Faith A. Boudoin Versus Safeco Insurance Company of Oregon, Amex Assurance Company, Allstate Property and Casualty Insurance Company, Teresa Fuhrman, and Trent R. Fuhrman ( 2023 )

FAITH A. BOUDOIN NO. 23-CA-65
VERSUS FIFTH CIRCUIT
SAFECO INSURANCE COMPANY OF COURT OF APPEAL
OREGON, ET AL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 759-719, DIVISION "M"
HONORABLE SHAYNA BEEVERS MORVANT, JUDGE PRESIDING
October 25, 2023
SCOTT U. SCHLEGEL
JUDGE
Panel composed of Judges Fredericka Homberg Wicker,
Stephen J. Windhorst, and Scott U. Schlegel
REVERSED IN PART; AFFIRMED IN PART;
REMANDED AS INSTRUCTED IN OPINION
SUS
FHW
SJW
COUNSEL FOR PLAINTIFF/APPELLEE,
FAITH A. BOUDOIN
Paul E. Mayeaux
COUNSEL FOR DEFENDANT/APPELLANT,
RLI INSURANCE COMPANY
Matthew D. Moghis
William Peter Connick
Michael S. Futrell
Tucker H. Wimberly
Thomas P. Owen, Jr.
COUNSEL FOR DEFENDANT/APPELLEE,
RURAL TRUST INSURANCE COMPANY
Jason P. Foote
Devin Caboni-Quinn
Kaleigh K. Rooney
SCHLEGEL, J.
Defendant, RLI Insurance Company (RLI), appeals the trial court’s
September 7, 2022 Judgment, which found that Louisiana’s anti-stacking
provision, La. R.S. 22:1295(1)(c), did not apply to the uninsured/underinsured
motorist (UM) insurance policies at issue in this matter. Consequently, the trial
court denied RLI’s summary judgment motion and granted summary judgment, in
part, in favor of plaintiff, Faith Boudoin, and defendant, Rural Trust Insurance
Company (Rural), as to the ranking or order of exhaustion of the UM policies at
issue. RLI also contends on appeal that if the anti-stacking law applies, Ms.
Boudoin must choose whether to recover from 1) her personal line of UM coverage
issued by RLI, or 2) a line of UM coverage issued to her employer, Eatelcorp, LLC
(Eatel), by Rural and co-defendant, Continental Casualty Company (Continental).1
For reasons explained more fully below, we reverse the trial court’s
September 7, 2022 Judgment granting summary judgment, in part, in favor of Ms.
Boudoin and Rural on the issue of ranking, and grant summary judgment, in part,
in favor of RLI, based on our finding that the anti-stacking law set forth in La. R.S.
22:1295(1)(c) applies to this matter. We also affirm, in part, the trial court’s denial
of RLI’s summary judgment motion (and grant Continental’s motion for summary
judgment in the companion appeal), based on our finding that La. R.S.
22:1295(1)(e) prevents Ms. Boudoin from recovering against her employer’s
policy issued by Continental.
FACTS AND PROCEDURAL BACKGROUND
On May 13, 2015, Ms. Boudoin was driving her own personal vehicle, a
2009 Mercury Mariner, in the course and scope of her employment with Eatel,
1
Continental filed an appeal in companion appeal, Case No. 23-CA-123, also contesting the trial court’s
judgment with respect to the application of the anti-stacking law. It further argues that the trial court
erred to the extent it found Ms. Boudoin can recover under its excess coverage policy issued to Eatel, in
addition to Ms. Boudoin’s personal UM policies.
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when she was rear-ended by a 2014 Hyundai Accent driven by defendant, Teresa
Fuhrman. Ms. Fuhrman’s vehicle was covered by an automobile liability policy
issued by Safeco Insurance Company of Oregon with a limit of $50,000.00, and
she was also personally covered by a policy with Progressive Casualty Insurance
Company with $15,000.00 limits. At the time of the accident, Ms. Boudoin
personally maintained a policy with Allstate Property and Casualty Insurance
Company (Allstate) that provided $250,000.00 in UM coverage, and a
$1,000,000.00 personal umbrella policy with RLI. Eatel also maintained a
commercial automobile policy through The Phoenix Insurance Company, a
Travelers’ company (Travelers) with $1,000,000.00 in UM coverage, an excess
third-party liability policy with Continental with limits of $25,000,000.00, and a
commercial excess/umbrella policy with Rural providing $10,000,000.00 in
coverage.
Allstate tendered its policy limits of $250,000.00 to Ms. Boudoin, and on
August 31, 2020, the trial court entered an order dismissing her claims against
Allstate with prejudice. Ms. Boudoin also entered into a settlement agreement
with Travelers on September 27, 2021 for $865,000.00 of its $1,000,000.00 UM
policy limits, and on October 21, 2021, the trial court entered an order dismissing
Travelers with prejudice. Following the settlement with Travelers, Ms. Boudoin,
as well as several of the insurance companies, filed motions for summary judgment
seeking rulings on coverage and ranking issues that are the subject of the present
appeal.
Ms. Boudoin filed a summary judgment motion arguing that at the time of
the accident she was covered by her personal UM policies and her employer’s UM
policies and that she is entitled to recover from all of them ‒ her personal UM
policy with RLI, as well as Eatel’s UM policies with Continental and Rural. She
further asked the trial court to rank the order of payment for the UM policies as
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follows: 1) Allstate; 2) RLI; 3) Travelers; 4) Continental; and 5) Rural. Rural filed
a similar summary judgment motion, but asked that the trial court rank its policy
last in the order of payment arguing that its policy was a true excess policy.
Continental, on the other hand, argued in its summary judgment motion that
the anti-stacking provision contained in the UM statute, La. R.S. 22:1295(1)(c),
prohibited Ms. Boudoin from recovering against multiple UM policies because Ms.
Boudoin owned the vehicle she occupied at the time of the accident. Continental
also argued that, irrespective of whether coverage existed, La. R.S. 22:1295(1)(e)
barred her from recovering under its policy because she was occupying a vehicle
she owned at the time of the accident, which was not specifically listed in the
Travelers or Continental policies. Therefore, Continental argued that Ms. Boudoin
could only recover from her personal line of UM policies issued by Allstate and
RLI.
RLI agreed that the anti-stacking provision applies in this matter, but filed its
own motion for summary judgment arguing that Ms. Boudoin should be allowed to
choose whether to pursue coverage under her personal line of UM policies with
Allstate and RLI totaling $1,250,000.00 in limits, or Eatel’s line of policies issued
by Travelers, Continental, and Rural with total limits of $36,000,000.00. RLI
further argued that if Ms. Boudoin chooses to recover under her personal line, then
she could not recover any additional proceeds from RLI because she previously
settled with Allstate and Travelers, which had combined UM policy limits of
$1,250,000.00. RLI argued that allowing Ms. Boudoin to recover any further
proceeds from RLI would violate the prohibition in La. R.S. 22:1295(1)(c) against
increasing the limits provided under more than one policy. Finally, RLI argued
that if the trial court reached the issue of ranking, its excess umbrella policy should
be ranked after Travelers’ primary UM policy.
23-CA-123 3
Following oral argument on August 22, 2022, the trial court took the matter
under submission. On September 7, 2022, the trial court issued a written judgment
with reasons granting Ms. Boudoin’s and Rural’s motions for summary judgment,
in part, as to ranking, and denied Continental and RLI’s summary judgment
motions. On October 3, 2022, the trial court also entered an order designating this
judgment as final pursuant to La. C.C.P. art. 1915(B).
DISCUSSION
The summary judgment procedure is designed to secure the just, speedy, and
inexpensive determination of every action and is favored. La. C.C.P. art.
966(A)(2). Summary judgment shall be granted “if the motion, memorandum, and
supporting documents shows that there is no genuine issue as to material fact and
that the mover is entitled to judgment as a matter of law.” La. C.C.P. art.
966(A)(3). Appellate courts review the grant or denial of a motion for summary
judgment de novo, using the same criteria applied by the trial court, to determine
whether any genuine issue of material fact exists and whether the mover is entitled
to judgment as a matter of law. Simon v. State Farm Mut. Auto. Ins. Co., 16-46
(La. App. 5 Cir. 9/8/16), 201 So.3d 1007, 1009.
Anti-Stacking Law Applies
Although Louisiana’s public policy strongly favors UM coverage and a
liberal construction of the UM statute, limitations on UM coverage are valid where
they are authorized by statute. Id. at 1010. The primary issue before this Court is
whether Louisiana’s anti-stacking law, La. R.S. 22:1295(1)(c), applies to bar Ms.
Boudoin from recovering against both her personal line of UM insurance and her
employer’s line of UM coverage. Stacking of UM coverages occurs when the
amount available under one policy is inadequate to satisfy the damages alleged or
awarded to the insured, and the same insured seeks to combine or stack one
coverage on top of another for the same loss covered under multiple policies or
23-CA-123 4
under multiple coverages contained in a single policy. Boullt v. State Farm Mut.
Auto. Ins. Co., 99-942 (La. 10/19/99), 752 So.2d 739, 742. Since 1977, with one
exception set forth in the second part of the provision, Louisiana’s anti-stacking
law, La. R.S. 22:1295(1)(c), has prohibited insureds from combining or stacking
UM benefits:
(c) If the insured has any limits of uninsured motorist coverage in a
policy of automobile liability insurance, in accordance with the terms
of Subparagraph (1)(a) of this Section, then such limits of liability
shall not be increased because of multiple motor vehicles covered
under such policy of insurance, and such limits of uninsured motorist
coverage shall not be increased when the insured has insurance
available to him under more than one uninsured motorist coverage
provision or policy; however, with respect to other insurance
available, the policy of insurance or endorsement shall provide the
following with respect to bodily injury to an injured party while
occupying an automobile not owned by said injured party, resident
spouse, or resident relative, and the following priorities of recovery
under uninsured motorist coverage shall apply:
(i) The uninsured motorist coverage on the vehicle in which the
injured party was an occupant is primary.
(ii) Should that primary uninsured motorist coverage be exhausted due
to the extent of damages, then the injured occupant may recover as
excess from other uninsured motorist coverage available to him. In no
instance shall more than one coverage from more than one uninsured
motorist policy be available as excess over and above the primary
coverage available to the injured occupant. [Emphasis added.]
This anti-stacking law prohibits recovery against multiple UM coverages
available to the same insured, except under the limited circumstances prescribed
above in the anti-stacking provision. See 15 La. Civ. L. Treatise, Insurance Law &
Practice, McKenzie & Johnson, §4.27, Stacking of multiple coverages ‒ The 1977
anti-stacking provision. Under the first section of the statute, an insured seeking
to recover under multiple UM policies “is limited to recovery under only one
policy and may not combine or stack coverages.” Boullt, 752 So.2d at 743. In
Boullt, the Louisiana Supreme Court explained that under the second part of the
anti-stacking law, an exception to the stacking prohibition is permitted if: (1) the
injured party is occupying an automobile not owned by the injured party, resident
23-CA-123 5
spouse, or resident relative; (2) the UM coverage on the vehicle in which the
injured party was an occupant is primary; and (3) the primary UM coverage is
exhausted due to the extent of damages. Id.
Therefore, a person insured under the UM provisions of several different
policies, and occupying a vehicle owned by the insured at the time of the accident,
may recover under one, and only one, of the policies. See Pitts v. Fitzgerald, 01-
543 (La. App. 1 Cir. 5/10/02), 818 So.2d 847, 853. Pursuant to the plain language
of the statute, recovery under more than one policy is prohibited, except when the
injured party is “occupying an automobile not owned by the injured party, resident
spouse or resident relative.” If the injured party is in a non-owned vehicle, then the
statutory exception permits the injured party to recover under the UM coverage on
the vehicle in which she is riding (statutory primary coverage) and also under one
of the other UM policies available to her (statutory excess coverage). See 15 La.
Civ. L. Treatise, Insurance Law & Practice, McKenzie & Johnson, §4.27, Stacking
of multiple coverages ‒ The 1977 anti-stacking provision. (“The main theme of the
provision is that a person can recover under only one UM policy.”) The parties do
not dispute that Ms. Boudoin owned the vehicle she occupied at the time of the
injury. Therefore, the anti-stacking exception does not apply and the plain
language of La. R.S. 22:1295(1)(c) dictates that Ms. Boudoin can only pursue one
line of UM coverage. 2
Louisiana courts have addressed the issue of stacking in similar situations
involving an employee operating his or her own vehicle while acting in the course
2
The parties agree that the one policy limit does not apply to umbrella/excess policies (i.e., RLI
umbrella/excess policy) purchased by the same insured to provide layers of additional coverage. “Layers
of primary and excess UM coverage purchased by a single insured is the equivalent of one policy that
provides the total limits of liability and should be treated as such under the anti-stacking provision.” 15
La. Civ. L. Treatise, Insurance Law & Practice, McKenzie & Johnson, §4.31, Stacking of multiple
coverages ‒ Excess and Umbrella Policies; Gentry v. Meade, 99-1030, 99-1031 (La. App. 4 Cir. 4/19/00),
767 So.2d 60, 62, writ denied, 00-1969 (La. 10/6/00), 771 So.2d 85. “Policies purchased by different
insureds that provide coverage for the same vehicle or person, however, should be examined more
closely.” 15 La. Civ. L. Treatise, Insurance Law & Practice, §4.31.
23-CA-123 6
and scope of employment, and with UM coverage potentially available under
separate policies issued to both the employee and employer. In Irvin v. State Farm
Mut. Auto. Ins. Co., 03-717 (La. App. 3 Cir. 12/10/03), 867 So.2d 777, writ denied,
03-3537 (La. 3/26/04), 871 So.2d 347, the plaintiff was struck from behind by an
underinsured motorist while driving her own vehicle in the course and scope of her
employment. State Farm provided UM coverage to both the plaintiff and her
employer, and the plaintiff filed suit against State Farm in its capacity as the UM
insurer for her employer. State Farm then filed a motion for summary judgment
arguing that the Louisiana anti-stacking law prohibited the plaintiff from stacking
her employer’s UM policy on her personal UM policy. The trial court granted
State Farm’s summary judgment motion and plaintiff appealed.
On appeal, the plaintiff argued that the employer’s UM policy covered her
vehicle because it provided coverage for non-owned vehicles used in the
employer’s business. The appellate court reasoned that it did not need to reach the
question of coverage under the employer’s policy because even if that policy
provided her UM coverage, the anti-stacking law, La. R.S. 22:1406(D)(1)(c), now
redesignated as La. R.S. 22:1295(1)(c),3 prevented a plaintiff who has her own
UM insurance from receiving UM benefits under her employer’s UM policy. Id. at
779. The Irvin court reasoned that:
Ms. Irvin’s accident falls clearly under the anti-stacking provision.
Ms. Irvin herself has UM insurance. Even if she were insured under
her employer's policy as she argues here, under the language of the
statute, she cannot increase her limits of UM coverage because she
has insurance available to h[er] under more than one uninsured
motorist coverage provision or policy. [Emphasis added.]
Id.3
Acts 2003, No. 456 § 3 redesignated La. R.S. 22:1406(D)(1)(c) to La. R.S. 22:680(1)(c), and Acts 2009,
No. 415, § 1, redesignated La. R.S. 22:680(1)(c) to La. R.S. 22:1295(1)(c). The redesignations did not
include pertinent substantive revisions to the anti-stacking law.
23-CA-123 7
In reaching its decision, the Irvin court also relied on the following
reasoning contained in the First Circuit’s decision in Pitts, 818 So.2d at 852-
53, finding that the anti-stacking statute limits the insured to one UM policy:
The language of the anti-stacking statute limits the insured to recovery
under only one policy, not allowing the insured to combine or stack
coverages. The question of stacking only arises once it is determined
that the person seeking to cumulate benefits on two or more uninsured
motorist coverages is an “insured” under the terms of those policies.
Similarly, in Rowe v. Williams, 41,082 (La. App. 2 Cir. 8/23/06), 938 So.2d
1185, 1188, the Second Circuit held that the anti-stacking provision precluded an
employee from recovering UM benefits under both her employer’s policy and her
personal policy because she was driving her own vehicle at the time of the
accident. The Rowe court reasoned that “[g]enerally, the UM coverage of the
occupied vehicle is the applicable coverage, and Section (c)(i) establishes the
general rule that the insured may not stack UM coverages even when the insured
has coverage available to him under more than one policy.” Id. at 1187. The Rowe
court concluded that allowing the plaintiff to recover under both her personal UM
policy and the employer’s UM policy would violate the anti-stacking law. Id. at
1188.
Ms. Boudoin argues in opposition on appeal that the anti-stacking law was
never intended to prevent a plaintiff from recovering against her own UM coverage
that she purchased, as well as coverage purchased by the employer to cover its
employee’s vehicles. The trial court agreed with Ms. Boudoin’s position and
determined that the anti-stacking provision did not apply as all of the policies at
issue are “primary” policies because they provide UM coverage for Ms. Boudoin’s
vehicle. However, the first portion of the anti-stacking provision applicable to this
matter does not contain any language referencing an exception to the one policy
limit based on the primary nature of the policies. Rather, the language referencing
primary and excess policies is contained in the second portion of the statute
23-CA-123 8
providing the exception for non-owned vehicles. As established above, the plain
language of the anti-stacking law provides that the exception does not apply in this
case because Ms. Boudoin owned the vehicle she occupied at the time of the
accident.
In reaching its decision to treat all of the policies at issue as “primary,” the
trial court relied on several older decisions, including this Court’s decision in
Capone v. King, 467 So.2d 574, 579 (La. App. 5th Cir. 1985), writ denied, 468
So.2d 1203 and 468 So.2d 1205 (La. 1985), as well as the First Circuit’s decision
in Pardue v. Dean, 515 So.2d 543 (La. App. 1st Cir. 1987). Neither case, however,
supports the trial court’s departure from the plain language of La. R.S.
22:1295(1)(c) in this case.
We first find that the trial court erred by relying on Capone, supra, because
the injured plaintiff in that matter was a passenger and did not own the vehicle she
occupied at the time of the accident. As discussed in detail above, the applicable
prohibitions set forth in the anti-stacking law differ greatly depending on whether
or not the plaintiff owned the occupied vehicle. In analyzing whether the plaintiff
could recover against various UM policies covering the vehicle, the Capone court
analyzed the second portion of the anti-stacking provision containing the exception
that only applies to non-owner occupants:
The statute states that primary coverage is coverage on the “vehicle in
which the injured party was an occupant”, La. R.S. 22:1406(D)(1)(c)(i).
Section 1406(D)(1)(C)(ii) (sic) states that once primary coverage is
exhausted, the injured party may then reach one other non-primary
policy. Because the Allstate, Aetna and Chicago policies all covered
the car in which Capone was a passenger, they are all primary, and
therefore available without reference to the above rule on stacking.4
Id. at 579-80.
4
The provisions referred to in Capone, supra, are La. R.S. 22:1295(1)(c)(i) and (ii) in the current version
of the statute.
23-CA-123 9
These provisions are not applicable to the analysis in the current matter
because Ms. Boudoin was not a non-owner occupant who falls within the
exception to the stacking prohibition. The primary/excess issue does not arise
under the anti-stacking provision unless the injured party is occupying a vehicle
that is not owned by the injured party, resident spouse, or resident relative. See 15
La. Civ. L. Treatise, Insurance Law & Practice, §4.31, fn. 4.
The trial court also erred by relying on the First Circuit’s decision in Pardue,
supra. Despite the apparent distinction between owned and non-owned vehicles
when analyzing the anti-stacking provisions, the First Circuit incorrectly utilized
the reasoning in Capone, supra, in a case involving a plaintiff who was injured in
his own vehicle while driving in the course and scope of his employment. The
plaintiff had a personal UM policy with Hanover Insurance Company and his
employer had a UM policy with Aetna Casualty and Insurance Company. The
plaintiff settled with Hanover and the trial court granted a summary judgment
motion in favor of the employer’s insurer, Aetna, finding that the anti-stacking law
prohibited plaintiff from recovering additional UM proceeds. The First Circuit
reversed based on its incorrect reliance on Capone and the anti-stacking exception
as follows:
The anti-stacking law seems at first blush to limit UM recovery to one
policy for a person injured in his own car, and, under a limited
exception, to two policies for one injured in a car he does not own.
Yet the rule and the exception must be read in pari materia with the
entire UM law. LSA–C.C. art. 17. The exception defines primary
coverage as that coverage on the vehicle in which the person was
injured. In Breaux v. Louisiana Farm Bureau Mut. Ins. Co., 413 So.2d
988, 994 (La. App. 1st Cir.), cert. denied, 420 So.2d 453 (La. 1982),
involving a plaintiff injured in his own vehicle, this court held that the
coverage on that vehicle was his exclusive UM coverage. If, however,
that vehicle has more than one UM policy on it, then for purposes of
the statute, all such policies are primary. Capone v. King, 467 So.2d
574, 579-80 (La. App. 5th Cir.), cert. denied, 468 So.2d 1203, 1205
(La. 1985). And, according to the statute “other uninsured motorist
23-CA-123 10
coverage available to [the insured]” is excess insurance. LSA–R.S.
22:1406 D(1)(c).
Pardue, 515 So.2d at 544-45.
The Pardue court even conceded that its decision was inconsistent with the
plain language of the anti-stacking law, but nevertheless ruled inapposite,
reasoning that “simple fairness dictates this interpretation of the anti-stacking law.”
Id. at 545. The court also expressed concerns that if the employer’s policy did not
provide coverage for an employee driving her own vehicle, it was pointless for the
employer to pay for employee coverage. Id. at 545. However, this position
overlooks the scenario where the employer’s policy provides coverage to an
employee that does not have UM coverage on her owned vehicle. In that instance,
a stacking issue does not arise because it does not involve multiple policies bought
by different insureds. When a law is clear and unambiguous and its application
does not lead to absurd consequences, the law shall be applied as written and no
further interpretation may be made in search of the intent of the legislature. La.
C.C. art. 9.
Further, the continued validity of the reasoning in Pardue in the First
Circuit is in question because in its more recent decisions, Pitts, supra, and Green
v. Johnson, 16-1525 (La. App. 1 Cir. 1/10/18), 241 So.3d 1188, 1194, the First
Circuit has come full circle and recognized that the plain language of La. R.S.
22:1295(1)(c) limits an insured to recover under only one policy unless the insured
is occupying a non-owned vehicle at the time of the accident. The Green court
explained as follows:
Louisiana Revised Statute 22:1295(1)(c), known as the “anti-
stacking” provision, limits an insured to recovery under only one
policy and prohibits an insured from combining or stacking coverage,
except when the insured is injured “while occupying an automobile
not owned by said injured party, resident spouse or resident relative.”
(Emphasis added.) See also Pitts v. Fitzgerald, 01-0543, p. 8 (La.
App. 1st Cir. 5/10/02), 818 So.2d 847, 852-853. A person who is
insured under the UM provisions of several different insurance
23-CA-123 11
policies may recover under one, and only one, of the policies. Pitts,
01-0543 at p. 8, 818 So.2d at 853; see also McKenzie & Johnson,
Insurance Law and Practice, 15 La. Civ. Law Treatise § 4:27 (4th ed.
2012) (noting that the main theme of the provision is that a person can
recover under only one UM policy).
Id.
Accordingly, we find that La. R.S. 22:1295(1)(c), the anti-stacking
provision, applies in this case and Ms. Boudoin is limited to recovery under only
her personal line of coverage, similar to the plaintiffs in Irvin and Rowe, supra,
because she owned the vehicle she occupied at the time of the accident.
Selection of Line of Coverage
While RLI acknowledges that the anti-stacking law applies in this matter and
that Ms. Boudoin can only recover from one line of coverage, RLI suggests that
Ms. Boudoin should be allowed to choose to recover either from her own personal
line of coverage or from her employer Eatel’s line of coverage. In support of this
argument, RLI cites to the Louisiana Supreme Court’s decision in Wyatt v. Robin,
518 So.2d 494, 495 (La. 1988). The Wyatt court considered whether a plaintiff,
injured while occupying an owned vehicle covered by a UM policy, must accept
coverage on the UM policy covering that vehicle or may choose another available
policy with higher coverage, and determined in favor of the right to select. Id; see
also 15 La. Civ. L. Treatise, Insurance Law & Practice, McKenzie & Johnson,
§4.29, Stacking of multiple coverages ‒ Right to select policy.
Shortly thereafter though, the legislature enacted La. R.S. 22:1406(D)(1)(e),
now La. R.S. 22:1295(1)(e), which provides as follows:
(e) The uninsured motorist coverage does not apply to bodily injury,
sickness, or disease, including the resulting death of an insured, while
occupying a motor vehicle owned by the insured if such motor
vehicle is not described in the policy under which a claim is made, or
is not a newly acquired or replacement motor vehicle covered under
the terms of the policy. This provision shall not apply to uninsured
motorist coverage provided in a policy that does not describe specific
motor vehicles. [Emphasis added.]
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“Apparently, this amendment was intended to and does cripple substantially
the right of selection recognized in Wyatt.” 15 La. Civ. L. Treatise, Insurance Law
& Practice, §4.29; see also Halphen v. Borja, 06-1465 (La. App. 1 Cir. 5/1/07),
961 So.2d 1201, 1209, writ denied, 07-1198 (La. 9/21/07), 964 So.2d 338. In
Irvin, 867 So.2d at 779-780, discussed above, the appellate court determined that
Section 1406(D)(1)(3), now La. R.S. 22:1295(1)(e), was applicable and served as
an additional basis to bar the plaintiff from recovering against her employer’s UM
policy:
Assuming that Ms. Irvin is correct in arguing that she is covered under
the liability portion of her employer’s policy, La.R.S. 22:1406(D)(1)(e)
prevents her from recovering under the UM portion of the policy
because her vehicle is not described in the policy. An examination of
the vehicle schedule attached to the policy in question reveals that no
1999 Ford Escort was listed. Since her vehicle was not listed in the
policy, she cannot recover under the UM provisions of that policy.
Id. at 780.
Our review of the evidence in the record indicates that the Travelers’ policy
included an extensive list of covered vehicles, but Ms. Boudoin’s vehicle was not
included. The Court recognizes the argument made by RLI that Section 1295(1)(e)
should not apply because the declarations page in the Travelers’ policy indicates
that in addition to covering the employer’s owned autos, designated as Symbol 2, it
also designates coverage under Symbol 13, “[a]ny auto you do not own and that is
a covered auto under this policy for liability insurance and it is licensed or
principally garaged in Louisiana.” The declarations page indicates that covered
autos for liability purposes is Symbol 1, “Any ‘Auto’”. The Court, however,
rejects RLI’s argument that these particular provisions in the policy amount to a
description of Ms. Boudoin’s vehicle. This Court reads “described” in the first
sentence Section 1295(1)(e) to mean a description of “specific motor vehicles” as
defined in the second sentence of the provision, not a general description of every
23-CA-123 13
vehicle licensed or principally garaged in Louisiana.5 In addition, because the
Travelers’ policy does in fact describe “specific motor vehicles” that are covered
by the policy, we find that the second sentence of Section 1295(1)(e) is not
applicable.
This Court also recognizes RLI’s argument that Section 1295(1)(e) only
applies to statutory UM coverage, as opposed to contractual UM coverage. But
RLI fails to cite to any caselaw or treatise that makes this distinction and the plain
language of the statute does not support this argument. Further, this Court has
indeed applied the statute to preclude contractual coverage in situations where the
policy did not list or describe the vehicle in prior decisions. See Shackelford v.
State Farm Mut. Auto. Ins. Co., 94-415 (La. App. 5 Cir. 11/29/94), 646 So.2d 1209(policy at issue provided contractual UM coverage but did not list insured’s
vehicle); Galliano v. State Farm Mut. Auto. Ins. Co., 606 So.2d 580 (La. App. 5th
Cir. 1992).
Accordingly, based on our de novo review, we conclude that just as in Irvin,
supra, Ms. Boudoin does not have the option to select recovery under her
employer’s line of coverage.
Credit to RLI for Prior Recovery
Finally, RLI argues that Ms. Boudoin cannot recover any additional UM
benefits from it because the limits of her personal line of coverage is
$1,250,000.00, and she received payments from Allstate and Travelers, which have
the same combined limits. In its reasons, the trial court declined to resolve this
5
Though the trial court did not address the application of La. R.S. 22:1295(1)(e) in its reasons for
judgment, we do observe that in discussing coverage under the Travelers’ policy, the trial court also
indicated that the policy covered autos under Symbol 9, which includes: “Only those ‘autos’ you do not
own, lease, hire, rent or borrow that are used in connection with your business. This includes ‘autos’
owned by your ‘employees’, . . . or members of their households but only while used in your business or
your personal affairs.” The declarations page does not include any designations to indicate that Travelers’
coverage included coverage pursuant to Symbol 9; rather, the reference to Symbol 9 in the policy is
merely included in a list of possible coverages that the insured could purchase. We do not opine as to
whether coverage designated under Symbol 9 would satisfy the requirement to “describe specific motor
vehicles” in Section 1295(1)(e).
23-CA-123 14
issue finding that it was not before “this court, at this time.” We decline to decide
this issue in the first instance, and therefore, remand the matter to the trial court for
resolution of the issue of RLI’s request for a credit and any other related issues.
DECREE
For the reasons stated above, we reverse the trial court’s September 7, 2022
Judgment granting Ms. Boudoin’s and Rural’s summary judgment motions, in part,
on the issue of ranking and deny those summary judgment motions in their
entirety. We grant RLI’s summary judgment, in part, based on our finding that the
anti-stacking provision applies to limit Ms. Boudoin to recovery against one line of
insurance coverage, in this case her personal line, but affirm the denial of RLI’s
motion for summary judgment on the issue of whether Ms. Boudoin can choose to
recover against her employer Eatel’s line of coverage for the alternative reasons set
forth above.6
REVERSED IN PART; AFFIRMED
IN PART; REMANDED AS INSTRUCTED IN
OPINION
6
We do not address RLI’s alternative assignments of error regarding ranking issues because they are
moot.
23-CA-123 15
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.
SCOTT U. SCHLEGEL FIFTH CIRCUIT
MELISSA C. LEDET
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NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
OCTOBER 25, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
23-CA-65
E-NOTIFIED
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