Louisiana Supreme Court Rules UM Waiver Invalid Without Insurer’s Name on Selection Form

In a ruling of December 9, 2022, the Louisiana Supreme Court, in Berkley Assurance Company v. Melissa Willis as Parent/Guardian of Macy Lee Willis et al.,[1] ruled that a UM form selecting a lower amount of uninsured/underinsured motorist coverage was invalid because the name of the insurance company was not written on the UM waiver/selection form.

Under LA R.S. 22:1295, Louisiana law requires uninsured/underinsured motorist coverage on automobile policies equal to liability coverage unless the insured rejects the coverage, selects lower limits, or selects economic only coverage. This waiver/selection must be on a form prescribed by the Louisiana Commissioner of Insurance.

Berkley Assurance Company v. Melissa Willis as Parent/Guardian of Macy Lee Willis et al.

In the case, a vehicle accident resulted in the death of an employee of a towing company. The applicable automobile insurance policy had a limit of $1,000,000 per accident, but with a UM rejection/selection from selecting UM coverage for bodily injury of $30,000 per accident. The form was signed and dated by the towing company representative. However, the UM form did not contain the name of the insurer. There was a line on the Louisiana insurance commissioner’s form for the name of the insurance company.

Berkely filed a Petition for concursus, declaratory judgment, and injunctive relief. On cross-motions for summary judgment on the UM coverage issue, the trial court granted the insurer’s motion, finding coverage for $30,000 per the UM selection form. The Louisiana Fourth Circuit reversed, distinguishing from two prior Louisiana Supreme Court cases: Duncan v. USAA Ins. Co.[2] and Gingles v. Dardenne.[3] The Appellate Court found that the commissioner had published a revised bulletin and a new UM waiver/selection form since those rulings were handed down. Those required the name of the insurer.

Louisiana Supreme Court Ruling

On appeal to the Louisiana Supreme Court, the insurer argued that the statutory language only required that a selection be made on the prescribed form, signed by the insured, and indicate the rejection or selection of lower limits. The insurer further cited Gingles for the proposition that the failure to include the insurer’s name does not render the selection/waiver null. The insurer noted that there was not substantive difference on the newer form promulgated by the commissioner since Gingles, noting that it only moved the space for the insurer’s name from the bottom left to the bottom right.

The Louisiana Supreme Court noted that the “UM form dictates the requirements for a valid rejection or selection of lower limits of coverage,” citing to Duncan. The current UM form did require the name of the insurer to be placed on the form. “Completion requires filling out the UM form in its entirety except where otherwise indicated on the face of the form.” A separate box included the word “optional,” but the box for the insurer’s name did not. The Court noted the insurer had the opportunity to be sure the form was executed correctly, but failed to do so. The selection of lower UM limits was invalid. This raised uninsured/underinsured coverage from the supposed $30,000 to $1,000,000, per the general liability limits of the policy.

There were two dissents. Justice Weimer complained that the majority’s ruling ignored the statutory language of the insurance code, which states that “A properly completed and signed form created a rebuttable presumption that the insured knowingly rejected coverage, selected a lower limit, or selected economic-only coverage.” He would hold that these are the only statutory requirements for the validity of the UM rejection/selection form. He also noted his view from prior dissents—that failure of the form only negated the insurer’s “rebuttable presumption” of lower-limit/waiver selection by the insured. He would allow the form to stand as an issue at hearing or trial for the fact finder to determine what the intent was. In this case, Justice Weimer found no reason indicating the insured towing company had not knowingly and intentionally selected the lower UM limits.

Justice Crain also dissented, stating that the struggles with UM rejection forms stemmed from “insufficient attention to [the] statutory language and an unwarranted deference to administrative bulletins.”

Justice Crichton concurred in the result. “Judicial restraint” obligated him to adopt the majority interpretation. He stated that he wrote separately to emphasize the need for the legislature to review the text of the UM waiver statute.

I echo some of the final sentiments of Justice Crichton: “I am troubled by the outcome of this case and am mystified by the lack of further legislative guidance in the 16 years since Duncan…Legislative action is essential to remedy the inadequacies of La. R.S. 22:1295(1)(a)(ii) and to address the concerns set forth by Chief Justice Weimer and Justice Crain, as well as my own.”

[1] 2021-C-01554 (La. 12/09/2022), consolidated with suit of the same name.  We refer to the matter only as the one name above for simplicity’s sake.

[2] 950 So.2d 544 (La. 11/29/2005).

[3] 4 So.3d 799 (La. 03/13/2009).