Failure to Prove Lack of Insurance Fatal to UM Claim

Incompetent Trial Evidence Loses UM Coverage

When an insured sues its Uninsured/Underinsured (UM) Motorist insurer the insured need only prove that the motorist who damaged the insured in an auto accident it need only prove that the person responsible for the accident and the owner of the vehicle was uninsured.

In Cesar Espinoza and Mayra Moreno, Individually and on Behalf Of Their Minor Children, Jair Espinoza And Jimena Moreno v. Jane Doe, ABC Insurance Company, And Go Auto Insurance Company, Court of Appeal of Louisiana, First Circuit, 2016 CA 0424, 2017 WL 658731 (2/17/17) the insureds under an automobile liability insurance policy challenged a judgment dismissing their UM claim against the insurer.

FACTUAL BACKGROUND

 On the afternoon of January 6, 2013, Cesar Espinoza was driving a Chevrolet Tahoe and was stopped behind a stalled vehicle on Airline Highway in Gonzales, Louisiana. Mr. Espinoza’s wife, Mayra Moreno, and their minor children, Jair Espinoza and Jimena Moreno, were with him. A white Chevrolet truck was stopped immediately behind the Espinozas’ Tahoe. At some point, the white truck attempted to leave the line of stopped traffic and, in doing so, hit the rear of the Espinozas’ Tahoe. The driver of the truck then left the accident scene before the police arrived, but Mr. Espinoza noted that she was a white female and took a photograph of the truck’s license plate.

Officer Anthony Cantrell of the Gonzales Police Department was dispatched to investigate the accident. After speaking to Mr. Espinoza, Officer Cantrell called in the truck’s license plate number to a dispatcher, who was able to identify William Morris as the truck’s registered owner, but who was unable to provide Office Cantrell with Mr. Morris’ contact information.

Later the same day, while visiting a family member’s home, Mr. Espinoza saw the truck that hit him, and the white female who was driving it, across the street. He called Officer Cantrell, who then drove to meet Mr. Espinoza, and Mr. Espinoza identified the white female and the truck to him. Officer Cantrell confirmed that the truck’s license plate number was the same number Mr. Espinoza had given him at the accident scene and saw that the front of the truck was damaged. He spoke to the female, Selena Morris, and obtained her driver’s license number. Ms. Morris told Officer Cantrell that she did not have insurance. Officer Cantrell did not speak to William Morris, the truck’s registered owner, nor determine whether Mr. Morris had insurance coverage on the truck. The record does not show the relationship, if any, between Selena and William Morris.

The Espinozas sued individually, and on behalf of their children, against Jane Doe, identified as the phantom driver, and against Go Auto Insurance Company, identified as the Espinozas’ UM insurer. Go Auto answered the suit and filed a third party demand against Mr. Morris, Ms. Morris, and ABC Insurance Company.

Ultimately, a bench trial was held, and the trial court signed a judgment: (1) in favor of Jane Doe, ABC Auto Insurance Company, and Go Auto, and dismissing the plaintiffs’ claims with prejudice, and (2) in favor of Go Auto and against Ms. Morris on the third party demand for $17,912.83, plus costs and interest.

The plaintiffs appealed. They claim their Go Auto policy provided UM coverage and that they proved Ms. Morris was uninsured.

DISCUSSION

A plaintiff seeking to recover insurance proceeds has the burden of proving every fact essential to establish that his claim is within the policy coverage. To recover against his UM insurer, an insured must prove that the owner and operator of the vehicle involved in the accident did not have automobile liability insurance in effect on the date of the accident. The effect of the prima facie evidence is to shift the burden of proof from the party alleging the uninsured status of the vehicle to the insured’s UM insurer.

Officer Cantrell’s trial testimony established that Mr. Morris was the registered owner of the offending truck and that Ms. Morris was the operator of the truck on January 6, 2013, the day of the accident. Officer Cantrell’s trial testimony, which was unchallenged, also established that Ms. Morris did not have automobile liability insurance in effect on that date. But, there is no evidence in the record, by affidavit or otherwise, that proves Mr. Morris did not have automobile liability insurance. The fact that Ms. Morris, the operator of the truck, admitted to Officer Cantrell that she did not have insurance is not proof that Mr. Morris, the owner of the truck, likewise had no insurance.

Because plaintiffs failed to prove that Mr. Morris was uninsured, the trial court did not err in rendering judgment in favor of Go Auto and dismissing the plaintiffs’ claims with prejudice.

ZALMA OPINION

Two defendants were involved in the accident, Ms. Morris who was driving and Mr. Morris who owned the allegedly uninsured vehicle. A simple deposition of Mr. Morris or interrogatory asking if he was insured would have resolved the issue in favor of the plaintiffs or in favor of the UM insurer. Failing to prove Mr. Morris had no insurance is unforgivable and the plaintiffs are not without a remedy, they can sue their lawyers.

ZALMA-INS-CONSULT                      © 2017 – Barry Zalma

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant and expert witness specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 49 years in the insurance business.

Mr. Zalma is the first recipient of theLEGEND-TROPHY-2 first annual Claims Magazine/ACE Legend Award.

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About Barry Zalma

An insurance coverage and claims handling author, consultant and expert witness with more than 48 years of practical and court room experience.
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