UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-30328
Summary Calendar
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CHARLOTTE GIACONNA,
Plaintiff-Appellant,
versus
EDWARD OFRIEL, ET AL.;
Defendants,
OLD REPUBLIC INSURANCE COMPANY,
Defendant-Appellee.
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Appeal from the United States District Court
for the Eastern District of Louisiana
(95-CV-3017-F)
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September 5, 1996
Before JONES, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:*
Plaintiff-appellant Charlotte Giaconna was injured while
driving a car owned by her employer, National Health Laboratories,
Inc. (“NHL”), and insured under NHL’s policy with defendant-
*
Local Rule 47.5 provides: "The publication of opinions that have no
precedential value and merely decide particular cases on the basis of well-settled
principles of law imposes needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the Court has determined that this opinion
should not be published.
appellee Old Republic Insurance Company. The other driver involved
in the collision, Robert Coussan, was driving a car owned by Edward
Ofriel. Giaconna sued Coussan, Ofriel, and their respective
insurers, State Farm Mutual Automobile Insurance Company and Geico
Insurance Company, and settled for Coussan’s and Ofriel’s policy
limits.
Giaconna contended that these amounts were insufficient
to compensate for her injuries. Before settling with the above
four parties, she amended her complaint to add Old Republic as a
defendant. She sought to collect against it under the uninsured
and underinsured motorists (“UM”) provisions of Louisiana law
incorporated into NHL’s policy with Old Republic. Old Republic,
however, asserted that NHL had affirmatively waived its right to UM
coverage. The district court agreed and granted summary judgment
to Old Republic. Giaconna timely appealed. We affirm.
Giaconna contends on appeal that Old Republic’s waiver
form did not satisfy the requirements for a UM waiver under
Louisiana law, and thus that NHL’s waiver was invalid.
Specifically, she contends that (a) the district court erred in
considering the instructions accompanying the rejection form in
interpreting that form; (b) the form was ambiguous because it
implied that NHL had to affirmatively accept, rather than
affirmatively reject, UM coverage; and that (c) the form was
ambiguous because it implied that underinsured motorists coverage
would be “included” in NHL’s policy even if NHL waived uninsured
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motorists coverage. We reject Giaconna’s contentions.
Louisiana Revised Statute 22:1406(D)(1)(a) provides that
“uninsured motorists coverage is deemed to exist in all automobile
policies in an amount equal to the liability limit unless the
insured expressly rejects the uninsured motorists coverage.”
Chevalier v. Ream, 649 So.2d 746, 748 (La.Ct.App. 1994). While the
statute does not specify how the insured’s rejection is to be
effected, the Louisiana Supreme Court has held that the rejection
must satisfy the following requirements:
[A] valid rejection must be in writing and
signed by the named insured or his legal
representative. Further, the insurer must
place the insured in a position to make an
informed rejection of UM coverage. In other
words, the form used by the insurance company
must give the applicant the opportunity to
make a “meaningful selection” of his options
provided by the statute: (1) UM coverage equal
to bodily injury limits in the policy; (2) UM
coverage lower than bodily injury limits in
the policy; or (3) no UM coverage.
Tugwell v. State Farm Ins. Co., 609 So.2d 195, 197 (La. 1992)
(internal citations omitted).
In the instant case, the district court did not err in
determining that Old Republic’s UM rejection form satisfied the
requirements set forth in Tugwell, supra, and thus did not err in
determining that NHL’s rejection was valid. First, it is
undisputed that NHL’s waiver was in writing and signed by its legal
representative. Second, Old Republic’s rejection form
unambiguously explained the insured’s options regarding UM coverage
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and set forth the required three choices. The form consists of a
chart in which the insured would check the box “Accept” or “Reject”
for each category of UM coverage provided (uninsured motorists-
bodily injury, uninsured motorists-property damage, and
underinsured motorists coverage). If the insured marked the box
“Accept,” the form has a blank space for the insured to specify his
desired policy limits. See Tugwell, 609 So.2d at 199 (stating that
insurer can satisfy waiver requirements “through the use of blanks
and boxes”). The instruction manual accompanying the waiver form
also explain the insured’s options. The instructions state:
You [the insured] MAY REJECT bodily injury
uninsured motorists coverage. Once you reject
it, we will not add bodily injury to any
renewal policy unless you request us to do so
in writing.
If you do not reject it, we must provide
bodily injury uninsured motorists coverage to
you at a limit equal to your policy’s bodily
injury liability limit. You MAY SELECT a
higher or lower limit.
It is undisputed that NHL checked the box “Reject” for each UM
category.
Giaconna, however, urges that Old Republic’s form is not
so straightforward. Initially, she contends that the district
court erred in considering the instructions accompanying the waiver
form. We disagree. The waiver form is to be filled out in
accordance with these instructions. They are thus an intrinsic
part of the waiver.
Next, Giaconna contends that the waiver form was
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ambiguous because it contained a box for the insured to check if he
accepted UM coverage. Apparently, Giaconna is arguing that the
“Accept” box could have misled NHL into believing that it had to
affirmatively accept rather than affirmatively reject UM coverage.
To the contrary, the “Accept” box is required by Louisiana law;
Tugwell, supra, held that the waiver must inform the insured of all
three options regarding UM coverage, including the option to accept
it. Also, we point out that the instructions accompanying the
waiver states that Old Republic would provide UM coverage unless
NHL expressly waived it: “[i]f you do not reject it, we must
provide bodily injury uninsured motorists coverage to you at a
limit equal to your policy’s bodily injury liability limit.”
Finally, we reject Giaconna’s contention that Old
Republic’s waiver form was ambiguous because it states that
underinsured motorists coverage is “included” and has dashes in the
Accept and Reject boxes under that column. Giaconna contends that
NHL could have interpreted “included” and the dashes to mean that
underinsured motorists coverage would be included in the policy
even if NHL waived uninsured motorists coverage. To the contrary,
the accompanying instructions explain that the underinsured
motorists coverage is included in the uninsured motorists coverage.
The instructions provide:
Underinsured Motorists Coverage:
This coverage is automatically included in the
Uninsured Motorists Bodily Injury Coverage
Endorsement at the same limit as you chose for
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uninsured motorists coverage. You may not
reject this coverage unless you also reject
uninsured motorists coverage.
The dashes in the “Accept” and “Reject” boxes obviously indicate
that the insured may not accept or reject underinsured motorists
coverage separate from uninsured motorists coverage in Louisiana.
In conclusion, the district court did not err in
determining that NHL validly waived its right to UM coverage under
Old Republic’s policy. The judgment of the district court is
AFFIRMED.
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