Articles Posted in Insurance Law

Stacking of multiple UM (uninsured/underinsured motorist) liability policies is prohibited by the Anti-Stacking provision contained in La.R.S. 22:1295(1)(c), unless the injured party is occupying an automobile not owned by him/her, a resident spouse, or a resident relative. In that instance, the UM coverage on the automobile in which the injured party is an occupant is primary, and if exhausted due to the extent of the injured occupant’s damages, then the injured occupant may recover as excess from one other UM policy available to him/her.

In the absence of physical contact, the insured can prove “by an independent and disinterested witness, that the injury was the result of the actions of the driver of another vehicle whose identify is unknown.” La. R.S. 22:1295(1)(f). This is “justifiable because miss and run is too fraud-fraught: every driver who falls asleep or otherwise loses control and injures himself in a one-car accident could blame a non-existent miss-and-run driver and collect under his uninsured motorist coverage.” Springer v. GEICO, 311 So.2d 36 (La.App. 4th Cir.), writ denied, 313 So.2d 598 (La.1975).

The Third Circuit Court of Appeal in Stracener v. Millers Cas. Ins. Co. Of Texas, 682 So.2d 940 (La.App. 3d Cir. 1996), held that a “person who is dependent, either wholly or partially, upon one who stands to recover cannot be an independent and disinterested witness. Nor can a person who stands to recover be considered a disinterested witness.”

Is it reasonably forseeable that the first permittee might allow others to operate the automobile?

Implied permission by the named insured can be found even in the face of a specific prohibition against allowing others to operate the automobile if there is evidence that the named insured was aware of subsequent breaches by the permittee and took no remedial action or made no protests. On the other hand, the named insured’s express prohibition and consistent conduct enforcing the prohibition will preclude the implication that permission extends beyond the first permittee.

As long as initial use of an automobile is with the express or implied consent of the insured, the scope of permission granted the user will not preclude coverage unless the deviation from the permission consented to by the insured amounts to theft or other conduct displaying an utter disregard for the return or safe keeping of the vehicle.

Many liability policies extend coverage to relatives of the named insured who are “residents” of the same household of the named insured. Whether a person is or is not a resident of a particular place is a question of law as well as fact, and is to be determined from all of the facts of each particular case.

Residence and domicile are not synonymous terms. While a person may have only one domicile, he or she may have several residences.

Temporary absence does not necessarily preclude a relative from being a resident of the same household of the named insured.

On Friday, May 6, 2011, the Louisiana Supreme Court, in the per curiam decision of Johnson v. Louisiana Farm Bureau Casualty Insurance Company, 11-0476 (La. 5/6/2011), resolved a conflict between the Louisiana courts of appeal as to whether the “mailing or delivery” provision contained in La. R.S. 22:1335 (formerly La. R.S. 22:636.6) requires a notice of nonrenewal of a homeowner’s insurance policy to be mailed to the insured at the address shown in the policy, or whether the notice of nonrenewal must be actually delivered to the policy holder in order to be effective. Louisiana Revised Statute 22:1335, Homeowner’s insurance; cancellation, nonrenewal, provides in pertinent part:

A. An insurer that has issued a policy of homeowner’s insurance shall not fail to renew the policy unless it has mailed or delivered to the named insured, at the address shown in the policy, written notice of its intention not to renew. The notice of nonrenewal shall be mailed or delivered at least thirty days before the expiration date of the policy. If the notice is mailed less than thirty days before expiration, coverage shall remain in effect under the terms and conditions until thirty days after the notice is mailed or delivered. Any earned premium for the period of coverage extended beyond the expiration date shall be considered pro rata based upon the rate of the previous year.

B. The notice of nonrenewal shall not be required if the insurer or a company within the same insurance group has offered to issue a renewal policy, or if the named insured has provided written notification to the insurer of the intention of the insured not to renew.

In the Third Circuit, proof of mailing created a prima facie rebuttable presumption that the notice of nonrenewal was delivered to the insured, which presumption could be overcome by proving that notice was not delivered. In the Fourth Circuit, mailing of a notice of nonrenewal was sufficient to comply with the statute.

The Louisiana Supreme Court held that the statute only requires “mailing, not proof of receipt. Any evidence of non-delivery is relevant only as far as it is evidence of non-mailing or improper mailing. *** [T]he fact that the plaintiff did not receive the notice was otherwise irrelevant.”

So, it is crucial that policy holders immediately notify their homeowner’s insurance company of a change in mailing address; especially after a loss that might render mail undeliverable to the address listed in the policy.
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