April Tucker Versus Reginald Thornton, Thornton's Cab Service, Geico General Insurance Company, and Atlas Insurance Company ( 2023 )

APRIL TUCKER NO. 22-CA-431
VERSUS FIFTH CIRCUIT
REGINALD THORNTON, THORNTON'S CAB COURT OF APPEAL
SERVICE, GEICO GENERAL INSURANCE
COMPANY, AND ATLAS INSURANCE STATE OF LOUISIANA
COMPANY
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 779-380, DIVISION "L"
HONORABLE DONALD A. ROWAN, JR., JUDGE PRESIDING
April 26, 2023
JUDE G. GRAVOIS
JUDGE
Panel composed of Judges Jude G. Gravois,
Stephen J. Windhorst, and Cornelius E. Regan, Pro Tempore
AFFIRMED
JGG
SJW
CER
COUNSEL FOR PLAINTIFF/APPELLANT,
APRIL TUCKER
Daryl A. Gray
Eric A. Wright
Louis H. Thomas, III
COUNSEL FOR DEFENDANT/APPELLEE,
GEICO GENERAL INSURANCE COMPANY
J. Christopher Dippel, Jr.
Stephen D. Cronin
GRAVOIS, J.
Plaintiff/appellant, April Tucker, appeals the trial court’s May 5, 2022
judgment which granted a motion for a directed verdict filed by
defendant/appellee, GEICO General Insurance Company, against Ms. Tucker and
dismissed the matter with prejudice. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
On January 10, 2017, Ms. Tucker was a passenger in a taxicab owned by
Thornton’s Cab Service, LLC and driven by Reginald Thornton when the taxicab
was struck by a vehicle driven by Ashlinn Grubb. On January 8, 2018, Ms. Tucker
filed a petition for damages against Mr. Thornton, Thornton’s Cab Service, LLC,
its insurer, Atlas Insurance Group, LLC, and Ms. Tucker’s uninsured/underinsured
insurance carrier, GEICO. Ms. Tucker subsequently amended her petition for
damages to name as a defendant, American Service Insurance Company, as
Thornton’s Cab Service’s insurer. Ms. Grubb was never named as a defendant.1
On June 8, 2020, Ms. Tucker filed a motion to dismiss with prejudice all
claims against Mr. Thornton, Thornton’s Cab Service, American Service Insurance
Company, and Atlas Insurance Group. An order dismissing these parties with
prejudice was signed on June 9, 2020. Thereafter, GEICO remained as the only
defendant in the matter.
A jury trial on the merits of the matter began on May 4, 2022. After Ms.
Tucker rested her case, GEICO moved for a directed verdict. GEICO argued that
Ms. Tucker was insured under a Georgia Family Automobile Insurance Policy and
that policy falls under Georgia’s Uninsured Motorist Act, OCGA § 33-7-11. Based
on the statute, GEICO argued that Ms. Tucker was obligated to sue and obtain a
1
Ms. Tucker settled with State Farm Mutual Insurance Company, which provided
coverage to Ms. Grubb for the subject accident, for the policy limits, and a release was executed.
It was stipulated at trial that the State Farm policy had been exhausted.
22-CA-431 1
judgment against the underinsured motorist (Ms. Grubb) as a condition precedent
to her right to recover underinsured motorist benefits from GEICO. Because Ms.
Tucker never filed suit against Ms. Grubb and voluntarily dismissed the other
defendants, GEICO argued that she cannot recover against GEICO. The trial court
took the matter under advisement. On the following morning, the parties
reconvened, and following arguments by both parties, the trial court granted the
motion for a directed verdict.
A written judgment was signed on May 5, 2022, granting the motion for a
directed verdict filed by GEICO against Ms. Tucker and dismissing the matter with
prejudice at Ms. Tucker’s cost.2 In its reasons for judgment, the trial court first
found that Georgia law applied to this dispute. It then found that pursuant to
Georgia law, because the tortfeasor (Ms. Grubb) was never named in this suit,
there exists no vehicle to assign any fault to the tortfeasor. Without this
determination, there exists no legal liability under Georgia law on the part of the
underinsured motorist insurance carrier (GEICO). Thus, the trial court found that
because Ms. Tucker’s case presents no opportunity for a finding of legal liability
on the part of GEICO, as a matter of law, the motion for a directed verdict must be
granted. This appeal followed.
LAW AND ANALYSIS
A motion for a directed verdict is a procedural device available in jury trials
for purposes of judicial economy. Williams v. State Farm Mut. Auto. Ins. Co., 20-
2
The May 5, 2022 written judgment also contains written reasons for judgment.
Louisiana Code of Civil Procedure article 1918(B) states that when written reasons for judgment
are assigned, they shall be set out in an opinion separate from the judgment. However, the
Louisiana Supreme Court has held that the language contained in the second sentence of La.
C.C.P. art. 1918 is precatory, and as such does not render an otherwise complete and valid
judgment invalid merely because it contains surplus language. Hinchman v. International
Brotherhood of Electrical Workers, Local Union # 130, 292 So.2d 717 (La. 1974); Martin v.
JKD Investments, LLC, 42,196 (La. App. 2 Cir. 6/20/07), 961 So.2d 575, 578. In the present
case, the final judgment contains proper decretal language as required by La. C.C.P. art. 1918
and is a valid judgment subject to this Court’s jurisdiction. See Elledge v. Becnel, 22-0491 (La.
App. 1 Cir. 11/4/22), 354 So.3d 688, 691 n.1.
22-CA-431 2
248 (La. App. 5 Cir. 2/17/21), 314 So.3d 1010, 1021, writ denied, 21-0402 (La.
5/11/21), 315 So.3d 871. The motion should be granted when, after considering all
of the evidence in the light and with all reasonable inferences most favorable to the
movant’s opponent, it is clear that the facts and inferences point so
overwhelmingly in favor of granting the verdict, that reasonable jurors could not
arrive at a contrary result. Greene v. Lovisa, 16-660 (La. App. 5 Cir. 5/17/17), 221
So.3d 270, 276, writ denied, 17-1017 (La. 10/9/17), 227 So.3d 837. However, the
motion should be denied and the case submitted to the jury, if evidence is produced
in opposition to the motion that has such quality and weight that reasonable and
fair-minded persons, exercising impartial judgment, might reach different
conclusions. Id.The trial court has great discretion in determining whether a directed verdict
should be granted. Baudy v. Travelers Indem. Co. of Connecticut, 13-832 (La.
App. 5 Cir. 4/9/14), 140 So.3d 125, 131. The standard of review for the appellate
court is whether, viewing the evidence submitted, reasonable persons could not
reach a contrary result. Id. at 146. Moreover, the propriety of a directed verdict
must be evaluated in light of the substantive law related to the claims. Id.ASSIGNMENT OF ERROR NUMBER ONE
In her first assignment of error, Ms. Tucker argues that the trial court erred
in applying Georgia law and not Louisiana law in this case. Ms. Tucker argues
that Louisiana policies would be most seriously impaired if its laws were not
applied to the uninsured motorist provisions at issue in this case and to Ms.
Tucker’s uninsured motorist claims. She contends that:1) although she has a
Georgia policy, she has changed residences multiple times and will likely continue
to do so; 2) her job is primarily remote and requires her to travel to Louisiana and
other states; and 3) she has no significant or permanent ties to Georgia.
22-CA-431 3
The GEICO policy in the present case contains a “Choice of Law” provision
in Section V, entitled “General Conditions,” that states, “[t]he policy and any
amendment(s) and endorsement(s) are to be interpreted pursuant to the laws of
Georgia.”
Under Louisiana law, it is well established that where the parties stipulate to
the state law governing the contract, Louisiana conflict of laws principles require
that the stipulation be given effect, unless there is statutory or jurisprudential law
to the contrary or strong public policy considerations justify not honoring the
contract as written. See La. C.C. art. 3540;3 Clark v. Legion Ins. Co., 06-0320 (La.
App. 4 Cir. 11/29/06), 947 So.2d 110, 114, writ denied, 07-0368 (La. 3/30/07), 953
So.2d 69; Continental Eagle Corporation v. Tanner & Co., 95-295 (La. App. 3 Cir.
10/4/95), 663 So.2d 204, 206. A choice-of-law provision in a contract is presumed
valid until proven otherwise. The party seeking to prove the invalidity of the
contractual provision bears the burden of proof. Clark, supra.
In Louisiana, there is a strong public interest in providing full recovery for
automobile accident victims who suffer damages caused by a tortfeasor who is not
covered by adequate liability insurance. Garces-Rodriguez v. GEICO Indem. Co.,
16-196 (La. App. 5 Cir. 12/21/16), 209 So.3d 389, 393; Henson v. Safeco Ins. Co.,
585 So.2d 534, 537 (La. 1991). However, Louisiana also recognizes that other
states have an interest in the regulation of the insurance industry conducting
business within their borders and in the contractual obligations that are inherent
parts thereof. Champagne v. Ward, 03-3211 (La. 1/19/05), 893 So.2d 773. In
Champagne, the Supreme Court indicated that the integrity of the contract is a
3
Louisiana Civil Code article 3540 provides:
All other issues of conventional obligations are governed by the law expressly
chosen or clearly relied upon by the parties, except to the extent that law
contravenes the public policy of the state whose law would otherwise be
applicable under Article 3537.
22-CA-431 4
substantial and real interest. The Court further stated “[t]he fact that Congress has
allowed fifty states to have their own uniform system of regulations governing
insurance strongly suggests this is a legitimate public purpose.” Champagne, 893
So.2d at 788.
Upon review, we find Ms. Tucker failed to prove that the choice of law
provision contained in the GEICO policy is invalid and that any strong public
policy considerations justify not honoring the policy provision as written. It is
undisputed that this Georgia policy was issued to Ms. Tucker who, at the time, was
a resident of Georgia. Ms. Tucker testified at trial that she has never lived in
Louisiana, and at the time of the accident, she was only here for a work meeting.
We find that the choice of law provision contained in the GEICO policy prevails in
the present case, and as such, we find no error in the trial court’s determination that
Georgia law should be applied to this dispute.
ASSIGNMENTS OF ERROR NUMBERS TWO AND FOUR
In her second assignment of error, Ms. Tucker argues that even if Georgia
law applies, GEICO is estopped from invoking the condition precedent imposed by
OCGA § 33-7-11 since GEICO led Ms. Tucker to believe that she would receive
payment. She contends that she believed a payment would be coming based on a
$10,000 medical payments check she received from GEICO and because GEICO
stipulated to the limited release language of Ms. Tucker’s settlements with the
other defendants. She alleges that the case has been going on for five years, and
GEICO’s actions led her to believe that it would be forthcoming on her claims
without the need to engage in legal action. This caused Ms. Tucker to forfeit her
ability to amend and file suit against Ms. Grubb.
Similarly, in her fourth assignment of error, Ms. Tucker argues that
GEICO’s use of the motion for a directed verdict in this case was prejudicial. She
contends that she was deceived by GEICO since the UM provision issue GEICO
22-CA-431 5
now argues should have been negotiated and/or decided at an earlier stage of
litigation.
Under Georgia law, it is well settled that an injured party must first establish
that the driver of the uninsured vehicle is legally liable to him or her for the
accident before recovery is allowed under uninsured motorist coverage. Morton v.
Horace Mann Ins. Co., 282 Ga.App. 734, 738, 639 S.E.2d 352 (2006); Kent v.
State Farm Mut. Auto. Ins. Co., 233 Ga.App. 564, 565, 504 S.E.2d 710 (1998).
Thus OCGA § 33-7-11 has been interpreted to require that a claimant must obtain
a judgment against the uninsured motorist as a condition precedent to recovery
against an automobile liability carrier under the provisions of uninsured motorist
coverage. Id.
This condition precedent imposed by OCGA § 33-7-11 may be waived in
certain circumstances where the insurer has led the insured to believe that the
insured will be paid without suit by its actions in negotiating for settlement or
direct promises to pay. Harden v. State Farm Mut. Auto. Ins. Co., 339 Fed. Appx.
897, 902 (11th Cir. 2009); Chandler v. Liberty Mut. Fire Ins. Co., 333 Ga.App.
595, 598, 773 S.E.2d 876 (2015); Jones v. Cotton States Mut. Ins. Co., 185
Ga.App. 66, 363 S.E.2d 303 (1987). In United States Fid. & Guar. Co. v.
Lockhart, 124 Ga.App. 810, 811, 186 S.E.2d 362 (1971), the court found that the
condition precedent to be waived when the defendant “consistently and repeatedly
assured plaintiff that his claim under the uninsured motorist coverage for personal
injuries ... would be satisfactorily concluded, and that it would not be necessary for
plaintiff to initiate legal action of any kind in order to receive payment of his claim
... .”
Upon review, we find that Ms. Tucker failed to present any evidence that
GEICO waived the condition precedent imposed by OCGA § 33-7-11. Though
litigation has been ongoing, there was no evidence in the record that GEICO
22-CA-431 6
assured Ms. Tucker that it would pay without requiring her to engage in any legal
action against Ms. Grubb. GEICO did pay Ms. Tucker $10,000 under the medical
payments coverage of her policy; however, we do not find that this payment under
a different provision of her policy was a direct promise of payment. A review of
the record reveals that prior to the trial on the merits, GEICO argued that Georgia
law applied in this case, and so Ms. Tucker was presumably aware of GEICO’s
reliance on Georgia law. Ms. Tucker failed to provide any evidence that her
failure to name Ms. Grubb in her lawsuit and GEICO’s use of a motion for a
directed verdict was the result of any deception by GEICO. As such, we find no
error in GEICO’s use of the motion for a directed verdict, and the trial court’s great
discretion in granting the motion for a directed verdict. Accordingly, we find no
merit to these assignments of error.
ASSIGNMENT OF ERROR NUMBER THREE
Finally, in her third assignment of error, Ms. Tucker argues that OCGA §
33-7-11 has been interpreted under Georgia jurisprudence to require a plaintiff to
first sue and recover a judgment against an uninsured motorist—not an
underinsured motorist like Ms. Grubb in the present case. She contends that since
OCGA § 33-7-11 only applies to uninsured motorists, the trial court erred in
granting the directed verdict.
Ms. Tucker provides no legal support for her argument in this assignment of
error. Contrary to her argument, in Merch. v. Canal Ins. Co., 238 Ga.App. 727,
728, 520 S.E.2d 57 (1999), the court found that a 1980 amendment to OCGA § 33-
7-11 expanded the definition of uninsured motor vehicles to include underinsured
motor vehicles. Id., citing Hall v. Regal Ins. Co., 202 Ga.App. 511, 512, 414
S.E.2d 669 (1991). Since that time, the courts have applied the statute to
underinsured motor vehicles. See Kent, supra; Donovan v. State Farm Mut. Auto.
Ins. Co., 329 Ga.App. 609, 765 S.E.2d 755 (2014). In State Farm Mut. Auto. Ins.
22-CA-431 7
Co. v. Adams, 288 Ga. 315, 316, 702 S.E.2d 898 (2010), the Georgia Supreme
Court considered the language of OCGA § 33-7-11(b)(1)(D)(ii) to determine when
a motor vehicle is underinsured “and thereby an uninsured motor vehicle.” Id.
Further, the jurisprudence has noted that whether a motorist is uninsured or
underinsured, the statutory characterization is that of “uninsured.” See OCGA §
33-7-11(b)(1)(D)(ii)4; FCCI Ins. Co. v. McLendon Enterprises, Inc., 297 Ga. 136,
4
OCGA § 33-7-11(b)(1)(D)(ii), in its current version, provides, in pertinent part:
D) “Uninsured motor vehicle” means a motor vehicle, other than a motor vehicle
owned by or furnished for the regular use of the named insured, the spouse of
the named insured, and, while residents of the same household, the relative of
either, as to which there is:
(i) No bodily injury liability insurance and property damage liability
insurance;
(ii) Bodily injury liability insurance and property damage liability insurance
and the insured has uninsured motorist coverage provided under the
insured’s motor vehicle insurance policy; the motor vehicle shall be
considered uninsured, and the amount of available coverages shall be as
follows:
(I) Such motor vehicle shall be considered uninsured to the full extent of
the limits of the uninsured motorist coverage provided under the
insured’s motor vehicle insurance policies, and such coverages shall
apply to the insured’s losses in addition to the amounts payable under
any available bodily injury liability and property damage liability
insurance coverages. The insured’s uninsured motorist coverage shall
not be used to duplicate payments made under any available bodily
injury liability insurance and property damage liability insurance
coverages but instead shall be available as additional insurance
coverage in excess of any available bodily injury liability insurance
and property damage liability insurance coverages; provided, however,
that the insured’s combined recovery from the insured’s uninsured
motorist coverages and the available coverages under the bodily injury
liability insurance and property damage liability insurance on such
uninsured motor vehicle shall not exceed the sum of all economic and
noneconomic losses sustained by the insured. For purposes of this
subdivision, available coverages under the bodily injury liability
insurance and property damage liability insurance coverages on such
motor vehicle shall be the limits of coverage less any amounts by
which the maximum amounts payable under such limits of coverage
have, by reason of payment of other claims or otherwise, been reduced
below the limits of coverage;
(II) Provided, however, that an insured may reject the coverage referenced
in subdivision (I) of this division and select in writing coverage for the
occurrence of sustaining losses from the owner or operator of an
uninsured motor vehicle that considers such motor vehicle to be
uninsured only for the amount of the difference between the available
coverages under the bodily injury liability insurance and property
damage liability insurance coverages on such motor vehicle and the
limits of the uninsured motorist coverages provided under the
insured’s motor vehicle insurance policies; and, for purposes of this
subdivision, available coverages under the bodily injury liability
insurance and property damage liability insurance coverages on such
22-CA-431 8
137, n. 2, 772 S.E.2d 651 (2015). Accordingly, we find no merit to Ms. Tucker’s
argument that there is a distinction between uninsured and underinsured motorists
such that OCGA § 33-7-11 is not applicable in the present case. This assignment
of error is without merit.
DECREE
For the foregoing reasons, the trial court’s judgment which granted GEICO’s
motion for a directed verdict against Ms. Tucker and dismissed this suit with
prejudice is affirmed.
AFFIRMED
motor vehicle shall be the limits of coverage less any amounts by
which the maximum amounts payable under such limits of coverage
have, by reason of payment of other claims or otherwise, been reduced
below the limits of coverage; and …
22-CA-431 9
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
JOHN J. MOLAISON, JR.
CORNELIUS E. REGAN, PRO TEM FIFTH CIRCUIT
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JUDGES 101 DERBIGNY STREET (70053)
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APRIL 26, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
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22-CA-431
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE DONALD A. ROWAN, JR. (DISTRICT JUDGE)
ERIC A. WRIGHT (APPELLANT) STEPHEN D. CRONIN (APPELLEE)
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