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Dunlap v. Hartford Insurance Co. of the Midwest3/24/2005
Zurich American Insurance Company (Zurich) appeals a judgment denying its request for a declaratory judgment, granting a motion for partial summary judgment in favor of Austin Dwayne Dunlap, and holding that Louisiana law, rather than Michigan law, applies to the business automobile insurance policy at issue, which therefore must provide uninsured/underinsured motorist coverage equal to the liability limits of the policy. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Austin Dwayne Dunlap, a Louisiana resident, was injured in an automobile accident when he was run off a road in St. Tammany Parish, Louisiana, by an unidentified "phantom" vehicle while in the course and scope of his employment with Angelo Iafrate Construction, L.L.C. (Iafrate). Iafrate is domiciled in Michigan, and there acquired a business automobile liability and uninsured/underinsured motorist (UM) policy with Zurich; the policy was issued and delivered in Michigan. Iafrate is a construction company with contracts for highway and other major construction projects in thirty-eight states, including Louisiana. Its nationwide fleet of vehicles was covered on the Zurich policy, which had liability limits of $1 million, but UM limits of only $40,000. The policy's provisions comported with Michigan law; however, the UM waiver/rejection form required by Louisiana law had not been executed to select UM limits lower than the liability limits. The vehicle being driven by Dunlap was owned by Iafrate, had liability coverage under the Zurich policy, and was registered, garaged, and licensed in Louisiana. As an Iafrate employee who was driving the vehicle with Iafrate's permission in the course and scope of his employment, Dunlap was an insured under the Zurich policy.
Dunlap filed suit against Zurich for UM coverage and against his own UM insurer, Hartford Insurance Company of the Midwest (Hartford), which, under Louisiana law, would be required to pay only if Zurich's limits were first exhausted. Zurich filed a petition for declaratory judgment, claiming Michigan law should be applied to interpret the policy provisions regarding UM coverage and limits. Dunlap then filed a motion for partial summary judgment, claiming Louisiana law should be applied and that, since no valid selection of lower UM limits had been made under Louisiana law, UM coverage had to be provided in an amount equal to the liability limits of the Zurich policy. After a hearing, the court denied Zurich's request for declaratory judgment and granted Dunlap's motion for partial summary judgment, ruling that Louisiana law applied and the Zurich policy had to provide UM coverage equal to the $1 million liability limits. The judgment was designated as final for purposes of appeal. The only issue on appeal is whether Michigan law or Louisiana law should apply to the UM provisions and limits of the Zurich policy under the factual circumstances of this case.
ANALYSIS
In all automobile liability insurance policies delivered in this state covering vehicles registered in this state, Louisiana law requires UM coverage in the same amount as the bodily injury liability coverage, unless the insured or his authorized representative expressly rejects the coverage or selects lower limits on a specific form designated for that purpose. See LSA-R .S. 22:1406(D). Louisiana Revised Statute 22:1406(D)(1) clearly states that its provisions concerning UM insurance are applicable to auto liability policies "delivered or issued for delivery in this state ...." Therefore, although Louisiana's UM law can be applied to foreign insurance policies in multistate cases when the accident occurs in Louisiana and involves a Louisiana resident, the provisions of LSA-R.S
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