Turner v. Allstate Property and Casualty Insurance Company et al

Filing 14

ORDER AND REASONS: IT IS HEREBY ORDERED that the defendant's 13 Motion for Partial Summary Judgment is GRANTED, without prejudice. Signed by Judge Ivan L.R. Lemelle on 7/28/2022. (pp)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DARREN J. TURNER, SR.

CIVIL ACTION

VERSUS

NO. 22-194

ALLSTATE PROPERTY AND CASUALTY
INSURANCE COMPANY, ET AL

SECTION "B"(2)

ORDER AND REASONS
Before the Court is defendant’s Motion for Partial Summary
Judgment (Rec. Doc. 13). Local Rule 7.5 of the Eastern District of
Louisiana requires that memoranda in opposition to a motion be
filed and served no later than eight (8) days prior to the
submission date.

Plaintiff has failed to submit a memorandum in

opposition to the motion, which was set for hearing on July 20,
2022.

Further, no party has filed a motion to continue the hearing

or filed a motion for extension of time within which to oppose the
motion.

Accordingly, this motion is deemed to be unopposed, and

because it appears to the Court that the motion has merit,
IT IS HEREBY ORDERED that the defendant’s Motion for Partial
Summary Judgment (Rec. Doc. 13) is GRANTED, without prejudice.
I.

FACTS AND PROCEDURAL HISTORY
This suit arises out of an alleged car accident in which

Plaintiff Darren Turner’s car was struck by a blue Honda Accord.
Rec. Doc. 1-3 (Petition for Damages). On June 17, 2020, plaintiff
was driving eastbound on Chef Menteur Highway when suddenly his
vehicle was struck by a blue Honda Accord while attempting to turn
1

into a parking lot. Id. The driver of the blue Honda Accord fled
the scene after the accident. Id. The driver is an unidentified
woman, referred to only as Jane Doe. Id. As a result of the
accident, plaintiff alleges he suffered serious injuries to his
head, neck, and back. Id.
On August 2, 2021, plaintiff filed suit in the Civil District
Court for the Parish of Orleans against his uninsured/underinsured
motorist insurance carriers United Financial Casualty Company, and
Allstate Property

and

Casualty

Insurance

Company

(hereinafter

“Allstate”). Rec. Doc. 1-3. Subsequently, on January 28, 2022,
defendants removed the action to this Court. Rec. Doc. 1 (Notice
of Removal).
On June 28, 2022, Allstate filed the instant motion for
partial summary judgment. Rec. Doc. 13. Defendant contends that
summary

judgment

is

proper

given

plaintiff

was

engaged

in

ridesharing activities for Uber at the time of his accident. Id.
According to Allstate, the policy issued to plaintiff for economiconly uninsured/underinsured motorist coverage expressly excludes
coverage in such a situation. Plaintiff did not file an opposition.
Id.
II.

LAW AND ANALYSIS

A. Summary Judgment Standard
Pursuant to Federal Rule of Civil Procedure 56, summary
judgment is appropriate when “the pleadings, depositions, answers
2

to interrogatories, and admissions on file, together 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)). A genuine issue of material
fact 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). As such, the court should view all facts
and evidence in the light most favorable to the non-moving party.
United Fire & Cas. Co. v. Hixon Bros. Inc., 453 F.3d 283, 285 (5th
Cir. 2006).
When

the

movant

bears

the

burden

of

proof,

it

must

“demonstrate the absence of a genuine issue of material fact” using
competent summary judgment evidence. Celotex, 477 U.S. at 323.
However, “where the non-movant bears the burden of proof at trial,
the movant may merely point to an absence of evidence.” Lindsey v.
Sears Roebuck & Co., 16 F.3d 616, 618 (5th Cir. 1994). Should the
movant meet its burden, the burden shifts to the non-movant, who
must show by “competent summary judgment evidence” that there is
a genuine issue of material fact. See Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Lindsey, 16
F.3d at 618. However, “a party cannot defeat summary judgment with
conclusory

allegations,

unsubstantiated

3

assertions,

or

only

a

scintilla of evidence.” See Sec. & Exch. Comm’n v. Arcturus Corp.,
912 F.3d 786, 792 (5th Cir. 2019).
B. Interpretation of Policy Exclusion
According to Louisiana law, an insurance policy is a contract
that constitutes the law between the parties, and it must be
interpreted in accordance with the general rules of contract
interpretation

set

forth

in

the

Louisiana

Civil

Code.

See

Cadwallader v. Allstate Ins. Co., 848 So.2d 577, 580 (La.2003); In
re Katrina Canal Breaches Litig., 495 F.3d 191 (5th Cir. 2007).
The extent of insurance coverage is determined by the parties'
intent as reflected by words in the policy. See Richard v. Anadarko
Petroleum

Corp.,

850

F.3d

701,

713

(5th

Cir.

2017)

(citing

Cadwallader, 848 So.2d at 580). If the policy wording is clear,
and it expresses the intent of the parties, the agreement must be
enforced as written. Pioneer Expl., L.L.C. v. Steadfast Ins. Co.,
767 F.3d 503, 512 (5th Cir. 2014) (citing Cadwallader, 848 So.2d
at 580); La. Civ. Code art. 2046. If an ambiguity exists, the
ambiguity must be construed in favor of the party seeking coverage.
See Richard, 850 F.3d at 714. The insurer bears the burden of
proving the applicability of an exclusionary clause within the
policy. See Bayle v. Allstate Ins. Co., 615 F.3d 350, 357 (5th
Cir. 2010).
As an initial matter, this Court must first determine the
validity of the alleged Uninsured Motorist (“UM”) waiver. Allstate
4

concedes that it issued automobile liability insurance to Larry
and Celestine Turner, and at the time of the alleged accident the
policy

was

in

effect

on

plaintiff’s

vehicle.

Rec.

Doc.

13.

However, defendant presents that the insured executed a valid UM
waiver on February 21, 2020. Id.
effectively

reduced

economic-only
Plaintiff

Allstate argues that this waiver

plaintiff’s

coverage

uninsured/underinsured

clearly

has

no

on

said

motorist

objection

to

the

vehicle

to

(“EOUM”).

Id.

validity

and

enforceability of the waiver Allstate has presented given his
failure to file an opposition. It seems to this Court there is no
genuine issue of material fact as to the legality of the waiver,
which effectively reduced the coverage on plaintiff’s vehicle to
EOUM. See Rec. Doc. 13-7 (UM Waiver). Furthermore, the attached UM
waiver complies with the requirements of Louisiana Revised Statute
§ 22:1295 because it informed the insured of what the coverage
included,

the

different

policy

limits,

and

provided

him

the

opportunity to reject or reduce coverage. See La. Stat. Ann. §
22:1295; Rec. Doc. 13-7 (UM Waiver).
Having determined the waiver was enforceable and reduced
coverage on plaintiff’s vehicle to EOUM coverage, we now turn to
evaluate the validity of the exclusionary provision. Allstate
contends the EOUM policy at issue expressly excluded coverage when
the insured vehicle is engaged in ridesharing activities, e.g.,
Uber transportation. Rec. Doc. 13. First and foremost, it is
5

undisputed that the plaintiff was engaged in rideshare activities
given he admitted this in his petition for damages. See 1-3, at p.
3 (Petition for Damages). Turning to the express language of the
policy, it clearly states the insurer will not pay for damages an
insured person is legally entitled to recover because of:
bodily injury to an insured person while in, on, getting
into or out of a motor vehicle owned by you or the
injured insured person, if the motor vehicle is not
insured for this coverage under this policy. Rec. Doc.
13-4, at p. 42 (Allstate Policy) (emphasis added).
The policy further describes what is not an insured vehicle for
purposes of coverage. The exclusion provides:
An insured auto is not a motor vehicle being used by a
transportation network company driver, only while that
driver is logged on to a transportation network
company’s digital network as a driver or is engaged in
a prearranged ride. Rec. Doc. 13-4, at p. 41 (Allstate
Policy) (emphasis added).
The vehicle at issue was not an “insured vehicle” for purposes
of policy coverage because it was engaged in prohibited activity.
Namely, its use at the time of the accident as an Uber vehicle.
Because this use was explicitly excluded under the policy for
coverage purposes, plaintiff is not entitled to EOUM coverage for
the accident on June 17, 2020. Accordingly, plaintiff’s claim
against this defendant under his EOUM policy is dismissed.
New Orleans, Louisiana this 28th day of July, 2022

___________________________________
SENIOR UNITED STATES DISTRICT JUDGE
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