Opinion
No. 98-1822.
June 23, 1999. Writ Denied December 10, 1999.
The Fifteenth Judicial District Court Parish of Lafayette, No. 97-0931-1B, Jules D. Edwards, III, J.
Patrick Craig Morrow, Sr., James Steven Gates, Chuck David Granger, Opelousas, for Kenneth Chelette, II, et ux.
Michael Patrick Corry, Allyson M. Edwards, Kevin S. Frederick, Lafayette, for Colonial Penn Ins. Co., et al.
Kenneth Gerard Miller, Lafayette, for Job Valentine.
Before YELVERTON, THIBODEAUX, PETERS, AMY, and PICKETT, Judges.
Kenneth Chelette brought suit against Job Valentine and Colonial Penn Insurance Company (hereinafter "Colonial Penn") for personal injuries sustained by his wife and son in an automobile accident, Chelette alleged that the collision occurred because Valentine failed to obey a traffic control signal at an intersection. Colonial Penn filed a motion for summary judgment, contending that the insurance policy it issued to Valentine did not provide coverage for the injuries sustained because it had canceled the policy before the accident occurred. Chelette filed a cross motion for summary judgment, contending that the insurance policy provided coverage because Colonial Penn did not properly cancel the. policy after the insured, Valentine, stopped payment on a check which he had issued to pay the premium. Colonial Penn appeals the judgment of the trial court granting Chelette's motion for summary judgment, denying its motion for summary judgment and finding that the insurance policy issued to Valentine provides coverage. For the reasons which follow, we affirm.
I. ISSUE
We shall consider whether Colonial Penn properly canceled the insurance policy it issued to Valentine by sending to Valentine a cancellation notice by regular U.S. mail after Valentine issued a stop payment notice on the check for the premium payment.
II. FACTS
Colonial Penn issued an automobile liability policy to Valentine which was effective from August 31, 1996 to August 31, 1997. Valentine issued a check for the premium payment, but subsequently issued a stop payment to his bank. Colonial Penn was unable to negotiate the instrument. On September 20, 1996, it sent a notice of cancellation because of nonpayment to Valentine, stating that the policy would be canceled effective 12:01 a.m. on October 6, 1996, if payment of the premium was not received within ten days. The notice was sent by regular U.S. mail.
On the afternoon of October 6, 1996, Valentine was involved in an automobile accident with the Chelettes. Subsequently, Colonial Penn received a personal check postmarked October 28, 1996, from Valentine for payment of the premium.
III. LAW AND DISCUSSION Standard of Review
Appellate courts review summary judgments de novo, under the same criteria which govern the trial court's consideration of whether summary judgment is appropriate. See Benoit v. Roche, 94-715 (La.App. 3 Cir. 6/14/95); 657 So.2d 574. A motion for summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law." La. Code Civ.P. art. 966 (B). The interpretation of a statute is a question of law which may be decided by summary judgment. See Hall v. State, Through Dep't of Pub. Safety, Office of Motor Vehicles, Driver Management Bureau, 474 So.2d 540 (La.App. 3 Cir. 1985).
La.R.S. 22:636.1
Louisiana Revised Statutes 22:636.1 permits an insurer to cancel a policy for nonpayment of the premium by the insured. The relevant provisions of La.R.S. 22:636.1 provide:
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. . . . Notice of cancellation for nonpayment of premiums shall not be required to be sent by certified mail.
. . . .
(3)(a) Payment of an initial, renewal, or installment insurance premium by the insured to an insurer or an insurance agent with a check or other negotiable instrument which is returned to the payee by the institution upon which it is drawn for insufficient funds available in the account, for lack of credit, for the reason the account is closed, for stopped payment, or for any other reason shall be deemed grounds for the insurer to cancel the binder or policy from the date the premium payment was due.
. . . .
(b) The insurer shall immediately notify the named insured, by certified mail or delivering to the named insured a written notice that the policy is cancelled from the date the premium payment was due.
F. Proof of mailing of notice of cancellation, or of intention not to renew or of reasons for cancellation, to the named insured at the address shown in the policy, shall be sufficient proof of notice.
(Emphasis added).
In Theriot v. Midland Risk Insurance Co., 95-2895 (La. 5/20/97); 694 So.2d 184, the Louisiana Supreme Court explained that the function of statutory interpretation rests with the judicial branch of government. In interpreting a statute, the starting point is the language of the statute itself. The paramount consideration is determining the legislature's intent and the reasons that motivated the legislature to enact the law. Id. Words are to be given their generally prevailing meaning while words of art and technical terms must be given their technical meaning when the law involves a technical matter. La.Civ. Code art. 11. Moreover, it is presumed that every word in a statute is designed to serve some useful purpose. See Losabia v. Cypress Hosp., 619 So.2d 151 (La.App. 3 Cir.), writ denied, 625 So.2d 1047 (La. 1993). "Conversely, it will not be presumed that the lawmaker inserted idle, meaningless or superfluous language in the law or that it intended for any part or provision of the law to be meaningless, redundant or useless." Bunch v. Town of St. Francisville, 446 So.2d 1357, 1360 (La.App. 1 Cir. 1984).
Colonial Penn claims that it properly canceled Valentine's insurance policy by sending a notice of cancellation to Valentine by regular U.S. mail. It contends that pursuant to La.R.S. 22:636.1 (D)(1), it was not required to send the notice of cancellation by certified mail. Rather, citing La.R.S. 22:636.1 (F), Colonial Penn asserts that proof of mailing of the notice to Valentine at the address shown in the policy is sufficient proof of notice of the cancellation. Since Valentine did not submit the premium payment within ten days after the notice of cancellation was sent to him, Colonial Penn concludes that the policy was canceled at 12:01 a.m. on October 6, 1996.
We find that the trial court did not err in concluding that Colonial Penn did not properly cancel the insurance policy it had issued to Valentine. At the outset, we reject Colonial Penn's argument that La.R.S. 22:636.1 (D)(1) is controlling. Louisiana Revised Statutes 22:636.1 (D)(3) specifically addresses the situation where an insured pays an initial, renewal, or installment premium with a negotiable instrument which is later returned by the drawee institution. It is well settled that a specific provision of law prevails in cases of conflict between general and specific laws on the same topic. See State Through Div. of Admin. v. McInnis Bros. Constr., 97-0742 (La. 10/21/97); 701 So.2d 937. Thus, pursuant to La.R.S. 22:636.1 (D)(3)(b), Colonial Penn was required to notify Valentine by certified mail or by delivering a written notice that the policy was cancelled from the date the premium payment was due.
It is undisputed that Colonial Penn sent the notice of cancellation to Valentine by regular, not certified, mail. Colonial Penn argues that the "delivery" requirement of La.R.S. 22:636.1 (D)(3)(b) is satisfied where the insurer sends the notice of cancellation by regular U.S. mail. We disagree. The purpose of the notice requirement is "to protect an insured and the public against unnoticed termination of automobile-liability coverage" and to afford an insured "time to obtain other insurance protection." Taylor v. MFA Mut. Ins. Co., 334 So.2d 402, 403-04 (La. 1976). Presuming that the legislature did not intend for any part of La.R.S. 22:636.1 (D)(3)(b) to be meaningless, redundant, or useless, we conclude that the "delivery" requirement connotes something other than mail delivery. This construction comports with the generally prevailing meaning of the word "delver," which WEBSTER'S NINTH NEW COLLEGIATE DICTIONARY (1989) defines as "to take and hand over" to another. Accordingly, if an insurer sends the notice of cancellation by mail delivery, it must be certified. If the legislature had intended regular mail to constitute a means of delivery, La.R.S. 22:636.1 (D)(3)(b) would have specified "by certified mail or regular mail." Because the legislature could have easily included regular mail in the provision, we conclude that its omission from La.R.S. 22:636.1 (D)(3)(b) was intentional. This interpretation, of the provision is consistent with the purpose of the statute and protects the insured from unnoticed termination of automobile liability coverage.
Because Colonial Penn did not properly cancel Valentine's insurance policy, the policy was in effect at the time the accident occurred. The trial court did not err in granting Chelette's motion for summary judgment and in denying Colonial Penn's motion for summary judgment.
IV. CONCLUSION
Based on the foregoing reasons, the judgment of the trial court is affirmed. Costs of the appeal are assessed to Colonial Penn.
AFFIRMED.
AMY, J., concurs in part and dissents in part and assigns reasons.
PETERS, J., dissents and assigns written reasons.
PICKETT, J., dissents and joins in written reasons with PETERS, J.
I agree with the majority that the trial court did not err in granting the plaintiffs motion for summary judgment, although I find that an affirmation is appropriate for different reasons. In my opinion, since the plaintiff filed the motion for summary judgment, he had the burden of proving that there was coverage on the day of the automobile accident. This burden was satisfied by the introduction of the policy and the uncontested fact that the accident occurred during the policy term. Once the plaintiff satisfied this showing, the burden then shifted to the defendant to demonstrate that cancellation had been effected by certified mail or delivery. Because cancellation, if it can be shown, is a defense, I do not find that such an issue was one that the plaintiff was required to anticipate and resolve in his own motion for summary judgment.
It is true that if the defendant insurer could have proven that cancellation had been effected by certified mail or delivery, the burden would have then returned to the plaintiff to demonstrate that, in fact, no such issue remained' unresolved. This situation is not present in the instant case, however, as the defendant did not demonstrate that the cancellation was either sent by certified mail or delivered. In my opinion, delivery can be completed by a variety of methods, including regular mail received by the insured. As there was no demonstration that the insured received the cancellation notice, a genuine issue of material fact is unresolved by the parties' submissions. This issue, however, is one attendant to an affirmative defense. Thus, finding that the plaintiff met the required initial burden and the defendant failed to prove the affirmative defense relied upon, I believe that the trial court correctly granted the summary judgment of the plaintiff and denied that of the defendant.
While I agree with the majority's interpretation of La.R.S. 22:636.1 and its effect on the insurer's failure to follow its procedure, I do not agree that the summary judgment rendered by the trial court should be affirmed in this case. Whether Valentine received the mailed notice is an unresolved genuine issue of material fact which must be addressed at a trial on the merits.
In interpreting La.R.S. 22:636.1 (D)(3), one must draw a distinction between the act of mailing by certified mail and the act of obtaining delivery by regular mail. Pursuant to that statute, when payment is stopped on a check given as an initial premium payment, the insurer's obligation is to "immediately notify the named insured, by certified mail or delivering to the named insured a written notice that the policy is cancelled from the date the premium payment was due." La.R.S. 22:636.1(D)(3)(b) (emphasis added). In considering the disjunctive "or," I conclude that the insurer need not prove delivery if the notice is sent by certified mail, but if sent by any other process, the insurer must prove delivery. Thus, ordinary mail is satisfactory if the insurer can establish that the insured actually received the letter.
In this case, we are at the summary judgment level. It is not disputed that Colonial Penn mailed the letter to the insured by ordinary mail. Thus, whether the insured received the letter is a question of fact. Under La. Code Civ.P. art. 966 (C)(1), the mover must show that there is no genuine issue of material fact and that he or she is entitled to judgment as a matter of law. Despite the fact that summary judgments are now favored in the law, one fact has not changed — the burden of proof still remains with the mover. La. Code Civ.P. art. 966 (C)(2). The mover's obligation is 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." Id. That does not mean to say, as is the case herein, that no one has been able to find the insured and therefore does not know what he or she will say concerning delivery, but rather that the mover has found the insured and the insured will state that he or she did not receive the letter.
In my opinion, the mover has not established that Colonial Penn cannot prove delivery, but only that it has not been able to do so through the date of the summary judgment hearing. Delivery remains an issue which is subject to investigation and discovery procedures through trial. Obviously, if Colonial Penn is unsuccessful in finding Valentine, coverage should be found. The same result might occur even if Colonial Penn finds Valentine but still cannot establish delivery. However, as pointed out by the majority, after the accident, Valentine forwarded a personal check to pay the premium. Thus, he obviously knew that the premium needed to be paid.
Colonial Penn may well be found liable for coverage at trial, depending on what occurs in the future. However, it should have the opportunity to resolve this genuine issue of material fact, and summary judgment should not preclude its effort to do so.