Opinion
CIVIL ACTION NUMBER 02-0607, SECTION "A" (2)
November 6, 2002
MINUTE ENTRY
ORDER AND REASONS
Before the Court is a Motion for Summary Judgment by Defendants Brian Cucullu and State Farm Mutual Insurance Company ( Rec. Doc. 8). Plaintiff, Latora Gann, opposes the motion. The motion is set for hearing on the briefs without oral argument.
BACKGROUND
Plaintiff filed a Petition for Declaratory Judgment on March 4, 2002, seeking a declaration from this Court that the provisions of La. Rev. Stat. 32:861, et seq., and particularly La. Rev. Stat. 32:866 are unconstitutional as applied in this case or, in the alternative, that the penal provisions have no application to plaintiff's claims. These statutes, known colloquially as "No Pay, No Play," exclude recovery for the first $10,000 in property damage and the first $10,000 in bodily injury damage by the owner of a vehicle who fails to "maintain compulsory motor vehicle liability security." Defendants' motion seeks to have the Court rule that the statute is constitutional and applicable to the facts of this case.
Plaintiff and defendants agree that the basic facts are not contested. Plaintiff alleges she sustained personal and property damage on March 28, 2001 in Jefferson Parish in the state of Louisiana when she was involved in a car accident with defendant who is a resident of Louisiana. Plaintiff is a Mississippi resident who, at the time of the accident, was operating a vehicle registered in the state of Mississippi. The plaintiff did not have automobile liability insurance at the time of the accident. As of January 1, 2001, the state of Mississippi required compulsory liability insurance for motor vehicles.
Mississippi Code of 1972, § 63-15-4 et seq.
Defendant, State Farm, has refused to pay for the first $10,000 of her personal injuries, citing La. Rev. Stat. 32:866, which excludes recovery for the first $10,000 in property damage and the first $10,000 in bodily injury damages occasioned by the owner or operator of a motor vehicle who fails to "maintain motor vehicle liability security." In short, defendants suggest that the breath of the statute would allow its application to anyone who may be found operating any type of motor vehicle in Louisiana, regardless of their domicile or where the vehicle is registered.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate if the record discloses "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) and Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552 (1986). A court must be satisfied that no reasonable trier of fact could find for the nonmoving party or, in other words, "that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict in her favor." Lavespere v. Niagra Mach. Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511 (1986)).The moving party bears the burden of establishing that there are no genuine issues of material fact. However, the mere argued existence of a factual dispute does not defeat an otherwise properly supported motion. Id. Therefore, "[i]f the evidence is merely colorable, or is not significantly probative," summary judgment is appropriate. In determining whether a party is entitled to summary judgment, the court views the evidence in the light most favorable to the non-moving party. Littefield v. Forney Indep. School Dist., 268 F.3d 275, 282 (5th Cir. 2001) (citing Smith v. Brencettsy, 158 F.3d 908, 911 (5th Cir. 1998). The moving party bears the burden, as an initial matter, of showing the district court that there is an absence of evidence to support the nonmoving party's claim. Id. (citing Celotex, 477 U.S. at 325, 106 S.Ct. at 2548.) If the dispositive issue is one for which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record contains insufficient proof concerning an essential element of the nonmoving party's claim. The burden then shifts to the nonmoving party, who may not rest upon the pleadings, but must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists for trial. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1996).
DISCUSSION
Defendants contend that Louisiana Revised Statute 32:866 is applicable in this case and is constitutional. The statute states, in pertinent part:
A. (1) There shall be no recovery for the first ten thousand dollars of bodily injury and no recovery for the first ten thousand dollars of property damage based on any cause or right of action arising out of a motor vehicle accident, for such injury or damages occasioned by an owner or operator of a motor vehicle involved in such accident who fails to own or maintain compulsory motor vehicle liability security.
Louisiana Revised Statute 32:861 states in pertinent part:
A. (1) Every self-propelled motor vehicle registered in this state . . . shall be covered by an automobile liability policy . . . (emphasis added).
In Atkinson v. Boyne, 178 F. Supp.2d 670, the court held that the "No pay, No play" statute did not apply to a car registered in Mississippi that had no liability insurance (which was not required by Mississippi law at the time of the accident) that was involved in an accident in Louisiana. "Thus, by the clear, unambiguous language of the statute, the security is required only for those motor vehicles registered in the State of Louisiana. A person can be `deemed' to comply only with the requirement of the law. The law only requires security for cars registered in this state. Section 866 cannot so redefine the parameter of the law; such a result leads to the absurd result of removing the registration requirement from the law." 178 F. Supp.2d at 672.
In Martin v. Special Risk Insurance, Inc., 2002 WL 1265547 (La.App. 1 Cir. 2002) the court followed Atkinson and held that Louisiana's compulsory insurance laws and penalties did not apply to the operator of a vehicle registered outside the state of Louisiana.
This Court notes that the instant case differs from the facts in Atkinson and Martin. At the time of those accidents, Mississippi did not require compulsory liability insurance. At the time of this plaintiff's accident, Mississippi did require compulsory liability insurance and plaintiff was not covered by such a policy.
However, the issue of whether or not the plaintiff was covered by a policy of liability insurance as required by the state where her automobile was registered is of no moment to the facts of this case. The clear and unambiguous language of Louisiana Revised Statute 32:866 applies to every vehicle registered in this state. There is no requirement in either the statues or in the Compulsory Motor Vehicle Safety Law that a nonresident motorist must also maintain minimum and/or compulsory insurance with respect to the operation of his or her vehicle. As stated in Martin, "The argument that the driver would fall under La. R.S. 32:866 because she is driving a car in Louisiana disregards the definition of compulsory motor vehicle liability security as set forth in La. R.S. 32:861 as it read at the time of the accident. The clear, unambiguous language of La. R.S. 32:861 prior to its amendment required security only of those motor vehicles registered in the state of Louisiana."
Louisiana Revised Statute 32:861 was amended to penalize operators of vehicles registered in other states where such operators fail to comply with the mandatory insurance applicable to them in their respective states. The amendment, La. R.S. 32:861E reads:
(1) The owners of motor vehicles registered in other states or jurisdictions that require liability security shall maintain the security and proof thereof as required by their respective states or jurisdiction while the vehicle is operated in this state.
(2) Failure to comply with the requirements of this Subsection shall subject the owner and the operator to the sanctions which are provided in R.S. 32:57 and limitations of damages provided for in this part. Owners and operators of any motor vehicle in violation of this Subsection shall be subject to the limitation of recovery as provided for in R.S. 32:866.
This amendment seems a clear intention by the Louisiana legislature to expand the penal provisions of the statute to include vehicles registered outside the state. However, the amendment became effective August 15, 2001, after the date of this accident, and the Court declines to give the amendment retroactive application. See Del-Remy Corp. v. Lafayette Insurance Company, 616 So.2d 231 (5th Cir. 1993).
Accordingly,
IT IS ORDERED that defendants' motion for summary judgment should be and is hereby DENIED. IT IS FURTHER ORDERED that judgment be entered in favor of plaintiff Latora Gann and against Brian Cucullu and State Farm Mutual Automobile Insurance Company, this Court finding that Louisiana Revised Statutes 32:866 and 32:861 have no application to plaintiff's claims.