Sacks v. Allstate Property and Casualty Insurance Company

Filing 68

ORDER AND REASONS granting 55 Motion for Partial Summary Judgment. Counsel for the parties are forthwith directed to contact the Chambers of the Honorable Joseph C. Wilkinson, Jr. to schedule a settlement conference on the bad-faith claim remaining in this case. Signed by Magistrate Judge Michael North on 3/21/2018. (clc)(NEF: WILKINSON)

RALPH SACKS

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

VERSUS

ALLSTATE PROPERTY AND CASUALTY
INSURANCE COMPANY

CIVIL ACTION

NUMBER: 16-16578
SECTION: “L”(5)

ORDER AND REASONS

Before the Court is the Partial Motion for Summary Judgment of Defendant, Allstate

Property and Casualty Insurance Company (“Allstate”). (Rec. doc. 55). The motion is

opposed by Plaintiff. (Rec. doc. 58). On its own order, the Court heard oral argument on the

motion on February 21, 2018, during which it directed the Defendant to file a reply to
Plaintiff’s opposition memorandum by February 28, 2018 and gave the Plaintiff the option
of submitting a surreply within two weeks thereafter. (Rec. docs. 56, 60). Defendant’s reply
memorandum is now before the Court. (Rec. doc. 62). Plaintiff, however, has failed to avail

himself of the opportunity to submit a surreply. For the reasons that follow, it is ordered
that the motion is granted.

This timely-removed, diversity-based action arises from injuries allegedly sustained

by Plaintiff as a result of a motor vehicle accident that occurred on July 22, 2015, in which

the vehicle in which he was driving was rear-ended by a vehicle driven by one Claire

Gregoire. (Rec. docs. 1, 1-2). At the time of the accident, Ms. Gregoire had in place with State
Farm Fire Insurance Company an automobile liability policy with a coverage limit of $15,000.
(Rec. doc. 1-2). That policy limit was subsequently tendered to Plaintiff by State Farm. (Id.).

At the time of the accident, Plaintiff also had uninsured motorist (“UM”) coverage through an

automobile liability policy through Allstate covering himself and his wife, Lisa Sacks, with a

per-person limit of $250,000.00. (Rec. doc. 55-5, pp. 11-3). The instant lawsuit was brought

by Plaintiff as a result of Allstate’s initial failure to make an unconditional tender of the policy
limits which it ultimately did after conducting discovery in this matter, thus exhausting the
limits of the policy coverage. (Rec. doc. 11-1, pp. 5-6). The issue of whether Allstate acted in

bad faith by delaying its payments on the UM coverage component of the Sacks’ liability
insurance policy remains unresolved despite motion practice previously engaged in by the
parties. (Rec. docs. 11, 21, 41).

In addition to the State Farm and Allstate insurance policies described above,

potentially at play in connection with the accident in question is a personal umbrella policy
issued to Plaintiff’s wife by Allstate which provided excess liability coverage for bodily injury

up to $1,000,000.00. (Rec. doc. 55-6, pp. 3-5). The declaration page of that umbrella policy
bears the notation that “Uninsured Motorists Insurance Rejected.” (Id. at p. 3). By way of the

motion that is presently before the Court, Allstate seeks summary judgment on the issue of
whether UM coverage under the umbrella policy was validly waived by Ms. Sacks, thus

providing no such coverage to Plaintiff with respect to the accident at issue. In opposing

Allstate’s motion, Plaintiff relied upon a number of cases 1/ in arguing that there was no valid
waiver of UM coverage by Ms. Sacks because the waiver form that she executed did not bear
the number of the umbrella policy and there was no showing that “… the policy number was
not available at the time of the purported waiver.” (Rec. doc. 58, p. 3). Following the hearing

on Defendant’s motion, it has provided the Court with a duly-executed affidavit from the

Duncan v. USAA Ins. Co., 950 So.2d 544 (La. 2006); Hayes v. DeBarton, 211 So.3d 1275 (La. App. 3rd Cir.), writ
denied, 220 So.3d 743 (La. 2017); Kurtz v. Milano, 6 So.3d 916 (La. App. 4th Cir. 2009); Angelin v. Ins. Co. of State
of Penn., No. 16-CV-15189, 2017 WL 1494500 (E.D. La. Apr. 26, 2017).
1/

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insurance adjuster handling Plaintiff’s claim. (Rec. doc. 64-2). In that affidavit the adjuster

attests to the fact that when the umbrella policy was initially obtained in 2013, Ms. Sacks
executed the waiver of UM coverage form that is appended thereto, which form admittedly

does not bear the number of the umbrella policy. (Id.; rec. doc. 64-3). Allstate argues in its

reply memo that under the law that was in effect at the time that the waiver was executed, a
policy number was not required to be included in a UM waiver form and that the waiver of
such coverage is therefore valid.

Summary judgment is appropriate under Rule 56(c) when no genuine issue of

material fact exists and the moving party is entitled to judgment as a matter of law. Celotex
Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548 (1986). Although all inferences drawn from the

evidence are to be resolved in the non-movant’s favor, he may not rest on the mere
allegations or denials in his pleadings. Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993).

Rather, once a properly supported motion for summary judgment is made, the burden shifts

to the non-movant who bears the burden of proof at trial to show with “’significant probative’
evidence” that there exists a triable factual issue. Kansa Reinsurance v. Cong. Mortgage Corp.
of Texas, 20 F.3d 1362, 1371 (5th Cir. 1994)(quoting In re: Municipal Bond Reporting Antitrust
Litig., 672 F.2d 436, 440 (5th Cir. 1982)).

That burden is not satisfied by “… ‘some

metaphysical doubt as to the material facts,’ … by ‘conclusory allegations,’ … by

‘unsubstantiated assertions,’ … or by only a ‘scintilla’ of evidence.” Little v. Liquid Air Corp.,
37 F.3d 1069, 1075 (5th Cir. 1994)(en banc)(citations omitted). Rather, the nonmovant “…

must adduce admissible evidence which creates a fact issue concerning the existence of
every essential component of that party’s case; naked assertions of an actual dispute will not
suffice.” Matter of Lewisville Properties, Inc., 849 F.2d 946, 950 (5th Cir. 1998). The
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insufficiency of the proof must be such that it would prevent a rational finder of fact from
finding for the non-moving party. Phillips Oil Co v. OKC Corp., 812 F.2d 265, 272-73 (5th Cir.),
cert. denied, 484 U.S. 851, 108 S.Ct. 152 (1987).

In opposing Defendant’s motion, Plaintiff primarily relied upon the Louisiana

Supreme Court’s decision in Duncan v. USAA Ins. Co., 950 So.2d 544, 551 (La. 2006) in which

it held that the inclusion of a policy number on a waiver form was required for the waiver of

UM coverage to be effective. Alternatively, a waiver form that failed to include a policy
number would not be enforceable if the policy number did not exist at the time the waiver

was executed. Carter v. State Farm Mutual Auto. Ins. Co., 964 So.2d 375, 376 (La. 2007).
However, as aptly noted by former Chief Judge Vance of this court:

Since Duncan and Carter were decided, the commissioner of insurance has
modified its waiver form and regulations. On August 29, 2008, the
commissioner issued Louisiana Department of Insurance Bulletin No. 08-02,
in order to “issue a revised UM form” and to clarify “what constitutes a
properly completed form [and] what information must be included …” See
Louisiana Department of Insurance, Bulletin No. 08-02 (Aug. 29, 2008). Under
the heading “Important Form Changes,” the Bulletin provides:
The revised UM form includes two boxes on the lower right
hand corner of the form….The upper box contains an area that
the insurer may use for policy information purposes (e.g. policy
number, binder number [sic], application number, etc.). This
box does not need to be filled in for the form to be properly
completed.

Id. (emphasis in original). Thus, under the commissioner’s current
regulations, the policy number is optional; the number need not be present in
order for a UM waiver form to be valid. See Chicas v. Doe, 166 So.3d 238 (La.
2015)(noting that “in light of [Bulletin 08-02], the absence of a blank box for
the policy number does not create a question of fact concerning the form’s
validity”); Clark, 2014 WL 5305887, *3 (“With the publication of LDOI Bulletin
08-02, the Commissioner no longer requires that the policy number be present
on the UM selection form for the form to be considered valid.”). Instead, a[]
UM waiver form is valid if it contains: (1) “[the insured’s] signature”; (2)
‘his/her printed name to identify his/her signature”; (3) “the date the form is
completed”; and (4) “initials to select/reject UMBI coverage prior to signing
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the form.” Louisiana Department of Insurance, Bulletin No. 08-02 (Aug. 29,
2008). Under the Bulletin’s terms, these rules apply to all UM coverage
waivers executed “[o]n or after January 1, 2010.” Id.

Guidry v. Geico Gen. Ins. Co.,
No. 15-CV-1518, 2015 WL 9002408 at *3
(E.D. La. Dec. 16, 2015)(footnote omitted).

Other courts, both state and federal, have reached the same result. Osborne v. Benson,

No. 15-CV-2845, 2017 WL 4365821 at *4 (W.D. La. Sept. 29, 2017); Stall v. Mercury Ins. Co. of
Florida, No. 17-0439, 2017 WL 7513387 at *3-4 (La. App. 3rd Cir. Dec. 28, 2017); Clark v.

Savoy, No. 14-CA-0308, 2014 WL 5305887 at *2-5 (La. App. 1st Cir. 2014), writ denied, 158
So.3d 821 (La. 2015).

In the present case, the UM waiver form that was executed by Ms. Sacks, well after

Bulletin 08-02’s effective date, contained her printed name and signature, the date on which
the form was signed, and her initials beside a line that states: “I do not want UMBI coverage.
I understand that I will not be compensated through UMBI coverages for losses arising from

an accident caused by an uninsured/underinsured motorist.” (Rec. doc. 64-3). The waiver

form is thus valid and enforceable under Louisiana law. Guidry, 2015 WL 9002408 at *3. As
for Plaintiff’s contention made in affidavit form that Ms. Sacks “… was unaware the form …

[she] signed on May 31, 2013 would remove a portion of UM coverage from ... [her] policy”
and that she “believed after signing the form … that Ralph Sacks and I still had $1,250,000.00

in UM coverage provided through … [the] policy,” (rec. doc. 58-1), that self-serving
declaration cannot overcome the well established principle that “… a party who signs a

written instrument is presumed to know its contents and cannot avoid its obligations by
contending that [s]he did not read it, that [s]he did not understand it, or that the other party

failed to explain it to … [her].” Coleman v. Jim Walter Homes, Inc., 6 So.3d 179, 183 (La.
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2009)(citing Tweedel v. Brasseaux, 433 So.2d 133, 137 (La. 1983)). For these reasons,

Defendant’s partial motion for summary judgment is granted. Counsel for the parties are
forthwith directed to contact the Chambers of the Honorable Joseph C. Wilkinson, Jr. (5897630) to schedule a settlement conference on the bad-faith claim remaining in this case.
New Orleans, Louisiana, this 21st day of

March

, 2018.

MICHAEL B. NORTH
UNITED STATES MAGISTRATE JUDGE

CLERK TO NOTIFY:
HONORABLE JOSEPH C. WILKINSON, JR.

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