IN THE SUPREME COURT OF MISSISSIPPI NO. 2015-CA-01051-SCT SHAREL A. KENNEY

v. FOREMOST INSURANCE COMPANY AND USAA CASUALTY

INSURANCE COMPANY

DATE OF JUDGMENT: 06/17/2015 TRIAL JUDGE: HON. LAW RENCE PAUL BOURGEOIS, JR. COURT FROM W HICH APPEALED: HANCOCK COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: CHUCK McRAE SETH CLAYTON LITTLE ATTORNEYS FOR APPELLEES: DALE GIBSON RUSSELL MICHAEL CHRISTOPHER GATLING TIMOTHY JOHN STERLING CHARLES G. COPELAND NATURE OF THE CASE: CIVIL - INSURANCE DISPOSITION: AFFIRMED IN PART; REVERSED IN PART AND REMANDED - 09/22/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE RANDOLPH, P.J., LAMAR AND KITCHENS, JJ. RANDOLPH, PRESIDING JUSTICE, FOR THE COURT: ¶1. Sharel A. Kenney appeals the trial court’s grant o f sum m ary j u d g me n t i n f avor of
USAA C asualty Insurance Com pany (USAA-CI C ) a n d F orem ost Insurance Com pany (Forem ost). Finding that the trial court erred in granting sum m ary judgm e nt as to F orem ost but not as to USAA-CIC, we af f irm the trial court in part and reverse and rem and in part.
FACTS AND PROCEEDINGS BELOW¶2. In June 201 1 , K e n n e y p u r c h a s e d a mo t o rcy cle i n Slidell, Louisiana. Kenney , a

Louisiana resident, com

pleted a Louisiana Moto r c y c l e I n s u r a n ce Application with F orem ost, which included a n Uninsured/Underinsured M otorist Bodily Injury Coverage Form (“UMBI
Form ”). Pursuant to the UMBI Form , Kenney elected not to purchase UMBI c o v e r a g e. Following receipt of the application and the UMBI Form , Forem ost issued Policy No. 276 0072696768 to Kenney

. Daniel Steilberg, Kenney ’s f iancé, was listed as an operator on the insurance policy

. ¶3. In May 2012, while riding the m o torcy cle, Kenney and Steilberg were i nvolved in an accident with an uninsured m otorist on Highway I-90 in Bay St. Louis, Mississippi. Af ter the accident, Kenney m ade claim s f or uninsured-m otorist covera g e u n d e r t h r ee separate policies. First, Kenney m ade a claim f r o m Forem ost. She was inf o rm ed that “the policy in existence

at the tim e of the accident did not include pay m e n t of m e dical expenses or uninsured/underinsured c overage.” Kenney d id r eceive pay m e nts totaling $ 18,096.86 f rom Forem ost, representing the actual cash value f or property d am age to the m otorcy cle. Kenney also f iled a claim with USAA-CIC, the insu r e r f o r Kenney ’s Dodge Charger, but she was denied pay

m ent f or m edical expenses and uninsured/underinsured-m otorist coverage. 1 ¶4. Af ter the denials of coverage, Kenney f i l e d s u i t i n t h e Circuit C ourt of Hancock County against t he u n insured m otorist, Forem ost, USAA-CIC, and S teilberg, alleging badf aith d enial of insurance/breach of contract, breach of f iduciary duty

/duty o f good f

aith and

1 K en n ey f

iled a claim u n d er a seco n d U S A A -C I C p o licy issu ed to K en n ey ’s d au g h ter. T h at claim

w as d en ied b u t

is n o t at issu e in th is ap p e al. 2f

air dealing, n e g l i g e nce/gross negligence, and intentional inf l iction of em o tional distress, inter alia . Kenney

also pray e d f

or declaratory

relief

. ¶5. Steilberg m oved to dism iss Kenney ’s com plaint, as t he com

plaint “m erely identif

ies Def endant Steilberg as a p arty but nowhere in the Am ended Com plaint is there a n y allegation of w rongdoing, breach of duty or any a ttem pt whatsoever to describe a f actual or l egal basis f or Def endant Daniel R. S teilberg to rem ain a party def endant to t his a ction.” T he trial court
g r anted Steilberg’s m otion to d ism iss and granted Kenney sixty day s to f ile an Am ended
Com plaint. ¶6. USAA-CIC f

iled a m otion f

or sum m ary judgm ent, arguing that Kenney ’s USAA-CIC policy nam ed Kenney as the nam ed insured a nd i nsured only K enney ’ s 2009 Dodge Charger.
USAA-CIC f

urther a rgued that the policy af f orded Kenney no uninsured-m otorist coverage f or the accident and USAA-CIC had an arguable basis f or deny ing K enney ’ s claim f or such
coverage. USAA-CIC averred that, pursuant to Boardm an v . USAA , 470 S o. 2d 1024 (Miss. 1985), and O’Rourke v. Colonial Ins. Co. , 624 S o. 2d 84 (Miss. 199 3 ) , L o u i s i a na law applied to Kenney ’s policy dispute. ¶7. Forem ost also m o ved f or sum m ary j u d g me n t , a r g u i n g t h a t Kenney h ad waived uninsured-m otorist cove r a g e when she elected not to purchase coverage f rom F orem ost. Forem ost argued it was not l i a b l e t o Kenney and that all claim s should b e dism issed.
Forem ost also averred that Louisiana l aw applied to Kenney ’ s claim f or uninsured-m otorist benef its pursuant to Boardm an and Colonial

.

3¶8. During the hearing on the m otions f or s um m ary j udgm ent, the t rial court r u l e d that Louisiana l a w a p p l ied to the policy disputes, that Kenney had o pted out of u ninsuredm otorist coverage f

rom Forem ost, that Kenney was af f ord e d no uninsured-m otorist coverage under USAA-CIC’s policy , and that there w as no bad f aith on Forem ost’s or USAA-CIC’s part in deny ing uninsured-m otori s t c o verage. The trial c o urt granted b oth m otions f or

sum m ary judgm ent. ¶9. The t rial court e ntered a f inal judgm e nt pursuant t o R u l e 54(b) of the Mississippi Rules of Civil Procedure as to U SAA

- C I C a n d Forem o st. A f ter the sixty -day tim e period lap s e d w i t h o u t Kenney f

iling an a m ended com

plaint, the trial court also dism issed Steilberg’s claim with prejudice. 2 Kenney

tim ely f iled notice of

her appeal.
ISSUES ¶10. Kenney

argues the f

o llowing issues:
I. THE T R I AL COURT ERRED IN ITS CHOICE OF LAW DETERMINATION BY FINDING THAT L OUISIANA LAW AND NOT MISSISSIPPI LAW GOVERN ED THE UNDERLYING IN S U RANCE CONTRACT DISPUTES BETW EEN APPELLANT K E N N E Y , F O R E M O S T I

N S U R A N C E C O M P A

N Y A N D U S A A

- C I C

. II. THE T RIAL COURT ERRED IN ITS FINDING THAT A PPELLANT KENNEY E XECUTED A V AL ID W AIVER OF UNINSURED MOTORIST INSURANCE IN HER APPLICA TION W ITH FOREMOST INSURANCE COMPANY.

ANALYSIS

2 K en n ey d id n o t ap p e al S teilb erg ’s d ism issal. 4¶11. This Court applies a de novo standard o f r e v i e w f or grants of sum m ary

judgm ent. Harris v. Darby , 1 7 So. 3d 1076, 1078 (Miss. 2009). F or sake of clarity , the issues identif ied by Kenney have been restated in this opinion.
I. THE PROPER CHOICE OF LAW IN THIS MATTER IS LOUISIANA. ¶12. The prece d e n t s e t b y t h i s C o u r t a n d r e lied upon by the trial c ourt d ictates that Louisiana law should apply to this dispute. See O’Rourke v . Colonial Ins. Co. , 624 So. 2d
84 (Miss. 1993), and Boardm an v. USAA , 4 70 So. 2 d 102 4 ( M i s s. 1985). M ississippi’s

c h o i c e -of -law rules use the “center o f gravity ” c oncept. Boardm a n , 470 So. 2d at 1031.
W h en courts are presented with a question as to what state’s s u b s t a n t i v e law applies, the

court determ i nes “which s tate has the m ost s ubstantial contacts with the parties and the subject m atter of t he action.” Id. (citing Mitchell v. Craft , 2 11 So. 2d 509, 512 (Miss. 1968); Craig v. Colum b us Com

press & Warehouse Co. , 210 So. 2d 645, 649 (Miss. 1968)). ¶13. In Boardm an , this Court determ ined that: (a) the place of contracting was in Nebraska, (b) the place of

negotiation of

the contract was in Nebraska, (c) the place of perf

orm a nce was substantially in Nebraska, (d) the location o f the subject m a tter of t he contract, i .e., the principal location of the risks insured against, was in Nebraska. . . , and (e) the residence of

Henry W . Boardm a n

was Nebraska. . . .
Id. at 1034. The Court held Nebraska law applied. Id. In C olonial , this Court f

ound that: (a) the O’Rourkes were both residents of Tennessee

5(b) the insurance policy was issued by Colonial through an i nsurance agency located in Bartlett, Tennessee, [ and] (c) the prem i um s [ were] paid to Colonial either through a Tennessee agent or directly to Colonial in Georgia.
Colonial , 624 So. 2d at 87. The Colonial Court held Tennessee law applied. Id. ¶14. Boardm an and C

olonial are strikingly sim ilar to t oday ’s cas e . A l l t h r e e s h a r e c o m m on f acts including, but not lim ited to: (1) nonresident insureds, ( 2) polic i e s i nsuring vehicles principally garaged outside of Mississippi, (3) p o l i c i e s i ssued by out-of -state insurers, (4) policies that excluded f

rom uninsured-m otorist coverage a n y b o d i l y i n j u r y t o c o v e r e d persons while occupy ing a vehicle owned by the covered person but not insured under the policy at issue, (5) accidents occurring in Mississippi, (6) denied uninsured-m o torist claim s, and (7) lawsuits f iled in Mississippi. The B oardm an and Colonial courts f ound that Mississippi law did not a pply to the i ns u r a n ce c ontract dispute. This trial court ruled the s am e conclusion f ollows in this case. ¶15. Kenney was a longtim e resident of Louisiana. The Forem ost-insured m otorcy cle was principally g araged at Kenney ’s residence in Loui s i a n a . The USAA-CIC-insured Dodge Charger also was principally garaged at Kenney ’s Louisiana residence. Both the F orem ost and U SAA-CIC policies were Louisiana policies. Mississippi contacts included the location of the accident and the residence of the uninsured m otorist. However, this Court has held that the location of the a ccident i s “f ortuitous and hence irrelev a nt.” Boardm an , 470 So. 2 d at 1036.

6¶16. Apply ing the center-of -gravity test, we f

i n d t h a t t h e t r i a l c o u rt properly held that Louisiana has the m ost substantial contacts w ith t he parties and subject m atter in this action and t hat L o u isiana law m u st b e applied to t he contract disputes b etween Kenney and her insurers.
II. K E N N E Y I S N O T O W E D U N I N S U R E D M O T O R I S T B E N E F I T S U N D E R T H E USAA-CIC POLICY. ¶17. In Louisiana, an insurer of f ering un i n s u r e d

- motorist coverage legally can exclude bodily i njury sustained by a covered person while occupy ing a vehicle owned by the covered
person but not insured under the insurance policy

. See S andoz v. State Farm Mut. Auto. Ins. Co. , 620 So. 2d 4 41, 4 44 (La. Ct. A pp. 1993); Gaudet v . Southern Farm Bureau Cas. Ins. , 600 So. 2d 892 ( La. App. 1st Cir.1992); Galliano v. State Farm , 606 So. 2d 580 (La. App.
5 t h C i r . 1992); Haltom v. S tate Farm Mut. A uto. Ins. Co. , 5 88 S o. 2d 792 (La. A p p . 2 n d Cir.1991). Additionally , Louisiana statutory law f u rther provides: The uninsured m otorist coverage does not apply to bodily i njury , sickness, or disease, i ncluding the resulting death of an insured, while occupy i ng a m otor vehicle owned by the insu r e d if such m otor vehicle is not described in the policy under which a claim is m ade, or is n ot a newly acquired or replacem ent m otor vehicle covered under the term s of the policy

. T his provision shall not apply t o u ninsured m o torist coverage p rovided i n a policy that d oes not describe specif

ic m otor vehicles. La. R. S. § 22:1295(1)(e). ¶18. Kenney ’s USAA-CIC policy specif ically excluded uninsured-m otorist coverage f or bodily injury “sustained by any covered p erson while occupy i ng . . . any m otor vehicle owned by that covered p erson which is n o t insured f or U M under this policy

. ” Kenney ’s m otorcy cle

7was not insured f or uninsured-m otorist coverage under t he USAA-CIC policy

. W e f ind that the trial court did not err in granting sum m ary judgm ent in f

avor of USAA-CIC.
III. A Q U E S T I O N O F F A C T R E M A I N S A S T O W H E T H E R K E N N E Y E X E C U T E D A V A LID WAIVER OF UNINSURED MOTORIS T I N S U R A N C E IN HER APPLICATION WITH FOREMOST INSURANCE COMPANY. ¶19. Loui s i a n a l a w e s tablishes a clear f ram ework and provides a specif i c f o rm f or the

r e j e c t ion of uninsured-m otorist, body -injury coverage. “A p roperly com pleted and signe d f orm c reates a rebuttable presum ption that the insured knowingly rejected coverage. . . .” La. R.S. § 22:1295(1)(a)(ii). The r e jection “ shall b e ma d e only on a f orm prescribed by the

com m issioner o f insurance.” Id. Pursuant to the a uthority given t o the Com m issio n e r of Insurance by

the legislature to create a w aiver f orm , “com

pliance with the f

orm prescribed by the com m issioner of i nsurance i s n e cessary f or the UM waiver to b e v alid.” Duncan v. U.S.A.A. Ins. Co. , 950 S o. 2d 544, 553 (La. 2 006). In order to h ave ef f ect i v e l y waived uninsured-m otorist coverage, the waiver f orm m u st be executed as f

ollows: (1) initialing the selection or rejection of coverage chosen; (2) i f lim i ts lower than the policy lim its are chosen (available in options 2 a nd 4), then f illing in the a mo u nt of coverage s elected f or each person and each accident; (3) printing the nam e of t he nam ed i nsured or legal representative; (4) signing the nam e of the nam e d insured or legal represent a t i v e ; ( 5) f illing in t he policy num ber; and (6) f

illing in the date.
Id. at 551. ¶20. On A u g u s t 2 9 , 2 0 0 8, the Com m issioner of Insurance issued Bulletin No. 08-02. Pursuant to the Bulletin, the f ollowing tasks must be completed by the insured : His/Her signature His/Her p rinted name t o identif y his/her signature The date the f

orm is c ompleted

8Initials to select/reject UMBI coverage prior to signing the f orm . LDOI Bulletin No. 08-02 (em phasis added). ¶21. The UMBI f

orm c om plet e d b y K e n n e y s hows her i nitials beside the section of the f orm which reads:
I do not w ant UMBI Coverage. I understand that I will not be com pensated through UMBI Coverage f or l o s s e s arising f

r om an accident caused by an uninsured/underinsured m otorist.
In her deposition, Kenn e y a c k n o w l edged that those w ere her initials and signature on the f orm . H owever, she testif

ied that she did not “recall p rinting m y nam e because I do not write

m y nam e like that.” W hile the f orm is dated June 2 , 2011, Kenney testif ied that s he did not recall dating the f

orm and that she did not “write [ her] twos like that.” Although Kenney ’s

r esponses were tentative, a q u estion of f

act rem ains as to whether Kenney knowingly rejecte d
U M B I coverage. Material issues of f act exist a s to whether Kenney p rinted her n a me a n d dated the f

orm . Accordingly , we f

ind tha t t h e t r i a l court p rem aturely g ranted sum m ary judgm ent in f

avor of Forem ost, a

bsent a f inding of f

act r egarding com

pliance in com

pleting the UMBI Form

as prescribed by

the Com m i ssioner of

Insurance of

Louisiana.
CONCLUSION ¶22. Following this C ourt’s ce n t e r - o f

- g r a v ity test applied i n B oardm an a nd C olonial , Louisiana law applies to these contract disputes. Pursuant t o Louisiana law, the USAA-CIC policy did not provide uninsured-m otorist coverage to Kenney f or i njuries s ustained while operating her m otorcy cle, a non-USAA-CIC cove r e d v e h icle. W e af f i rm the trial court’s grant of sum m ary judgm ent i n f avor of USAA-CIC. However, m aterial issues of f a ct rem ain

9as t o whether the UMBI f orm as com

pleted co mp l i e s w i t h Louisiana law. W e reverse the

sum m ary judgm ent f

or Forem ost and rem and this m atter f or f urther proceedings consistent with this opinion. ¶23. AFFIRMED IN PART; REVERSED IN PART AND REMANDED.
W A L L E R , C . J . , D I C KINSON, P.J., LAMAR, KITCHENS, KING, C O L E M A N , MAX W ELL AND BEAM, JJ., CONCUR.

1 0