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FOR IMMEDIATE NEWS RELEASE NEWS RELEASE # 15 FROM: CLERK OF SUPREME COURT OF LOUISIANA The Opinions handed down on the 26th day of February, 2008, are as follows:

BY CALOGERO, C.J.: 2007-CC-1670 WILLIAM GRAY, ET UX v. AMERICAN NATIONAL PROPERTY & CASUALTY CO., ET AL. (Parish of Beauregard) Accordingly, the district court judgment is affirmed and the case is remanded to the district court. AFFIRMED AND REMANDED. VICTORY, J., dissents and assigns reasons. TRAYLOR, J., dissents and assigns reasons. WEIMER, J., concurs in the result and assigns reasons.

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SUPREME COURT OF LOUISIANA No. 2007-CC-1670 WILLIAM GRAY, ET UX. VERSUS AMERICAN NATIONAL PROPERTY & CASUALTY CO., ET AL. ON WRIT OF CERTIORARI TO THE COURT OF APPEAL THIRD CIRCUIT, PARISH OF BEAUREGARD CALOGERO, Chief Justice The primary issue in this case is the validity of an "Uninsured/Underinsured Motorist Bodily Injury Coverage Form" (hereinafter "UM selection form") that was initialed and signed in blank by a representative of the insured, and subsequently completed and backdated by an insurance agency employee who then sent the form to the insurer. The district court found that the form was invalid and therefore granted summary judgment in favor of the plaintiff in this case ruling that the UM coverage provided by the policy was $1 million, the same amount as the liability coverage, rather than the $100,000 stated on the invalid UM selection form. Finding no error in the district court judgment, the court of appeal denied writs. Because we agree with the district court that the UM selection form is invalid, we affirm the district court judgment. In order to be valid, a UM selection form must be completed before it is signed by the insured. Allowing a person other than the insured to complete the form after it has been initialed and signed by the insured or insured's representative would not only provide potential for abuse, confusion, and uncertainty, but would also violate the well-settled principles governing the proper completion of UM selection forms.

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FACTS AND PROCEDURAL HISTORY Plaintiff, William Gray, a school bus driver for the Beauregard Parish School Board, allegedly sustained mental and physical injuries resulting from an April 28, 2003, accident that occurred while he was driving his school bus in the course of his employment. The accident allegedly occurred when the driver of the other vehicle ran a stop sign at the intersection of Louisiana highways 113 and 1147 and struck Mr. Gray's 1993 International school bus. The other vehicle was a 1995 Ford truck that was owned by defendant, Greg Nothnagel, and was being driven by Mr. Nothnagel's minor child, Brock Nothnagel. Mr. Gray and his wife, Brenda, filed suit for damages, naming Mr. Nothnagel and his insurer, American National Property & Casualty Co. Alleging that the Nothnagel vehicle was uninsured or underinsured, the Grays also added as a defendant Coregis Insurance Co., which had issued an automobile liability policy to the school board that covered Mr. Gray and other employees. The record indicates that the school board first contracted with Coregis to provide automobile liability insurance in 2002. By contract dated February 1, 2002, the school board engaged Norris Insurance Consultants, Inc., to serve as "insurance advisor." Norris Insurance Consultants then sought quotes on behalf of the school board for various types of property and liability insurance, including automobile liability insurance. A document listing the "2002 Competitive Quotes" for the various types of insurance sought by the school board indicates that the school board sought $1 million in automobile liability insurance, but only $100,000 in UM coverage for bodily injury ("BI") and $10,000 in UM coverage for property damages ("PD"). The minutes from the March 14, 2002, school board meeting indicate that the school board members voted to purchase insurance from Coregis through Glenn Dean
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Insurance Agency, Inc. The amounts of coverage were not mentioned in the official minutes. An April 5, 2002, letter from Norris Insurance Consultants to Glenn Dean Insurance Agency provided written confirmation of the coverage awarded by the school board on March 14, 2002. That letter states as follows regarding automobile liability insurance: Automobile Liability with Coregis Ins Co for a BI-PD combined single limit of $1,000,000 and subject to no deductible. Coverage applies on a comprehensive or Symbol 1 basis. Endorsement CA9933 Ed 02-99, "Employees as Insured's" will be added. Medical Payments for $1,000 per person and Uninsured Motorist BI for $100,000 and UM-PD for $10,000 are additional coverages provided. The liability premium is $129,311 and includes experience rating. Comprehensive and Collision coverage applies to specified vehicles subject to deductibles of $500 and $500 has a premium of $13,655, the grand total of both, $144,908. According to the minutes from the April 11, 2002, school board meeting, School Board President Jim Rudd was authorized to sign the UM selection form.1 On March 24, 2003, prior to Mr. Gray's April 28, 2003, accident, the school board agreed to renew the Coregis policy for the policy period April 1, 2003, to April 1, 2004, with the same coverages. Following discovery in this case, the Grays filed a motion for summary judgment, seeking a ruling from the district court that the UM limits on the Coregis policy were equal to the $1 million liability limits because the UM selection form by which the school board allegedly selected the lower limit of $100,000 was invalid. Among the documents attached to the Grays' motion for summary judgment was"School Board Exhibit 2B," a UM selection form that was accompanied by a letter dated May 28, 2002, on Glenn Dean Insurance Agency letterhead from Sherrie

The record contains at least two UM selection forms that were signed by Dr. Rudd. The first form is dated the same day as this school board meeting, April 11, 2002, and indicates that the school board selected UM limits equal to the amount of liability insurance. The second form is dated April 1, 2002, and indicates that the school board selected UM limits lower than the amount of liability coverage. It is the second form, further described in detail in this opinion, that is the focus of the district court judgment and the arguments of the parties in this case. 3

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Johnson, CISR, Commercial Underwriter, to the school board. The letter stated as follows: Please find enclosed the above captioned form. Our records indicate that you have chosen Uninsured Motorist limits of $100,000. If you would like to change your selection at this time, please mark the form accordingly. Please be advised that Uninsured Motorist Property Damage is not included under the Uninsured Motorist Coverage. Even if no change in limits are requested, please sign, date and return the form with the proper selection marked within 10 days. To complete this form, a corporate resolution authorizing an official to make the selection must be attached to the form. The UM selection form included in "School Board Exhibit No. 2B" contained the signature of School Board President Rudd on the line at the bottom of the form for "Signature of a Named Insured or Legal Representative" and Dr. Rudd's initials on the line preceding the following statement: "I select UMBI Coverage which will compensate me for my economic and non-economic losses with limits lower than my Bodily Injury Liability Coverage limits: $_______________ each person

$_______________ each accident." (Emphasis in original.) The spaces for the amount of UM coverage for each person and each accident were blank, as were the spaces for the printed "Name of Insured or Legal Representative," the "Policy Number," and the "Date." Also included among the documents attached to the Gray's motion for summary judgment was "School Board Exhibit No. 7," which appears to be the same UM selection form described above, except that the blank spaces have been filled in by someone whose handwriting is different from Dr. Rudd's. Specifically, the form has been completed to indicate that the lower limits selected are $100,000 per accident, that the "Named Insured or Legal Representative" is "Beauregard Parish School Board," that the Policy Number is 651-011691, and that the Date the form was
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completed was April 1, 2002. The same cover letter quoted above is part of "School Board Exhibit No. 7." On the basis of "School Board Exhibit No. 2B" and "School Board Exhibit No. 7," the Grays argued in their motion for summary judgment that the UM selection form was completed by a "mystery person" at some time after Dr. Rudd initialed and signed the form, and that completion of the form by a person other than the insured, particularly after the form has left the hands of the insured, renders the UM selection form invalid. In response to the Grays' motion for summary judgment, Coregis filed a cross motion for summary judgment, seeking a ruling that the UM limits on the policy were $100,000 at the time of the accident. In its memorandum in support of its cross motion for summary judgment, Coregis listed the following pertinent "undisputed material facts": 9. By July 10, 2002, the UM rejection form was signed and initialed by Dr. Rudd, on behalf of the School Board, selecting lower UM limits. Upon receipt of the UM rejection form signed and initial [sic] by Dr. Rudd, the UM rejection form was further completed by Glenn Dean's employee, Sherrie Johnson, on or by July 11, 2002, documenting the policy number, date of the policy, and the UM limits of $100,000. Johnson's completion of the form documented the School Board's agreement to set UM limits at $100,000.

10.

11.

(Citations to attachments omitted.) Coregis referred to Ms. Johnson's deposition testimony, which was attached to its cross motion for summary judgment as "Exhibit C," in support of items 10 and 11 quoted above. Coregis argued that Ms. Johnson had authority to complete the UM selection form on behalf of the school board, and that Ms. Johnson's actions had validly "reformed" the policy to reflect the intent of the parties.

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Following a hearing in the matter, the district court granted the motion for summary judgment filed by the Grays, and denied the cross motion for summary judgment filed by Coregis. In oral reasons for judgment, the district court found that the UM selection form "was not properly filled out by the required party" because "parts were left blank and later filled in by an insurance company employee, who had no authority to act on behalf of the party who must reject." The district court further found that "the six affirmative steps required by the Commissioner of Insurance form were not completed as required." The district court rejected Coregis's argument that the policy had been properly reformed after it left the hands of the insured's representative, when the insurance agent filled in the missing information in a manner that clearly reflected the intent of the parties to the agreement. The court of appeal denied the writ application filed by Coregis, finding no error in the district court decision granting summary judgment on behalf of the Grays and denying the motion for summary judgment filed by Coregis. Gray v. Am. Nat'l Prop. & Cas. Co., 07-0592 (La. App. 3 Cir. 7/11/97), 966 So. 2d 1237. This court granted Coregis's application for supervisory writs. Gray v. Am. Nat'l Prop. & Cas. Co., 07-1670 (La. 11/16/07), 967 So. 2d 513. When an appellate court reviews a district court judgment on a motion for summary judgment, it applies the de novo standard of review, "using the same criteria that govern the trial court's consideration of whether summary judgment is appropriate, i.e., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law." Supreme Serv. & Specialty Co., Inc. v. Sonny Greer, 06-1827, p. 4 (La. 5/22/07), 958 So.2d 634, 638. Because this case involves cross motions for summary judgment, "we will determine whether either party has established there are no genuine issues of material fact and [that] it is entitled to judgment as a matter of law." Duncan v. U.S.A.A. Ins. Co., 06-0363, p. 4
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(La. 11/29/06), 950 So. 2d 544, 547. In so doing, we must be mindful of the burdens of proof imposed upon a movant in a motion for summary judgment, which are set forth as follows in La. Code Civ. Proc. art. 966(C)(2): The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

VALIDITY OF UM SELECTION FORM UM insurance coverage in Louisiana is governed by the provisions of La. Rev. Stat. 22:680, which provide, in pertinent part, as follows: (1)(a)(i) No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle designed for use on public highways and required to be registered in this state or as provided in this Section unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability provided by the policy, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover nonpunitive damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness, or disease, including death resulting therefrom; however, the coverage required under this Section is not applicable when any insured named in the policy either rejects coverage, selects lower limits, or selects economic-only coverage, in the manner provided in Item (1)(a)(ii) of this Section. . . . (ii) Such rejection, selection of lower limits, or selection of economic-only coverage shall be made only on a form prescribed by the commissioner of insurance. The prescribed form shall be provided by the insurer and signed by the named insured or his legal representative. The form signed by the named insured or his legal representative which initially rejects such coverage, selects lower limits, or selects economic-only coverage shall be conclusively presumed to become a part of the policy or contract when issued and delivered, irrespective of whether physically attached thereto. A properly completed and signed
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form creates a rebuttable presumption that the insured knowingly rejected coverage, selected a lower limit, or selected economic-only coverage. The form signed by the insured or his legal representative which initially rejects coverage, selects lower limits, or selects economic-only coverage shall remain valid for the life of the policy and shall not require the completion of a new selection form when a renewal, reinstatement, substitute, or amended policy is issued to the same named insured by the same insurer or any of its affiliates. . . . This court recently addressed the validity of a UM selection form in Duncan, 06-0636, 950 So. 2d 544. As this court reiterated in Duncan, Louisiana statutory law provides for UM coverage for the purpose of providing "full recovery for automobile accident victims who suffer damages caused by a tortfeasor who is not covered by adequate liability insurance." Id. at 4, 950 So. 2d at 547. Flowing from this statutory protection principle are a number of well-established jurisprudential principles. For example, this court has long held that the existence and extent of UM coverage is determined not only by contractual provisions, but also by the applicable statute, currently La. Rev. Stat. 22:680. Id., 950 So. 2d at 547 (citing Roger v. Estate of Moulton, 513 So. 2d 1126, 1130 (La. 1987)). Because of this fact, UM coverage will be read into any automobile liability policy "unless validly rejected." Id. at 4, 950 So. 2d at 547 (citing Daigle v. Uthement, 96-1662, p. 3 (La. 4/8/97), 691 So. 2d 1213, 1214; Henson v. Safeco Ins. Co., 585 So. 2d 534, 537 (La. 1991)). This court has further held that the statutes providing for UM coverage in the absence of a valid rejection or selection of lower limits must be liberally construed, while the statutory exceptions to UM coverage must be strictly construed. Id., 950 So. 2d at 547 (citing Roger, 513 So. 2d at 1130). Any exclusion from coverage must be clear and unmistakable. Id. at 4-5, 950 So. 2d at 547 (citing Roger, 513 So. 2d at 1130). Thus, "the insurer bears the burden of proving any insured named in the policy rejected in writing the coverage equal to bodily injury coverage or selected lower

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limits." Id. at 5, 950 So. 2d at 547 (citing Tugwell v. State Farm Ins. Co., 609 So. 2d 195, 197 (La. 1992)). Because the insurer bears the burden of proving a valid rejection of UM coverage or selection of lower limits, when the Grays sought summary judgment in this case, they did not bear the burden of proving that the UM rejection form at issue is invalid. Thus, they were not required "to negate all essential elements of

[Coregis's] claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to [Coregis's] claim, action, or defense." La. Code of Civ. Proc. art. 966(C)(2). We find that the documents attached to the Grays' motion for summary judgment were sufficient to point out to the court an absence of proof for an essential element of Coregis's defense. The UM selection form presented by the Grays did not meet the

requirements imposed by the Insurance Commissioner because the spaces for the amount of lower UM coverage for each person and each accident were blank, as were the spaces for the printed "Name of Insured or Legal Representative," the "Policy Number," and the "Date." Once the Grays had successfully pointed out the absence of proof of an essential element of Coregis's defense, the burden shifted to Coregis to "produce factual support sufficient to establish that [it would] be able to satisfy [its] evidentiary burden of proof at trial." La. Code Civ. Proc. art. 966(C)(2). If Coregis failed to do so, La. Code of Civ. Proc. art. 966(C)(2) provides that "there is no genuine issue of material fact," and the Grays would be entitled to summary judgment in their favor. In this case, rather than simply opposing the Grays' motion for summary judgment, Coregis elected to file a cross motion for summary judgment. Thus, we will consider the documents attached to Coregis's cross motion for summary judgment both in

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opposition to the Grays' motion for summary judgment and as support for Coregis's cross motion for summary. Ultimately, then, determination of whether either the Grays or Coregis are entitled to summary judgment in this case depends on whether Coregis carried its burden of producing factual support sufficient to establish that it would be able to satisfy its evidentiary burden of proof at trial

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