Angelin v. Insurance Company of the State of Pennsylvania

Filing 21

ORDER AND REASONS denying 11 Motion for Partial Summary Judgment; granting 18 Motion for Summary Judgment. Angelin's claims are DISMISSED WITH PREJUDICE. Signed by Judge Sarah S. Vance on 4/26/2017. (cg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
RAYMOND ANGELIN

CIVIL ACTION

VERSUS

NO. 16-15189

INSURANCE COMPANY OF THE
STATE OF PENNSYLVANIA

SECTION “R” (3)

ORDER AND REASONS
Before the Court are cross motions for summary judgment filed by
Plaintiff Raymond Angelin and defendant The Insurance Company of the
State of Pennsylvania (ICSP).

Because the Court finds that Angelin’s

employer executed a valid waiver of uninsured motorist coverage, ICSP’s
motion is granted and Angelin’s motion is denied. Accordingly, Angelin’s
claims are dismissed with prejudice.

I.

BACKGROUND
Plaintiff

Raymond

Angelin

works

for

Cross

Road

Centers

Transportation, Inc. 1 As part of his job, Angelin drives Cross Road’s 2015
Volvo tractor trailer truck. 2 Cross Road maintained an auto insurance policy

1
2

R. Doc. 1-1 at 4.
Id.

with defendant The Insurance Company of the State of Pennsylvania (ICSP)
for the period of March 1, 2015 to March 1, 2016. 3
Angelin alleges that he was injured on August 2, 2015 when an
uninsured or underinsured motorist sideswiped the Volvo truck.4 According
to Angelin, he was driving the truck within the course and scope of his work
for Cross Road at the time of the accident. 5 Angelin alleges that, under Cross
Road’s auto insurance policy, ICSP is to liable Angelin for the motorist’s
negligence.6 Angelin seeks compensation for damages including medical
expenses, lost wages, and pain and suffering. 7
Angelin sued ICSP in the 24th Judicial District Court for the Parish of
Jefferson.8 ICSP removed to this Court on October 13, 2016. 9 The parties
have filed dueling motions for summary judgment on the issue of whether
Cross Road’s auto insurance policy with ICSP includes uninsured motorist
coverage.10

3
4
5
6
7
8
9
10

R. Doc. 11-5 at 3; R. Doc. 18-5 at 2.
R. Doc. 1-1 at 4.
Id.
Id. at 5-6.
Id. at 5.
Id. at 4.
R. Doc. 1.
R. Doc. 11; R. Doc. 18.
2

II.

LEGAL STANDARD
Summary judgment is warranted when “the movant shows that there

is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 1069,
1075 (5th Cir. 1994). When assessing whether a dispute as to any material
fact exists, the Court considers “all of the evidence in the record but refrain[s]
from making credibility determinations or weighing the evidence.” Delta &
Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99
(5th Cir. 2008).

All reasonable inferences are drawn in favor of the

nonmoving party, but “unsupported allegations or affidavits setting forth
‘ultimate or conclusory facts and conclusions of law’ are insufficient to either
support or defeat a motion for summary judgment.” Galindo v. Precision
Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); see also Little, 37 F.3d at
1075. “No genuine dispute of fact exists if the record taken as a whole could
not lead a rational trier of fact to find for the non-moving party.” EEOC v.
Simbaki, Ltd., 767 F.3d 475, 481 (5th Cir. 2014).
If the dispositive issue is one on which the moving party will bear the
burden of proof at trial, the moving party “must come forward with evidence
which would entitle it to a directed verdict if the evidence went
3

uncontroverted at trial.” Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257,
1264-65 (5th Cir. 1991). The nonmoving party can then defeat the motion by
either countering with evidence sufficient to demonstrate the existence of a
genuine dispute of material fact, or “showing that the moving party’s
evidence is so sheer that it may not persuade the reasonable fact-finder to
return a verdict in favor of the moving party.” Id. at 1265.
If the dispositive issue is one on which the nonmoving party will bear
the burden of proof at trial, the moving party may satisfy its burden by
merely pointing out that the evidence in the record is insufficient with
respect to an essential element of the nonmoving party’s claim. See Celotex,
477 U.S. at 325. The burden then shifts to the nonmoving party, who must,
by submitting or referring to evidence, set out specific facts showing that a
genuine issue exists. See id. at 324. The nonmovant may not rest upon the
pleadings, but must identify specific facts that establish a genuine issue for
trial. See, e.g., id.; Little, 37 F.3d at 1075 (“Rule 56 mandates the entry of
summary judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party
will bear the burden of proof at trial.” (quoting Celotex, 477 U.S. at 322)).

4

III. DISCUSSION
The parties’ dispute is a narrow one. Both sides agree that Cross Roads,
through

its

legal

representative

Robert

Gadola,

executed

an

“Uninsured/Underinsured Motorist Bodily Injury Coverage Form.”11 Gadola
initialed in the space next to the sentence “I do not want UMBI coverage”
and signed and dated the bottom of the page. 12 Despite this clear evidence
of intent to waive uninsured motorist coverage, Angelin argues that the
waiver is ineffective because the waiver form does not state the relevant
policy number.
Under Louisiana Law, every automobile liability policy offers implicit
coverage for uninsured motorists, even if the contract does not explicitly
address the issue. Duncan v. U.S.A.A. Ins. Co., 950 So. 2d 544, 547 (La.
2006). A motorist may waive uninsured motorist coverage, but the waiver
must be “clear and unmistakable” and “the insurer bears the burden of
proving any insured named in the policy rejected in writing the coverage.”
Id.
Louisiana Revised Statute 22:1295 provides that uninsured motorist
coverage may be waived only by way of “a form proscribed by the

11
12

R. Doc. 18-4.
Id.
5

commissioner of insurance.” The Louisiana Supreme Court has held that,
for a waiver to be effective, the contracting parties must complete six “tasks”:
(1) initialing the selection or rejection of coverage chosen; (2) if
limits lower than the policy limits are chosen (available in
options 2 and 4), 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, 950 So. 2d at 551.
The Louisiana Supreme Court has, however, recognized an exception
to these requirements.

In Carter v. State Farm Mutual Automobile

Insurance Company, an insured executed an uninsured motorist waiver
form before the insurer had generated a policy number. 964 So. 2d 375, 376
(La. 2007). The court held that the waiver was valid and lawful because “the
Commissioner of Insurance’s regulations specifically allow omission of the
policy number if it does not exist at the time the [uninsured motorist] waiver
form is completed.” Id.; see also Kurz v. Milano, 6 So. 3d 916, 920 (La. App.
4 Cir. 2009) (“[S]ince Duncan, the Louisiana Supreme Court has concluded
that filling in the policy number is not essential to a valid UM coverage waiver
where the evidence establishes that no policy number was available at the
time of the execution of the UM coverage form.”).

6

Here, the evidence before the Court shows that no policy number was
available when Gadola signed the waiver form. ICSP submits an affidavit
from Sherri Wright, a Business Insurance Account Manager with AWS
insurance.13 Wright attests that AWS is Cross Road’s insurance agent, and
that “at the time that Robert Gadola executed the [waiver form], no policy
number was available as the coverage had not yet been bound, and neither
the [auto insurance] policy nor the [auto insurance] policy number had been
issued or made available by the insurer.” 14 Angelin provides no evidence
tending to contradict this assertion. Furthermore, in accordance with Local
Rule 56.1, ICSP included a Statement of Uncontested Material Facts with its
motion for summary judgment. 15 The Statement similarly asserts that no
policy number existed at the time the waiver was signed.16 Angelin offers no
statement challenging this factual assertion, and it is therefore deemed
admitted. See Local Rule 56.2.
Accordingly, the Court finds that no policy number was available when
Gadola executed the uninsured motorist waiver. Therefore, as made clear in
Carter, no policy number was required. Because the form fulfills the rest of

13
14
15
16

R. Doc. 18-4 at 1-2.
Id. at 2.
R. Doc. 18-5.
Id.
7

the Duncan requirements, it is a valid waiver of uninsured motorist coverage
under Louisiana law. ICSP is therefore entitled to summary judgment on
Angelin’s uninsured motorist claim.

IV.

CONCLUSION

For the foregoing reasons, defendant The Insurance Company of the
State of Pennsylvania’s motion for summary judgment is GRANTED and
plaintiff Raymond Angelin’s partial motion for summary judgment is
DENIED. Angelin’s claims are DISMISSED WITH PREJUDICE.

26th
New Orleans, Louisiana, this _____ day of April, 2017.

_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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