Matheny v. Glen Falls Insurance

                  UNITED STATES COURT OF APPEALS
                       For the Fifth Circuit



                           No. 97-30736


 MARY KATHLEEN MATHENY, individually and on behalf of her minor
children rpi WESLEY MATHENY, and rpi JOSEPH MATHENY,
                                        Plaintiffs-Appellants,


                              VERSUS


   THE GLEN FALLS INSURANCE COMPANY and CONTINENTAL INSURANCE
COMPANY,

                                           Defendants-Appellees.




          Appeal from the United States District Court
              for the Middle District of Louisiana
                         August 20, 1998


Before BARKSDALE, BENAVIDES, and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

     Mary Kathleen Matheny, individually and on behalf of her minor

child, Wesley Matheny, and Joseph Matheny, her major son, appeal

the district court’s grant of summary judgment in favor of The Glen

Falls Insurance Company and Continental Insurance Company. Because

we conclude that the addition of Joseph Matheny as a newly licensed

driver to the automobile insurance policy constituted a “new”

policy, the absence of a UM selection/rejection by either of the
named insureds subsequent to the addition of Joseph to the policy

resulted in UM coverage under the policy in an amount equal to the

policy’s bodily injury liability insurance limits.



                                       I.

      On May 3, 1993, Jeffrey and Mary Kathleen Matheny applied for

a policy of automobile insurance from Glen Falls Insurance Company

(Glen   Falls).     The     Mathenys       rejected   Uninsured/Underinsured

Motorist (UM) protection on May 6, 1993.                 Glen Falls issued an

automobile insurance policy to Jeffrey and Mary Kathleen Matheny on

June 9, 1993.1      By General Change Amendment to the policy, the

Mathenys added their son, Joseph, as an additional driver to the

policy on June 28, 1994.2          The Mathenys were not offered and did

not reject UM coverage after they added Joseph to their policy.

Jeffrey Matheny was killed as the result of an automobile accident

on September 24, 1994.

      The plaintiffs-appellants (Matheny) filed suit in Louisiana

state   court   against   the   defendants-appellees         (Glen   Falls)   on

September 19, 1996, seeking UM coverage for Jeffrey’s accident.

Glen Falls removed the case to federal court on October 30, 1996.

The parties     submitted    the    case    on   cross   motions   for   summary


  1
      The policy’s inception date dated back to the date of the
application, May 3, 1993.
  2
    The Mathenys have two children, Joseph C. Matheny, born June
23, 1977, and Wesley A. Matheny, born October 28, 1980.

                                       2
judgment.      On April 14, 1997, the district court granted Glen

Falls’s motion for summary judgment and denied Matheny’s motion for

summary judgment.       The district court concluded that the addition

of Joseph Matheny, the minor child of the named insureds, did not

constitute     a    “new”   policy    requiring   the   execution   of   a   UM

rejection/selection form.            As such, the initial rejection of UM

coverage on May 6, 1993, remained effective.             On April 25, 1997,

Matheny filed a motion to submit newly discovered evidence, to re-

open the case, and for a new trial.           The court denied this motion

on June 20, 1997.       The summary judgment entered against Matheny is

a final, appealable judgment.



                                        II.

     Matheny seeks to recover UM benefits under the Glen Falls

policy notwithstanding the rejection executed by the Mathenys on

May 6, 1993.       Louisiana law     requires UM coverage to be included in

every automobile liability insurance policy in an amount equal to

the limits of bodily injury liability insurance unless the named

insured or his legal representative rejects this coverage or

selects lower limits.        LSA-R.S. 22:1406(D)(1)(a)(i).      UM coverage

is not required with respect to a “renewal, reinstatement, or

substitute policy” if the named insured has rejected such coverage

or selected lower limits in connection with a policy previously

issued. Id.        Matheny argues that the addition of a child as an

insured driver to the policy resulting in a dramatic increase in

                                         3
the premium charged constitutes a “new” policy rather than “a

renewal, reinstatement, or substitute policy.”               As such, asserts

Matheny, the addition to the Glen Falls policy of Joseph Matheny as

an insured driver resulted in UM coverage equal to the bodily

injury liability limits of the policy as UM coverage was not

rejected subsequent to this event.             Glen Falls argues that the

Louisiana jurisprudence is contrary to this assertion.

     As this issue is one of state law which the Supreme Court of

Louisiana   has    not   addressed,    we    must   look    to   the   Louisiana

intermediate appellate courts for assistance. Matter of Brocato, 30

F.3d 641, 642-43 (5th Cir. 1994); Lavespere v. Niagara Machine and

Tool Works, Inc., 920 F.2d 259, 260 (5th Cir. 1990)(denial of

rehearing).       After doing so, we conclude that the addition of

Joseph Matheny to the Glen Falls policy created a “new policy.”                As

UM coverage was not rejected by the Mathenys subsequent to this

addition, we conclude that the Glen Falls policy provided UM

coverage in an amount equal to the bodily injury liability limits

of the policy.

     A “renewal” policy is one issued and delivered to replace, at

the end of the policy period, a policy previously issued and

delivered by the same insurer.             LSA-R.S. 22:636.1A(5).       Thus, a

renewal   occurs     only   at   the   end    of    the    policy   period    and

contemplates      continued      uninterrupted      coverage.       Dempsey    v.

Automotive Casualty Ins., 680 So.2d 675, 679 (La. Ct. App. 1st Cir.

1996).    A renewal does not occur if the second issuance occurs

                                       4
before the end of the first policy period. Id.           A “reinstatement”

policy is one that is issued after an interval in which the insured

is not covered by that insurer and restores the insured to all the

benefits accruing under the policy. Id.            It is clear that the

policy in question is neither a renewal nor reinstatement policy as

Joseph was added as a driver during a policy period rather than at

the end and there was no interval during which the policy was not

effective.     Resolution of this case, therefore, turns on whether

the addition of Joseph Matheny to the Glen Falls policy resulted in

a “substitute” policy.

       In Lewis v. Lenard, 694 So.2d 574, 577 (La. Ct. App. 2 Cir.

1997), the Louisiana Second Circuit Court of Appeal explained that

a substitute policy clearly requires some change in a policy.            The

materiality of the change, however, determines whether the change

results in a “new” policy requiring the execution of a UM waiver

rather than a substitute policy which does not. Lewis, 694 So.2d at

577.    Deleting one named insured and changing the remaining named

insured’s name on the policy to her maiden name did not cause the

issuance of a new policy. Id. at 578.         In so concluding, the court

explained that the remaining named insured, the vehicle covered,

and    the   amount   of   bodily   injury   liability   coverage   remained

constant. Id.

       The substitution of one vehicle for another under an insurance

policy constitutes a substitute policy. Huguet v. State Farm Mut.

Auto. Ins. Co., 619 So.2d 186, 188 (La. Ct. App. 3 Cir.), writ

                                       5
denied, 625 So.2d 1059 (La. 1993); Allen v. State Farm Mut. Auto.

Ins. Co., 617 So.2d 1308, 1312 (La. Ct. App. 3 Cir. 1993); cf.

Carter v. Patterson Ins. Co., 675 So.2d          736, 739 (La. Ct. App. 4

Cir.), writ denied, 679 So.2d 1384 (La. 1996)(substitution of

vehicles did not create a new policy requiring execution of named

driver   exclusion    clause).      Increasing    the     number   of   insured

vehicles under a policy or increasing the bodily injury liability

limits of a policy, however, has been held to result in a new

policy. See Daigle v. Allstate Ins. Co., 690 So.2d 261, 262 (La.

Ct. App. 4 Cir.), writ denied, 693 So.2d 738 (La. 1997)(addition of

car);    Doyle v. Titan Indemnity Co., 629 So.2d 516, 520 (La. Ct.

App. 5 Cir. 1993)(addition of another insured and/or new vehicle);

Thibodeaux    v. Champion Ins. Co., 614 So.2d 232, 233-34 (La. Ct.

App. 3 Cir. 1993) (addition of car); Donaghey v. Cumis Ins.

Society, 600 So.2d 829,      831 (La. Ct. App. 3 Cir. 1992)(addition of

car);    Ruiz v. Lewis, 579 So.2d 1203, 1207 (La. Ct. App. 4 Cir.),

writ denied, 586 So.2d 562 (La. 1991) (increase in bodily injury

liability limits);        Gaar v. Sowards, 573 So.2d 499, 501 (La. Ct.

App. 1 Cir.), writ denied, 569 So.2d 990 (La. 1990) (selection of

higher limits of liability insurance); Guilbeau v. Shelter Mut.

Ins. Co., 549 So.2d 1250, 1254 (La. Ct. App. 3 Cir. 1989)(bodily

injury liability limits).

      In the instant case, the policy change in question involves

the   addition   of   a   driver   to   an   automobile    insurance    policy

subsequent to the rejection of UM coverage without a second UM

                                        6
rejection after the additional driver was added.             The effect of

such a change with respect to UM coverage has been addressed by

only two Louisiana circuits.      Matheny argues that Dempsey, supra,

is dispositive of the instant case.        Glen Falls, however, asserts

that   a   later   Louisiana   First   Circuit   decision,   Wilkinson   v.

Louisiana Indemnity/Patterson Ins. Co., 682 So.2d 1296 (La. Ct.

App. 1st Cir. 1996), writ denied, 695 So.2d 964 (La. 1997), and a

case from the Louisiana Fourth Circuit, Daigle v. Allstate Ins.

Co., supra, control and provide no relief to the Mathenys.

       In Dempsey, Patrick Dempsey and Nancy Waller Dempsey sustained

injuries as the result of an automobile accident.             The Dempseys

argued that their UM coverage equaled that of their bodily injury

liability limits rather than the lower limits selected by Nancy

when the policy was first issued because of changes made to their

policy subsequent to the execution of the UM selection form.

       The court of appeal held that the addition of Nicole Marino as

an additional driver to the Dempsey policy subsequent to the

execution of the UM form resulted in a new policy. Dempsey, 680

So.2d at 681.      The court reasoned that the addition of a driver to

the policy while the bodily injury liability limits remained the

same increased the policy’s coverage such that the policy was not

a substitute policy. Id.       Because no UM selection/rejection form

was executed upon or subsequent to the issuance of this new policy,

the UM coverage available to the Dempseys under the Allstate policy

was equal to the limits of bodily injury liability coverage. Id.

                                       7
     Wilkinson, supra, addressed the effect of the addition of

Frances Lofton Wilkinson as a named insured to the Patterson

Insurance Company (Patterson) policy with respect to UM coverage.

In May 1989, James Wilkinson obtained a policy of automobile

liability insurance from Patterson.           The bodily injury liability

limits were $10,000/$20,000.     An equal amount of UM coverage was

provided.    James and his wife, Becky Wilkinson, were listed as

named insureds. The policy covered two vehicles--a Dodge truck and

a Chevrolet Cavalier.       Becky Wilkinson and the Cavalier were

deleted from the policy as of July 17, 1989, as a result of James

and Becky’s separation.

     After the Patterson policy was renewed on May 13, 1992,

several changes were made.    On June 9, 1992, a Mitsubishi truck was

added as a second vehicle to the policy.         On August 4, 1992, James

signed a UM rejection form canceling the UM coverage on both

vehicles in an effort to reduce the insurance premiums.             Finally,

on August 14, 1992,    Frances Lofton Wilkinson, James Wilkinson’s

second wife, became a named insured on the policy.

     On March 5, 1993, Frances was involved in an accident while

driving the Mitsubishi truck.         As a result of the accident, the

Wilkinsons   filed   suit   against       Patterson,    asserting   that   the

Patterson policy provided UM coverage.                 Summary judgment was

granted in favor of Patterson.            On appeal, the court of appeal

ordered the parties to provide supplemental briefs addressing the



                                      8
impact of its earlier decision in Dempsey.3

      The Wilkinson court held that the UM rejection form executed

by James Wilkinson, Frances’s husband, remained valid despite the

subsequent addition of Frances as a named insured. Wilkinson, 682

So.2d at 1300.   In reaching this conclusion, the court noted that

although Frances did not become a named insured under the policy

until August 1992, she and James were married in 1990. Id.   Dempsey

was therefore distinguishable as Frances Lofton Wilkinson, as

James’s spouse, had been covered by the policy since the time of

its issuance according to the terms of the Patterson policy.4    In

distinguishing Dempsey, the court emphasized that the Dempsey

opinion did not explain the exact relationship between Nicole

Marino and the Dempseys, but noted that she obviously was not the

spouse of Patrick Dempsey.

      Glen Falls argues Wilkinson controls rather than Dempsey

because Joseph, as a relative of the named insured, fits within the

definition of an insured under the policy.5    As such, Glen Falls

  3
    The Wilkinson opinion refers to the Dempsey case as Waller v.
Automotive Casualty Insurance, 95-2108 (La. App. 1st         Cir.
6/28/96); 680 So.2d 675. See Wilkinson, 682 So.2d at 1299.
  4
    An “insured” for purposes of UM liability was defined, in
pertinent part, as “‘the named insured and, while residents of the
same household, his spouse and the relatives of either.’”
Wilkinson, 682 So.2d at 1300.
  5
     For purposes of UM coverage, the Glen Falls policy defines a
“Covered Person” as follows:
   (a) you;
   (b) a relative;
   (c) a person occupying an insured auto;

                                 9
asserts that as in Wilkinson there was no increase in coverage when

Joseph was added to the policy as a driver and no “new” policy

issued.

     We realize that the definition of a “Covered Person” for

purposes of UM coverage under the Glen Falls policy in question

includes relatives of the named insured; however, several factors

persuade us that the court of appeal’s rationale in Dempsey is more

applicable to the facts of the instant case than that of Wilkinson.

     In Wilkinson, Frances Lofton Wilkinson did not become a named

insured under the Patterson policy until August 14, 1992, despite

James and Frances having been married since 1990.    The Wilkinson

court found no increase in coverage occurred when Frances became a

named insured as she had already been covered as James’s spouse.




   (d) a person occupying a trailer used with an insured auto;
   (e) a person, for damages that person is entitled to recover,
because of bodily injury to which Part 6 applies sustained by a
person described in (a), (b), (c) or (d) above.

Glen Falls Policy, p. 43 (emphasis in original).

   A “relative” is defined, in pertinent part, as “a resident of
your household who is:

  (A) a person related to you by blood, marriage, or adoption.”

Glen Falls Policy, p. 7 (emphasis in original).

   “You” refers to the person named as the “Named Insured” on the
Coverage Data Page.    It also means the spouse of the “Named
Insured” if the spouse is a resident of the “Named Insured’s”
household.

Glen Falls Policy, p. 3 (emphasis added).

                                10
Whether or not an increase in coverage occurs is important because

an increase may indicate that a material change in the original

terms and/or risk covered under the policy had occurred.

     We find it especially significant that the premium charged for

the Wilkinsons’ automobile insurance did not increase when Frances

became a named insured in 1992.   The lack of premium increase when

considered in light of the court’s statement that “the formal

addition of Frances Wilkinson did not have the effect of increasing

the policy’s coverage,” implies that no material change to the

policy occurred when she was made a named insured.   Wilkinson, 682

So.2d at 1300 (emphasis added).    In other words, it appears that

Patterson already had accounted for the risk presented by Frances

as an insured driver under the policy upon her marriage to James in

the premium it had charged prior to her becoming a named insured on

the policy. Having “James and Frances Wilkinson” as named insureds

rather than having “James Wilkinson” as a named insured and Frances

as an insured by virtue of being James’s spouse did not cause the

amount of coverage or risk insured by the policy to change as

indicated by the absence of a premium increase.

     As the Wilkinson court explained, neither the relationship

between Nicole Marino and the Dempseys nor whether Nicole would

have qualified as an insured prior to June 27, 1991, by virtue of

any relationship to the Dempseys was apparent from the Dempsey

opinion. It is clear, however, that the risk insured by the policy

changed upon her addition as a listed driver under the policy from

                                  11
the perspective of Allstate as the insurer increased the premium

paid by the Dempseys. See Dempsey, 680 So.2d at 681.

      In the instant case, the addition of Joseph as a third driver

to the Glen Falls policy obviously constituted a material change in

the risk covered by the policy even if the policy technically

provided him coverage prior to June 28, 1994, by virtue of its

definition of a “Covered Person.”            The increase in the premium

charged the    Mathenys   by    38%   is   especially   significant   as   it

occurred only when Joseph, as a newly licensed driver, was added to

the policy    rather   than    when   he   became   physically   capable   of

driving.    This premium increase, in addition to policy language

specifically explaining that “persons covered under your policy

being newly licensed as operators of motor vehicles or recreational

vehicles”    might result in a premium adjustment, provide evidence

of the materiality of this change. Policy, p. 47.6

      The Louisiana Fourth Circuit’s opinion in Daigle, supra, does

not persuade us that our reconciliation of the decisions of the

Louisiana First Circuit should be otherwise.               In Daigle, the

plaintiff, Deborah Daigle, sought to recover more UM benefits than

originally selected by her father to whom the policy was issued.


  6
      We   further   note   that   the    policy   indicates   that
“misrepresent[ation of] any material fact or circumstance []
relating to this policy” could result in the entire policy being
void. Policy, p. 47.    Failure to notify Glen Falls of a relative
of the named insured (as defined by the policy) becoming a licensed
driver potentially could constitute such a material fact or
circumstance.

                                      12
Between the time of this election of lower limits and Deborah’s

accident, several cars were substituted to the policy and Deborah’s

brother, Edgar Daigle III, was added to the policy.   In concluding

the selection of lower UM limits made by Deborah’s father remained

valid despite the abovementioned changes to the policy, the court

held, inter alia, that the addition of Edgar Daigle III as a driver

to the policy did not constitute a material change to the policy.

Daigle, 690 So.2d 261, 262-63. Although the court acknowledged the

addition of an insured to a policy can be a material change to the

policy, the court reasoned that Edgar was already an insured person

under the policy, albeit as a passenger. Id. at 263.       The court

found the “alteration in his status, from an insured passenger to

a driver, [was] not significant enough to convert the renewal

policy into a new policy.” Id.

     In resolving an issue of state law in the absence of a

definitive ruling of that state’s highest court, our responsibility

is to predict how that court, in this instance, the Louisiana

Supreme Court, would rule. Rogers v. Corrosion Products, Inc., 42

F.3d 292 (5th Cir.), cert. denied, 515 U.S. 1160 (1995).   In making

this prediction, the decisions of the intermediate state courts

provide guidance, but are not controlling. Id.; Green v. Walker,

910 F.2d 291, 294 (5th Cir. 1990).    In light of our understanding

of the Louisiana First Circuit’s jurisprudence, the extremely

strong Louisiana policy favoring UM coverage as reflected in

Louisiana statutes and numerous decisions of the Louisiana Supreme

                                 13
Court, and the absence of extensive analysis of this extremely

important issue by the Daigle court, we find no compulsion to adopt

the approach set forth by the Daigle decision and advocated by Glen

Falls.7   Although Edgar Daigle III may have been covered by the UM

insurance by virtue of his status as a passenger prior to being

added as a driver under the policy, the risk of injury caused by an

uninsured or underinsured driver to a passenger is not necessarily

the same as that faced by an inexperienced new driver.8

      We conclude that the addition of Joseph Matheny as a licensed

driver to the Glen Falls policy in question resulted in a material

change in the risk insured by the policy causing a 38% increase in

the premium charged; therefore,    we hold that a new policy rather

than a substitute policy was issued.        As no UM rejection or

selection of lower limits was executed subsequent to this event, UM

coverage was provided in an amount equal to the limits of the

bodily injury liability coverage.      Because we conclude that the

  7
     Although not specifically on point, we find language in
additional cases from other circuits of the Louisiana courts of
appeal supportive of our conclusion. See Lovoi v. Ladreyt, 655
So.2d 387, 389 (La. Ct. App. 5 Cir.), writ denied, 656 So.2d 1031
(La. 1995)(“ The jurisprudential trend requires a new waiver when
the insured has requested a change in either the insured person,
vehicle, risks, or coverage limits.”); Doyle v. Titan Indemnity
Co., 629 So.2d 516, 520 (La. Ct. App. 5 Cir. 1993)(“ The addition
of another insured and/or a new vehicle cannot be made to a policy
and still have the policy considered a renewal or substitute
one.”); Tully v. Liberty Mutual Fire Ins., 516 So.2d 435, 439 (La.
Ct. App. 1 Cir. 1987)(addition of another insured and that new
insured’s vehicle cannot be a renewal or substitute policy).
  8
      Further, the Daigle opinion also does not indicate whether
the addition of Edgar Daigle III caused a premium increase.

                                  14
Glen Falls   policy   provided   UM   coverage   to   the   Mathenys,   the

question of whether the district court correctly denied Matheny’s

motion to submit newly discovered evidence, to re-open the case,

and for a new trial is moot.

     For the foregoing reasons, the order of the district court

granting summary judgment in favor of Glen Falls is REVERSED and

summary judgment is RENDERED in favor of Matheny declaring that the

Glen Falls policy provided UM coverage to the Mathenys in an amount

equal to the limits of the bodily injury liability coverage.




                                  15