61 So. 3d 731
La. Ct. App.2011Background
- Gullatt sued Allstate to collect under UM coverage arguing the waiver form was invalid.
- Allstate denied Gullatt had UM coverage and Gullatt moved for summary judgment asserting the UM waiver was invalid.
- The trial court denied Gullatt's summary judgment and designated the judgment final for appeal.
- Louisiana law on appeal from summary judgment and certification of partial final judgments was discussed; the court converted the appeal to a writ and conducted de novo review.
- Duncan v. U.S.A.A. Insurance Co. held UM form validity requires the insured to date the form and perform six prescribed tasks.
- The parties presented conflicting affidavits about who dated the form; the trial court found a genuine issue of material fact as to when/by whom the form was dated, denying summary judgment.
- On appeal, Gullatt contends the form was not dated by her, while Allstate asserts the form was dated by the insurer's agent; the court ultimately denied relief, finding a genuine issue of material fact.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| UM rejection form validity hinges on insured-dating per Duncan | Gullatt did not date the form; thus waiver invalid | Duncan requires six tasks; form validity can be proven by others; date may be established | Genuine issue of material fact exists; summary judgment denied |
| Procedural posture of appeal converted to writ application | Conversion preserves plaintiff's rights and review | Court acted to promote economy; writ review appropriate | Court converted appeal to writ and conducted de novo review |
Key Cases Cited
- Rubin v. Westport Ins. Corp., 833 So.2d 1245 (La.App. 5 Cir. 2002) (review of denial of summary judgment; non-appealable judgment)
- Cole v. Cole, 971 So.2d 1185 (La.App. 5 Cir. 2007) (discretion to convert appeal to supervisory writs)
- Duncan v. U.S.A.A. Insurance Co., 950 So.2d 544 (La. 2006) (UM form must be dated and contain six prescribed tasks)
- Hines v. Garrett, 876 So.2d 764 (La. 2004) (summary judgment standard and genuine issue of material fact)
- Garsee v. Botoie, 852 So.2d 1156 (La.App. 2 Cir. 2003) (definition of material fact and appellate review)
- McCord v. West, 983 So.2d 133 (La.App. 5 Cir. 2008) (reference on summary judgment standard)