255 La. 659

#### Lawrence Paul TURNER and Paul Abraham v. W. D. EWING, Callender Auto Rental and Fidelity General Insurance Company.

No. 49843.

Supreme Court of Louisiana.

Feb. 23, 1970.

Dissenting Opinion March 6, 1970.

Rehearing Denied March 30, 1970.

*469Adams & Reese, Sam A. LeBlanc, III, Lawrence L. McNamara, John P. Pisa, New Orleans, for appellants.

Nelson & Nelson, Michael A. Dessommes, John P. Nelson, Jr., New Orleans, for appellees.

SUMMERS, Justice.

Plaintiffs Lawrence Paul Turner and Paul Abraham instituted suit on October 19, 1965 against W. D. Ewing, Callender Auto Rental and Fidelity General Insurance Company to recover damages arising out of an automobile collision which occurred on May 7, 1965 at the intersection of Jackson Avenue and Rousseau Street in the city of New Orleans. As a result of the collision, Turner incurred personal injuries and Abraham’s automobile was damaged. Plaintiffs alleged that Turner was driving Abraham’s car and that defendant Ewing had rented the automobile he was driving from Callender. Plaintiffs further alleged that Fidelity insured Cal-lender for personal injuries and property damage arising out of the negligent operation of their vehicles.

An answer was filed to this petition on January 3, 1966 by counsel for Fidelity on behalf of all defendants. Later, counsel for Fidelity and Callender withdrew as counsel for Ewing, informing him that there was no coverage under Fidelity’s policy issued to Callender for the automobile Ewing was driving when the collision ánd damage occurred. An amended answer reflecting this position was filed on December 7, 1966. Five months later, on May 4, 1967, Ewing answered plaintiffs’ petition separately; and, at the same time, he filed a third party petition making Callender and Fidelity defendants asserting that they were estopped to deny coverage and that they should answer to him for any amount he was required to pay plaintiffs.

It was stipulated at the trial on November 21, 1967 that the proximate cause of the collision and damage was the negligence of Ewing in failing to stop at a stop sign. Judgment was accordingly rendered by the trial court in favor of plaintiffs against Ewing, Callender and Fidelity, jointly and in solido, as prayed for. Ewing was awarded judgment against Callender and Fidelity on his third party demand.

Defendants Ewing, Callender and Fidelity appealed to the Fourth Circuit where the judgment in favor of the plaintiff Turner against all defendants for his personal injuries was amended to cast only Ewing. After reduction of the quantum, the judgment in favor of Abraham for damage to his automobile was likewise amended to cast only Ewing. The judgment in favor of plaintiffs was reversed insofar as Callender and Fidelity were concerned, and the plaintiffs’ claims against them were rejected.

Ewing’s recovery under his third party claim against Callender and Fidelity was affirmed as to Callender, but reversed as to Fidelity, the third party claim against Fidelity being rejected. 220 So.2d 518. We granted certiorari on Ewing’s application. 254 La. 277, 223 So.2d 406. His complaint is now directed solely at that portion of the Court of Appeal judgment rejecting his third party claim against Fidelity.

These are the facts which are germane to the issues of the case:

Ewing, a Naval Officer, flew into Cal-lender Field, Belle Chasse, Louisiana, on May 6, 1965. The next morning he rented an automobile from Callender Auto Rental. He signed a standard rental form and, *470in connection therewith, purchased liability insurance coverage on the rented automobile, paying an extra dollar for the insurance. That same afternoon he was involved in the accident at the intersection of Jackson Avenue and Rousseau Street in New Orleans with plaintiff Turner who was driving Abraham’s automobile. Turner incurred personal injuries, and Abraham’s automobile was damaged.

After the collision Ewing called the police, the Federal authorities and Arthur O. Cope, the manager of Callender Auto Rental. In the phone conversation with Cope, Ewing was assured that the rented automobile was covered by insurance; and, when Ewing returned the vehicle, Cope reassured him in this regard. That afternoon Ewing departed the air base in keeping with his orders.

Cope reported the facts of the accident to Forest Pendleton, Callender’s insurance agent who had placed the insurance with Fidelity.

While on duty in Georgia in October 1965, Ewing was served with a copy of plaintiff’s petition by the Secretary of State. As a result he telephoned Cope from Georgia informing him that he had been served with a copy of the petition. Again he was assured that he had insurance coverage on the accident. He was also informed that Pendleton was the insurance agent. To verify this information, Ewing called Pendleton, who substantiated Cope’s statements, revealed that Fidelity was the insurer and referred Ewing to Fidelity’s attorneys. When Ewing called Fidelity’s attorney he was told to send the suit papers for examination, which he did. A week later on November 3, 1965, Ewing called Fidelity’s attorney again, and the latter confirmed coverage and advised Ewing he would be defended in the action.

As a result of these developments, Ewing apparently became concerned and notified his own automobile public liability insurer, United Services Automobile Association. United Services employed Calvin Hopp-meyer, a New Orleans claim representative, who consulted with Fidelity’s attorney. He was advised that the limits of Fidelity’s policy were more than adequate to cover the case and to protect Ewing.

On January 3, 1966 Fidelity’s attorneys filed an answer on behalf of Ewing, Cal-lender and Fidelity, in which it was alleged that Fidelity issued a policy of liability insurance to Callender insuring Callender against “certain liabilities as specified under the terms, coverages, conditions, limitations and exclusions of the policy.” Fidelity specifically pleaded the policy as the best evidence of its contents. Thereafter, at monthly intervals, Hoppmeyer consulted with Fidelity’s attorney, and as late as November 1966 he was assured that Fidelity’s attorney was working on the case and representing Ewing with Cal-lender and Fidelity.

Finally, Fidelity decided its policy did not afford coverage, and it withdrew its defense of Ewing. In keeping with this change of position, Fidelity amended its answer on December 7, 1966, still admitting the issuance of a policy to Callender insuring “against certain legal liabilities as specified under the terms, coverage, conditions, limitations and exclusions of the policy,” and specifically pleading the policy as the best evidence of its contents.

Ewing’s third party petition, filed sometime later in May 1967, asserts liability on the part of Callender for collecting a charge to furnish automobile public liability insurance and failing to do so. Liability is also alleged on the part of Fidelity for leading Ewing to believe that he had insurance coverage from October 1965 to November 1966 and then denying the coverage to Ewing’s prejudice.

At the trial of the case on November 21, 1967, Fidelity sought to introduce what it termed a “certified copy” of the policy upon which it relied to exclude coverage, at which time Ewing’s counsel objected to the introduction of any but the original policy. The objection was sustained with leave *471granted to Fidelity’s counsel to produce the original later. At the conclusion of the trial, however, without the policy having been introduced in evidence, the judge rendered judgment from the bench in favor of plaintiffs against Ewing, Callender and Fidelity jointly and in solido and in favor of Ewing on the third party demand against Callender and Fidelity. The original of the policy was never produced by Callender or Fidelity, nor did Ewing’s counsel take steps to compel its production prior to or during the trial.

Ewing is contending that he has proved coverage under Fidelity’s policy by the allegation made by Fidelity in its answer, by the representations of Fidelity’s attorney and agents and by Fidelity’s failure to produce the policy and other evidence to negative coverage.

Reference to Ewing’s third party petition, however, fails to disclose any allegation that Fidelity was the insurer of the automobile being driven by Ewing at the time of the collision or that Ewing came within the coverage of Fidelity's policy. The gravamen of Ewing’s third party petition is a claim for damages for negligence on the part of Callender in not obtaining the automobile public liability insurance paid for by Ewing, together with a claim for indemnity against Fidelity, because it led Ewing to believe he had coverage and lulled him into inaction in his defense of the claim against him.

Nowhere is an allegation made that the third party demand is based upon policy coverage. In fact the record leads us to believe that Ewing’s counsel made a studied effort not to rely upon policy coverage for recovery. The theory which emerges from the record is in keeping with the third party petition — that is, Ewing’s claim is based upon Callender’s negligence in failing to obtain the insurance bargained for, which is a meritorious claim, and a plea of waiver and estoppel against Fidelity: Fidelity having waived the right to assert defenses of non-coverage and being estop-ped to deny coverage, all because of representations made by Fidelity to Ewing after filing of suit to the effect that he was covered under their policy.

Therefore, since Ewing has not alleged coverage under Fidelity’s policy in the third-party demand and has failed to prove coverage by introducing the policy into evidence in one of the several modes available to him under the law, only the question of waiver and estoppel remains to be resolved.

Waiver and estoppel cannot be invoked under the facts of this case. More than eleven months elapsed between the notice to Ewing of Fidelity’s denial of liability and the trial of the case. Ewing had ample time, therefore, to prepare his defense. An essential element of the plea of estoppel is detrimental reliance. Ewing has shown no detriment as a result of his reliance upon Fidelity’s representations that he had coverage under their policy, which could not have been repaired before trial. Therefore the plea of estoppel is without merit.

Ewing has contended that the failure of Fidelity to produce the policy to show lack of coverage has the effect of proving that he was covered by the policy. To sustain this position he relies upon three Court of Appeal decisions: Hanford v. Jan C. Uiterwyk Co., 214 So.2d 236 (La.App.1968); Fontenot v. Lloyd’s Casualty Insurer, 31 So.2d 290 (La.App.1947) and Masaracchia v. Inter City Express lines, 162 So. 221 (Orl.La.App.1935). Without passing upon the correctness vel non of these decisions, we observe that they are distinguishable from the case at bar. The cited cases all involve instances where the basic issue of coverage had been established, and this coverage was sought to be limited or excluded by the insurer without producing the policy in evidence to support the limitation or exclusion. The question presented in this case is whether there was ever any coverage on the automobile Ewing was *472driving. The burden, therefore, is upon Ewing to prove coverage. An admission by Fidelity that it issued a policy to Cal-lender is not an admission that Fidelity insured the automobile driven by Ewing.

In a case of this kind, where recovery under the policy is neither alleged nor proven, the courts may not depart from the fundamental requirement that the plaintiff bears the burden of proving the insurance coverage upon which his claim is based by a preponderance of the evidence, shift that burden to the defendant insurer and compel defendant to prove that its policy does not cover plaintiffs.

For the reasons assigned, the judgment of the Court of Appeal is affirmed.

SANDERS, Justice

(dissenting).

In my opinion, the majority has reached an incorrect result in this case largely because of a misconstruction of the pleadings. The majority concludes that Ewing, defendant and third party plaintiff, does not rely upon policy coverage, but solely upon estoppel.

An examination of the pleadings leads me to a contrary conclusion. The plaintiffs allege in Article IV of the petition that the Fidelity policy covered the damage arising from the automobile accident. In a pleading captioned “Answer and Third Party Petition,” Ewing admitted this allegation of the petition, thereby formally asserting coverage under the poicy. In the final portion of the pleading, devoted to the Third Party demand, Ewing first asserts coverage under the policy by pleading all the circumstances. In Article 5, he then asserts an alternative demand based upon estoppel in the following language:

> “That Callender Auto Rental filed said answer on or about January 3, 1965; that in or after December of 1966, Cal-lender Auto Rental filed an amended answer denying that it had coverage of insurance for third party petitioner; that, *if this be found to be true,*then Callender Auto Rental was negligent in not obtaining insurance for which it agreed to purchase or breached its promise to do so or both, and that third party petitioner is entitled to judgment over as requested in this third party petition.” (Italics mine).

If Ewing relies upon policy coverage and alternatively estoppel, as I believe he does, the posture of the case requires a different approach from that adopted by the majority. The specific question framed is this: What are the legal consequences of the failure of Fidelity to produce the policy ?

To resolve this question, it must be understood that Fidelity admitted coverage until November *7,*1966. Shortly thereafter, it filed an amended answer, admitting issuance of the policy insuring Callender Auto Rentals, Inc. against liability but denying that the policy covered the particular automobile rented to Ewing. Apparently, Fidelity adhered to this position during the trial.

During the trial, the Court permitted counsel for Fidelity to offer the original policy in evidence, though he did not have it with him in the courtroom, with leave to produce it later and substitute a copy in the record. Counsel for Fidelity failed to produce the policy. The district court rendered judgment against Fidelity on the policy. Fidelity and Callender appealed. The Court of Appeal reversed the judgment against Fidelity.

I think the Court of Appeal erred. In my opinion, the admissions in Fidelity’s answer, the testimony of Arthur O. Cope, rental agency manager, and the admissions against interest by Fidelity’s agent constitute prima facie evidence of coverage. Although introduced at the trial, the policy is not in the record because Fidelity failed to produce it. Hence, Ewing should not be penalized by its absence.

Assuming, however, I am in error in finding prima facie evidence of coverage *473upon which to rest the judgment against Fidelity, the decree of the majority is still open to question. Since the trial judge allowed the introduction of the policy,1 its absence represents an omission of a material part of the trial record. Hence, on its own motion, this Court should order the correction of the record by the filing of the policy. See LSA-C.C.P. Art. 2132.

For the reasons assigned, I respectfully dissent.

1

. THE COURT: You have introduced the original and I will permit it.” Tr. 92.