Bieller v. Atlantic Specialty Insurance Company

Filing 50

OPINION: The Court finds that it is Defendant's burden to show that the self-insured retention amounts were not exhausted. The remaining issues in the 44 , 45 motions and orally presented at today's hearing will be resolved after briefing on recently discovered information. Signed by Judge Ivan L.R. Lemelle on 3/6/2017.(mmv) Modified on 3/7/2017 (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)
OPINION

Before the Court are cross-motions for summary judgment as to
the applicability of the insurance policy’s self-insured retention
provisions and Defendant’s entitlement to credits for medical
expenses and lost wages paid to Plaintiff. Rec. Docs. 44-45.1 Both
parties timely filed memoranda in response. Rec. Docs. 46-47. For
the reasons discussed below,
The Court finds that it is Defendant’s burden to show that the
self-insured retention amounts were not exhausted. The remaining
issues in the motions and orally presented at today's hearing
will be resolved after briefing on recently discovered information.
I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
As previously discussed, 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 and, while stopped in traffic, was rear-ended by a

Plaintiff styles her motion as a motion in limine (Rec. Doc. 45), while
Defendant simply styles its motion as a motion for determination (Rec. Doc.
44). Nonetheless, the motions will be treated as cross-motions for summary
judgment under Federal Rule of Civil Procedure 56.
1

vehicle driven by Ashley E. Miller. Id. At the time of the
accident, 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

(“Defendant”)

that

Atlantic

previously

issued

Specialty
insurance

Insurance
to

the

Company

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 10, 2017, this Court denied Defendant’s motion for summary
judgment, finding that the UM waiver signed by an STPSO employee
was invalid. See Rec. Docs. 34, 41. During a conference with the
Court on February 9, 2017, the parties informed the Court of an
ongoing legal dispute regarding the self-insured retention (“SIR”)
provisions in the insurance policy issued by Defendant to the
STPSO. Rec. Doc. 43. At that time, we continued the scheduled trial
date, ordered the parties to brief the SIR issue, and scheduled
oral arguments for March 6, 2017. Id.

II.

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
(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., Inc., 7 F.3d 1203, 1207 (5th Cir. 1993).
As a threshold matter, the parties disagree as to who has the
burden of proving whether or not the SIR amounts were exhausted.
According to Plaintiff, it is Defendant’s burden to show that
the SIR was not exhausted. Rec. Doc. 45-1 at 9. Plaintiff relies
on a single case from the Louisiana Third Circuit. In Venissat v.
St. Paul Fire and Marine Insurance Company, after a sheriff’s
department deputy rear-ended a civilian, the civilian sued the
deputy, the sheriff’s department, and the department’s insurer.
06-987 (La. App. 3 Cir. 8/15/07); 968 So. 2d 1063, opinion amended
on reh’g (11/7/07). After a jury returned a verdict of $83,000 in
favor of the civilian, the court entered a judgment naming all of
the defendants liable. Id. at 1075. The insurer objected, noting
that

the

policy

included

a

SIR

endorsement

of

$250,000

per

accident. Id. On appeal, the Louisiana Third Circuit found that
the trial court did not manifestly err when it named the insurer
as a liable defendant. Id. According to the court,
The plaintiffs bore the burden of establishing that the
policy coverage applied. Ho v. State Farm Mut. Auto Ins.
Co., 03-480 (La. App. 3 Cir. 12/31/03); 862 So. 2d 1278.
The burden rested with the insurer . . . however, to
establish the existence of any policy limits or
exclusions.
Tunstall
v.
Stierwald,
01-1765
(La.
2/26/02); 809 So. 2d 916. We find that the plaintiffs

satisfactorily carried the burden of establishing
coverage for their damages by introducing into evidence
the automobile liability policy issued by [the insurer]
to the [sheriff’s department], without objection, and by
eliciting the testimony of the [sheriff’s department’s]
risk manager, who testified that the terms of the policy
provided coverage for the damages caused in the accident
at issue. However, we find that the defendants did not
satisfy their burden of showing any applicable
limitations on this coverage.
Id. Defendant notes that “no other Court, whether in Louisiana or
elsewhere in the United States, has ever found a SIR is a ‘policy
limit.’” Rec. Doc. 47 at 6-7 (citing Pinnacle Pines Cmty. Ass’n v.
Everest Nat’l Ins. Co., No. 12-8202, 2014 WL 1875166, at *3 (D.
Ariz. May 9, 2014) (where the court recognized that Venissat placed
the burden on the insurer to demonstrate that a SIR was exhausted
based

on

Louisiana

law

that

the

insurer

has

the

burden

of

establishing any policy “limits” or “exclusions;” because Arizona
law

imposed

on

insurers

only

the

burden

to

establish

the

applicability of “exclusions” and the SIR could not be considered
an “exclusion,” the burden was on the plaintiff to show that the
SIR amount was exhausted).
Further,

Defendant

maintains

that

UM

coverage

is

only

provided if the SIR is exceeded in the judgment. Id. at 5 (citing
Griffin v. La. Farm Bureau Mut. Ins. Co., 03-1107 (La. App. 5 Cir.
1/27/04); 866 So. 2d 929, 931 (where the policy explicitly provided
that “[t]he policy limits . . . will be for the excess of the
following retained amounts:

$25,000 Ultimate Net Loss for each

occurrence,” so the Louisiana Fifth Circuit concluded that “the
inclusion of the SIR for UM does not indicate the intent to pay
the first $25,000 of UM coverage. The only UM coverage that comes
into play, is if the damages exceed $25,000”); Johnson v. Howard,
03-0557 (La. App. 3 Cir. 11/5/03); 859 So. 2d 949, 949-50 (where
the policy provided liability and UM coverage, subject to a SIR of
$100,000, the insured (a parish) argued that, as a self-insured
political subdivision, it was not required to provide UM coverage
because, under Louisiana law, a self-insured entity is not required
to provide such coverage within the SIR limit; the insured pointed
to Tybussek, in which the Louisiana Fourth Circuit found that selfinsurers are not obligated to provide UM coverage, because UM
coverage is only required if an insurance policy is “purchased;”
the Louisiana Third Circuit agreed with the insured and found that
the insured was not required to provide UM coverage within its
SIR); Tybussek v. Wong, 96-1981 (La. App. 4 Cir. 2/26/97); 690 So.
2d 225, writ denied, 97-0766 (La. 5/1/97), 693 So. 2d 731, writ
denied, 97-0795 (La. 5/1/97); 693 So. 2d 734) (where the policy
“clearly state[d]” that the insured was self-insured for the first
$100,000, the insured was “not required to provide UM coverage
within the [SIR] limit”). In Griffin, the policy provided a SIR
amount that explicitly applied to UM coverage. We are unaware of
any similar provision here. Johnson and Tybussek, however, appear

to suggest that the STPSO does not have to provide UM coverage
within the $500,000 SIR.
Accordingly Defendant also uses these cases to suggest that
exhausting the SIR is a suspensive condition to coverage. Rec.
Doc. 44-1 at 5-6 (citing LA. CIV. CODE ANN. art. 1767 [“A conditional
obligation

is

one

dependent

on

an

uncertain

event.

If

the

obligation may not be enforced until the uncertain event occurs,
the condition is suspensive”]; Rec. Doc. 44-6 at 1 [“We will pay
all sums in excess of the [SIR] Amount an ‘insured’ legally must
pay as damages”]). Defendant thus appears to imply that, because
coverage is based upon a suspensive condition, it is Plaintiff’s
burden to show that the suspensive condition was fulfilled.
Most significantly, Defendant notes that, in Louisiana, it is
the plaintiff’s burden to prove the existence of coverage under an
insurance policy. Rec. Doc. 44-1 at 6 (citing Caffery v. White,
02-857 (La. App. 3 Cir. 2/12/03); 846 So. 2d 771, 776 [“The burden
of proof is on the plaintiff to establish every fact essential to
his claim and that his claim is within the insurance policy
coverage”] [citations omitted]; Tunstall 809 So. 2d at 921 [“In an
action under an insurance contract, the insured bears the burden
of proving the existence of the policy and coverage”] [citations
omitted]; Davidson v. United Fire & Cas. Co., 576 So. 2d 586, 590
(La. App. 4 Cir. 1991) [“A party seeking to recover under an
insurance policy has the burden of pleading and proving that his

claim falls within the terms and conditions of the policy”]
[citations omitted]). Because “[c]overage does not exist under the
[instant] policy unless the per-accident and/or Aggregate SIRs are
exceeded,” Defendant maintains that it is Plaintiff’s burden to
prove that the SIR was fulfilled. Rec. Doc. 47 at 7.
Despite all of the cases and rules cited, Defendant did not
provide to the Court any case or rule that specifically states
that it is Plaintiff’s burden under Louisiana law to demonstrate
that the SIR amount was exhausted. On the other hand, Plaintiff
pointed this Court to Venissat, a Louisiana Third Circuit case
that, though distinguishable from the instant case in its posture,
appears to clearly provide that it is the insurer’s burden to prove
that the SIR was not exhausted. This rule seems reasonable, given
that it is generally the insurer’s burden to prove any policy
limits or exclusions (see Tunstall, 809 So. 2d at 921) and the
fact that this information would be more readily available to the
insurer

than

the

claimant.

Additionally, recent discovery

indicates that the insurer-defendant adjusted the instant claim,
including the SIR amounts paid by its insured.

It is Defendant’s

burden to show that the SIR was not exhausted.

New Orleans, Louisiana this 6th day of March, 2017.

___________________________________
SENIOR UNITED STATES DISTRICT JUDGE