Opinion
CIVIL ACTION NO. 00-0570 SECTION "K"(4).
November 6, 2000.
ORDER AND REASONS
This matter is before the Court on plaintiff's motion for partial summary judgment and defendant's motion for summary judgment. Oral argument was heard on October 25, 2000. The Court has reviewed the file, record, and relevant law, and for the reasons stated below, denies plaintiff's motion and grants defendant's motion.
I. Background
Plaintiff Carla LeMarie ("LeMarie") was employed as a clinical laboratory scientist with the Veterans Administration Hospital in New Orleans, earning approximately $44,000 per year. As a federal employee for nearly twenty years, plaintiff did not participate in the social security program, rather she participated in an alternate program for federal employees, known as the Civil Service Retirement System ("CSRS"). Under the program, plaintiff and her employer contributed a certain amount to the fund throughout the course of her employment, entitling plaintiff to retirement benefits in the event of disability of $17,000 per year, distributed monthly, through a salary continuation program.
In 1997, LeMarie decided to apply for additional disability insurance to supplement her CSRS disability benefits. Plaintiff was put in touch with a broker named Byron Landry who subsequently obtained a quote from Business Men's Assurance Company ("BMA").
In 1998 BMA was purchased by Lone Star Life Insurance Company. Thereafter, Lone Star was merged into Reassure America Life Insurance Company. There is no dispute that Reassure presently covers plaintiff's policy.
On the disability income application (Defense Exhibit "3A"), plaintiff requested disability benefits of $600 per month (for an annual premium of $429.50) and social disability rider benefits of $1000 per month (for an annual premium of $359.20). In filling out the financial disclosure section of the application, plaintiff was to indicate if she "paid into social security" or, if not any "other similarly legislated disability programs." LeMarie answered "no" to each question (Defense Exhibit "3A"). This disclosure was critical because the terms of the social disability benefit rider specifically provide that "[b]enefits payable under this rider will be reduced by an amount equal to any monthly legislative disability benefits received." (Plaintiff Exhibit "B"). Thus, to the extent plaintiff received payments from social security or other legislated disability programs, her potential recovery under the $1000/month rider would be reduced or eliminated.
However, after providing a negative response to the social security and legislated programs questions, plaintiff affirmatively answered a follow up question that necessitated a response only if the applicant paid into a legislated disability program similar to social security. The follow up question asked that "if yes"[do you pay into a legislated disability program similar to social security] "please name the program." To this query, plaintiff responded "work for the federal government." A separate inquiry indicated that LeMarie disclose any salary continuation amounts she might receive. To this, she answered "$17,000 per year" "for life."
Plaintiff was diagnosed positive for the Huntington's chorea gene on August 20, 1998 and symptoms first appeared in October 1998. Huntington's is a fatal genetic disorder of the central nervous system that affects people in the fourth decade of life. Plaintiff was not caught completely unawares by this diagnosis as her mother died of the same disease a few years earlier. As a matter of fact, one of the reasons plaintiff sought supplemental disability income was that she had a fifty-fifty chance of inheriting the fatal gene.
Plaintiff's application for disability retirement benefits under the CSRS program was approved on March 22, 1999. On June 3, 1999 plaintiff subimtted a Disability Claimant Statement to Lone Star. In the space provided on the application to "list other companies with which you are insured for disability, credit disability or health benefits", plaintiff wrote "benefits received as a result of mandatory retirement from employment (VA Medical Center)." (Defendant Exhibit 6(I)).
Through a letter dated September 2, 1999, Lone Star advised plaintiff that it was denying plaintiff's $1000 per month social disability rider benefit. The insurer stated that plaintiff's CSRS benefits of $1471/month qualified as disability compensation from a Government Retirement and Disability Fund Benefit and therefore, completely offset the $1000 benefit under the social disability rider.(Defendant Exhibit 6(k)).
Lone Star did not deny plaintiff the $600/mo. base disability benefit she initially applied for. Reassure continues to make those payments.
As stated above, the social disability benefit rider contained a clause reducing benefits payable under the rider by an amount equal to any monthly legislative disability benefits received. Legislative Disability Benefits, in part, were defined as
[B]enefits paid to you . . . as a result of your disability, including benefits under . . . Government Retirement and Disability Fund Benefit, which includes disability compensation, including amounts for dependants, under any federal, state, county, municipal, teachers or other government subdivision retirement and disability fund for which you may become eligible. Any payment resulting from elective retirement will also be considered a Government Retirement and Disability Fund Benefit.
(Plaintiff Exhibit 2).
In response to the rejection of social disability rider benefits, plaintiff filed the instant lawsuit to recover the $1000/month social disability rider benefits. Plaintiff alleged contractual and non-contractual causes of action, including breach of contract, detrimental reliance/equitable estoppel, negligent or intentional misrepresentation, non-compliance with La. R.S. 22:1220, violation of the Louisiana Unfair Trade Practices Act ("LUPTA"), abuse of rights, and violations of La. R.S. 22:1220. Through an order entered July 7, 2000 this Court dismissed the La. R.S. 22:212, LUPTA, abuse of rights, and La. R.S. 22:1220 claims for failure to state a claim upon which relief can be granted. What remains are the parties cross motions for summary judgment on the issue of breach of an insurance contract, and defendant's motion for summary judgment on the issues of detrimental reliance/equitable estoppel, reformation, and negligent or intentional misrepresentation.
II. Standard for Motion for Summary Judgment
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment should be granted "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 any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56 (c). The party moving for summary judgment bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact." Stults v. Conoco, 76 F.3d 651, 656, (5th Cir. 1996), (citing Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 912-13 (5th Cir. 1992) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. The nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial." Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986); Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995). Thus, where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no "genuine issue for trial." Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986). The court notes that the substantive law determines materiality of facts and only "facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Where the opposing party bears the burden of proof at trial, the moving party need not submit evidentiary documents to properly support its motion, but need only point out the absence of evidence supporting the essential elements of the opposing party's case. See Saunders v. Michelin Tire Corp., 942 F.2d 299, 301 (5th Cir. 1991).
III. Policy Interpretation
In Peterson v. Schimek, 729 So.2d 1024, 1028-29 (La. 1999) the Louisiana Supreme Court has set forth a comprehensive review of insurance policy interpretation. The court stated:
An insurance policy is a conventional obligation that constitutes the law between the insured and insurer, and the agreement governs the nature of their relationship. La.Civ. Code art. 1983. As such, courts are guided by certain principles of construction and should interpret insurance policies the same way they do other contracts by using the general rules of contract interpretation as set forth in our Civil Code. Ledbetter v. Concord Gen. Corp., 95-0809 (La. 1/6/96); 665 So.2d 1166, 1169; Crabtree v. State Farm Ins. Co., 93-0509 (La. 2/28/94), 632 So.2d 736 . . . . The extent of coverage is determined from the intent of the parties as reflected by the words of the insurance policy. Ledbetter, 665 So.2d at 1169.
The role of the judiciary in interpreting insurance contracts is to ascertain the common intent of the insured and insurer as reflected by the words in the policy. La.Civ. Code art. 2045; Ledbetter, 665 So.2d at 1169. When the words of an insurance contract are clear and explicit and lead to no absurd consequences, courts must enforce the contract as written and may make no further interpretation in search of the parties' intent. La.Civ. Code art. 2046; Central La. Elec. Co. v. Westinghouse Elec. Corp., 579 So.2d 981, 985 (La. 1991).
Words in an insurance contract are to be given their generally prevailing and ordinary meaning, unless they have acquired a technical meaning. La.Civ. Code art. 2047; Schroeder v. Board of Supervisors of La. State Univ., 591 So.2d 342, 345 (La. 1991). Courts lack the authority to alter the terms of insurance contracts under the guise of contractual interpretation when the policy's provisions are couched in unambiguous terms. Louisiana Ins. Guar. Ass'n v. Interstate Fire Cas. Co., 93-0911 (La. 1/14/94), 630 So.2d at 764. An insurance contract is construed as a whole and each provision in the policy must be interpreted in light of the other provisions so that each is given meaning. One portion of the policy should not be construed separately at the expense of disregarding other provisions; La.Civ. Code art. 2050; Central La. Elec. Co., 579 So.2d at 985. An insurance contract, however, should not be interpreted in an unreasonable or strained manner under the guise of contractual interpretation to enlarge or to restrict its provisions beyond what is reasonably contemplated by unambiguous terms or achieve an absurd conclusion. Valentine v. Bonneville Ins. Co., 96-1382 (La. 3/17/97), 691 So.2d 665; Reynolds v. Select Properties, Ltd., 93-1480 (La. 4/11/1194), 634 So.2d 1180, 1183. That is, the rules of construction do not authorize a perversion of the words or the exercise of inventive powers to create an ambiguity where none exists or the making of a new contract when the terms express with sufficient clearness the parties' intent. Ledbetter, 665 So.2d at 1169; Reynolds, 634 So.2d at 1183. If, after applying the other general rules of construction, an ambiguity remains, the ambiguous contractual provision is to be construed against the insurer who furnished the policy's text and in favor of the insured finding coverage. La.Civ. Code art. 2056; Crabtree, 632 So.2d at 741. When a contract can be construed from the four corners of the instrument without looking to extrinsic evidence, the question of contractual interpretation is answered as a matter of law and summary judgment is appropriate. Brown v. Drillers, Inc., 93-1019 (La. 1/14/94), 630 So.2d 741.Peterson v. Schimek, 729 So.2d 1024, 1028-29 (La. 1999). The Court now turns to the merits with these standards in mind.
IV. Analysis
1) Plaintiff's mistaken application response cannot change the policy definitions or render the policy ambiguous
A. Breach of Insurance Contract
First, plaintiff states that her application was attached to the policy and became part of it by operation of law. La. R.S. 22:654; Peterson v. Schimek, 729 So.2d 1024, 1030-31 (La. 1999). Plaintiff claims that her negative response to the social security and legislative disability program questions become part of the policy. As such, she contends that her CSRS benefits are considered something other than benefits flowing from a "legislated disability program." In other words, plaintiff argues that the attachment of the application to the policy becomes part of the policy by operation of law and that her mistaken indication that the CSRS program is not a "legislative disability program" becomes as much a part of the policy as the definition of "legislated disability benefit" contained in the social disability rider. Alternatively, plaintiff argues that if this Court decides that the CSRS payments are "legislative disability payments", then at the very least the policy is contradictory or ambiguous and plaintiff still prevails.
Defendant agrees that the application becomes part of the policy under the law of Louisiana. However, defendant argues that even construing the application as part of the policy, the terms are unambiguous. Defendant claims that the term "legislated disability program" does not appear in the rider and that plaintiff's answer to the "legislated disability program" question cannot change the definition of the term, "legislative disability benefit", found in the social disability rider. Moreover, defendant argues that despite plaintiff's negative answer to the "legislative disability program" question, she did answer the following question, which directed the applicant to name the legislated program that she participates in. In other words, plaintiff affirmatively answered a question that only necessitated an answer if the applicant did indeed pay into a legislated program. Therefore, defendant argues that plaintiff essentially stated that in the future, she could receive benefits from a legislated program and that defendant's underwriters acted accordingly.
Although it is well-settled that an application becomes part of an insurance policy, the Court finds a plaintiff's possible mischaracterization or error on an application cannot be used as an instrument to change the policy definitions. Most jurisprudence in this area involves an insurer denying coverage under Louisiana Revised Statute 22:619 which states in pertinent part, "no oral or written misrepresentation or warranty made in the negotiation of an insurance contract . . . shall void or defeat the contract . . . unless made with the intent to deceive." La. R.S. 22:619. Notably, the provision does not include a clause making the misrepresentation a part of the policy. Plaintiff's subsequent response to the "legislated disability program" question proves beyond a doubt that there was no intent to deceive. However, plaintiff's mischaracterization in the application of the legal label attached to her CSRS benefits cannot alter the definition included in the rider. This is especially true when her more specific written answer clearly indicated that she knew she paid into a legislated disability program. The Court has been provided with no case law interpreting La. R.S. 22:654 to support plaintiff's proposition.
Furthermore, the Court does not find that the aforementioned error on the part of plaintiff renders the policy ambiguous. From the face of the application, it is apparent that plaintiff at least believed that her CSRS benefits could be the fruit of a "legislated disability program." Such an argument is buttressed by the follow up question asking "if yes, please name the program." Plaintiff's affirmative answer to this question ("work for federal government") demonstrates that she knew her CSRS benefits would constitute benefits from a federally legislated program. In conjunction with the express definition found in the policy rider, discussed infra, the Court finds that plaintiff's responses to the financial disclosure queries on the application do not re-define CSRS benefits for purposes of the policy or render the policy ambiguous.
2) CSRS Benefits Constitute Legislated Disability Benefits
Plaintiff next argues that Ms. LeMarie's CSRS benefits do not fall under the definition of "legislative disability benefit" as found in the social disability benefit rider. The policy rider specifically reduces coverage for legislative disability benefits received. Legislative Disability Benefits are defined, in pertinent part as, "benefits under . . . Government Retirement and Disability Fund Benefit, which includes disability compensation . . . under any federal . . . retirement and disability fund . . ." The acronym CSRS stands for "Civil Service Retirement System". Thus, the federal benefits received by Ms. LeMarie flow from a retirement fund which plaintiff receives because she opted to take retirement because of her disability. (Defense exhibit "3(B)"). Clearly plaintiff's contention is meritless.
Such elective retirement is expressly included in the definition of "Legislative Disability Benefit." The definition includes "disability compensation . . . under any federal . . . . retirement and disability fund", and for clarification adds that "Any payment resulting from elective retirement will also be considered a Government and Disability Fund Benefit." Plaintiff certainly receives disability compensation from her retirement fund. On her application for CSRS benefits, plaintiff specifically chose the disability retirement option.(Defense Exhibit "3(B)") Such payments are excluded by the clear language of the rider.
This analysis is supported by several sources. For example, the United States Office of Personnel Management defines the benefits received by plaintiff as "disability retirement" made through a "disability annuity" which provides "disability benefits." (Plaintiff Exhibit D(1)); See also 5 U.S.C. § 8337 (c) (refers to CSRS benefits as a "disability retirement annuity");U.S. v. Price, 288 F.2d 448, 450 (4th Cir. 1961) (CSRS payments are "retirement benefits, payable because of age or disability"). Thus, whether characterized as an annuity or retirement plan, plaintiff's collection of disability benefits from her retirement fund remains excluded under the rider.
Under Louisiana law, "[a] provision limiting liability or negating coverage that is otherwise provided will be given effect if it is clear and unambiguous." Bailsco Blades Casting, Inc. v. Fireman's Fund Insurance Co., 737 So.2d 164, 166 (La.App. 2 Cir. 1999) (citation omitted). Additionally, "[w]here an attachment to the policy conflicts with the terms of the policy, the attachment will control. If coverage is provided in the policy, but then excluded in the attachment to the policy, coverage will be excluded." Id. As such, "[i]nsurers are permitted, under Louisiana law, to limit their liability and impose reasonable conditions on their obligations, so long as those do not conflict with law or public policy." Edwards v. Your Credit, 148 F.3d 427 (5th Cir. 1998). Based on the unambiguous language of the four corners of plaintiff's policy, Civil Service Retirement System benefits received on account of disability are reduced under the rider. Since plaintiff's CSRS monthly benefits exceed the amount of the social disability rider, plaintiff is not entitled to receive any benefits under the rider.
B. Detrimental Reliance/Estoppel
Plaintiff argued a cause of action based on detrimental reliance, claiming that the insurer knew of plaintiff's alleged mistaken belief that she would automatically receive $1600 in base coverage, in addition to her VA benefits, if she became disabled. She survived a motion to dismiss on this cause of action by alleging that defendant knew of her mistake and failed to notify or correct her incorrect belief.
Defendant has now moved for summary judgment on the detrimental reliance/equitable estoppel claim, arguing that plaintiff has presented no issue of fact regarding the insurer's knowledge of plaintiff's alleged mistake. Defendant points out that the face of the application clearly delineated two areas of coverage, one box providing $600 in base benefits, and a separate box providing the $1000 rider. According to defendant, plaintiff's responses on her application clearly communicated the type of coverage she desired, which was subsequently provided to her and not questioned during the twenty day period she had to examine the policy. First, plaintiff did not speak directly with anyone at the insurance company, thus no affirmative misrepresentation could have been made. Additionally, the deposition testimony of plaintiff's broker Mr. Landry reinforces defendant's interpretation of the policy, that is, benefits under the social disability benefits rider would be offset by other income received by plaintiff. According to Landry, he had no knowledge of plaintiff's misunderstanding; indeed he actually informed her that if she received other income as defined in the policy, the rider payments would be offset by the other income she received (Landry depo., pg. 31-33).
Plaintiff argues that Ms. LeMarie indicated on the policy that she was to receive $17,000/yr under a federal benefit program, and that she did not believe it was a "legislated disability program." According to plaintiff, this was a mistake that the insurance company knew of and failed to correct.
To recover on a claim of detrimental reliance or equitable estoppel, a plaintiff must prove (1) a representation by conduct or word, (2) justifiable reliance thereon, and (3) a change in position to one's detriment because of the reliance. Jesco Construction Corp. v. NationsBank Corp., 107 F. Supp.2d 715, 722 (E.D.La. 2000) and Newport Limited v. Sears, Roebuck Company, 6 F.3d 1058, 1069 (5th Cir. 1993) (detrimental reliance); Home Insurance Company v. Mathews, 998 F.2d 305, 309 (5th Cir. 1993) and Zink v. Chevron, U.S.A., 1992 WL 300816 at *13 (E.D.La. 1992) (equitable estoppel); La. C.C. Art. 1967. As applied to the facts before the Court, plaintiff would have to prove that (1) the insurer represented that she would receive $1600/mo. in the event she became disabled, (2) that she reasonably relied on the representation that she would receive $1600/mo. in the event she became disabled, and (3) that plaintiff changed her position to her detriment.
Plaintiff is unable to establish an issue of fact as to the first element of this test, that being an alleged representation by BMA that she would receive $1600/mo. in the event she became disabled. In her deposition testimony, plaintiff admits as much, testifying that, aside from her misguided reading of the policy, BMA made no representation that she would receive $1600/mo. (Defense Exhibit 1, p. 65-66). Defendant made no representation by word, and its conduct was in accordance with the information provided on the application. Additionally, plaintiff's broker specifically averred that she would receive the base benefits in the event she became disabled and that she would receive the social disability rider benefits unless she received "other income" as defined by the policy. (Landry depo., pp 31-32). In addition, plaintiff's broker did not explain in more detail what types of income would be offset. To the extent that issuing a policy was defendant's representation, it did so in accordance with what they thought was the clear intent of plaintiff as evidenced by her application. Finally, plaintiff's rebuttal does not create an issue of fact in this regard either. The different benefits were clearly delineated in the policy, her financial disclosure revealed that she was entitled to federal benefits, the terms of the social disability benefit rider were clear, and no representation to the contrary was made by the insurer. Therefore the equitable estoppel/detrimental reliance claims fail also.
C. Negligent or Intentional Misrepresentation
1) Negligent Misrepresentation
To recover on a claim of negligent misrepresentation, a plaintiff must prove three elements (1) a legal duty on the part of the defendant to supply correct information to the plaintiff, (2) a breach of that duty, and (3) damages to the plaintiff as a result of justifiable reliance on the misrepresentation. Brown v. Forest Oil Corp, 29 F.3d 966, 969 (5th Cir. 1994); Jesco Construction Corp. v. NationsBank Corp., 107 F. Supp.2d 715, 720 (E.D.La. 2000). The Court considers the first element satisfied. An insurer has a legal duty to provide correct information to a prospective insured.
As to the second element, a breach of the duty to supply correct information, plaintiff again has failed to raise an issue of material fact. Plaintiff claimed that the policy as issued provided "illusory coverage" in that the rider benefits would never be payable as long as plaintiff was a federal employee. She contends that the issuance of an "illusory coverage" policy is a breach of duty on behalf of the insurer. The alleged breach of duty is that the insurer knew of her needs and supplied a policy significantly different from those needs without advising her.See e.g. Beal v. Lomas and Nettleton Co., 410 So.2d 318 (La.App. 4 Cir. 1982).
Although it is questionable that such a duty exists when the plain language of the policy excludes coverage and no affirmative misrepresentation or error was made by the insurer, plaintiff's argument fails on its facts. A reasonable person could assume that Ms. LeMarie made a prudent purchase. The social disability benefits could provide coverage in several situations. For example, as plaintiff herself argues, Ms. LeMarie could have quit her job and entered the private sector. She also could have been terminated for performance or downsizing, or have been found non-disabled for purposes of the CSRS program but covered under the BMA policy. Although, there is no certainty that the triggering events would occur, the policy provided a safety net in the event that plaintiff, for whatever reason, could not collect her CSRS benefits. The fact that plaintiff was not guaranteed to receive the rider benefits is reflected by the fact that she paid a premium of $359.20 for $1000/mo. benefit plan under the rider while she paid higher premium ($429.50) for less coverage ($600/mo.) in base benefits, which she had a much greater likelihood of collecting. Neither can Ms. LeMarie cannot point out a representation by BMI that it would automatically provide $1600/mo. Likewise, the deposition testimony of her broker is that he told her the rider can be offset by certain federal benefits. As there is no material genuine issue of fact with regard to the second element of this test, summary judgment is appropriate.
2) Intentional Misrepresentation
To state a cause of action for intentional misrepresentation, also known as delictual fraud, a plaintiff must prove (1) a misrepresentation of material fact, (2) made with the intent to deceive, and (3) causing justifiable reliance with the resultant injury. Guidry v. U.S. Tobacco Company, Inc., 188 F.3d 619, 626-27 (5th Cir. 1999) (citations omitted); Kenner Services v. Star Enterprise, 1996 WL 400848 at *2 (E.D.La. 1996). As plaintiff presented no evidence of any misrepresentation, this claim also fails.
D. Reformation
"Reformation of an insurance policy is permitted when, because of mutual error or mistake, the policy fails to reflect the intent of the parties." Many v. Hartford Accident Indemnity, 505 So.2d 929, 931 (La.App. 2 Cir. 1988) (citations omitted). "The burden is on the one seeking reformation to prove error by strong, clear and convincing evidence." Id. "Louisiana courts have recognized that written contracts of insurance can be reformed to conform to the original intention of the parties if there exists either mutual error or fraudulent, negligent, or mistaken conduct on the part of the agent issuing the policy."Farmers-Merchants Bank Trust Company v. Employers National Insurance Corp., 553 So.2d 1088-89 (La.App. 3rd Cir. 1990) (citing Leitz v. Wentzell, 461 So.2d 473 (La.App. 5th Cir. 1984),writ denied, 462 So.2d 1267 (La. 1985)); See also Lea v. Balboa Life Casualty Insurance Company, 1992 WL 74591 at *4 (E.D.La. 1992).
BMI issued a policy in accordance with the information contained in Ms. LeMarie's application. The contract cannot be reformed based on mutual error because there never was an understanding that plaintiff would automatically receive $1600/mo. if she became disabled. Unfortunately, the only error in this instance seems to be on the part of plaintiff. Such unilateral error is not a sufficient basis to reform an insurance contract. As to the conduct of her broker, Mr. Landry, there can be no liability on defendant either. "[T]he clear weight of authority is that statutes regulating licensing and defining agents, brokers, and solicitors are not intended to change or to exclude the general laws of agency." North American Capacity Insurance Co. v. Brister's Thunder Karts, Inc., 1998 WL 259966 at *3 (E.D.La 1998) (citing B.J. Tiner v. Aetna Life Insurance Co., 291 So.2d 774 (La. 1974). The Court has examined several facts to determine whether there was a principal/agent relation between Landry and the insurer. The broker did not have a direct relationship with BMA, and he only contacted BMA through another broker. Second, Landry was not an agent in fact, as to the best of his recollection, he never used BMA and mostly represented a different insurance company. Finally, BMA had no direct control or contact with Landry. The above recited lack of contacts establishes that Landry cannot be considered BMA's agent. See North American Capacity Insurance v. Brister's Thunder Karts, Inc., 1998 WL 259966 at *4 (E.D.La. 1998) (applying the four factor test of Smason v. Celtic Life Ins. Co., 615 So.2d 1079 (La.App. 4 Cir. 1993)). As an independent broker, Mr. Landry was an agent of the insured, Ms. LeMarie, and not the insurer. Absent such a principal/agent relationship, any mistake or negligence on Landry's part cannot be imputed to BMA or its successor. Accordingly,
IT IS ORDERED that plaintiff's motion for summary judgment (Rec. Doc. 45 59) is DENIED, and defendant's motion (Rec. Doc. 43) is GRANTED.