179 So. 3d 954
La. Ct. App.2015Background:
- Jairo Maradiaga appealed a summary judgment entered for Cornerstone National Insurance Company; appeal filed long after the order of appeal (order signed June 28, 2011; appellant brief filed June 8, 2015).
- Cornerstone moved to dismiss the appeal as abandoned under La. Code Civ. Proc. art. 561 and Local Rule 20 for inactivity over three years.
- Maradiaga showed he later paid estimated appeal costs (checks dated April 15, 2014 and September 11, 2014) and produced notices of estimated costs from the trial clerk.
- Cornerstone had not sought a formal dismissal under La. Code Civ. Proc. art. 2126(E)(1) when costs were unpaid.
- On the merits, Cornerstone moved for summary judgment asserting Maradiaga validly waived uninsured/underinsured motorist (UM) coverage via a completed UM Bodily Injury Rejection Form that was electronically signed and initialed.
- Maradiaga argued the agent completed and signed the form on his behalf, he did not knowingly reject UM coverage, and he did not take an express affirmative act to reject coverage; deposition testimony indicated limited English and that he “just signed” to get insurance.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the appeal was abandoned | Maradiaga: he took steps (paid estimated costs within three years of order via later payments) and thus appeal not abandoned | Cornerstone: no activity for >3 years after order of appeal — appeal abandoned under local rule and La. C.C.P. art. 561 | Appeal not abandoned: Cornerstone failed to move for formal dismissal under La. C.C.P. art. 2126; untimely payment cured abandonment risk |
| Whether UM rejection form validly waived coverage | Maradiaga: agent completed and signed the form; he lacked meaningful choice or understanding, so rejection not "clear, unmistakable, and unambiguous" | Cornerstone: properly completed electronic UM rejection form (initials, signature, date, policy#) and electronic-signature confirmation create a rebuttable presumption of knowing rejection | Summary judgment for Cornerstone affirmed: Maradiaga failed to rebut presumption; electronic initials/signature and confirmation satisfy statutory/formal requirements |
Key Cases Cited
- Marcum v. Inter-Ocean Ins. Co., 402 So.2d 222 (La. App. 1st Cir. 1981) (untimely payment of appeal costs can preclude dismissal for abandonment where dismissal procedure under art. 2126 was not invoked)
- Duncan v. U.S.A.A. Ins. Co., 950 So.2d 544 (La. 2006) (lists required tasks for valid UM rejection form completion)
- Bonck v. White, 115 So.3d 651 (La. App. 4th Cir. 2013) (Uniform Electronic Signature Law applies to auto insurance UM forms)
- Quantum Resources Mgmt., L.L.C. v. Pirate Lake Oil Corp., 112 So.3d 209 (La. 2013) (appellate courts review summary judgment de novo)