STPSO is not a legal entity that
necessarily requires representation by an individual. Rec. Doc. 26
at 8. Plaintiff relies on the fact that Louisiana law provides

To that end, Defendant is technically correct when it states that “Plaintiff
does not dispute that the form and substance of the UM waiver complies with
Louisiana law . . . .” Rec. Doc. 31 at 1.
4

8

that the sheriff, not the sheriff’s office, is the appropriate
party to a suit. Rec. Doc. 26 at 8 (citing Cozzo v. Tangipahoa
Par. Council—President Gov’t, 279 F.3d 273, 283 (5th Cir. 2002)
(“although a sheriff’s office is not a legal entity capable of
being sued, Louisiana sheriffs are amenable to suit”) (citing Porch
v. St. Tammany Par. Sheriff’s Office, 67 F. Supp. 2d 631, 635 (E.D.
La. 1999)); Causey v. Par. of Tangipahoa, 167 F. Supp. 2d 898, 904
(E.D. La. 2001) (“Indeed, ‘the law of Louisiana affords no legal
status to the ‘Parish Sheriff’s Department’ so that the department
can sue or be sued, such status being reserved for the Sheriff.’”)
(quoting Valentine v. Bonneville Ins. Co., 96-1382, pp. 4-5 (La.
3/17/97); 691 So. 2d 665, 668)). So, Plaintiffs reason that it was
an individual (former Sheriff Jack Strain), not an entity (the
STPSO), that had to give Ms. Taylor the authority to sign the UM
waiver. Rec. Doc. 26 at 5.
Under Louisiana law, when an individual wishes to confer
authority on another to sign a UM waiver on his or her behalf,
such authority must be conferred in writing. LA. CIV. CODE arts.
2986, 2993; Terrell, 11-1472, p. 3; 96 So. 3d at 665 (dissent);
Holloway

v.

Shelter

Mut.

Ins.

Co.,

03-896

(La.

App.

3

Cir.

12/10/03); 861 So. 2d 763, 768-69 (“As no writing exists that
permits a finding of an act of procuration or mandate, and finding
no representation arising through law, we conclude that, in this
case, Ms. Holloway could not, without authorization, confect a UM
9

waiver on behalf of her son.”)).5 Thus, Plaintiff argues that if
former Sheriff Jack Strain wished to confer authority upon Ms.
Taylor to sign the UM waiver on his behalf, such authority had to
be given in writing. Rec. Doc. 26 at 5-7, 9-10. Plaintiff concludes
that, because there is no such writing, Ms. Taylor did not have
the authority to sign the UM waiver and the waiver relied upon by
Defendant is therefore invalid. Id.
To summarize, even though there is existing Louisiana case
law that provides that a person signing a UM waiver on behalf of
a legal entity does not have to have written authority to do so
(see Terrell), there is also Louisiana case law that provides that
a person signing a UM waiver on behalf of an individual does have
to have written authority to do so (see Holloway).
Here, Ms. Taylor testified that she was told to sign all
insurance forms on behalf of the department and that she received
instructions from either a chief or the sheriff to execute the UM
waiver on behalf of the STPSO. Rec. Doc. 22-2 at 7, 13. Plus,
former

Sheriff

Jack

Strain

testified

that

Ms.

Taylor

was

authorized, as a legal representative, to reject UM coverage on
this particular policy. Rec. Doc. 5-7 at ¶ 7. Nevertheless, there
The Louisiana Civil Code provides that a mandatary contract (a contract by
which an individual confers authority upon another to act on his or her behalf)
generally does not have to be in any particular form; however, “when the law
prescribes
a
certain
form
for
[the
act
to
be
done
by
the
representative/mandatary], a mandate authorizing the act must be in that form.”
LA. CIV. CODE art. 2993 (this is commonly referred to as the “equal dignities
rule”). Here, the UM waiver must be in writing, so the mandate must also be in
writing. See Holloway, 2003-896, p.; 861 So. 2d at 768-69.
5

10

apparently is no writing designating Ms. Taylor as the legal
representative with authority to sign the UM waiver.6
Consequently, this Court must determine if, when she signed
the UM waiver, Ms. Taylor was acting on behalf of a legal entity
(the STPSO), in which case Terrell would be controlling, or an
individual (former Sheriff Jack Strain), in which case Holloway
and Civil Code article 2993 would be controlling.7 Because we are
unaware of any controlling Louisiana case law, we shall consider
(1) the rationale for the existing case law that provides that it
is the sheriff, not the office, who has procedural capacity and
(2) the rationale for allowing a person to sign a UM waiver on
behalf of a legal entity, even though that individual did not have
written authority to do so.
The cases involving the procedural capacity of a sheriff’s
office generally revolve around questions of Eleventh Amendment
immunity. See, e.g. Cozzo, 279 F.3d 273; Porch, 67 F. Supp. 2d
631; Causey, 167 F. Supp. 2d 898. Nonetheless, the case regularly
cited by courts analyzing this issue under Louisiana law, and the
earliest case that this Court could find discussing the issue, is
Liberty Mut. Ins. Co. v. Grant Par. Sheriff’s Dep’t, 350 So. 2d

No such writing was submitted to the Court and Plaintiff notes that Ms.
Taylor’s deposition testimony indicates that she was merely told verbally to
sign all insurance forms on behalf of the department. Rec. Doc. 26 at 9 (citing
Rec. Doc. 22-7 at ¶ 16 (citing Rec. Doc. 22-2 at 12-13)).
7 The arguments made in Defendant’s reply memorandum largely turn on the answer
to this question.
6

11

236 (La. App. 3 Cir. Aug. 30, 1977), writ denied, 352 So. 2d 235
(La. 1977), overruled on other grounds by Jenkins v. Jefferson
Par. Sheriff’s Office, 402 So. 2d 669 (La. 1981).8 In that case,
the plaintiff was a worker’s compensation insurer forced to pay
benefits after a police department employee drowned while working
for the defendant sheriff’s department. Id. at 237. The insurance
company claimed that the department’s negligence led to the man’s
death,

such

that

compensation

paid

it
by

should
the

be

solidarily

insurance

company.

liable
Id.

for

the

Thereafter,

defendant L.R. Hataway, Sheriff of Grant Parish, filed a motion
for summary judgment seeking to dismiss the claims against him
because he was not the sheriff at the time of the accident. Id. at
238. The trial court granted summary judgment in favor of the
sheriff. Id. On appeal, the plaintiff argued that it was the
sheriff’s office

who should

be held liable; in other words,

Hataway, as the successor of the previous sheriff, should be held
responsible for the official acts of his predecessor. Id. The
Louisiana Third Circuit phrased the question presented in this

Jenkins overruled Liberty Mutual only insofar as the latter held that a current
sheriff could not be held liable for the alleged negligent acts committed under
a former sheriff. See also Riley v. Evangeline Par. Sheriff’s Office, 94-202
(La. 4/4/1994); 637 So. 2d 395; Green v. New Orleans Police Dep’t, No. 12-1992,
2013 WL 5739076, at *3 and n. 6 (E.D. La. Oct. 22, 2013). We examine Liberty
Mutual because it found that the sheriff individually, not his or her
department, has the legal status to sue or be sued. This rule is still good law
in Louisiana and we want to better understand the rationale for the rule. The
facts and holding of Liberty Mutual are included here merely to provide a full
summary of the case, not because they have any bearing on our understanding of
existing Louisiana law or our ultimate decision.
8

12

way:

“whether L.R. Hataway, the present Sheriff of Grant Parish

can be held liable, individually, in his official capacity as
Sheriff, for the alleged acts of negligence committed by his
predecessor . . . .” Id.
The Louisiana Third Circuit began its analysis by recognizing
that it is the individual sheriff, not the department, who is
constitutionally

designated

and

that

the

department

is

not

elected, but merely appointed by the elected sheriff for his term
of office. Id. at 238-39. Further, it is the individual sheriff
who is liable in damages for wrongful or negligent acts committed
while in office and it is the sheriff who is authorized to contract
for insurance to cover such losses. Id. at 239 (citing LA. REV.
STAT. Ann. § 33:1450.1, redesignated as LA. REV. STAT. Ann. §§ 5560;
1421-1450.1). Thus, the sheriff’s department “is not a legal entity
capable of suing and being sued . . . [and] liability is personal
to the Sheriff. This liability is not that of the Sheriff’s
Department therefore it must necessarily follow that the personal
liability of a former Sheriff is not continued or transferred to
the successor sheriff.” Id. at 239 (emphasis added).
While the issue before us today is not one of liability or
Eleventh Amendment immunity, the court’s reasoning in Liberty
Mutual provides some insight into the manner in which Louisiana
courts and the Louisiana legislature views sheriff’s offices.
Indeed, the modern version of one of the statutes discussed by the
13

court in Liberty Mutual, LA. REV. STAT. Ann. § 5560, provides that
it

is

the

“Sheriffs”

who

are

“authorized

to

contract

for

insurance,” and that “the premiums on said insurance [are] to be
paid by the sheriff as an expense of his office out of the sheriff’s
general fund . . . .” The statute does not refer to the department.
If the Louisiana Constitution conferred authority on, the citizens
elected, and the legislature refers to the individual sheriff, not
the department, then perhaps it is the sheriff who must sign the
UM waiver or confer written authority to do so.
We now turn to our second inquiry regarding the rationale for
allowing a person without written authority to sign a UM waiver on
behalf of a legal entity. In Terrell, Plaintiff Angela M. Terrell
was the driver of a vehicle involved in an accident. 11-1472, p.
1; 96 So. 3d at 660. She was employed by an entity referred to as
PTI and driving a vehicle that PTI leased from an entity referred
to as ULI. Id. PTI and ULI were separate entities that were owned
by United Companies, which was, in turn, privately owned by the
Romain family. Id. Ms. Terrell sued the company that insured the
vehicle that she was driving. Id. The insurance company then
claimed that its insured, PTI, signed a valid UM waiver. Id.
Specifically, Charles Guard, an employee of ULI, signed the waiver,
claiming that he was given verbal authority to do so by Ronald
Romain. Id. The only issue on appeal was whether or not Mr. Guard

14

“had been properly delegated the authority to sign and reject UM
coverage on the company’s behalf.” Id. at 6; 662.
The Louisiana Fourth Circuit determined that the term “legal
representative” in the UM statute meant “an individual authorized
on behalf of an entity” because “[a]n entity itself cannot act on
its own behalf, but instead gives authority to an individual to
act on its behalf.” Id. at 7; 662 (emphasis in original). To accept
Ms. Terrell’s argument that “since the UM coverage rejection must
be in writing, the legal representative must have authority to do
so in writing to comply with [Civil Code article] 2993” (id. at 3;
661), the court reasoned that “the president of a corporation, the
manager or members of a limited liability company, or a partner of
a partnership would have to specifically delegate in writing to
another individual the authority to sign a UM rejection on behalf
of the entity” (id. at 6; 662) (emphasis in original). In affirming
the trial court’s judgment dismissing Ms. Terrell’s claims, the
court distinguished Holloway, 03-896; 861 So.2d 763, noted that
“[n]o Louisiana law exists requiring the governing body of an
entity or a president or chief executive officer of an entity to
formally and in writing specify who has authority to decline UM
coverage,” and stated that to find otherwise “would be like
straining at a gnat after swallowing the camel, letting alone
unreasonably burdensome.” Id. at 6-8; 662-63.

15

Thus,

it

appears

that

the

Louisiana

Fourth

Circuit’s

rationale for upholding a waiver signed by a corporate employee
without written authority to sign such waiver is that it would be
unreasonably

burdensome

to

demand

otherwise.

The

court

even

included the following illustration in its opinion:
[T]he president of Exxon Mobil Corporation would have to
designate in writing the precise individual who is
authorized to reject Louisiana UM coverage and when that
individual left Exxon’s employment or transferred to
another position within Exxon’s corporate structure, a
new written authorization would have to [be] signed by
the corporate president . . . .
Terrell, 11-1472, p. 6; 96 So. 3d at 662 n. 2. To an international
corporation

like

relatively small

Exxon,

the

issue

of

UM

coverage

may

seem

and thus the burden of designating a legal

representative in writing relatively unreasonable.

An obvious

feature distinguishing such a corporation from a sheriff’s office
is size; because a sheriff’s office is smaller, presumably it would
be less burdensome to require the sheriff to either sign the waiver
himself or sign a contract conferring such authority on another.
On the other hand, when discussing entities, the Terrell court
referred to entities of all sizes: “such as a corporation, limited
liability company, partnership, trust, or estate . . . .” Id. at
6; 662. Plus, while a sheriff’s office is admittedly smaller and
therefore arguably better equipped to handle this problem, the
problem would nevertheless be similar:

The sheriff would have to

designate in writing the precise individual who is authorized to
16

reject Louisiana UM coverage and when that individual left the
department or transferred to another division, or when a new
sheriff was elected, a new written authorization would have to be
signed.
Nevertheless, even though a sheriff’s office can be compared
to a legal entity, we are faced with decades of Louisiana case law
recognizing that a sheriff’s department is headed by a single
individual. In that way, this case is easily distinguishable from
Terrell, because, unlike a legal entity, a sheriff can act on his
or her own behalf. Plus, a sheriff’s office may be distinguished
from the legal entities at issue in Terrell in various ways:

a

sheriff’s office is necessarily headed by an individual and that
individual is given authority by the Louisiana Constitution and
the electorate, and according to laws enacted by the Louisiana
legislature. In other words, when articles of incorporation are
filed, the intent is to create a separate legal entity; but when
a sheriff is elected, the intent is to give an individual the
authority to enforce the laws within his or her jurisdiction.9

In our review of the case law, we discovered several cases that could have
provided further guidance on this issue but nonetheless failed to directly
address it. For example, in a more recent case, the Louisiana Supreme Court
considered whether or not individual sheriff’s deputies were considered named
insureds on a UM policy issued to the “Webster Parish Sheriff’s Department.”
Valentine v. Bonneville Inc. Co., 96-1382 (La. 3/17/97); 691 So. 2d 665.
Relevant here, the policy at issue provided coverage for “you,” meaning the
named insured. Id. at 3; 667. In finding that the policy included the deputy as
a named insured, the Louisiana Second Circuit relied on Employers Ins. Co. of
Wausau v. Dryden, 422 So. 2d 1243, 1245 (La. App. 1st Cir. 1982) (in which the
Louisiana First Circuit determined that the policy issued to “Terrebonne Parish
Sheriff’s Office” included “not only the Sheriff, but all Deputies as well, as,
9

17

Plus, to waive UM coverage, Louisiana case law demonstrates
that

even

sheriff’s

offices

must

abide

by

Duncan’s

strict

requirements. For example, in Edden v. Ortego, the sheriff signed
a UM waiver in which the named insured was the sheriff’s office.
08-775, p. 1 (La. App. 3 Cir. 12/10/08); 999 So. 2d 300, 301.
However, the court affirmed the trial court’s ruling granting
summary judgment in favor of the plaintiff, because the waiver was

had the policy been intended to designate the Sheriff alone as Named Insured,
the Named Insured would have been the Sheriff.”). The Louisiana Supreme Court,
however, did not agree with this reasoning. First, the Court recognized the
decades of Louisiana case law holding that a sheriff’s department is not a legal
entity and that only the sheriff has the capacity to sue or be sued. Valentine,
96-1382, pp. 4-5; 691 So. 2d at 668. Then the Court stated that, “regardless of
whether the policy issued to the ‘Webster Parish Sheriff’s Department’ includes
as a named insured the Sheriff in his individual capacity, we disagree with the
Dryden court and the court of appeal in the instant case that the Sheriff’s
deputies are included as named insureds . . . .” Id. at 5; 668-69. According to
the Court, if deputies were included as named insureds, then they would be
provided UM coverage “regardless of where they were or what they were doing,
thus negating the need for the deputies to obtain UM coverage for themselves.”
Id. at 5; 669. Plus, it was more reasonable to conclude that the sheriff intended
to cover his deputies only when they were driving or occupying their patrol
cars, because he was under no obligation to provide the deputies with any
coverage at all and there was no indication that the deputies paid for such
coverage. Id. Nonetheless, the Court clarified that this holding did not mean
that the sheriff was the only named insured; instead, the Court “decline[d] to
comment on whether the Sheriff individually is included as a named insured under
the policy issued to the Webster Parish Sheriff’s Department.” Id. at 6; 669.
If the Supreme Court conclusively held that the sheriff was a named insured, it
would serve as persuasive evidence that the sheriff, as an individual, has the
authority to sign a UM waiver. However, the Court declined to make such a
holding. Consequently, we are left to analyze the issue before us with little
guidance from the state’s highest court.
Again, the issue before this Court was narrowly avoided by a Louisiana court in
Faucheaux v. Boston Old Colony Ins. Co., 93-384 (La. App. 5 Cir. 3/16/94); 633
So. 2d 959, 961, writ granted in part, Louque v. Commercial Union Ins. Co., 941296 (La. 9/30/94); 642 So. 2d 858. In that case, Chief Hebert LeRay, not former
Sheriff Johnny Marino, signed the UM waiver. In a footnote, the court stated
that “[i]t was apparently agreed by all parties that Chief LeRay was an agent
of the St. Charles Parish Sheriff’s Office, authorized to contract with others
for insurance on the sheriff’s office’s behalf.” Id. at 961 n. 1. The court was
essentially able to avoid determining whether or not the sheriff must sign a UM
waiver or confer such authority in writing.

18

not

“clear

and

unmistakable.”

Id.

Specifically,

the

waiver

included the name of the sheriff’s office as the named insured,
and the signature line contained the signature of the sheriff, but
the waiver did not indicate that the man signing was the sheriff
or identify him as a legal representative in any other way. Id. at
3; 303. Thus, because (1) the waiver included only the name of the
named insured, not the name of the legal representative actually
signing the document, and (2) “the object of the UM legislation is
to promote full recovery for automobile accident victims by making
such coverage available for them,” such that “the UM statute is to
be liberally construed, and the exceptions to coverage interpreted
strictly,” the court found no error in the trial court’s granting
of the plaintiff’s motion for partial summary judgment. Id. at 5;
304 (quoting Cohn v. State Farm Mut. Auto. Ins. Co., 03-2820, p.
4 (La. App. 1 Cir. 2/11/05); 895 So. 2d 600, 602).
Essentially,

the

Louisiana

Third

Circuit

invalidated

a

facially valid UM waiver signed by the sheriff simply because he
failed to print his name with the designation “Sheriff.” In the
instant case, it was not even the sheriff who signed the waiver,
but an employee of the department, and that employee also failed
to designate on the face of the waiver by what authority she was
signing.
We recognize that Plaintiff has presented a novel legal
argument. However, in light of Liberty Mutual, 350 So. 2d 236 and
19

its progeny (recognizing that a sheriff, not his or her office,
has the procedural capacity to sue or be sued), LA. REV. STAT. Ann.
§ 5560 (providing that it is a sheriff, not his or her office, who
may contract for insurance), the differences between a business
organization

and

a

sheriff’s

office

(including,

for

example,

manner of creation and size), and the fact that “the UM statute is
to be liberally construed and . . . a rejection of the coverage
provided by law must be clear and unmistakable” (Daigle, 96-1662,
p. 3; 691 So. 2d at 1214 (citing Roger v. Estate of Moulton, 513
So. 2d 1126, 1131 (La. 1987))), we find that it was the individual
sheriff who was obligated to sign the UM waiver and any mandatary
contract conferring that authority on another had to be in writing.
There is no such writing before the Court, so the UM waiver in
this case is invalid. Accordingly,
IT IS ORDERED that Defendant’s motion for summary judgment
(Rec. Doc. 22) is DENIED.
New Orleans, Louisiana, this 7th day of February, 2017.

___________________________________
SENIOR UNITED STATES DISTRICT JUDGE

20