Bits & Pieces

Lopez v. Domingo

2021 WL 2653022

UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING.
Court of Appeals of New Mexico.
TODD LOPEZ, as the Wrongful Death Personal Representative of the ESTATES OF MARGARET DOMINGO, Deceased, JERDANIA DOMINGO, Deceased, and JEREMIAH DOMINGO, Deceased,
and
JERRY DOMINGO, Individually, and as Next Friend of NIKKIA RUTH NAPOLEON, JORDYN RILEY DOMINGO, and TYMIA XANDRIA CECLIA NAPOLEON, Minors, Plaintiffs-Appellants,
v.
EDEAL DAIRY, LLC and LAS NUTRIAS, LLC, Defendants-Appellees,
and
TRIPLE TRUCKING CO., INC. and MATTHEW D. MORGAN, Defendants.
No. A-1-CA-37712
|
Filed 6/28/2021
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Francis J. Mathew, District Judge
Attorneys and Law Firms
Lopez Scott, L.L.C., Orlando R. Lopez, San Antonio, TX, Chapa Law Group, PC, Miguel J. Chapa, San Antonio, TX, Hunt Law Firm, Lee R. Hunt, Santa Fe, NM for Appellants
Allen Law Firm, LLC, Meena H. Allen, Kerri L. Allensworth, Albquerque, NM for Appellee Edeal Dairy LLC
Riley, Shane & Keller, P.A., David A. Gonzales, D. Chet Alderete, Albuquerque, NM for Appellee Las Nutrias LLC

MEMORANDUM OPINION
J. MILES HANISEE, Chief Judge
*1 HANISEE, Chief Judge.

{ 1} Todd Lopez and Jerry Domingo (Plaintiffs) appeal from the grant of Edeal Dairy, LLC (Edeal Dairy) and Las Nutrias, LLCs’ (Las Nutrias) (collectively, Defendants) motion for summary judgment.1 Plaintiffs assert that the district court erred in granting summary judgment because they presented sufficient evidence to create a genuine dispute of material fact. We affirm.

BACKGROUND
{ 2} Because this is a memorandum opinion and the parties are familiar with the facts and procedural history of this case, we set forth here only a brief overview of the relevant historical facts of this case. We reserve discussion of specific facts where necessary to our analysis.

{ 3} This case arises from a fatal car accident that occurred in the morning hours of September 25, 2014, opposite the Giant Hilltop Gas Station (the Hilltop Station) in Bloomfield, New Mexico. The crash involved numerous vehicles, including a Chevrolet Silverado truck driven by Salomon Reyes, a tractor-trailer driven by Matthew Morgan of Triple S Trucking, and a Chevrolet sedan driven by Jeremiah Domingo, in which Margaret Domingo and Jerdania Domingo (the Domingos) were passengers. The Domingos were killed in the crash. The accident occurred when a separate, unidentified tractor with a flatbed trailer (the unidentified tractor-trailer) pulled out of the Hilltop Station while attempting to turn left and proceed north on U.S. Highway 550. Its driver failed to yield to oncoming traffic in the southbound lanes, and as the unidentified tractor-trailer crossed the southbound lanes its trailer was struck by Reyes’s Silverado truck. Morgan, also travelling southbound, swerved attempting to avoid hitting Reyes’s Silverado truck, causing Morgan’s own tractor-trailer to jackknife into the northbound lanes where it crashed into the Domingo’s sedan. Eyewitnesses stated that the unidentified tractor-trailer left the scene of the accident.

{ 4} The San Juan County Sherriff’s Department assigned Detective Jacob Courtney to investigate the accident. Detective Courtney spoke to the Hilltop Station employees and reviewed surveillance footage from inside and outside of the Hilltop Station. Detective Courtney also interviewed Jerry Cordova, a motorist not involved in the collision, but who slammed on his brakes to avoid hitting the unidentified tractor-trailer as he travelled northbound. Cordova described the unidentified tractor-trailer as “kind of a light blue … with a flatbed trailer unloaded.” Detective Courtney also obtained logbooks and surveillance footage from a nearby agricultural area, Navajo Agricultural Products Industry (NAPI). The logbooks and footage indicated that a flatbed tractor-trailer arrived at NAPI almost daily between 6:00-8:00 a.m.; however, on September 25, 2014, the logbooks reflect that the driver of that trailer, Gilbert Martinez, arrived instead at 2:20 p.m. While Martinez typically wrote in the NAPI logbooks that he was employed by Edeal Dairy, on September 25, 2014, he stated that he was driving for Las Nutrias.

*2 { 5} Based on the NAPI logbooks and surveillance footage, Detective Courtney executed a search warrant of Las Nutrias and specifically Trailer 9107, the trailer that was regularly pulled by Martinez (the Las Nutrias trailer) with what Detective Courtney described to be a “semi” that was “possibly a bluish color.” Given the nature of the initial collision with Reyes’s Silverado truck, Detective Courtney did not believe that the semi itself—in other words, the “tractor” portion of a tractor-trailer—had been struck or could have been damaged during the accident. When he executed the warrant on the Las Nutrias trailer, Detective Courtney noted that it had some physical damage, including a gouge on one of the driver’s side tires, as well as several bolts, and an air brake that appeared to have been recently replaced. In addition to his investigation of Las Nutrias, Detective Courtney investigated a number of trucking companies and nearby businesses in an effort to ascertain the owner and driver of the unidentified tractor-trailer, but ultimately was unable to reach a satisfactory conclusion.

{ 6} Initially, Plaintiffs filed a complaint for wrongful death, loss of consortium, and punitive damages against Morgan and Triple S Trucking in district court in October 2015. Plaintiffs later amended their complaint, adding Edeal Dairy and Las Nutrias as Defendants and alleging that the unidentified tractor-trailer belonged to one of these Defendants, whom Plaintiffs contend were joint venturers. Following discovery, Las Nutrias filed its motion for summary judgment asserting that there was no genuine issue of material fact as to whether Martinez and Las Nutrias were the driver and owner of the unidentified tractor-trailer. Edeal Dairy joined Las Nutrias’ motion. After a hearing, the district court issued an order granting motion for summary judgment as to both Defendants. This appeal followed.

DISCUSSION
{ 7} On appeal, Plaintiffs allege that the district court erroneously granted summary judgment, contending they presented sufficient evidence from which a reasonable jury could determine that (1) Martinez drove the unidentified tractor-trailer and caused the accident; and (2) Las Nutrias and Edeal Dairy are responsible for their driver Martinez’s negligence.2

I. No Admissible Evidence Creates a Genuine Issue of Material Fact That Martinez Was Involved in the Accident or That the Unidentified Tractor-Trailer Belonged to Defendants
{ 8} “We review the district court’s grant of summary judgment de novo.” All. Health of Santa Teresa, Inc. v. Nat’l Presto Indus., 2007-NMCA-157, ¶ 7, 143 N.M. 133, 173 P.3d 55. “Summary judgment is appropriate where there is no evidence raising a reasonable doubt that a genuine issue of material fact exists.” Beggs v. City of Portales, 2009-NMSC-023, ¶ 10, 146 N.M. 372, 210 P.3d 798. Once a prima facie case for summary judgment has been made, “the burden then shifts to the non-movant to demonstrate the existence of specific evidentiary facts which would require trial on the merits.” Carrillo v. My Way Holdings, LLC, 2017-NMCA-024, ¶ 24, 389 P.3d 1087 (internal quotation marks and citation omitted). “All reasonable inferences from the record are construed in favor of the non-moving party.” Garcia v. Underwriters at Lloyd’s, London, 2008-NMSC-018, ¶ 12, 143 N.M. 732, 182 P.3d 113. “When disputed facts do not support reasonable inferences, they cannot serve as a basis for denying summary judgment.” Romero v. Philip Morris Inc., 2010-NMSC-035, ¶ 10, 148 N.M. 713, 242 P.3d 280.

A. Appellants Failed to Present Admissible Evidence Creating a Genuine Issue of Fact That Martinez Was the Driver or Las Nutrias or Edeal Dairy Was the Owner of the Unidentified Tractor-Trailer That Caused the Accident
{ 9} Plaintiffs allege that summary judgment was improper in light of evidence they presented, which they maintain established genuine issues of material fact from which a reasonable jury could find that Martinez, driving for Las Nutrias and/or Edeal Dairy, caused the accident. Defendants answer that Plaintiffs “have failed to come forward with any witness who positively identified the Las Nutrias vehicle as the [unidentified] tractor[-]trailer.” In particular, Defendants assert that Plaintiffs’ reliance on the hearsay statements of motorist Cordova were insufficient to overcome summary judgment, and further that the record established that the Las Nutrias trailer was not the unidentified tractor-trailer.

*3 { 10} First, Defendants are correct that Plaintiffs provided neither testimony of, nor an affidavit from Cordova. Instead, they rely primarily on Detective Courtney’s deposition testimony, in which he described his investigation, including his contact with and interview of Cordova. Plaintiffs explain that when Detective Courtney interviewed Cordova, Cordova stated that he witnessed the accident and described the unidentified tractor-trailer that precipitated it “as a semi[ ]truck with a sleeper and was teal blue or green in color[,]” and that pulled “a flatbed trailer of some sort and that it appeared to be unloaded.” Plaintiffs contend that description, combined with the fact that Detective Courtney later found some damage on the Las Nutrias trailer, was sufficient to establish a genuine dispute of material fact as to whether the Las Nutrias trailer was pulled by the unidentified tractor-trailer. Defendants’ answer that statements by Cordova as relayed by Detective Courtney are inadmissible hearsay of a nature insufficient to overcome a motion for summary judgment. See Rule 11-801(C) NMRA (defining “hearsay” as “a statement that (1) the declarant does not make while testifying at the current trial or hearing, and (2) a party offers in evidence to prove the truth of the matter asserted in the statement”).3

{ 11} “The form of summary judgment evidence itself does not have to meet the requirements of admissibility for trial evidence, but the substance of the evidence must be of a type that can be admitted at trial.” Seal v. Carlsbad Indep. Sch. Dist., 1993-NMSC-049, ¶ 14, 116 N.M. 101, 860 P.2d 743 (emphasis omitted). The party opposing the motion for summary judgment “must put forth specific facts admissible into evidence to establish a disputed material fact.” Id. “[A]ffidavits or depositions containing hearsay are not sufficient evidence of a fact.” Wood v. City of Alamogordo, 2015-NMCA-059, ¶ 15, 350 P.3d 1185.

{ 12} As offered by Plaintiffs, the statements by Cordova to Detective Courtney are clearly hearsay. See Rule 11-802 NMRA (stating “[h]earsay is not admissible except as provided by these rules”). Each statement was made by Cordova, who was not testifying or being deposed, and was offered to prove the truth of the nature and color of the unidentified tractor-trailer. Rule 11-801(C). Because Detective Courtney’s deposition merely relayed hearsay statements purportedly spoken by Cordova during a telephonic interview, the statements on which Plaintiffs rely “are not sufficient evidence of a fact.” Wood, 2015-NMCA-059, ¶ 15 (holding that a recently terminated employee’s deposition testimony—in which the employee reiterated statements made by his boss that did not specifically relate to his termination—was insufficient to demonstrate that the employee was denied access to a neutral post-termination tribunal). Stated simply, under our precedent, Plaintiffs’ reliance on hearsay statements made to a detective investigating possible criminality associated with the accident failed to satisfy their burden to overcome summary judgment.

{ 13} Second, in the absence of admissible evidence from Cordova, the record established that the Las Nutrias trailer was not involved in the accident. For instance, four eyewitnesses who were confirmed to have observed the accident submitted affidavits that were attached to two photographs of the Las Nutrias trailer, stating that it was not the unidentified tractor-trailer involved in the accident. Reyes, the driver of the Chevrolet Silverado truck that initially hit the unidentified tractor-trailer, submitted an affidavit in which he stated, “It is my opinion to certainty based on my personal observations from the scene that the semi[ ]tractor[-]trailer shown … was not the [unidentified] tractor[-]trailer … with which I was involved in a collision.” Likewise, Jose Ramirez, who heard the impact of the accident and observed the unidentified tractor-trailer leaving the scene, also signed an affidavit, stating, “[T]hat the semi-tractor[-]trailer shown in the photographs attached … was not the semi-tractor[-]trailer that exited the Hilltop … [S]tation[.]” Ben Charley, another witness to the accident, agreed in his affidavit that the semi-tractor[-]trailer was not the Las Nutrias trailer. Finally, Ted Glover, another witness to the collision, testified in a deposition that the unidentified tractor-trailer had a “dark blue CH style Mack” tractor with a white stripe, pulling an older steel black trailer with a steel deck. His description does not match the lighter blue color of the unidentified tractor-trailer that pulled the Las Nutrias trailer, which had no stripes of any kind or color, and was a 2007 Peterbilt brand 387 model tractor. Glover’s description of the unidentified tractor-trailer also does not match the Las Nutrias trailer, which is a silver combination aluminum and steel trailer with an aluminum deck.4

*4 { 14} Plaintiffs also assert—without any citation to the record—that in addition to Cordova’s statement, “Detective … Courtney[ ] conducted a step-by-step investigation that determined Martinez … was involved in the initial hit-and-run that ended with the deaths of the Domingo family members.” They argue that “Detective Courtney’s investigation raised issues of material fact as to whether Martinez was driving a Las Nutrias tractor and flatbed trailer at the time of the crash and at the location of the crash.” Defendants answer that “Detective Courtney testified he was never able to confirm that the tractor[-]trailer … Cordova allegedly observed was in fact the [unidentified] tractor[-]trailer,” but similarly failed to provide citation in the record to any such statement by Detective Courtney, instead citing only generally to his awareness that there were numerous tractor-trailers in the area the morning of the accident.

{ 15} Our own review of Detective Courtney’s deposition testimony reveals that Detective Courtney’s investigation concluded, because he and his supervisors “felt there was not enough to pursue charges [against Martinez], and there hasn’t been any investigation since.” Indeed, at no time did Detective Courtney conclude or insinuate a belief that Martinez was driving the unidentified tractor-trailer that precipitated the accident at issue on appeal, despite Plaintiffs’ unsupported contention to the contrary. “Claimed disputed facts cannot serve as a basis for denying summary judgment if the evidence adduced is insufficient to support reasonable inferences.” Vigil v. Taintor, 2020-NMCA-037, ¶ 4, 472 P.3d 1220 (internal quotation marks and citation omitted).

{ 16} Accordingly, we conclude Plaintiffs failed to present admissible evidence sufficient to establish a reasonable inference that the unidentified tractor-trailer was driven by Martinez or belonged to Las Nutrias and/or Edeal Dairy.

B. Evidence of Martinez’s Pattern and Habit Does Not Create a Genuine Issue of Fact That Martinez Was Present at the Hilltop Station at the Time of the Accident
{ 17} Plaintiffs argue that “[e]vidence of [his] pattern and habit place Martinez at the crash site[.]” Plaintiffs assert that Martinez’s testimony that he routinely passed by the Hilltop Station on his morning commute, along with the logbook he used, which Martinez filled out the night before the crash, established that Martinez planned to drive to NAPI the morning of the accident. Relying on the NAPI logs, Plaintiffs assert that “[a] reasonable jury could infer” that “Martinez returned to Edeal Dairy after the accident to conceal the damaged trailer and retrieve an undamaged trailer to make the pick up at NAPI that afternoon.” Defendants respond that Plaintiffs’ arguments regarding the logbooks and the characterization of Martinez’s testimony about them are “purely argument of counsel, and there is no evidence that … Martinez was at the scene of the accident.” We agree.

{ 18} Although Plaintiffs provided evidence demonstrating that Martinez usually passed by the Hilltop Station in the morning, such evidence is not supportive of Plaintiff’s theory and does not establish a genuine issue of material fact. While habit evidence provided by Plaintiffs supports an inference that Martinez followed his habit of driving by the Hilltop Station on his way to NAPI, Plaintiffs fail to provide any evidence that Martinez habitually stopped at the Hilltop Station. Indeed, Martinez testified that he did not routinely stop at the Hilltop Station on his drive to NAPI. “[M]ere argument or bare contentions of the existence of a material issue of fact is insufficient.” Clough v. Adventist Health Sys., Inc., 1989-NMSC-056, ¶ 7, 108 N.M. 801, 780 P.2d 627. Moreover, surveillance footage from both inside and outside the Hilltop Station does not place Martinez at the Hilltop Station on the morning of September 25, 2014. Contrarily, NAPI surveillance footage confirms Martinez’s testimony that he was at NAPI in the afternoon on the day of the accident. During his deposition Martinez also provided an explanation for the inaccuracies of his logs, stating, “I made my log that night before, and I just left it that way. I thought I was going to run that way, the way I was going to run the following day, and I didn’t.” Because Plaintiffs fail to provide evidence, habit or otherwise demonstrating that Martinez stopped at the Hilltop Station on the morning of the accident, evidence demonstrating that Martinez regularly drove by the Hilltop Station does not create a genuine dispute of material fact.

C. Physical Damage to the Las Nutrias Trailer Does Not Create a Genuine Issue of Fact That It Was the Unidentified Tractor-Trailer
*5 { 19} Plaintiffs contend that the physical damage to the Las Nutrias trailer “raises additional issues of material fact regarding whether the [unidentified tractor-]trailer was involved in the hit-and-run crash.” During his investigation, Detective Courtney inspected the Las Nutrias trailer, which was routinely driven by Martinez including on the day of the accident. Detective Courtney observed that the inside tire of the back axel had a large gouge in it. He also observed loose bolts on the trailer’s frame, a metal crossbeam with a large dent, fresh paint underneath the trailer, that the front air brake had been replaced on the driver’s side, and that there were newer tires on the front axle driver’s side than those of the rear axles. However, during his deposition, Detective Courtney stated that he did not feel comfortable concluding that the Las Nutrias trailer had been involved in an accident and noted that the damage “could be daily wear and tear.” Detective Courtney did acknowledge that he failed to compare trailer 9107, which was commonly driven by Martinez, to other Las Nutrias’ trailers, explaining “any other trailer there on scene could have looked the same way.” Moreover, Edeal Dairy provided Detective Courtney with receipts from Transportation Rental & Sales, Inc., dated September 10, 2014 (fifteen days prior to the accident), related to multiple repairs, including welding cracks, removing and replacing part of the Las Nutrias trailer’s suspension system, and alignment.

{ 20} Although Detective Courtney did not reach a conclusion regarding the cause of damage to the Las Nutrias trailer, an expert witness for the Defendants, Torrey Roberts, concluded to “a reasonable degree of engineering probability that [the] Las Nutrias trailer … was not involved in the collision … on September 25, 2014.”5 Roberts, a professional engineer, with experience in accident reconstruction of tractor-trailers and heavy equipment, investigated the Las Nutrias trailer as well as Reyes’s Chevrolet Silverado truck. Roberts stated that his inspection of the Las Nutrias trailer “evinced no damage indicating it had been in a motor vehicle accident of the nature that was described as between … Reyes’s Chevrolet Silverado [truck] and the unidentified tractor-trailer[.]” Roberts noted that “obvious and noticeable damage would have occurred to the rear of the [unidentified tractor-]trailer where … Reyes testified his vehicle contacted the unidentified tractor[-]trailer.” He also explained that the various conditions observed by Detective Courtney, including peeled-off reflective tape, cracked welding and bends in the rails were apparent on the entire trailer, including on the opposite passenger side, and noticed similar conditions on another trailer he inspected at Las Nutrias.

{ 21} Because Plaintiffs offered no admissible evidence, expert or otherwise, rebutting Detective Courtney’s testimony that he could not conclude the Las Nutrias trailer had been involved in an accident, as well as Defendants’ expert testimony and conclusions that the Las Nutrias trailer had not been involved in the September 25, 2014, collision, we conclude that there is no genuine dispute of material fact presented by the damage to the Las Nutrias trailer.

D. Additional Contentions Raised by Plaintiffs Are Arguments of Counsel and Do Not Create Genuine Dispute of Material Fact
{ 22} Plaintiffs contend that because Defendants were initially uncooperative with Detective Courtney’s investigation, there is a genuine dispute of material fact. Plaintiffs assert that “Edeal Dairy’s refusal to cooperate with the investigation creates an inference that it knew Martinez was involved in the hit-and-run crash.” Specifically, Plaintiffs argue that “Detective Courtney attempted to informally obtain documentation from Edeal Dairy, but its receptionist, Joyce Thomas, informed Detective Courtney that her boss, Scott Edeal, had told her not to cooperate with the investigation.” Defendants answer that while Thomas was instructed not to release various documents, she was not instructed to not cooperate.

*6 { 23} Our own review of the record indicates that Defendants, including Las Nutrias, Edeal Dairy, and Martinez were cooperative. While Detective Courtney obtained a search warrant after his initial conversation with Thomas, he stated, “I felt Joyce was being cooperative. … But we just needed to get the information[,] so I went the search warrant route.” Detective Courtney also stated that he remembered Martinez as cooperative. He similarly stated that Edeal Dairy was “very cooperative with us.” Because the record indicates that Defendants were in fact cooperative, Plaintiffs’ contentions that Defendants were uncooperative are merely arguments of counsel. See V.P. Clarence Co. v. Colgate, 1993-NMSC-022, ¶ 2, 115 N.M. 471, 853 P.2d 722 (stating “the briefs and arguments of counsel are not evidence upon which [we] can rely in a summary judgment proceeding”).

{ 24} Plaintiffs also suggest that Martinez was injured in a work-related accident. They rely on testimony by Thomas who stated that “Martinez had driven for the dairy but had recently quit for an unknown reason.” Defendants answer that Plaintiffs’ arguments are a “misleading recitation of the testimony[,]”and that Martinez had been injured in a nonwork related accident. Our review of the record shows that Martinez was not working the week prior to the accident because he was injured in a car accident involving his personal vehicle. Thomas also clarified that Martinez mentioned the accident was “nonwork related.” Because Plaintiffs provide no additional evidence that Martinez was injured in the September 24 accident, Plaintiffs’ contentions in this regard again are merely unsupported arguments of counsel. Id.

CONCLUSION
{ 25} Because Plaintiffs fail to provide admissible evidence creating a genuine dispute of material fact that Martinez was the driver, or that Defendants owned the unidentified tractor-trailer, the district court correctly concluded that summary judgment was proper. See Carrillo, 2017-NMCA-024, ¶ 24 (the nonmoving party must “demonstrate the existence of specific evidentiary facts which would require trial on the merits” (internal quotation marks and citation omitted)). For these reasons, we affirm the district court’s grant of the Defendants’ motion for summary judgment.

{ 26} IT IS SO ORDERED.

WE CONCUR:
JENNIFER L. ATTREP, Judge
BRIANA H. ZAMORA, Judge
All Citations
Not Reported in Pac. Rptr., 2021 WL 2653022

Footnotes

1
During the pendency of this appeal, Plaintiffs and Las Nutrias reached a settlement agreement. We must nonetheless resolve whether the district court properly granted summary judgment to Edeal Dairy. We thus address the issues on appeal as presented by the parties in their briefing. Following the submission of this case to the undersigned panel, Edeal Dairy also filed a motion to dismiss, asserting that Plaintiffs have failed to state a claim upon which relief can be granted. See Rule 1-012(B)(6) NMRA; Rule 12-401(B)(3) NMRA. In light of our holding affirming the district court order granting summary judgment, we decline to address the motion to dismiss.

2
Because we conclude that there is no genuine dispute of material fact suggesting that Martinez was the driver or Defendants were the owners of the unidentified tractor-trailer, we decline to address whether Las Nutrias and Edeal Dairy are joint venturers.

3
Plaintiffs argue as well that Defendants failed to preserve the issue of whether Cordova’s statements were hearsay and, therefore, “Cordova’s statements to the authorities must be taken as offered whether his deposition was taken or not.” We disagree that Defendants failed to preserve the issue. To the contrary, Las Nutrias’s reply in support of its motion for summary judgment specifically objected to Cordova’s statements, asserting that each was inadmissible hearsay and “should be dismissed out of hand and not considered by [the district c]ourt for purposes of rebutting summary judgment.” Moreover, the district court determined that Detective Courtney’s deposition incorporated inadmissible hearsay and ruled that Plaintiffs failed to rebut Defendants’ prima facie case with admissible evidence.

4
Plaintiffs dispute the accuracy of Glover’s statements, asserting “[d]ue to the darkness, Glover may not have been able to precisely describe the vehicle and trailer” thus, “any inconsistencies … must be construed in the light most favorable to Plaintiffs.” Plaintiffs fail to point to anything in the record indicating that Glover’s testimony is inaccurate or inconsistent. To the contrary, Glover indicated that he was confident in his descriptions stating, “[The unidentified tractor-trailer] was an older steel trailer. My father’s got one just almost identical to it.” In any event, “[t]his Court will not search the record to find evidence to support an appellant’s claims.” Muse v. Muse, 2009-NMCA-003, ¶ 42, 145 N.M. 451, 200 P.3d 104 (alteration, internal quotation marks, and citation omitted).

5
The parties dispute whether expert testimony is required by Plaintiffs, who called no expert, to prove that the damage to the Las Nutrias trailer was consistent with a hit-and-run accident. Defendants assert that “[e]xpert testimony is required to give conclusions about the causes of an automobile accident or to opine about the meaning of observations of the scene.” Because we determine that the damage to the Las Nutrias trailer does not create a genuine dispute of material fact that it was involved in an accident, we decline to reach this issue.

Jarvis v. Foremost Express

2021 WL 2213315
UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING.
NOT DESIGNATED FOR PUBLICATION
Court of Appeal of Louisiana, First Circuit.
RONNIE E. JARVIS
V.
FOREMOST EXPRESS INSURANCE AGENCY, INC., MARCELLES A. TAYLOR, FELTON KEYES, JR., KENT & SMITH HOLDINGS, LLC, AND AMC INSURANCE COMPANY
2020 CA 0886
|
Judgment Rendered: MAY 27, 2021
On Appeal from the Nineteenth Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
Trial Court No. 669,602
The Honorable Janice Clark, Judge Presiding
Attorneys and Law Firms
Mark D. Plaisance, Marcus J. Plaisance, Prairieville, Louisiana, Scott M. Mansfield, Kelly R. Dick, Jr., Baton Rouge, Louisiana, Attorneys for Plaintiff/Appellant Ronnie E. Jarvis
Jack E. Truitt, Lou Anne Milliman, Michelle Mayne Davis, Nancy N. Butcher, Lauren A. Duncan, Covington, Louisiana, Attorneys for Defendant/Appellee Foremost Insurance Company Grand Rapids, Michigan
BEFORE: McDONALD, HOLDRIDGE, AND PENZATO, JJ.
Opinion

PENZATO, J.

*1 Appellant, Ronnie E. Jarvis, appeals a judgment granting summary judgment in favor of Foremost Insurance Company Grand Rapids, Michigan (Foremost)1 and dismissing his claims with prejudice. For the reasons that follow, we reverse the trial court’s judgment and remand the matter to the trial court.

FACTS AND PROCEDURAL HISTORY
On November 1, 2017, Mr. Jarvis was driving in a westerly direction on I-10 in Ascension Parish, when an 18-wheeler rear-ended him. The tractor-trailer was being driven by Felton Keyes, Jr. The Peterbilt tractor was owned by Marcelles A. Taylor and was alleged to be insured by Foremost pursuant to a policy of liability coverage. The trailer was a dump trailer owned by Kent & Smith Holdings, LLC, (Kent & Smith), alleged to be insured by Zurich American Insurance Company (Zurich). Mr. Jarvis filed suit against Foremost, Mr. Taylor, Mr. Keyes, Kent & Smith, and Zurich. Foremost answered the petition, pleading the affirmative defense of lack of insurance coverage and asserting that the policy issued to its insured was cancelled on September 5, 2017, for non-payment of premium. Foremost filed a motion for summary judgment, asserting that the commercial insurance policy had been issued to M. Taylor Trucking, LLC, and was cancelled for nonpayment of premium prior to the accident.2 After Foremost filed its motion for summary judgment with attachments in support of same, Mr. Jarvis added M. Taylor Trucking, LLC, as a defendant in his second supplemental and amending petition, alleging that M. Taylor Trucking, LLC, also owned the Peterbilt tractor. Foremost reasserted its denial of insurance coverage in its answer to the second supplemental and amending petition. After a hearing on Foremost’s motion for summary judgment, the trial court signed an amended judgment on June 18, 2020, granting the summary judgment in favor of Foremost and dismissing all of Mr. Jarvis’s claims against Foremost with prejudice.3 It is from this judgment that Mr. Jarvis appeals, claiming that the trial court erred in determining that the cancellation notice relied upon by Foremost is legally sufficient pursuant to La. R.S. 22:1266.

LAW AND DISCUSSION
*2 Appellate courts review the grant or denial of a motion for summary judgment de novo using the same criteria applied by the trial courts to determine whether summary judgment is appropriate. Jackson v. Wise, 2017-1062 (La. App. 1st Cir. 4/13/18), 249 So. 3d 845, 850, writ denied, 2018-0785 (La. 9/21/18), 252 So. 3d 914. 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 of material fact and that the mover is entitled to judgment as a matter of law. La. C.C. art. 966(A)(3); Campbell v. Dolgencorp, LLC, 2019-0036 (La. App. 1st Cir. 1/9/20), 294 So. 3d 522, 526. A genuine issue of material fact is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Bass v. Disa Global Solutions, Inc., 2019-1145 (La. App. 1st Cir. 6/12/20), 305 So. 3d 903, 906-07, writ denied, 2020-01025 (La. 11/4/20), 303 So. 3d 651.

Summary judgment is appropriate for determining issues relating to insurance coverage. Bosse v. Access Home Insurance Co., 2018-0482 (La. App. 1st Cir. 12/17/18), 267 So. 3d 1142, 1145. On a motion for summary judgment, if the issue before the court is one on which the party bringing the motion will bear the burden of proof at trial, the burden of showing that there is no genuine issue of material fact is on the party bringing the motion. See La. C.C.P. art. 966(D)(1); Rider v. Ambeau, 2011-0532 (La. App. 1st Cir. 2/1/12), 100 So. 3d 849, 854. An insurer seeking to avoid coverage through summary judgment must prove some provision or exclusion applies to preclude coverage. Halphen v. Borja, 2006-1465 (La. App. 1st Cir. 5/4/07), 961 So. 2d 1201, 1204, writ denied, 2007-1198 (La. 9/21/07), 964 So. 2d 338. It is well settled that where an insurer defends a claim on the ground that the policy has been cancelled, the insurer bears the burden of establishing facts that will relieve it of liability. Wiley v. Cornerstone National Ins. Co., 2012-0909 (La. App. 1st Cir. 4/25/13), 2013 WL 179512, at *2 (unpublished). The insurer must show facts constituting positive and unambiguous proof of understanding of cancellation of the policy. Wiley, 2013 WL 179512, at *2. Thus, in this case, the burden of proof on the motion for summary judgment remained with the insurer herein.

The insurer, Foremost, attached to its motion for summary judgment the petition; the answer; an affidavit of Paulette Terhune, an employee of Foremost; a Specialty Contractor’s Policy issued to M. Taylor Trucking, LLC, bearing policy number SCP 08081715 for the policy period June 5, 2017 to June 5, 2018; several endorsements to the policy; a Notice of Cancellation of Insurance for Nonpayment of Premium dated August 18, 2017; and a notice to an additional insured of cancellation dated September 20, 2017. Mr. Jarvis opposed the motion for summary judgment. The only document attached to the opposition to the motion for summary judgment is an affidavit dated December 29, 2018, of Jacob James Sarver, a private process server, who attested that he had made several attempts to serve Mr. Taylor and was still attempting to do so. Mr. Jarvis argued in opposition to the motion for summary judgment that the notice of cancellation upon which Foremost relies does not comply with the requirements for cancellation as set forth in La. R.S. 22:1266.4

The affidavit of Ms. Terhune and attachments thereto establish that Foremost issued a commercial insurance policy bearing policy number SCP08081715 to the named insured, M. Taylor Trucking, LLC, and provided coverage to several vehicles, including the 2000 Peterbilt tractor involved in the accident herein. The policy was effective from June 5, 2017 to June 5, 2018. On June 6, 2017, M. Taylor Trucking, LLC, notified Foremost of a change of address to 10629 Hwy. 18, Saint James, Louisiana, 70086 (Saint James address). On August 14, 2017, M. Taylor Trucking, LLC, notified Foremost that KNS Logistics (KNS) would be added as an additional named insured and that the address for KNS was 1555 Beauli Rd., Gonzales, Louisiana, 70737. All of these endorsement changes to the policy were sent by Foremost to the Saint James address.

*3 On August 18, 2017, Foremost mailed M. Taylor Trucking, LLC, a notice of cancellation to the Saint James address. The notice of cancellation provided that the policy of insurance would be cancelled effective September 5, 2017, if the past amount due was not paid by that date. The notice of cancellation specifically provided, in pertinent part:
Notice of Cancellation for Nonpayment of Premium
* * *
Our records reflect that we have not received payment for the amount due on the insurance policy(ies) listed below. Accordingly, all of the policy(ies) will be cancelled as of the Cancellation Effective Date shown below. The cancellation will take effect at 12:01 AM local time at your mailing address shown above. If we receive sufficient payment by that date and time, the insurance coverage(s) will continue without interruption.
Note: This is the only notice you will receive.
(Emphasis added). The notice lists a “Cancellation Effective Date” of September 5, 2017, and states, “To maintain coverage beyond the Cancellation Effective Date, please pay …. ” T h e Notice also contains a payment stub with a past due amount, a current amount due, and a total amount due, all of which are redacted.

Foremost did not receive the past due amount by September 5, 2017, or anytime thereafter. Foremost subsequently notified KNS that the policy, under which it had been named as an additional insured, had been cancelled. Foremost contends that the policy was cancelled effective September 5, 2017, for nonpayment of premium, and that it did not provide coverage for the accident which occurred on November 1, 2017.

Foremost asserts that it cancelled the policy due to nonpayment of premium, and even notified KNS of the cancellation, although it was not required by statute or the policy to notify the additional named insured. Jarvis maintains that the notice sent by Foremost is legally insufficient to constitute proper notice of cancellation. As do both parties, we recognize that La. R.S. 22:1266 applies to the cancellation of consumer automobile policies, and that the jurisprudence is limited to the interpretation of La. R.S. 22:1266. Louisiana Revised Statutes 22:1266(A) provides:
(6) “Nonpayment of premium” means failure of the named insured to discharge when due any of his obligations in connection with the payment of premiums on a policy, or any installment of such premium, whether the premium is payable directly to the insurer or its agent or indirectly under any premium finance plan or extension of credit.
Insurers are permitted to cancel a policy for nonpayment of premium. La. R.S. 22:1266(B)(1)(a). The manner to effect the cancellation is provided in La. R.S. 22:1266(D)(1), which states in pertinent part, “when cancellation is for nonpayment of premium at least ten days notice of cancellation accompanied by the reason shall be given.” Commercial policies are governed by La. R.S. 22:1267. “Nonpayment of premium” is defined as “the failure or inability of the named insured to discharge any obligation in connection with the payment of premiums on a policy of insurance subject to this regulation, whether such payments are payable directly to the insurer or its producer or indirectly payable under a premium finance plan or extension of credit.” La. R.S. 22:1267(B)(3). In order to effectuate a cancellation, the insurer must comply with La. R.S. 22:1267(C)(2)(a), which provides:
*4 A notice of cancellation of insurance coverage by an insurer shall be in writing and shall be mailed or delivered to the first-named insured at the mailing address as shown on the policy. Notices of cancellation based on R.S. 22:1267(C)(1 )(b) through (g) shall be mailed or delivered at least thirty days prior to the effective date of the cancellati on ; notices of cancellations based upon R.S. 22:1267(C)(1)(a) shall be mailed or delivered at least ten days prior to the effective date of cancellation. The notice shall state the effective date of the cancellation.
Because we find no significant difference in the substance of these two statutes and due to the absence of jurisprudence concerning La. R.S. 22:1267, we will rely on the jurisprudence interpreting La. R.S. 22:1266.

Mr. Jarvis argues that the purported cancellation by Foremost is legally insufficient since it merely informs the insured that unless premiums due were paid, the policy would be cancelled, rather than clearly and unequivocally showing a “present cancellation” as required by Ellzey v. Hardware Mutual Insurance Company of Minnesota, 40 So. 2d 24, 28 (La. App. 1st Cir. 1949). (Appellant Brief at p. 5).

This court in Ellzey determined that a notice of cancellation that states the policy “will be cancelled” as of a certain date is insufficient to cancel the policy. The court stated that the notice must clearly and unequivocally show a present cancellation, not just be a demand for payment. Ellzey, 40 So. 2d at 28. In contrast, Alexander v. State Farm Mutual Automobile Ins. Co., 148 So. 2d 898, 902 (La. App. 1st Cir. 1962) (on rehearing) (emphasis added), determined that a notice that stated “this policy is cancelled, effective on …” was a legally sufficient notice of cancellation. The court found such language to be clear, unequivocal, and unambiguous. Alexander, 148 So. 2d at 902. Alexander distinguished Ellzey, which was based on the policy language and not La. R.S. 22:636 (the applicable cancellation statute at the time).

Following Ellzey and Alexander, the First Circuit continued to interpret the statutory law to require a clear, unequivocal, and unambiguous notice of cancellation. In Travelers Ins. Co. v. Jenkins, 285 So. 2d 839, 842 (La. App. 1st Cir. 1973), after accepting late payments and reinstating the policy several times, the insurer returned a check to the insured due to insufficient funds and informed the insured it “will continue coverage … in order that you may have an opportunity to submit a replacement payment to us.” The notice further stated, “If we have not received the replacement payment within the time mentioned above, the policy will be cancelled effective that date.” Jenkins, 285 So. 2d at 842 (emphasis added). The court explained that “will be cancelled” is different from “is cancelled”, “is hereby cancelled”, or “stands cancelled.” Jenkins, 285 So. 2d at 844 (emphasis added). The court in Jenkins held that merely informing the insured that unless the premiums were paid the policy would be cancelled amounts to a demand for payment of premiums rather than a notice of cancellation. Jenkins, 285 So. 2d at 844.

In addition to Alexander, other First Circuit cases interpreting notices of cancellation have stated that the language “is hereby cancelled” or “is being cancelled” is sufficient notice to cancel a policy. Chapman v. Leger, 405 So. 2d 604, 606-07 (La. App. 1st Cir. 1981), distinguished both Ellzey and Alexander finding that those cases “indicated that the insured might avoid cancellation by responding to the invitation to remit the premium payment.” The notice at issue in Chapman stated the policy “is hereby cancelled.” Winbush v. Polk, 97-1967 (La. App. 1st Cir. 6/29/98), 713 So. 2d 1262, 1264, involved a notice of cancellation, which at the time was governed by La. R.S. 22:636.1(D)(1).5 The notice stated, “Cancellation to take effect at It also stated, “Your policy is being cancelled for non-payment of premium.” Winbush, 713 So. 2d at 1264 (emphasis added). The court noted that a cancellation notice must be unequivocal, and the determination of the sufficiency and effectiveness of a cancellation notice depends upon the language of that particular cancellation notice. Winbush, 713 So. 2d at 1264.

*5 Unlike the notices of cancellation at issue in Alexander, Chapman, and Winbush, the notice sent by Foremost stated that the policy “will be cancelled.” (Emphasis added). The First Circuit has continuously interpreted “will be cancelled” language in a notice of cancellation to be insufficient to comply with the statutory law. State Farm Mutual Automobile Ins. Co. v. Villneuve, 1998-2421 (La. App. 1st Cir. 12/28/99), 747 So. 2d 777, writ denied, 2000-0273 (La. 3/24/00), 758 So. 2d 156, involved a notice of cancellation entitled, “CANCELLATION NOTICE IF NOT PAID.” It also stated, “YOUR POLICY WILL BE CANCELLED FOR NON-PAYMENT OF PREMIUM AT … IF YOUR PREMIUM IS NOT PAID BY THE DUE DATE.” Villneuve, 747 So. 2d at 778 (emphasis added). The court recognized that the unpaid balance on the notice was zero, and on the date mailed, the premium was not yet due. The court stated, “A notice of intent to cancel if the premium is not paid is not the same as a notice of cancellation for nonpayment of premium under [La.] R.S. 22:636.1.” Villneuve, 747 So. 2d at 780. The court also held “[a] notice of intent to cancel is nothing more than a demand for payment, whereas a notice of cancellation positively puts an insured on notice that the policy will be cancelled.” Villneuve, 747 So. 2d at 780 (citing Dairyland Insurance Company v. Marks, 468 So. 2d 841, 843 (La. App. 1st Cir. 1985), a case involving a premium finance company governed by La. R.S. 9:3550(G)). The Villneuve court determined that the notice of cancellation lacked the unequivocal cancellation language that was present in Folds v. Protective Casualty Ins. Co., 26,323 (La. App. 2nd Cir. 12/7/94), 647 So. 2d 1215, and was more similar to the equivocal language in Dairyland. Villneuve, 747 So. 2d at 780. The Villneuve court also found that the cancellation notice at issue was a demand for payment, specifying that the policy would be cancelled if the premium was not paid and that no outstanding premium was due at the time the notice was mailed. Villneuve, 747 So. 2d at 780. Villneuve relied on the language of Jenkins that “will be cancelled” is different from “is cancelled”, “is hereby cancelled”, or “stands cancelled” to find that the notice of cancellation was insufficient. Villneuve, 747 So. 2d at 781 (emphasis added).

In Wiley, a more recent decision, another panel of this court discussed many of the above cited First Circuit cases in reversing a summary judgment granted to Cornerstone National Insurance Company, finding a notice of cancellation to be legally insufficient. The notice of cancellation was entitled, “Notice of Intent to Cancel for Non-Payment of Premium” and had a specific cancellation date. The notice also stated, “your policy is cancelled or terminated on the date and time indicated, for … Non Payment of Premium[.]” Wiley, 2013 WL 1792512, at *1 (some emphasis added). This court relied on La. R.S. 22:1266 and the jurisprudence outlined in Jenkins, Villneuve, and Ellzey to reverse the summary judgment. This court recognized that the language of the notice of cancellation stated “is cancelled”, but determined that under the circumstances, that the notice, combined with a premium invoice and conditioned on the nonpayment of the premium by the due date, constituted a demand for payment rather than an unequivocal notice of cancellation. Wiley, 2013 WL 1792512, at *4. This court declined to follow the case of Narcisse v. Evans, 2001-1092 (La. App. 4th Cir. 1/16/02), 807 So. 2d 339, which held that a notice by Cornerstone similar to the one at issue constituted an effective cancellation. Wiley, 2013 WL 1792512, at *3.

The notice of cancellation issued by Foremost contains the language “will be cancelled.” (Emphasis added). The notice of cancellation is also a demand for payment as it contains language that if sufficient payment is received the insurance coverage will continue and additional language stating that to maintain coverage beyond the cancellation effective date the insured must pay the amount past due. Foremost has provided no First Circuit decision that has interpreted a similar notice to be a clear, unequivocal, and unambiguous notice of cancellation. Pursuant to the jurisprudence of this circuit, the notice is legally insufficient to have cancelled the policy.

Foremost argues that commercial policies governed by La. R.S. 22:1267 are distinguishable from consumer policies governed by La. R.S. 22:1266. As we stated above, we do not find the language in the two statutes to be so dissimilar that the jurisprudence interpreting La. R.S. 22:1266 is not applicable. Foremost relies on Hodges v. Colonial Lloyd’s Ins., 546 So. 2d 898 (La. App. 1st Cir. 1989), to assert that “will be cancelled” language was sufficient notice in a commercial automobile policy to cancel the policy. Hodges involved a premium finance company, which is governed by La. R.S. 9:3550(G) that sets forth the conditions for a premium finance company to cancel a policy of insurance for nonpayment of premium. Furthermore, in Hodges, although a first notice did state the policy “WILL BE CANCELLED” if the premium was not paid, a second notice was sent stating that the “POLICY HAS BEEN TERMINATED.” Hodges, 546 So. 2d at 903. We do not find that Hodges stands for the proposition asserted by Foremost—that the “will be cancelled” language is only insufficient for consumer policies, not commercial ones.

*6 Foremost also asserts that the present case is distinguishable from the Villneuve decision, because an outstanding balance was due in the present case at the time the notice of cancellation was issued, unlike the factual scenario of Villneuve. Although Foremost argues that a balance was due, the notice in the record before us is void of any information concerning the past, current, and total amounts due, as these are redacted. Therefore, it is impossible to determine whether there was actually any amount past due, and we are unable to distinguish Villneuve from the present facts based on the record. Also, in Wiley, this court found no effective cancellation even though the insurer used the phrase “is cancelled” in the notice of cancellation when the notice was attached to a premium due notice. Wiley, 2013 WL 1792512, at *4.

Foremost further urges this court to follow the interpretation of other circuits that have determined that the language “will be cancelled” in a notice of cancellation is legally sufficient to cancel a policy. We recognize that other circuits have found similar language to be sufficient to effect cancellation.6 However, we are constrained to follow existing First Circuit jurisprudence. See Pontchartrain Natural Gas System v. Texas Brine Co., LLC, 2018-0001 (La. App. 1st Cir. 6/4/18), 253 So. 3d 156, writ denied, 2018-1124 (La. 9/28/18), 253 So. 3d 147 (recognizing this court is bound by the “law of the circuit” doctrine to follow prior decisions); see also Internal Rules of Court, First Circuit Court of Appeal, Rule 2.1(d)(1); H.J. Bergeron, Inc. v. Parker, 2006-1855 (La. App. 1st Cir. 6/8/07), 964 So. 2d 1075, 1076 n.2. Following a de novo review of this matter, we find that Foremost has not carried its burden that its notice of cancellation was clear, unequivocal, and unambiguous so as to entitle it to summary judgment as a matter of law.

CONCLUSION
For the reasons set forth above, the June 18, 2020 judgment of the trial court granting the motion for summary judgment in favor of Foremost Insurance Company Grand Rapids, Michigan is reversed. This matter is remanded to the trial court for further proceedings consistent herewith. All costs of this appeal are assessed against Foremost Insurance Company Grand Rapids, Michigan.

REVERSED AND REMANDED.

Holdridge J. concurs w/ reasons
McDonald, J. concurs and assigns reasons.

McDonald, J. concurs:

I believe the majority opinion is correct only because of the years of misinterpretation of the English language that goes all the way back to 1949 with the decision in Ellzey. I believe the terms “will be cancelled,” “is cancelled,” or “stands cancelled” have the same meaning when followed by a date and time certain. As such this language unequivocally conveys to the insured a notice of cancellation. This language provided a clear, express statement that the policy is being cancelled on that date and time. I believe the analysis in the decisions by other courts is better than that following Ellzey.

In Narcisse v. Evans, 2001-1092 (La. App. 4th Cir. 1/16/02), 807 So. 2d 339, 344, the court stated:
We conclude that the notice sent to Evans by Clarendon was an unambiguous and unequivocal notice of cancellation. Evans was clearly put on notice that his coverage would terminate at 12:01 a.m. on July 30, 1995, if his payment was not received or postmarked prior to that date. The notice was in compliance with La. R.S. 22:636.1(D).
*7 The language at issue in Narcisse was as follows:
NOTICE OF INTENT TO CANCEL FOR NON-PAYMENT OF PREMIUM
* * THIS IS THE ONLY NOTICE YOU WILL RECEIVE * *
You are hereby notified in accordance with the terms and conditions of the above-mentioned policy that your insurance will be cancelled at 12:01 am Standard Time on 7/30/95 if premium due is not postmarked prior to the cancellation date.

I am more persuaded by this decision of the Fourth Circuit, and those cases cited in footnote 61 by the majority in the present case, than by the prior decisions of the First Circuit. For these reasons I respectfully concur.

HOLDRIDGE, J., concurring.

I agree that the trial court’s granting of the summary judgment should be reversed because Foremost did not meet its burden of establishing that it was entitled to summary judgment as a matter of law. La. C.C.P. art. 966A(3). The mover acknowledges that First Circuit jurisprudence does not recognize the language in Foremost’s cancellation notice to be sufficient. While other circuits may reach a different result, the mover did not meet the standard required under La. C.C.P. art. 966 to prove that it was entitled to judgment as a matter of law in this circuit.

All Citations
Not Reported in So. Rptr., 2021 WL 2213315, 2020-0886 (La.App. 1 Cir. 5/27/21)

Footnotes

1
Foremost was incorrectly named as Foremost Express Insurance Agency, Inc., in the petition for damages. Foremost filed an answer delineating its correct name, and Mr. Jarvis filed a first supplemental and amending petition to replace every reference to the incorrect name with Foremost Insurance Company Grand Rapids, Michigan.

2
Kent & Smith and Zurich filed their own motion for summary judgment, which was heard at the same time as Foremost’s motion for summary judgment. The trial court denied the motion for summary judgment filed by Kent & Smith and Zurich. The ruling is not at issue in the instant appeal.

3
The trial court had previously signed a judgment dated November 19, 2019. However, prior to an order of appeal being granted, the parties determined that the judgment was not a final judgment, and the trial court signed an amended judgment.

4
As will be addressed subsequently herein, La. R.S. 22:1267, regarding commercial policies, actually applies to the facts of the present case.

5
Louisiana Revised Statutes 22:636.1 was renumbered La. R.S. 22:1266 by 2008 La. Acts, No. 415, § 1, effective January 1, 2009.

6
See Lewis v. Coleman, 48,173 (La. App. 2nd Cir. 6/26/13), 118 So. 3d 492, 499-502, writ denied, 2013-1993 (La. 11/15/13), 125 So. 3d 1108; Narcisse, 807 So. 2d at 344; Hunter v. Automotive Casualty Ins. Co., 606 So. 2d 571, 572 (La. App. 5th Cir.), writ denied, 609 So. 2d 225 (La. 1992); and Hemperly v. Aetna Casualty & Surety Co., 516 So. 2d 1202, 1206 (La. App. 2nd Cir. 1987).

1
See Lewis v. Coleman, 48, 173 (La. App. 2nd Cir. 6/26/13), 118 So. 3d 492, 499-502, writ denied, 2013-1993 (La. 11/15/13), 125 So.3d 1108; Hunter v. Automotive Casualty Ins. Co., 606 So. 2d 571, 572 (La. App. 5th Cir.), writ denied, 609 So. 2d 225 (La. 1992); and Hemperly v. Aetna Casualty & Surety Co., 516 So. 2d 1202, 1206 (La. App. 2nd Cir. 1987).