Holloway v. Shelter Mut. Ins. Co. - 03-896 ( La. App. 3 Cir 12/11/03), 861 So. 2d 763

Rule:

Waiver of uninsured/underinsured motorist (UM) coverage, according to La. Rev. Stat. Ann. § 22:1406(D)(1)(a)(ii), shall be made only on a form prescribed by the Louisiana Commissioner of Insurance. Thus, the statute envisions the presence of a writing to waive UM coverage.

Facts:

The insured advised his insurance agent that his mother would be handling his automobile insurance affairs because of his out-of-town employment. Thereafter, the insured's mother signed the insured's name to a form rejecting uninsured/underinsured motorist (UM) coverage. Insured was killed in an automobile accident. Plaintiff heirs filed suit against the insurer, seeking damages under the uninsured/underinsured motorist (UM) coverage of the policy. The insurer filed a motion for summary judgment, alleging a valid waiver of UM coverage pursuant to La. Rev. Stat. Ann. § 22:1406(D)(1)(a)(i), (ii). The district court granted the insurer’s motion for summary judgment. Plaintiff heirs appealed. 

Issue:

Was there a valid waiver of UM coverage pursuant to La. Rev. Stat. Ann. § 22:1406(D)(1)(a)(i), (ii), thereby warranting the grant of insurer’s motion for summary judgment? 

Answer:

No.

Conclusion:

The court reversed, observing that § 22:1406(D)(1)(a)(ii) required a written waiver of UM coverage. Pursuant to La. Civ. Code Ann. art. 2993, when the law prescribed a certain form for an act, a mandate under La. Civ. Code Ann. art. 2989 authorizing the act had to be in that form. Hence, a contract of mandate authorizing a waiver of UM coverage had to be in writing. The same was true of a procuration under La. Civ. Code Ann. art. 2987 because, as provided in La. Civ. Code Ann. art. 2988, a procuration was subject to the rules governing mandate. Thus, absent written authority, the insured's mother did not have authority by mandate or procuration to waive UM coverage. The court declined to apply the principle of apparent authority, noting that there was sufficient codal law as to representation and mandate.