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NOT DESIGNATED FOR PUBLICATION
GILBERT R. CHARLES                                                              *   NO. 2009-CA-0399
VERSUS                                                                          *
                                                                                    COURT OF APPEAL
U S AGENCIES CASUALTY                                                           *
INSURANCE COMPANY,                                                                  FOURTH CIRCUIT
WANDA VAUGHN AND AUTO                                                           *
CLUB FAMILY INSURANCE                                                               STATE OF LOUISIANA
COMPANY                                                                         *
APPEAL FROM
FIRST CITY COURT OF NEW ORLEANS
NO. 2008-50696, SECTION “A”
Honorable Charles A. Imbornone, Judge
Judge Dennis R. Bagneris, Sr.
(Court composed of Judge Dennis R. Bagneris, Sr., Judge Michael E. Kirby, and
Judge David S. Gorbaty)
Harold S. Bartholomew
3115 Metairie Road
P. O. Box 786
Metairie, LA 70004-0786
COUNSEL FOR PLAINTIFF/APPELLANT
Brittany L. Reed
Jason P. Foote
CHOPIN WAGAR RICHARD & KUTCHER, L.L.P.
3850 North Causeway  Boulevard
Two Lakeway Center, Suite 900
Metairie, LA 70002
COUNSEL FOR DEFENDANT/APPELLEE, AUTO FAMILY
INSURANCE COMPANY
AFFIRMED
SEPTEMBER 9, 2009




Charles R. Gilbert, plaintiff/appellant, appeals the judgment of the district
court granting defendants’/ appellees’, US Agencies Casualty Insurance
Company’s, et al, Motion for Summary Judgment and dismissing all claims against
the appellees. For the reasons that follow, we affirm.
Mr. Gilbert was involved in an automobile accident with Wanda Vaughn on
April 9, 2007. Mr. Gilbert filed a Petition for Damages in First City court for the
Parish of Orleans against Auto Club Family Insurance Company (hereinafter
ACFIC) as his UM carrier since Ms. Vaughn was underinsured. On December 1,
2008, the First City Court of New Orleans dismissed the matter. On January 13,
2009 the First City Court denied Mr. Gilbert’s Motion for New Trial. It is from this
judgment that Mr. Gilbert takes the instant appeal.
Now, before this Court, Mr. Gilbert argues that the district court erred in
entering summary judgment in favor of ACFIC because Mr. Gilbert never received
a notice from ACFIC cancelling his insurance policy for nonpayment. Mr. Gilbert
argues that there remains a genuine issue of material fact as to whether the
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payment notice that ACFIC sent to Mr. Gilbert was ever received by him and
whether ACFIC owed Mr. Gilbert for overcharging him on another automobile
policy.
Mr. Gilbert maintained automobile insurance on two vehicles, a 1997 BMW
and a 1998 Dodge. Mr. Gilbert’s 1998 Dodge was a total loss in September 2006
as a result of a separate accident. The car involved in the accident at issue was Mr.
Gilbert’s 1997 BMW to which ACFIC administered policy number N-64647832-1
to be effective December 5, 2006 through June 5, 2007. ACFIC sent Mr. Gilbert
monthly bills and he made the monthly premium payments accordingly. Mr.
Gilbert paid his premium for the months of December, January, February and
March. On March 14, 2007, ACFIC mailed Mr. Gilbert a “Payment Notice” which
indicated that failure to pay would cause his policy to cancel on April 5, 2007 at
12:01 a.m.. Mr. Gilbert did not submit a payment and ACFIC issued a cancellation
notice on April 6, 2007 via U.S. mail. Mr. Gilbert’s accident with Ms. Vaughn was
on April 9, 2007; a couple of days after his insurance was cancelled. Prior to the
cancellation letter being sent, ACFIC erroneously sent a letter to Mr. Gilbert
stating that his policy was effective at the time of the accident. Mr. Gilbert,
although late, continued to make payments to ACFIC and his policy was reinstated
retroactively to April 20, 2007.
In determining whether summary judgment is appropriate, appellate courts
review  the  evidence  de  novo.  Reynolds  v.  Select  Properties,  Ltd.,              93-1480
(La.4/11/94),  634 So.2d  1180. Appellate courts review summary judgments de
novo, using the same criteria applied by trial courts to determine whether summary
judgment is appropriate. Id. at 1182. The summary judgment procedure is designed
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to secure the just, speedy and inexpensive determination of actions. Two Feathers
Enterprises v. First National Bank, 98-0465 (La.App.4.Cir.10/14/98), 720 So.2d
398,  400. This procedure is now favored and shall be construed to accomplish
these  ends.  La.  C.C.P.  art.                                                          966(A)(2).  This  standard  of  review  requires  the
appellate court to look to the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, to show that there is no
genuine issue as to a material fact, and that the mover is entitled to a judgment as a
matter of law. La. C.C.P. art. 966(B). To affirm summary judgment, we must find
reasonable minds would inevitably conclude that the mover is entitled to judgment
as a matter of the applicable law on the facts before the court. Monts v. Board of
Supervisors  of  the  Louisiana  State  University,                                      2001-1497,                                              (La.App.   4  Cir.
2/27/02), 812 So.2d 787; Washington v. State, Dept. of Transp. & Development,
95-14 (La.App. 3 Cir. 7/5/95), 663 So.2d 47; Canal 66 Partnership v. Reynoir
2002-0355 (La.App. 4 Cir. 1/15/03) 838 So.2d 52.
The instant case is not a complex case. What is required of this Court is a
review of the record to ensure that there was no error in the district court’s finding
that no genuine issues of material fact remain.
The record reveals that Mr. Gilbert was in an automobile accident with Ms.
Vaughn on April 9, 2007, while driving his 1997 BMW. On March 14, 2007, Mr.
Gilbert was sent, via U.S. mail, a notice from ACFIC that his monthly premium
was due on the policy assigned to the 1997 BMW or cancellation of the policy
would ensue. The policy was cancelled a 12:01 as indicated by ACFIC’s mailing
because Mr. Gilbert failed to pay the amount owed. Mr. Gilbert’s affidavit is not
enough proof to conclude that he did not receive notice of the policy cancellation.
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ACFIC was not required to notify Mr. Gilbert via certified mail as he argues.
La.R.S.  22:636 Automobile, property, casualty, and liability insurance policies;
cancellations reads in pertinent part:
B.  (1)  A  notice  of  cancellation  of  a  policy  shall  be
effective  only  if  it  is  based  on  one  or  more  of  the
following reasons:
(a) Nonpayment of premium.
…
D.  (1) No notice of cancellation of a policy to which
Subsection  B  or  C  of  this  Section  applies  shall  be
effective unless mailed by certified mail or delivered by
the insurer to the named insured at least thirty days prior
to  the  effective  date  of  cancellation;  however,  when
cancellation is for nonpayment of premium at least ten
days notice of cancellation accompanied by the reason
therefor shall be given. In the event of nonpayment of
premiums for a binder, a ten day notice of cancellation
shall  be  required  before  the  cancellation  shall  be
effective.  Notice  of  cancellation  for  nonpayment  of
premiums shall not be required to be sent by certified
mail.  Unless  the  reason  accompanies  the  notice  of
cancellation, the notice of cancellation shall state or be
accompanied by a statement that upon written request of
the  named  insured,  mailed  or  delivered  to  the  insurer
within six months after the effective date of cancellation,
the insurer will specify the reason for such cancellation.
This   Subsection   shall   not   apply   to   nonrenewal.
(emphasis added)
Further,  Mr.  Gilbert  had  made  his  monthly  payments  prior  to  April
demonstrating that he was familiar with the payment process and was aware of the
monthly due date. We are of the opinion that the misrepresentation of an ACFIC
adjuster mistakenly informing Mr. Gilbert that he was insured at the time of the
accident was just bad business and confusing for the customer. We are not of the
opinion  however  that  the  erroneous  statement  made  by  the  adjuster  over  the
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telephone, and later in writing, caused Mr. Gilbert’s policy to become effective.
Further, Mr. Gilbert’s contention that ACFIC continued to take payments on a
policy that insured two cars  (one of which he no longer had) and that ACFIC
should have considered the overage and applied the funds to the insurance to the
1997 BMW is far-reaching. Mr. Gilbert should have taken the initiative to maintain
his policy for his own benefit. He had an obligation to cancel insurance on a car
that was no longer being used. It was irresponsible to assume that ACFIC was
tweaking his policy and his payments in a way that is most beneficial to him
without  his  review.  The  mere  fact  that  Mr.  Gilbert  made  monthly  premium
payments  shows  his  implied  acceptance  of  the  terms  of  the  policy  and  the
coverage. As to Mr. Gilbert’s contention that he turned in his license plate to the
Department of Motor Vehicles after the accident but continued to pay toward his
policy, that this is a non-issue because the record indicates that Mr. Gilbert was
reimbursed for the overage by ACFIC.
ACFIC  provided  the  district  court  with  a  proof  of  mailing  certificate
although Mr. Gilbert submitted an affidavit attesting that he did not receive the
cancellation notice sent by ACFIC. ACFIC submitted an affidavit from the adjuster
admitting that the information provided to Mr. Gilbert over the telephone was
erroneous and was simply based on his personal knowledge of the policy. The
evidence  presented  by  Mr.  Gilbert  fails  to  rebut  the  showing  of  supportive
evidence by ACFIC in order for there to remain a genuine issue of material fact.
Mr. Gilbert was not insured by ACFIC at the time of the accident, therefore there
was no error in the district court’s ruling.
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Decree
For the reasons stated above, we affirm the ruling of the district court.
AFFIRMED
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