Opinion
No. 2021-C-00621
03-25-2022
Calvin LANDRY & Mary Landry v. PROGRESSIVE SECURITY INSURANCE COMPANY, et al.
Application for rehearing denied.
Hughes, J., would grant.
Genovese, J., would grant for reasons set forth in original dissent.
Griffin, J., would grant.
Crichton, J., additionally concurs and assigns reasons.
Crichton, J., additional concurs and assigns reasons:
I agree with the majority's denial of defendant's application for rehearing, which fails to set forth any new law or argument not previously considered by this Court on original review. As addressed in detail in the original opinion, the solemn will of the Legislature and public policy of this state – expressed by the plain language of the Louisiana Motor Vehicle Safety Responsibility Law (the "LMVSRL") – requires insurance coverage on the vehicle in all instances, not on the named insured. See Landry v. Progressive Sec. Ins. Co. , 2021-00621 (La. 1/28/22), ––– So. 3d ––––, –––– – ––––, 2022 WL 263003, *7-12 ; see also Marcus v. Hanover Ins. Co., Inc. , 98-2040 (La. 6/4/99), 740 So. 2d 603, 606 ("An insurer is not at liberty to limit its liability and impose conditions upon its obligations that conflict with statutory law or public policy .") (emphasis added); Sensebe v. Canal Indem. Co. , 2010-0703 (La. 1/28/11), 58 So. 3d 441, 446 ("The court's search for the public policy governing automobile insurance policies ... must begin with the statutes enacted by the legislature."). As discussed in the opinion, see Landry , ––– So. 3d at –––– – ––––, 2022 WL 263003 at *8-9, the 1977 version of the LMVSRL mandated that insurers provide coverage of both the owner's or permissive driver's operation or use of the covered auto in a La. R.S. 32:900(B)(2) "owner's policy" as well as a named insured operating a non-owned auto in a La. R.S. 32:900(C) "operator's policy." See Acts 1977, No. 115, § 1. In 1985, however, the Legislature amended the LMVSRL and eliminated compulsory insurance of a named insured operating a non-owned auto. See Acts 1985, No. 229, § 1. The Legislature therefore rejected the contention posited by the plaintiffs here. Briefly, the issue in this case is not whether the vehicle owner's insurance policy failed to conform with the LMVSRL's requirement that all policies provide coverage of the vehicle regardless of whether driven by the named insured or a permissive driver. See La. R.S. 32:900(B)(2) (an "owner's policy of liability insurance ... shall insure the person named therein and any other person , as insured, using any such motor vehicle or motor vehicles with the express or implied permission of such named insured ..."). In conformance with the LMVSRL, the vehicle owner's policy did provide insurance coverage in this case , and in fact the insurer of the vehicle driven by the defendant driver settled with plaintiffs for maximum policy limits. Apparently finding the defendant's policy limits insufficient to fully remedy their injuries – and notably having chosen not to purchase UM motorist coverage that would have otherwise provided them with financial protection in such instance – plaintiffs sought additional coverage from the defendant driver's policy.
For reasons set forth in the opinion, this coverage is not required by legislation or public policy. See Landry, ––– So. 3d at –––– – ––––, 2022 WL 263003 at *7-12. I write separately to highlight that this finding not only conforms with statutory law and public policy but is also in accord with this Court's longstanding jurisprudence. This Court could have exclusively relied on the express holdings of its prior decisions in Simms v. Butler and Hearty v. Harris , which found that the LMVSRL does not mandate coverage of a named insured's operation of a non-owned auto where, as here, the insurance policy excludes it. See Simms v. Butler , 702 So. 2d 686 (La. 12/2/97) (finding no coverage for defendant driver, who was not driving an "insured auto" under his policy, in part because plaintiffs’ contention that La. R.S. 32:900(C) must be incorporated into an automobile policy was without merit); Hearty v. Harris , 574 So. 2d 1234 (La. 1991) (" [a]t the heart of [the LMVSRL] is the decision to attach the financial protection to the vehicle rather than to the operator .") Hearty , 574 So. 2d at 1237 (emphasis added). The opinion went beyond reliance on this longstanding jurisprudence, however, to explain why the LMVSRL provides no other possible conclusion.
Respected legal scholars and experts in insurance have likewise so recognized. W. Shelby McKenzie & H. Alston Johnson, III, Vehicles insured-Non-owned automobiles, Insurance Law & Practice, 15 LA. CIV. L. TREATISE § 3:41 (4th ed.) ("[T]he compulsory insurance law does not require that insurance policies extend coverage for its insured's use of nonowned autos."). Indeed, the dissents are unable to cite any law mandating coverage for the named insured defendant driver in this case, as none exists. Again, in this case insurance coverage was attached to – and proceeds were paid to plaintiffs in connection with – the defendant permissive driver's use of the insured vehicle, not the operator, per the driver's policy, per Simms , per Hearty , per the Louisiana Civil Law Treatise, and most importantly per the LMVSRL.
Not only were plaintiffs unable to cite to statutory law or jurisprudence of this Court in support of their rehearing argument, but also, notably, the Court has not received the benefit of amicus curiae briefs at any stage of its review of this case.
The opinion is narrowly drawn, recognizing that while there is no statutory basis for the court deeming "public policy" to require coverage in this particular case, there may be other instances – e.g. , scenarios presenting exigency, necessity, or safety concerns – where public policy may require coverage. It is difficult to ascertain how the Court's ruling would have a chilling effect on positive behavior such as individuals serving as designated drivers for their intoxicated friends. Indeed, the opinion expressly uses this type of situation as an example of activity for which public policy considerations – e.g. , preventing conduct that has been criminalized in an effort to protect the public – might require coverage. See La. R.S. 14:98.
It is also noteworthy that the defendant driver's policy limits were the same as those held by the vehicle's owner's policy. In other words, had the defendant driver been driving his own, covered auto at the time of the accident, plaintiffs could not have recovered more from the defendant's insurer than the amount they recovered from the vehicle owner's insurer. Again, the Legislature, not the courts, set forth the minimum policy limits with respect to which each insurer and insured must comply, and plaintiffs’ decision to reject UM coverage limited their ability to collect more than the minimum policy limits set forth by the Legislature. As a majority of this Court acknowledged, "[w]hether we agree with the Legislature's policy to permit insurers to exclude coverage here, it is not our duty to create policy mandates that are unsupported by statutory law." Landry , ––– So. 3d at ––––, 2022 WL 263003 at *14. Not only is it not our duty, but where the Legislature has spoken and set public policy, as here, separation of powers doctrine limits this Court's ability to expand that policy beyond the parameters of legislative will. See also La. Const. Art. I, § 2 (the judiciary branch shall not exercise power belonging to the Legislature).
Though I may not personally agree with the law as written, the rule of law requires that I not legislate from the bench – a promise I have made to the public. It is the province and duty of the Legislature, not the judiciary, to require the coverage excluded in this policy. At the time of this rehearing denial, a proposed bill of the 2022 Regular Session appears to be an example of such a corrective measure. Without opining on this particular bill, I do believe that the Legislature should thoroughly consider whether a corrective measure is warranted in accordance with its constitutional rights and duties to enact legislation and thus craft the public policy of this state. Accordingly, and again together with the majority of the Court, I maintain my original vote in this case.