Barbara Songy ZUVICEH
v.
NATIONWIDE INSURANCE COMPANY.
Court of Appeal of Louisiana, First Circuit.
*341 Albеrt J. Nicaud, Metairie, LA, for plaintiff/appellant, Barbara Songy Zuviceh.
Raymond P. Augustin, Metairie, LA, for defendant/appellee, Nationwide Insurance Company.
*342 BEFORE CARTER, C.J., WEIMER and KLINE,[1] JJ.
KLINE, J.
This is an appeal from a declaratory judgment holding that under LSA-C.C. art. 3515, et seq., Mississippi law is applicable to the interpretation of an uninsured/underinsured motorist (UM) policy. For the reasons that follow, we affirm.
FACTS
On August 15, 1998, Barbara Songy Zuviceh (Zuviceh), a Mississippi resident, was injured in a head-on collision that occurred in Slidell, Louisiana. The accident occurred when a vehicle owned and operated by Steven Wicks, a Louisiana resident, allegedly crossed the center line and struck Zuviceh's vehicle.
On the date of the accident, Steven Wicks had in full force and effect a policy of automobile liability insurance issued by Allstate Insurаnce Company with limits of liability of Ten Thousand ($10,000.00) Dollars per person. Also on the date of the accident, Zuviceh had in full force and effect a policy of UM coverage issued to her and her husband, Fred Zuviceh, by appellee, Nationwide Insurance Company (Nationwide). Nationwide issued the policy to the Zuvicehs in the state of Mississippi and, at the time of its issuance, the Zuvicehs' vehiсle was registered in Mississippi.
Under Louisiana law, automobile insurance delivered or issued for delivery in this State for a vehicle registered in Louisiana must have UM coverage equal to the liability amount unless the named insured had rejected UM coverage or selected lower limits. LSA-R.S. 22:1406(D)(1)(a)(i). Such rejection must be in writing on a form provided by the insurer. LSA-R.S. 22:1406(D)(1)(a)(ii). Purportedly, Nationwide has no such form executed by Zuviсeh.
Zuviceh petitioned the trial court for a judgment declaring whether Louisiana or Mississippi law applied to the UM coverage provided to her by Nationwide. After applying a choice-of-law analysis, the trial court determined that Mississippi law applied to interpret the terms of the Nationwide policy because Mississippi has a more substantial interest in the uniform application of its laws than Louisiana has in providing an insurance remedy to an out-of-state resident who sustains an injury while temporarily within the state's borders. It is from this adverse finding that Zuviceh appeals.
IS A CHOICE OF LAW ANALYSIS REQUIRED?
LEGISLATIVE AND JURISPRUDENTIAL PERSPECTIVE
In 1985, the Louisiana Supreme Court decided the case of Snider v. Murray,
This Subparagraph and its requirement for uninsured motorist coverage shall apply to any liability insurance covering any accident which occurs in this state and involves a resident of this state.
After the enactment of LSA-R.S. 22:1406(D)(1)(a)(iii), Louisiana courts were faced with the issue of whether Louisiana's UM law now automatically applies to policies when the accident occurs in Louisiana and involves a Louisiana resident, or whether the court must conduct a conflict-of-laws analysis to determine what law applies. The courts of appeal have reached conflicting resolutions to that issue. Our review of the jurisprudence reveals the following decisions rendered recently by the courts of appeal.
The third circuit's most recent case on the subject, Anderson v. Oliver, 97-1102 (La.App. 3d Cir.1/7/98),
The fifth circuit, in Drew v. Martello, 98-1141, 98-1142, p. 6 (La.App. 5th Cir.2/23/99),
In Adams v. Thomason, 32,728 (La.App. 2d Cir.3/1/00),
The fourth circuit most recently addressed the issue in Austin v. Western World Ins. Co., 99-2541 (La.App. 4th Cir.5/17/00),
In summary, the second and third cirсuits favor a choice of law analysis over the automatic application of LSA-R.S. 22:1406(D)(1)(a)(iii). The fourth and fifth circuits would automatically apply Louisiana's UM law based on the Legislature's pronouncement in LSA-R.S. 22:1406(D)(1)(a)(iii) without conducting a choice-of-law analysis.
DISCUSSION
LSA-C.C. art. 14 provides, "Unless otherwise expressly provided by the law of this state, cases having contacts with other states are governed by the law selected in accordance with the provisions of Book IV of this Code." In "Louisiana Conflicts Law: Two `Surprises'", 54 La.L.Rev. 497, 503 (1994), Professor Symeon C. Symeonides[3] explains the impact of LSA-C.C. art. 14, as follows:
[T]hrough its introductory phrase "[u]nless otherwise expressly provided by the law of this state," Article 14 establishes the residual character of Book IV vis-a-vis other more specific provisions of Louisiana legislation. Book IV is not intended to supеrsede more specific conflicts rules contained in other Louisiana Statutes, such as those found in the Insurance Code.... When applicable, those rules, being more specific, will prevail over the provisions of Book IV of the Civil Code. (Emphasis added.)
The threshold issue is whether LSA-R.S. 22:1406(D)(1)(a)(iii) of the UM Statute is a provision "otherwise expressly provided by the law of this state" as stated in LSA-C.C. art. 14, which requires application of Louisiana lаw without a conflict-of-law analysis.
Appellee directs our attention to LSA-R.S. 22:1406(D) and LSA-R.S. 22:1406(D)(1)(a)(iii), to wit:
D. The following provisions shall govern the issuance of uninsured motorist coverage in this state:
. . . .
[(1)(a) ](iii). This subparagraph and its requirement for uninsured motorists coverage shall apply to any liability insurance covering any accident which occurs in this state and involves a resident of this state.
(Emphasis added).
The introductory paragraph of LSA-R.S. 22:1406(D) states unqualifiedly that the provisions enumerated thereafter apply to policies issued in Louisiana. The Legislaturе did not change that qualification by amending the statute to include the *345 language of LSA-R.S. 22:1406(D)(1)(a)(iii). As it is written, the amendment, which is one of the "following provisions" referred to in LSA-R.S. 22:1406(D), governs the issuance of UM coverage in Louisiana.
The starting point for interpretation of any statute must be the language of the statute itself; when the law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied аs written and its letter shall not be disregarded in search of the intent of the legislature. LSA-C.C. art. 9; Barrilleaux v. NPC, Inc., 98-0728, p. 4 (La.App. 1st Cir.4/1/99),
We thus align ourselves with the second and third circuits and determine that it is appropriate to conduсt a choice-of-law analysis. The Louisiana Civil Code enactments and expressions in Book IV entitled "Conflict of Laws," afford the appropriate balancing of competing interests between states. Accordingly, Zuviceh's contention that the trial court erred in applying a choice-of-law analysis to the issue is without merit. Further, having determined that the trial court correctly determined that it must engage in a choice of law analysis, Zuviceh's contention that the trial court erred in relying on the case of Woodfield v. Bowman,
CHOICE-OF-LAW ANALYSIS
The issue to be resolved is which state's policies would be most seriously impaired if its laws were not applied. LSA-C.C. arts. 3515, 3537. There are profound competing public policies and interests between the states of Louisiana and Mississippi in this case, not unlike many similar casеs where the insurance coverage is provided to an out of state resident who is involved in an accident in the State of Louisiana.
The goal of Louisiana's UM legislation is to promote full recovery for innocent accident victims. Martin v. Champion Ins. Co., 95-0030, p. 3 (La.6/30/95),
In further support of a strong public policy for applying Louisiana law under the UM statute, McKenzie and Johnson in Louisiana Civil Law Treatise on Insurance Law and Practice § 119 at 293, make the following expression:
Any credit reducing the UM limits by the amount of liability insurance of the *346 adverse driver is clearly contrary to the underinsured motorist protection required by statute. The insured is entitled to recover, subject to the limits of his policy, the difference between his damages and liability insurance of the negligent motorist.
Mississippi, however, also has an interest in the UM coverage issue. It has a very real interest in regulation of its insurance industry and in the contractual obligations that are inherent parts thereof. The integrity of the contract is a substantial and real interest. The fact that Congrеss has allowed fifty states to have their own uniform system of regulations governing insurance strongly suggests this is a legitimate public purpose. Austin,
In this case, Nationwide and plaintiff entered into a contract that contains reduction clauses that provide, in sum, that plaintiff's recovery will be reduced by amounts paid by Allstate or by Nationwide pursuant to its bodily injury coverage. This agreement was the contemplation of the contracting parties, and the premium of $101.00 per year for UM coverage was based on Nationwide's potential exposure under the policy, including the reduction clauses.
Francis v. Travelers Ins. Co.,
The method for determining the applicable law is now set forth in the Civil Code. The general rule concerning determination of which state's law is applicable to a conflicts situation is found in LSA-C.C. art. 3515, which states:
Except as otherwise provided in this Book, 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.
That state is determined by evaluating the strength and pertinence of the relevant policies of all involved states in the light of (1) the relationship of each state to the parties and the dispute; (2) the policies and needs of the interstate and intеrnational systems, including the policies of 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 state.
More specifically, in relation to conventional obligations, LSA-C.C. art. 3537 provides:
Except as otherwise provided in this Title, an issue of conventional obligations is governed by the law of the *347 state whose policies would be most seriously impaired if its law were not applied to that issue.
That state is determined by evaluating the strength and pertinence of the relevant policies of the involved states in light of: (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 referred to in Article 3515, as well as the policies of facilitating the orderly planning of transactions, of promoting multistate commercial intercourse, and of protecting one party from undue imposition by the other.
Zuviceh prepared an affidavit that purports to convey her many significant contacts with the state of Louisiana. At the hearing on this matter, the parties stipulated to the following facts contained therein:
1) The accident occurred in Slidell, Louisiana;
2) The other vehicle involved in the accident was owned and operated by Louisiana residеnts;
3) Zuviceh's emergency medical care was administered in Louisiana;
4) Zuviceh's treating physician, Dr. Larry Thirstrup, is located in Louisiana;
5) Zuviceh underwent extensive physical therapy at the Wellness Clinic, located in Louisiana;
6) Zuviceh's diagnostic testing was performed in Louisiana;
7) Zuviceh's two sisters, brother and stepmother reside in Louisiana, all of whom she visits frequently;
8) Zuviceh has children and grandchildren residing in Louisiana whom she visits frequently;
9) Zuviceh would travel to Louisiana to baby-sit her grandchild three times per week;
10) Zuviceh owns immovable property in Louisiana;
11) Zuviceh attends church in Louisiana on a weekly basis; and
12) Zuviceh frequently visits her stepchildren who live in Louisiana.
These factors speak for themselves, but the essence is that a Mississippi resident and domiciliary was involved in an accident in this state with a Louisiana resident. Medical attention and treatment were received in Louisiana, and Zuviceh has family, property and church membership in Louisiana, which causes her to frequently visit the state of Louisiana.
The parties' contacts with the state of Mississippi include the following: 1) Zuviceh's choice of residence is within Mississippi; 2) Mississippi is the place of negotiation and formation of the insurance contract; 3) the vehicle Zuviceh was driving at the time of the accident was registerеd and garaged in Mississippi; 4) Nationwide issues policies in Mississippi; and 5) the insurance policy is a Mississippi contract that contains no provision regarding out-of-state accidents that would suggest that the parties had contemplated the application of another state's laws.
The law applicable to the UM policy is determined by evaluating the strength and pertinence of thе relevant policies of the involved states in light of the following enumerated factors:
LSA-C.C. art. 3537
(1) the pertinent contacts of each state to the parties and the transaction, including the place of negotiation, formation, and performance of the contract, *348 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 referred to in Article 3515, as well as the policies of facilitating the orderly planning of transactions, of promoting multistate commercial intercourse, and of protecting one party from undue imposition by the other.
LSA-C.C. art. 3515
(1) the relationship of each state to the parties and the dispute; and (2) the policies and needs of the interstate and international systems, including the policies of 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 state.
In conducting our analysis, we are guided by our previous decision of Francis. However, we are mindful that Francis was decided before the enactmеnt of LSA-C.C. arts. 3515 and 3537. Moreover, we find the fact that the policy at issue in Francis contained a provision regarding consideration of other states' laws to be crucial to the finding that Louisiana's law applied. As previously noted, Nationwide's policy contains no such provision.
While Zuviceh clearly has contacts with Louisiana that cause her to frequently visit this state, we find that under the facts of this cаse, Mississippi's policies will be most seriously impaired if its law is not applied to the insurance policy. The application of Louisiana law to the policy would result in the abrogation of a Mississippi contract. Moreover, we find that Zuviceh's premium for UM coverage was based on the application of Mississippi law to the contract. Thus, we find no error in the trial court's determination that Mississippi's law applies to the Nationwide policy.
CONCLUSION
For reasons expressed herein, we conclude: (1) that the choice-of-law analysis contained in Book IV of the Louisiana Civil Code Article 3515 et seq. can best resolve the competing interests of sovereign states in a conflict-of-laws situation; and (2) the facts of this case and the policies of the competing states require the application of Mississippi law.
The trial court's judgment is affirmed and costs of this appeal are assessed to Zuviceh.
AFFIRMED.
NOTES
Notes
[1] Hon. William F. Kline, Jr., retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.
[2] In Trautman, the court concluded that based on LSA-C.C. art. 14, which provides, "Unless otherwise expressly provided by the law of this state, cases having contacts with other states are governed by the law selected in accordance with the provisions of Book IV of this Code [entitled `Conflict of Laws']", LSA-R.S. 22:1406(D)(1)(a)(iii) was a provision `otherwise expressly provided by law' and thus applicable without first considering conflict-of-law principles. Anderson,
[3] Professor Symeon C. Symeonides of Louisiana State University's Paul M. Hebert Law Center, as Reporter for the Louisiana State Law Institute, drafted the bill that replaced the two conflicts articles in the Preliminary Title of the Louisiana Civil Code of 1870 with LSA-C.C. art. 14 and LSA-C.C. arts. 3515-3549 contained in Book IV of the Civil Code. See Symeon C. Symeonides, "Louisiana Conflicts Law: Two `Surprises'", 54 La.L.Rev. 497, 503 n. 30 (1994).