Cohen et al v. Becker et al
ORDER AND REASONS denying 15 Motion for Summary Judgment. Signed by Judge Carl Barbier on 2/8/2018. (cg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KEVIN COHEN, ET AL.
ANTON BECKER, ET AL.
ORDER & REASONS
NATURE OF MOTION AND RELIEF REQUESTED
Before the Court is a Motion for Summary Judgment filed by
The Commerce Insurance Company. (Rec. Doc. 15.)
an opposition to the motion (Rec. Doc. 16) and Commerce filed a
reply (Rec. Doc. 20).
Having considered the motion and legal
memoranda, the record, and the applicable law, the Court finds
that the motion should be DENIED.
FACTS AND PROCEDURAL BACKGROUND
This action derives from a motor vehicle accident in Jefferson
Parish, Louisiana that resulted in the death of Susan Abrams Tiano.
On January 10, 2016, Ms. Tiano was riding as a guest passenger in
a vehicle owned by Payless Car Rental, Inc., and operated by Anton
While approaching the intersection of Highway 45 and Leo
Kerner Lafitte Parkway, Becker allegedly drove through a flashing
red light and stop sign.
At the same time, another vehicle
intersection and allegedly proceeded through a flashing yellow
The vehicle operated by Carmadelle impacted the
operated by Becker.
At the time of the incident, Becker and
Carmadelle were allegedly driving at approximately 17 and 50 miles
per hour, respectively.
Ms. Tiano suffered severe injuries from
She was transferred to a hospital where she died as a
result of those injuries.
At the time of the collision, Becker and Carmadelle carried
Becker was issued a policy by
Norfolk & Dedham Mutual Fire Insurance Company (“Norfolk”) with
bodily injury liability limits of $250,000 per person and $500,000
Carmadelle was issued a policy by State Farm Mutual
Automobile Insurance Company (“State Farm”) with bodily injury
liability limits of $15,000 per person and $30,000 per accident.
Ms. Tiano had an Underinsured Motorist Policy (“UM Policy”) with
The Commerce Insurance Company (“Commerce”) with bodily injury
liability limits of $100,000 per person and $300,000 per accident.
Plaintiffs, Kevin Cohen and Kimberly Cohen Fine, brought this
suit individually and on behalf of their deceased mother, Ms.
Plaintiffs allege that Becker’s failure to obey traffic
signals and Carmadelle’s excessive rate of speed through a yellow,
flashing caution light resulted in and caused Ms. Tiano’s fatal
Carmadelle, State Farm, and Commerce.
Presently before the Court
is Commerce’s Motion for Summary Judgment (Rec. Doc. 15) and
Plaintiffs’ opposition thereto (Rec. Doc. 16).
Commerce has also
submitted a reply to Plaintiffs’ opposition. (Rec. Doc. 20.)
motion is now before the Court on the briefs and without oral
Commerce moves for summary judgment on the grounds that the
UM Policy issued to Ms. Tiano is not triggered in this case.
First, Commerce argues that Massachusetts law applies to the UM
Under Massachusetts law, underinsured (“UM”) benefits are
not available when the tortfeasor’s liability limits are greater
than the UM Policy limits.
Commerce states that the bodily injury
liability limits in the policies insuring Becker and Carmadelle –
issued by Norfolk and State Farm, respectively – are not less than
the UM Policy limits issued to Ms. Tiano.
motorists, its policy is not triggered, and the claims against it
should be dismissed as a matter of law.
Plaintiffs oppose the motion for summary judgment.
Plaintiffs contend that under a choice of law analysis, Louisiana
law governs the UM Policy, not Massachusetts law.
Carmadelle’s liability limits and Louisiana law allows them to
recover the full extent of their damages. Second, Plaintiffs argue
that even if Massachusetts law applies, Commerce’s motion is
premature until the liability of the parties is either admitted or
liability limits exceed that of Ms. Tiano’s UM Policy limits, but
note that Carmadelle’s policy limits are far less than the subject
UM Policy limits.
As such, Plaintiffs maintain that until there
is a determination of liability, there is a question of fact as to
whether Ms. Tiano’s UM Policy limits are less than the tortfeasors’
liability limits in this case.
discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law. Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed. R. Civ. P.
56(c)); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.
1994) (citing Fed. R. Civ. P. 56(c)). When assessing whether a
dispute as to any material fact exists, a 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.
nonmoving party, but a party cannot defeat summary judgment with
conclusory allegations or unsubstantiated assertions. Little, 37
reasonable jury could not return a verdict for the nonmoving
party.” Delta, 530 F.3d at 399.
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 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 sufficient evidence of its own, 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. at 325; Little, 37 F.3d
1. Choice of Law Analysis
Massachusetts law governs the application of the UM Policy at
Commerce argues that Massachusetts law applies; Plaintiffs
contend that Louisiana law applies.
When determining which state
law governs, courts apply the choice of law principles of the forum
See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487,
496 (1941) (holding that in diversity cases a federal court must
apply the same conflict of laws analysis that the state courts of
the forum would use);
La. Civ. Code Ann. art. 14.
determination of which state’s law governs the UM Policy at issue.
The Louisiana Supreme Court has established that Louisiana’s
UM law does not automatically apply to a UM claim under a policy
issued in another state when a Louisiana resident is involved in
Champagne v. Ward, 2003-3211, p. 22 (La. 1/19/05); 893 So. 2d 773,
Rather, “the appropriate starting point in a multistate case
. . . is to first determine that there is a difference between
Louisiana’s UM law and the UM law of the foreign state, and then
to conduct a choice-of-law analysis, as codified in Book IV of the
interpretation of the UM policy.” Id. at p. 22; 893 So. 2d at 786.
A. Louisiana UM law versus Massachusetts UM law
Plaintiffs and Commerce agree that there is a difference
between the Massachusetts UM laws and the Louisiana UM laws.
Court begins with a brief overview of each.
The Massachusetts UM law is “remedial in nature and expressly
intended to restructure the automobile liability insurance system
continuing to provide reduced, but effective, levels of coverage.”
Hanover Ins. Co. v. Pascar, 421 Mass. 442, 445–46, 658 N.E.2d 142,
premiums, the Massachusetts legislature made UM policies optional,
prohibited the practice of stacking UM coverage on different
policies, and established a trigger to UM coverage.
v. Safety Inc. Co., 416 Mass. 494, 498–99, 624 N.E.2d 79, 81–82
(1993) (citation omitted).
Under Massachusetts UM law, UM benefits are due only when the
tortfeasor’s liability policy limits are less than the claimant’s
policy limits for UM coverage.
See Murphy v. Safety Ins. Co., 429
Mass. 517, 520, 709 N.E.2d 410, 412 (1999).
The statute governing
coverage for underinsured vehicles shall provide:
protection of persons insured thereunder who are legally
entitled to recover damages from owners or operators of
insured motor vehicles, trailers or semitrailers, to
which a bodily injury liability or bond amount or policy
limit is less than the policy limit for [underinsured]
motor vehicle coverage and is insufficient to satisfy
the damages of persons insured thereunder and only to
coverage limits exceed limits of bodily injury liability
subject to the terms of the policy.
Mass. G.L. c. 175, § 113L(2).
The UM policy that Commerce issued
to Ms. Tiano is a standard Massachusetts automobile insurance
policy which must be construed in conformity with G.L. c. 175 §
See Murphy, 429 Mass. At 520, 709 N.E.2d at 413 n.6
The UM policy states, in relevant part:
responsible for an accident is underinsured. Under this
Part, we will pay damages for bodily injury to people
injured or killed as a result of certain accidents caused
by someone who does not have enough insurance.
entitled to recover from the owner or operator of the
underinsured auto. An auto is underinsured when the
limits for automobile bodily injury liability insurance
covering the owner and operator of the auto are:
1. Less than the limits shown for this Part on your
Coverage Selections Page; and
2. Not sufficient to pay for the damages sustained
by the injured person.
(Rec. Doc. 15-7 at 33.)
Both the Commerce UM policy terms and the Massachusetts
statute mandate a comparison of a claimant’s UM policy limits and
the responsible party’s liability policy limits.
To qualify as
“underinsured” and trigger the UM benefits, the UM policy limits
must be greater than the liability policy limits available and the
claimant’s damages. Even if a UM policy is triggered by satisfying
those two requirements, the UM policy covers only up to the amount
that the UM policy limit exceeds the bodily injury liability limit.
application of UM coverage. Louisiana UM law is governed by La.
R.S. 22:1295, which was designed to promote full recovery for
innocent tort victims, and requires that motor vehicle liability
policies issued in the state provide UM coverage, unless such
coverage is validly rejected by the insured.
La. Stat. Ann. §
1295(1)(a)(i); Wendling v. Chambliss, 2009-1422 (La. App. 1 Cir.
3/26/10); 36 So. 3d 333. Under the statute, an “underinsured motor
automobile liability insurance coverage on such vehicle is less
than the amount of damages suffered by an insured . . . at the
time of an accident.”
La. R.S. 22:1295(2)(b) (emphasis added).
liability insurance coverage, without further qualification.
Hollins v. Adair, 2013-1622 (La. App. 1 Cir. 6/3/14); 2014 WL
Louisiana and Massachusetts UM laws, the Court turns to which
state’s UM law governs the UM Policy issued by Commerce in this
B. Conflict of Laws Analysis
The conflict of law analysis regarding an insurance policy is
codified in Louisiana Civil Code articles 3515 and 3537.
3515 provides, in pertinent part, that “an issue in a case having
contacts with other states is governed by the law of the state
whose policies would be most seriously impaired if its law were
not applied to that issue.”
La. Civ. Code art. 3515.
further provides two factors which the court must consider:
(1) the relationship of each state to the parties and
the dispute; and
upholding the justified expectations of parties and of
minimizing the adverse consequences that might follow
from subjecting a party to the law of more than one
Similarly, Article 3537 specifically concerns contracts or
conventional obligations and provides that in determining which
state law applies, the Court must also consider, in addition to
the factors articulated in Article 3515, the following:
(1) the pertinent contacts of each state to the parties
and the transaction, including the place of negotiation,
formation, and performance of the contract, the location
of the object of the contract, and the place of domicile,
habitual residence, or business of the parties;
(2) the nature, type, and purpose of the contract; and
(3) the policies referenced in Article 3515, as well as
the policies of facilitating the orderly planning of
intercourse, and of protecting one party from undue
imposition by the other.
La. Civ. Code art. 3537.
“The objective of those provisions is to
identify the state whose policies would be most seriously impaired
if its laws were not applied to the issue at hand.”
2003-3211, p. 2; 893 So. 2d at 786 (citing to La. Civ. Code arts.
3515 and 3537).
“[T]he law of the state applicable to the
insurance contract and its UM coverage is determined by evaluating
involved states in light of the factors set forth in those Civil
In Champagne v. Ward, the Louisiana Supreme Court considered
whether Louisiana or Mississippi law applied to a UM policy issued
in Mississippi to a Mississippi resident injured in Louisiana.
2003-3211, p. 1; 893 So. 2d at 774.
The court recognized that the
UM laws in Mississippi and Louisiana had competing policies:
Mississippi UM law offsets a UM carrier’s liability based on the
amount collected from the tortfeasor’s liability insurer, while
Louisiana UM law prohibits offsets and provides that UM carriers
are liable for damages that exceed the tortfeasor’s liability
Id. at pp. 3-4; 893 So. 2d at 776, 788.
The court also
considered the following: the accident occurred in New Orleans,
Louisiana; the defendant was a Louisiana resident; the defendant’s
liability insurance policy was issued in Louisiana; the plaintiff
was a Mississippi resident; the plaintiff’s insurance policy was
negotiated and formed in Mississippi; the vehicle on which the
Mississippi; and the plaintiff’s UM policy was a Mississippi
Id. at pp. 26-27; 893 So. 2d at 789.
contravened Louisiana policy because “[a]ny credit reducing the UM
limits by the amount of liability insurance of the adverse driver
required by Louisiana's statute.”
However, the court noted
that Mississippi had a strong interest in the regulation of its
insurance industry and in the contractual obligations outlined
respective state policies and interests, the court ultimately
found that Mississippi’s policies would be more seriously impaired
if its law was not applied to the insurance policy.
Id. The court
stated, “Mississippi has a more substantial interest in the uniform
application of its laws governing contracts than Louisiana has in
providing an insurance remedy to an out-of-state resident who was
injured while transitorily within the borders of Louisiana.” Id.
Dreisel v. Metropolitan Property and Casualty Ins. Co., a
case relied on by the Champagne court, reached the same conclusion
under similar facts analyzing Massachusetts UM law.
(La. App. 1 Cir. 12/20/02); 836 So. 2d 347.
In Dreisel, the
plaintiff was a Massachusetts resident and guest passenger in a
single-vehicle accident in St. Tammany Parish, Louisiana.
pp. 2-3; 836 So. 2d at 347. The vehicle was owned and operated by
a Louisiana resident.
her own UM policy.
The plaintiff sought recovery under
The court considered that the insurance
contract was negotiated and formed in Massachusetts; the vehicles
on which the plaintiff purchased coverage were registered and
garaged in Massachusetts; the insurance policy was a Massachusetts
contract which provided for the application of Massachusetts law
indicated that the parties contemplated the application of another
Massachusetts. Id. at pp. 6-8; 836 So. 2d at 351.
concluded that Massachusetts’ policies would be more seriously
impaired if its law was not applied to the UM policy.
court reasoned that “the application of Louisiana law to the
insurance policy would result in the abrogation of a Massachusetts
Id. at p. 8; 836 So. 2d at 352. Just like Champagne,
the court also found that “Massachusetts has a more substantial
interest in the uniform application of its laws governing insurance
contracts than Louisiana has in providing an insurance remedy to
an out-of-state resident who happened to have sustained an injury
while transitorily within its borders.”
Id.; see also Zuviceh v.
Nationwide Ins. Co., 2000-0773 (La. App. 1 Cir. 5/11/01); 786 So.
2d 340 (applying Mississippi UM law when out-of-state plaintiff
was involved in accident in Louisiana and the UM policy was issued,
negotiated, and formed in Mississippi).
Here, there are no factual disputes regarding the parties’
contacts with Louisiana and Massachusetts.
The contacts with
Louisiana; the other vehicle in the accident was owned and operated
by Carmadelle, a Louisiana resident; Ms. Tiano and Becker were in
a rental car owned by Payless Car Rental, Inc., which is authorized
responded to the accident; Ms. Tiano received medical care in
Louisiana; and Carmadelle’s insurance policy was negotiated and
issued in Louisiana.
following: Ms. Tiano was a Massachusetts resident; the Commerce UM
policy was negotiated and formed in Massachusetts; the Commerce UM
policy states that it is a legal contract under Massachusetts law;
the vehicle insured by the Commerce UM policy was registered and
garaged in Massachusetts; Becker is a resident of Massachusetts;
The Court finds that the Champagne, Dreisel, and Zuviceh
application of its laws to Plaintiffs.
This is especially true
where, as here, two out of three people involved in the accident
are out-of-state parties who were transitorily within the borders
of Louisiana. 1
See Champagne, 2003-3211, pp. 26-27; 893 So. 2d at
Becker and Ms. Tiano were on vacation in Louisiana, thus, they were transitorily
in the state.
Moreover, the fact that UM policy at issue was formed,
resident is significant.
“Louisiana courts generally choose the
law of the state in which the insurance policy in question was
issued to govern the interpretation of the terms of the policy.”
Cherkaoui v. Pinel, 16-03, 2016 WL 8787056, at *2 (E.D. La. Nov.
3, 2016) (quoting Woodfield v. Bowman, 193 F.3d 354, 360 (5th Cir.
As the Louisiana Supreme Court in Champagne stated, “The
integrity of the contract is a substantial and real interest. The
fact that Congress has allowed fifty states to have their own
suggests this is a legitimate public purpose.”
3211, pp. 26-27; 893 So. 2d at 788.
Plaintiffs rely on Dunlap v. Hartford Ins. Co. of Midwest, to
support their argument that Louisiana UM law should apply.
0725 (La. App. 1 Cir. 3/24/05); 907 So. 2d 122.
This case is
easily distinguishable from the matter at hand and the cases cited
by the Court.
In fact, the Dunlap court explicitly does so itself
in its opinion.
Id. at pp. 6-8; 907 So. 2d at 126-27 (“We note
also that this case is readily distinguishable from the Zuviceh,
Dreisel, and Champagne cases.”).
In Dunlap, the plaintiff was a
Louisiana resident who was injured in an automobile accident that
occurred in Louisiana.
Id. at p. 2; 907 So. 2d at 122-123. The
employer who owned the vehicle.
The policy was negotiated and
conducted business nationwide.
Id. The court determined that
Louisiana UM law applied, noting that the subject policy “provided
commercial coverage for a fleet of vehicles used nationwide” and
reflected the anticipation that another state’s laws might apply.
Id. at p. 8; 907 So. 2d at 126. The court also noted that the
employer-owner had a substantial commercial presence in Louisiana
and received the benefits of Louisiana laws by maintaining offices
and conducting business in the state.
Id. pp. 6-7; 907 So. 2d at
Unlike Dunlap, before the accident at issue here, Ms.
Louisiana’s laws, and nothing in the policy indicated that the
parties contemplated the application of other states’ laws.
fact, the Commerce UM policy explicitly states that “[t]his policy
is a legal contract under Massachusetts law.” (Rec. Doc. 15-3 at
Moreover, Plaintiffs are seeking coverage under their own
(Ms. Tiano’s) out-of-state UM policy, not the policy of the owner,
policies of the involved states and the contacts between the
Plaintiffs have not brought claims against Payless Car Rental, Inc. or its
parties and those states, it is clear that Massachusetts has a
stronger interest in its policies being carried out and would be
more substantially impacted if its laws were not applied.
the Court finds that Massachusetts UM law governs the UM Policy at
2. Whether the Commerce Policy is Triggered
Having determined that Massachusetts UM law applies, the
Court now considers whether the UM benefits are available in this
In order for a UM policy to trigger, the vehicle responsible
for a claimant’s damages must qualify as “underinsured.”
Massachusetts law, a tortfeasor’s vehicle is “underinsured” when
(1) the liability limits of the policy covering that vehicle are
less than the UM limits stated in the UM policy, and (2) the
Murphy v. Safety Ins. Co., 429 Mass. 517, 520, 709 N.E.2d
410, 412 (1999).
Generally, under Massachusetts law, the policy
limits and resources of multiple tortfeasors may be combined to
determine whether the UM policy applies (i.e., whether tortfeasors
See Hanover Ins. Co. v. Pascar, 421 Mass.
442, 446, 658 N.E.2d 142, 144 (1995) (“[T]he sum of the personal
tortfeasors should be considered for the purpose of deciding
whether underinsured coverage will be available to an injured
Commerce, as the UM carrier, argues that Plaintiffs are not
entitled to UM benefits as a matter of law because the combined
liability limits of Becker and Carmadelle, the allegedly negligent
operators of the vehicles in this case, are $265,000 per person
and $530,000 per accident, which is more than Ms. Tiano’s UM Policy
limit of $100,000 per person and $300,000 per accident.
contends that under these circumstances, Massachusetts law and the
language of the UM Policy mandate that it has no obligation to
cover Plaintiffs’ UM claim.
Plaintiffs first argue that Commerce has failed to show that
they are not entitled to UM benefits because Plaintiffs have not
yet received insurance proceeds in excess of the amount of the UM
Plaintiffs also argue that Commerce’s motion is
While acknowledging that the combined policies of
Becker and Carmadelle are greater than the UM Policy coverage,
Plaintiffs point out that Carmadelle’s individual liability policy
limits ($15,000 per person and $30,000 per accident) are less than
the UM limits at issue.
Thus, Plaintiffs assert that until both
Becker and Carmadelle are determined to be “legally responsible”
for the accident, the Court cannot consider whether they are
underinsured with respect to the UM Policy.
With respect to Plaintiffs’ first argument regarding the lack
Massachusetts courts have made clear that the reference to the
responsible party’s policy limits does not refer to the total
amount actually collected by a claimant.
Rather, it is the total
policy limits available that must be less than the UM policy for
UM benefits to trigger.
See Alguila v. Safety Ins. Co., 416 Mass.
494, 495-96, 624 N.E.2d 79, 80 (1993) (“The policy explicitly
provides that a determination whether a tortfeasor's automobile is
claimant's actual recovery from the tortfeasor's insurer.”).
question of the amount actually received from the tortfeasor
tortfeasor’s automobile is underinsured.”
Murphy v. Safety Ins.
Co., 429 Mass. 517, 520, 429 Mass. 517, 520, 709 N.E.2d 410, 412
grounds that the vehicles operated by Becker and Carmadelle are
However, this argument appears to be based on
the assumption that Becker and Carmadelle are joint tortfeasors,
Massachusetts law follows the traditional principle of joint and
several liability in tort cases, where a plaintiff injured by more
than one tortfeasor may sue any, or all of them, for her full
damages. See Shantigar Found. v. Bear Mountain Builders, 441 Mass.
131, 141, 804 N.E.2d 324, 332 (2004).
Here, Becker and Carmadelle
explicitly provides that UM policies are for the “protection of
persons insured thereunder who are legally entitled to recover
damages from owners or operators of” underinsured vehicles.
G.L. c. 175 § 133L(2).
It has yet to be determined whether both
Becker and Carmadelle, or either of them, are liable for damages
including whether one was solely responsible for the accident or
whether both were at fault.
Neither party cites to a Massachusetts court opinion that
directly addresses this issue: that is, when multiple tortfeasors
have all denied liability, whether there must be a determination
The cases cited by Commerce in support of its motion
for summary judgment are unhelpful because the claimants in those
cases were, in one way or another, legally entitled to recover
from the tortfeasors.
See Murphy v. Safety Ins. Co., 429 Mass.
517, 709 N.E.2d 410 (Mass. 1999) (uncontested that the accident
was caused by the negligence of other driver);
Hanover Ins. Co.
v. Pascar, 421 Mass. 442, 443, 658 N.E.2d 142, 142-43 (1995)
(parties agreed that the driver of the first vehicle and the driver
of the second vehicle were responsible, as joint tortfeasors, for
the plaintiff’s injuries; the plaintiff, who was passenger in the
first vehicle, settled his claims against each driver for $8,000,
with $4,000 being paid by each driver’s insurer);
Davis v. Auto-
Owners Ins. Co., 420 N.W.2d 347, 348 (N.D. 1988) (settlement
reached between plaintiff, driver, and driver’s insurer).
mere allegations are presented here.
The Court is persuaded by the reasoning in Allstate Insurance
Company v. Hilbun, where a federal court interpreted a similar
Mississippi UM statute 3 under analogous facts.
(S.D. Miss. 1988).
703 F. Supp. 533
The plaintiff was injured in an automobile
accident with two other vehicles, one operated by Crawford and the
other operated by Richardson. Id. at 534. Richardson had $350,000
of liability coverage per person and per occurrence, Crawford had
$10,000 of liability coverage per person and per occurrence, and
the plaintiff’s UM policy had limits of $100,000 per person and
$300,000 per occurrence.
Id. at 536.
liability for the plaintiff’s damages.
Both operators denied
The UM insurance
carrier sought a declaratory judgment that it had no duty to
provide UM benefits to the plaintiff because the combined liability
limits of Crawford and Richardson ($360,000) exceeded the UM policy
Id. at 535.
The court denied summary judgment
Like Massachusetts’ UM law, in Hilbun, the UM benefits in Mississippi were
only available if the bodily injury liability limits were less than the UM
policy limits. Id. at 536.
because a question of fact remained as to whether one operator or
both were at fault.
The court noted that depending on who
was ultimately held at fault, the available liability policy limits
may or may not have been less than the UM policy limits (i.e., the
UM policy may or may not have triggered).
see also Carson by
Chaffee v. Colonial Ins. Co. of California, 724 F. Supp. 1225,
1227 (S.D. Miss. 1989) (stating that to be “legally entitled” to
a recover from a UM policy, a claimant must establish that the
accident and damages were caused by the negligence of the alleged
tortfeasors); Woodfield v. Bowman, 93-4201, p. 3 (E.D. La. 2/1/95);
1995 WL 41716, at *3. (“Under Mississippi law, it is appropriate
to stack or cumulate the amount of available insurance coverage in
determining whether a motorist is uninsured. The Court cannot make
apportioned fault among the parties.”).
Turning to the matter at hand, if Becker were to be ultimately
held solely at fault for Plaintiffs’ damages, then the UM Policy
would not trigger because Becker’s liability limits ($250,000 per
person and $500,000 per accident) are greater than the UM policy
limits ($100,000 per person and $300,000 per accident). It follows
then that the same result would occur if both Becker and Carmadelle
were held responsible for Plaintiffs’ damages because with their
However, if it were determined that Plaintiffs’
damages were caused solely by Carmadelle’s negligence, then the UM
benefits would be available because Carmadelle’s policy limits
($15,000 per person and $30,000 per accident) are less than the UM
policy limits ($100,000 per person and $300,000 per accident).
Thus, Commerce may be obligated to provide the proceeds of the UM
policy depending on the determination of fault.
However, such a
determination would entail resolving factual disputes, which is an
inappropriate task for the Court to undertake on a motion for
The Court’s decision is further bolstered by the purpose,
unambiguous language, and “fair meaning” of the UM statute and
See Norfolk & Dedham Mut. Fire Ins. Co. v. Quane, 442
Mass. 704, 707, 816 N.E.2d 521, 524 (2004).
The statute governing
“protection of persons insured thereunder who are legally entitled
to recover damages from owners or operators of” underinsured
Mass. G.L. c. 175, § 113L(2).
Commerce UM Policy itself thrice mentions the requirement of legal
responsibility: “owner or operator of an auto legally responsible
for an accident”; “We will only pay if the insured person is
legally entitled to recover from the owner or operator of the
underinsured auto”; “we will pay damages for bodily injury to
people injured or killed as a result of certain accidents caused
by someone who does not have enough insurance.” (Rec. Doc. 15-7 at
33) (emphasis added).
It is clear that fault is a significant
conclusion, the Court finds that issues of fact preclude it from
granting summary judgment regarding Commerce’s duty to provide UM
IT IS ORDERED that Commerce’s Motion for Summary Judgment
(Rec. Doc. 17) is DENIED.
New Orleans, Louisiana this 8th day of February, 2018
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
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