Opinion
NO. 2018 CA 0819
02-25-2019
TMI ENTERPRISES, L.L.C. v. KRAWDADDY'S DELI, LLC, PAUL ANTHONY MLADENKA, MICHAEL MLADENKA AND MARYLAND CASUALTY COMPANY
CLIFTON IVEY, JR. BATON ROUGE, LA ATTORNEY FOR DEFENDANTS/APPELLANTS KRAWDADDY'S DELI, LLC, PAUL MLADENKA, AND MICHAEL MLADENKA RANDELL E. TREADAWAY JEFFREY E. MCDONALD COVINGTON, LA ATTORNEYS FOR DEFENDANT/APPELLEE ZURICH AMERICAN INSURANCE COMPANY, SUCCESSOR IN INTEREST TO MARYLAND CASUALTY COMPANY MICHAEL A. TRIAY MANDEVILLE, LA ATTORNEY FOR PLAINTIFF TMI ENTERPRISE, L.L.C. JACK E. TRUITT COVINGTON, LA ATTORNEY FOR DEFENDANT KRAWDADDY LA a/k/a KRAWDADDY'S INC.
NOT DESIGNATED FOR PUBLICATION Appealed from the 18nd Judicial District Court In and for the Parish of West Baton Rouge, State of Louisiana
Trial Court No. 1041680
Honorable Edward J. Gaidry, Judge Ad Hoc CLIFTON IVEY, JR.
BATON ROUGE, LA ATTORNEY FOR
DEFENDANTS/APPELLANTS
KRAWDADDY'S DELI, LLC, PAUL
MLADENKA, AND MICHAEL MLADENKA RANDELL E. TREADAWAY
JEFFREY E. MCDONALD
COVINGTON, LA ATTORNEYS FOR
DEFENDANT/APPELLEE
ZURICH AMERICAN INSURANCE
COMPANY, SUCCESSOR IN INTEREST TO
MARYLAND CASUALTY COMPANY MICHAEL A. TRIAY
MANDEVILLE, LA ATTORNEY FOR
PLAINTIFF
TMI ENTERPRISE, L.L.C. JACK E. TRUITT
COVINGTON, LA ATTORNEY FOR
DEFENDANT
KRAWDADDY LA a/k/a KRAWDADDY'S
INC. BEFORE: WELCH, CHUTZ, AND LANIER, JJ. LANIER, J.
Defendants, Krawdaddy's Deli, LLC, d/b/a Krawdaddy's Kitchen ("Krawdaddy's Deli"), Paul Anthony Mladenka, and Michael Mladenka, appeal the trial court's December 18, 2017 judgment, which dismissed, with prejudice, its cross claims against defendant, Maryland Casualty Company ("MCC"). For the following reasons, we affirm as amended.
According to the record, Zurich American Insurance Company, as successor by merger with MCC, appeared on behalf of MCC in these proceedings. However, for clarity and consistency, we will refer to the insurer throughout this opinion as MCC.
FACTS
According to the record, plaintiff, TMI Enterprise, L.L.C. ("TMI"), was the owner and operator of various gaming devices located in the Krawdaddy's Truck Stop in Port Allen, Louisiana. On October 20, 2013, Krawdaddy's Deli was operating a restaurant in the truck stop. TMI alleged that Paul and Michael Mladenka, while in the course and scope of their employment with Krawdaddy's Deli, "ignited a gas burner under a large cast iron pot ... filled with cooking grease," which resulted in a "raging fire," burning the truck stop to the ground. TMI asserted it was unable to continue the operation of its gaming enterprise due to the total loss of its gaming equipment and the complete destruction of the truck stop. TMI named MCC in its capacity as the liability insurer of Krawdaddy's Deli and the Mladenkas (hereinafter sometimes referred to collectively as "Krawdaddy's Deli" for ease of reference). In a subsequent amended petition, TMI added, as an additional defendant, Krawdaddy's LA, L.L.C. a/k/a Krawdaddy's Inc. ("Krawdaddy's LA"), in its capacity as the owner of the immovable property on which the truck stop was located.
In response to TMI's claims, MCC filed a motion for summary judgment on April 28, 2017, arguing that there was no coverage under the MCC policy issued to Krawdaddy's Deli on the grounds that material misrepresentations made by Krawdaddy's Deli in its application for insurance voided the policy ab initio. MCC further asserted that there was no coverage because the MCC policy was cancelled effective July 28, 2013, for nonpayment of the premium prior to the date of the fire. Hearing on said motion was originally scheduled for June 15, 2017, but was later continued to August 10, 2017. On July 31, 2017, Krawdaddy's Deli filed an answer, generally denying the claims of TMI, and further asserting a cross claim against MCC, requesting judgment in their favor finding that the MCC policy provided "full coverage for defense, full indemnity, and other coverages up to the limits of the policy(ies)."
The record reveals that MCC had filed at least two prior motions for summary judgment on the issue of the cancellation of the MCC policy due to nonpayment of premiums. However, according to the record before us, neither of the motions were ever adjudicated.
In a September 7, 2017 judgment, the trial court granted summary judgment in favor of MCC, dismissing TMI's claims against MCC, with prejudice. The trial court implicitly concluded that there was no genuine issue of fact that the MCC policy was cancelled effective July 28, 2013, for nonpayment of the premium and that the MCC policy was not in effect on the date of the fire. TMI has separately appealed this judgment, which appeal is also disposed of this same date. See TMI v. Krawdaddy's Deli, LLC, 2018-0818 (La. App. 1 Cir. 2/22/19) (unpublished opinion) ("TMI 1").
Following the trial court's grant of summary judgment in TMI 1, MCC filed yet another motion for summary judgment, this time seeking judgment against Krawdaddy's Deli. MCC argued that there was no coverage under the MCC policy in question because the material representations made by Krawdaddy's Deli in its application for insurance voided the MCC policy ab initio. MCC further asserted that there was no coverage because the MCC policy was cancelled effective July 28, 2013, prior to the date of the fire, for nonpayment of premium.
MCC submitted the following evidence in support of its motion: (1) a copy of the MCC policy number PPS 05424975, with a policy period of 11/28/2012 to 11/28/2013; (2) a copy of the electronic insurance application form; (3) a copy of a form entitled "Restaurant Supplemental Information" that was filled out by hand; (4) Paul Mladenka's deposition, given as the corporate representative of Krawdaddy's Deli; (5) Michael Mladenka's deposition; (6) Robert "Andy" Blumberg's deposition, the insurance agent who secured the MCC policy for Krawdaddy's Deli; (7) a copy of the notice of cancellation dated July 10, 2013, indicating a notice effective date of cancellation of the MCC policy of July 28, 2013, unless $371.04 was received by said date; (8) a copy of the certificate of mailing; (9) a copy of a $371.04 check dated August 8, 2013, from Krawdaddy's Deli made payable to MCC; (10) Aiko Walson's affidavit, an Underwriting Manager with knowledge of the MCC policy in question.
We note a clerical error in the trial court's December 18, 2017 judgment with regard to the MCC policy in question. The trial court references the policy as bearing Policy No. "PPS 0524975." However, from our review of the record, this is clearly a clerical error as the correct Policy No. is "PPS 05424975." The trial court could have corrected this error on its own initiative pursuant to La. Code Civ. P. art. 1951. Further, this court may correct clerical errors in the judgment of a trial court. Accordingly, we amend the judgment to reflect the correct policy number. See Live Oak Homes Corp. v. Carrier Sales & Distribution, LLC, 2013-516 (La. App. 5 Cir. 4/23/14), 140 So.3d 362, 367.
In opposition, Krawdaddy's Deli submitted the following: (1) a copy of MCC's original March 2015 motion for summary judgment and the attached exhibits; (2) Michael Mladenka's affidavit; (3) electronic bank statement reflecting an August 8, 2013 $371.04 payment from Krawdaddy's Deli to MCC; (4) electronic bank statement reflecting an October 22, 2013 $150.00 payment from Krawdaddy's Deli to MCC; (5) Paul Mladenka's affidavit; (6) Patrick Mladenka's affidavit; (7) MCC's supplemental answers and responses to discovery; (8) deposition excerpts from the deposition of the corporation representative of Blumberg & Associates, Inc. ("Blumberg"), Barry Owen Blumberg; (9) deposition excerpts from the deposition of Andy Blumberg; (10) Michael Mladenka's deposition; and (11) Paul Mladenka's deposition.
MCC's motion for summary judgment proceeded to hearing on November 16, 2017, at which time the trial court considered the arguments of counsel and the documentary evidence introduced by both sides, without objection, on the summary judgment. The trial court granted summary judgment in favor of MCC finding there was no genuine issue of fact that the MCC policy was cancelled effective July 28, 2013, prior to the date of the fire, for non-payment of the premium. The trial court further found there was no genuine issue of material fact that Krawdaddy's Deli made material misrepresentations with the intent to deceive MCC in its application for the issuance of the MCC policy, which voided the policy ab initio. The trial court signed a judgment on December 18, 2017, dismissing, with prejudice, the cross claim filed by Krawdaddy's Deli against MCC.
Generally, a party may not utilize unsworn and unverified documents as summary judgment evidence. Thomas v. Comfort Center of Monroe. LA. Inc., 2010-0494 (La. App. 1 Cir. 10/29/10), 48 So.3d 1228, 1237. Louisiana Code of Civil Procedure article 966(A)(4) states that""[t]he only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions." However, Article 966 further provides that the court "shall consider any documents to which no objection is made." La. Code Civ. P. art. 966(D)(2).
It is from this judgment that Krawdaddy's Deli, Paul Anthony Mladenka, and Michael Mladenka have appealed, assigning the following specifications of error concerning the summary judgment granted in favor of MCC:
1. The trial court erred in granting [MCC's] motion for summary judgment finding/ordering that the policy of insurance issued by [MCC] to [Krawdaddy's Deli] on November 28, 2012 bearing [P]olicy No. [PPS 05424975] was cancelled by [MCC] on July 28, 2013, for non-payment of the premium.
2. The trial court erred in granting [MCC's] motion for summary judgment by finding that [Krawdaddy's Deli] made a material misrepresentation with the intent to deceive [MCC] in its application for the issuance of [MCC] Policy No. [PPS 05424975], which voids Policy No. [PPS 05424975] ab initio.
3. The trial court erred in granting [MCC's] motion for summary judgment by entering judgment in favor of [MCC] and against [Krawdaddy's Deli], Paul Anthony Mladenka, and Michael Mladenka, dismissing their cross-claim with full prejudice and at their own cost.
SUMMARY JUDGMENT
A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. All Crane Rental of Georgia, Inc. v. Vincent, 2010-0116 (La. App. 1 Cir. 9/10/10), 47 So.3d 1024, 1027, writ denied, 2010-2227 (La. 11/19/10), 49 So.3d 387. After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show 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(A)(3). The only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions. La. Code Civ. P. art. 966(A)(4).
The burden of proof rests on the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. Code Civ. P. art. 966(D)(1).
In ruling on a motion for summary judgment, the trial court's role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Guardia v. Lakeview Regional Medical Center, 2008-1369 (La. App. 1 Cir. 5/8/09), 13 So.3d 625, 628. A trial court cannot make credibility decisions on a motion for summary judgment. Monterrey Center, LLC v. Ed.ucation Partners, Inc., 2008-0734 (La. App. 1 Cir. 12/23/08), 5 So.3d 225, 232. In deciding a motion for summary judgment, the trial court must assume that all of the witnesses are credible. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181 (La. 2/29/00), 755 So.2d 226, 236.
Appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Bouquet v. Williams, 2016-0134 (La. App. 1 Cir. 10/28/16), 206 So.3d 232, 237, writs denied, 2016-2077, 2016-2082 (La. 1/9/17), 214 So.3d 870, 871. Thus, appellate courts ask the same questions that the trial court does in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La. 7/5/94), 639 So.2d 730, 750. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Succession of Hickman v. State Through Board of Supervisors of Louisiana State University Agricultural and Mechanical College, 2016-1069 (La. App. 1 Cir. 4/12/17), 217 So.3d 1240, 1244.
DISCUSSION
On appeal, Krawdaddy's Deli challenges the timeliness of the mailing of the notice of cancellation in question. Pointing to a notice of cancellation issued to the additional insured Krawdaddy's LA by MCC on September 16, 2013, indicating that Krawdaddy's LA's interest in the MCC policy did not cease until October 23, 2013, after the October 20, 2013 fire, Krawdaddy's Deli maintains that the MCC policy was in force and effect in favor of all insureds on the date of the fire. Krawdaddy's Deli further contends that that there is a genuine issue of material fact as to whether, as in the past, the late premium payments made by Krawdaddy's Deli were accepted by MCC, resulting in the reinstatement of the MCC policy. Finally, with regard to the alleged material misrepresentations made by Krawdaddy's Deli with the intent to deceive MCC in its application for the MCC policy, Krawdaddy's Deli argues that there exists a material issue of fact as to whether Blumberg was an agent of MCC at the time in question. Krawdaddy's Deli maintains that in order for MCC to prevail on the motion for summary judgment that the MCC policy was void ab initio due to a material misrepresentation, MCC had to prove that no genuine issue of material fact existed as to whether Krawdaddy's Deli made misrepresentations in the policy application, the misrepresentations were material, and the misrepresentations were made with the intent to deceive. Krawdaddy's Deli asserts that based on the factual inferences drawn from the evidence in the record, summary judgment in this case was granted in error.
In response, MCC asserts the evidence is clear that the notice of cancellation was issued, the U.S. Postal Service received the notice of cancellation for transport and delivery on July 9, 2013, and delivery is presumed. MCC maintains that Krawdaddy's Deli presented no evidence to rebut the presumption of delivery and that the mere denial of receipt of notice does not automatically rebut the presumption of delivery. See Hemperley v. Aetna Cas. & Sur. Co., 516 So.2d 1202, 1205 (La. App. 2 Cir. 1987). With regard to the affidavit of Mr. Unger, MCC argues that the mere fact that Krawdaddy's Deli relies on an "irrelevant exhibit to a 2015 summary judgment motion that was filed by MCC's former counsel and never heard or adjudicated, is in and of itself demonstrative of the absence of genuine issues of material fact."
Concerning the alleged late premium payments made by Krawdaddy's Deli, MCC maintains that there was no habit of accepting late premiums beyond the noticed effective date of cancellation. Rather, on prior occasions when Krawdaddy's Deli submitted payment of past due premiums, MCC notes it had always been before the date noticed for cancellation. MCC maintains further that it never retained any unearned premiums paid by Krawdaddy's Deli, but instead issued refund checks to Krawdaddy's Deli. Finally, MCC asserts that the record clearly establishes that the MCC policy was void ab initio because Krawdaddy's Deli and its representatives made material misrepresentations, with the intent to deceive, in its application for the MCC policy.
Based on our thorough review of the record and relevant jurisprudence, we agree with MCC that summary judgment was warranted in this case. However, because we agree with the trial court's dismissal of the cross claim filed by Krawdaddy's Deli since there was no genuine issue of material fact regarding the cancellation of the MCC policy, effective July 28, 2013, for nonpayment of the premium, we pretermit consideration of whether Krawdaddy's Deli made material misrepresentations in its application for the MCC policy.
In a cancellation of insurance case, the burden of proof first rests upon the insurer to prove by prima facie evidence proof of mailing of notice to the insured. Where the insurer meets the burden of proof, a presumption of delivery is established, which then may be rebutted by the insured by proof of non-delivery. The insured has the burden of proof to establish the non-delivery. Williams v. Storms, 2001-2820 (La. App. 1 Cir. 11/8/02), 835 So.2d 755, 761.
MCC's policy contains the following with regard to cancellation and notice of cancellation:
BUSINESSOWNERS COMMON POLICY CONDITIONS (as modified by the
"Louisiana Changes" Endorsement)
All coverages of this policy are subject to the following conditions,
A. Cancellation
. . . .
2. Notice of Cancellation
. . . .
b. Cancellation of Renewal Policies And New Policies in Effect For 60 Days Or More
If this policy has been in effect for 60 days or more, or is a renewal of a policy we issued, we may cancel only for one or more of the following reasons:
(1) Nonpayment of premium;
. . . .
We will mail or deliver written notice of cancellation under Paragraph 2.b, to the first Named Insured at least:
(a) 10 days before the effective date of cancellation if we cancel for nonpayment of premium ....
3. We will mail or deliver our notice to the first Named Insured's last mailing address known to us.
4. Notice of cancellation will state the effective date of cancellation. The policy period will end on that date.
. . . .
6. If notice is mailed, proof of mailing will be sufficient proof of notice.
Aiko Walson, an underwriting manager employed by Foremost Insurance Group ("Foremost"), attested in an affidavit that she had personal knowledge of the underwriting guidelines for the issuance of the property and general commercial liability policies under the MCC Precision Portfolio Restaurant Program, which included the MCC policy in question.
Ms. Walson testified as follows in her affidavit. Krawdaddy's Deli was to pay monthly premiums on the MCC policy through October 28, 2013. No regular monthly premium payments were received from Krawdaddy's Deli for the months of January and February 2013. MCC mailed a notice of cancellation to Krawdaddy's Deli, indicating the MCC policy would be cancelled effective March 12, 2013, unless $456.32 was paid by March 30, 2013. A payment of $456.32 was received from Krawdaddy's Deli on March 25, 2013, and the MCC policy was continued without interruption. Again, in March and April 2013, no regular monthly premiums were received. A notice of cancellation was mailed to Krawdaddy's Deli, indicating that the MCC policy would be cancelled effective May 28, 2013, unless $413.68 was paid by May 28, 2013. On May 19, 2013, Krawdaddy's Deli made a payment, and the MCC policy was continued without interruption.
Once again, no regular monthly premium payments were made by Krawdaddy's Deli in May and June 2013, prompting a notice of cancellation dated July 10, 2013. MCC advised Krawdaddy's Deli that the MCC policy would be cancelled effective July 28, 2013, unless $371.04 was paid by July 28, 2013. The $371.04 premium due on the MCC policy was not paid prior to the noticed effective date of cancellation, July 28, 2013. A Certificate of Mailing from the U.S. Postmaster on July 9, 2013, indicated that the notice was mailed on July 9, 2013. The MCC policy was cancelled for nonpayment of the premium effective 12:01 a.m. on July 28, 2013.
Thus, it is clear that there was no history, as alleged by TMI, of MCC accepting late payments beyond the noticed effective date of cancellation, resulting in the reinstatement of the MCC policy. Although Krawdaddy's Deli had previously been behind on its premium payments for the MCC policy, on both prior occasions, Krawdaddy's Deli submitted payment of the past due premiums before the date noticed for cancellation.
A review of the notice of cancellation in the instant case reveals that the effective date of the MCC policy was November 28, 2012. The notice of cancellation, which was issued on July 10, 2013, was mailed to Krawdaddy's Deli at P.O. Box 995, Port Allen, LA 70767, notifying them that the MCC policy would be cancelled for nonpayment of premium effective July 28, 2013. The notice expressly states:
YOUR POLICY(S) SHOWN ABOVE WILL BE CANCELLED AS OF THE EFFECTIVE DATE OF CANCELLATION SHOWN ABOVE, BECAUSE WE HAVE NOT RECEIVED YOUR PAYMENT. THE CANCELLATION WILL TAKE EFFECT AT 12:01 A.M. LOCAL TIME AT THE ADDRESS OF THE INSURED ON THE DATE OF CANCELLATION SHOWN ABOVE. IF WE RECEIVE YOUR PAYMENT BY THAT DATE AND TIME, YOUR INSURANCE COVERAGE WILL CONTINUE WITHOUT INTERRUPTION.Moreover, the Certificate of Mailing from the U.S. Postmaster indicates that the notice of cancellation was received by the U.S. Postal Service for transport and delivery on July 9, 2013.
According to the deposition testimony of Paul Mladenka, who testified in his capacity as the corporate representative of Krawdaddy's Deli, he knew that monthly premiums were due on the MCC policy. Both Paul and Michael Mladenka testified that they were aware that there were past due premiums at the time the MCC policy was cancelled on July 28, 2013. With regard to the July 10, 2013 notice of cancellation, Paul verified that the post office box to which the notice was mailed was the correct mailing address for Krawdaddy's Deli. Moreover, Paul acknowledged that he could not testify under oath that Krawdaddy's Deli did not receive the notice of cancellation.
Michael Mladenka testified that their cousin, Patrick Mladenka, acted as the general manager and was responsible for the administrative functions of the business, such as paying bills. However, when Patrick's tenure as the general manager ended in July 2013, Michael took over some of the day-to-day operations. When asked about the notice of cancellation, Michael indicated that he checked the post office box once a week and that the box was checked "maybe six times a month." Michael testified that while he never received or saw a notice of cancellation from MCC, there were other people who checked the post office box. Michael further acknowledged that Patrick was primarily checking the mailbox and that while Patrick never said anything about getting a notice of cancellation from MCC, he could not testify as to whether Patrick may or may not have known about the notice.
In light of the evidence presented by MCC on its motion for summary judgment, we are satisfied that MCC met its burden of proving that there was an absence of support for one of the essential elements of the cross claim filed by Krawdaddy's Deli against MCC, i.e., that MCC's policy was in effect on the date of the fire. Thus, the burden shifted to Krawdaddy's Deli to produce factual support sufficient to establish that it would be able to satisfy its evidentiary burden of proof at trial. "When a motion for summary judgment is made and supported ... an adverse party may not rest on the mere allegations ... of his pleading, but his response ... must set forth specific facts showing that there is a genuine issue for trial." La. Code Civ. P. art. 967(B).
In support of its position in opposition to MCC's motion for summary judgment, Krawdaddy's Deli submitted what it alleged was conflicting evidence attached to MCC's 2015 motion for summary judgment. Specifically, Krawdaddy's Deli introduced an affidavit by David Unger, the custodian of MCC's records at all pertinent times, who attested that according to the Certificate of Mailing from the U.S. Postmaster, the notice of cancellation was mailed to Krawdaddy's Deli on July 9, 2013, and a copy of a U.S. Postal Service Certified Mail Receipt, indicative of something having been mailed to Krawdaddy's Deli via certified mail and allegedly received on October 31, 2013. Krawdaddy's Deli pointed out that this evidence was not only in conflict with each other, but even more so with the notices of cancellation or non-renewal, also attached to MCC's 2015 motion for summary judgment, which were allegedly mailed by MCC to Krawdaddy's Deli and an additional insured, Krawdaddy's LA, and both reflect a September 16, 2013 date of mailing. Krawdaddy's Deli asserted that while its notice of cancellation reflected an effective date of cancellation of July 28, 2013, the notice of cancellation sent to Krawdaddy's LA indicated its interest in the policy ceased effective October 23, 2013, which was subsequent to the date of the fire.
We find no merit to this argument as the MCC policy clearly allows for cancellation of the policy with notice of cancellation sent only to the first named insured. Furthermore, as previously mentioned, pursuant to the terms of the MCC policy, if the notice was mailed, proof of mailing is sufficient proof of notice, and the effective date on the notice of cancellation serves as the date the policy period ends, i.e., July 28, 2013. Having satisfied its evidentiary burden of proof on the mailing of the notice of cancellation to the insured, MCC is entitled to a presumption of delivery. See Williams, 835 So.2d at 761. Krawdaddy's Deli failed to come forward with sufficient opposing evidence to raise a genuine issue of material fact as to the mailing of the notice of cancellation.
We note further that La. R.S. 22:1266(D) does not require that notice of cancellation for nonpayment of premiums be sent by certified mail. --------
Krawdaddy's Deli noted further that MCC accepted payment from it on two occasions after July 28, 2013, the alleged cancellation date of the MCC policy. According to Krawdaddy's Deli, it made a payment to MCC on August 8, 2013, in the amount of $371.04 and never received a refund of this payment. Krawdaddy's Deli alleged a later payment in the amount of $150.00 was made to MCC on October 22, 2013, which we note was two days after the fire occurred.
However, as attested to by Ms. Walson, MCC did not retain any unearned premiums. In fact, MCC issued two separate refund checks to Krawdaddy's Deli. The first was a check for $202.41, dated October 3, 2013, for $202.41, representing the balance remaining of a payment made by Krawdaddy's Deli on August 12, 2013, after MCC retained $168.63 from a $371.04 check for premiums earned prior to the July 28, 2013 cancellation date. Another check dated November 12, 2013, in the amount of $150.00, represented a return of the payment in the same amount made by Krawdaddy's Deli and received by MCC on October 28, 2013, eight days after the fire occurred. Krawdaddy's Deli argument to the contrary is without merit.
Based on our thorough de novo review of the record and relevant jurisprudence, we are not convinced that Krawdaddy's Deli has come forward with enough specific facts to establish a genuine issue for trial. We agree with the trial court that "the policy was, in fact, cancelled by non-payment of the premiums by virtue of that letter of July the 9thcancelling it on July 28th." Therefore, summary judgment in favor of MCC, dismissing, with prejudice, the cross claim filed by Krawdaddy's Deli against MCC, was appropriate. Moreover, as previously noted, we pretermit consideration of whether Krawdaddy's Deli made material misrepresentations in its application for the MCC policy.
CONCLUSION
For the above and foregoing reasons, we amend the trial court's December 18, 2017 judgment to reflect the correct policy number, and affirm as amended. We assess all costs associated with this appeal against appellants, Krawdaddy's Deli, LLC, d/b/a Krawdaddy's Kitchen, Paul Anthony Mladenka, and Michael Mladenka.