                         Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE                                         NEWS RELEASE #051


FROM: CLERK OF SUPREME COURT OF LOUISIANA



The Opinions handed down on the 15th day of October, 2014, are as follows:



BY HUGHES, J.:


2014-C -0292      ASHANTI GREEN, AS TUTRIX OF THE MINORS, DAVE PETERSON III AND
                  DAVID PETERSON v. MICHAEL JOHNSON, STATE FARM INSURANCE AGENCY,
                  ALLSTATE INSURANCE COMPANY, AND AMERICAN SOUTHERN HOME INSURANCE
                  (Parish of E. Baton Rouge)

                  Accordingly, we reverse the appellate court’s affirmance of the
                  district court’s summary judgment in favor of Allstate Insurance
                  Company, and we remand the matter to the district court for
                  further proceedings.
                  REVERSED AND REMANDED.

                  VICTORY, J., concurs.
10/15/14


                     SUPREME COURT OF LOUISIANA

                                 NO. 2014-C-0292

               ASHANTI GREEN, AS TUTRIX OF THE MINORS,
                DAVE PETERSON III AND DAVID PETERSON

                                     VERSUS

      MICHAEL JOHNSON, STATE FARM INSURANCE AGENCY,
            ALLSTATE INSURANCE COMPANY, AND
           AMERICAN SOUTHERN HOME INSURANCE

        ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
          FIRST CIRCUIT, PARISH OF EAST BATON ROUGE


HUGHES, J.

      This writ presents the issue of whether a motorcycle accident victim,

ostensibly insured under the provisions of the motorcycle co-owner’s

uninsured/underinsured motorist (UM) automobile insurance policy, was entitled

to UM coverage under the policy even though there was no coverage for the

accident under the policy’s liability provisions.     Finding the insurer failed to

demonstrate a lack of UM coverage, we conclude the district court erred in

granting summary judgment dismissing the UM insurer, and the appellate court

erred in affirming the ruling; therefore, we reverse and remand for further

proceedings.

                   FACTS AND PROCEDURAL HISTORY

      This wrongful death and survival action arose on July 16, 2007 when Dave

Peterson, while riding a motorcycle that he co-owned with Benjamin Gibson, was

involved in an accident with a sport utility vehicle driven by Michael Johnson. Mr.

Peterson died from the injuries he received in the accident.

      At the time of his death, Mr. Peterson resided with his girlfriend, Ashanti

Green, and their two minor children. Ms. Green filed this suit on June 19, 2008, as
tutrix for the minor children, naming as defendants: Michael Johnson and his

insurer, State Farm Mutual Automobile Insurance Company (“State Farm”);

Allstate Insurance Company (“Allstate”), as the UM insurer of the plaintiff, who

contended that coverage extended to Mr. Peterson under her policy provisions; and

American Southern Home Insurance Company (“American Southern”), as the

alleged insurer of the motorcycle. By a supplemental petition, Allstate was also

named as a party defendant in its capacity as the automobile insurer of Mr. Gibson,

on the allegation that UM coverage was provided to Mr. Peterson under that

policy.1

        Subsequent to the dismissal of American Southern and Allstate, as the

plaintiff’s insurer, Allstate, in its capacity as Mr. Gibson’s insurer, filed a motion

for summary judgment, in 2009, contending there was no after-acquired auto

coverage on the motorcycle in question because it was expressly covered by an

American Southern policy; the motion was denied by the district court in February,

2012.

        Thereafter, on April 16, 2012, Allstate filed another motion for summary

judgment asserting a lack of coverage under the Gibson policy. The plaintiff

responded with an exception pleading the objection of res judicata, contending the

coverage issue had been previously decided by the court in February, 2012.

Allstate argued that Mr. Peterson did not have UM coverage under the policy since

the policy definitions for “insured person” and “insured auto,” as set forth in the

liability section of the policy, were not met. The plaintiff contended that the

motorcycle met the “insured auto” definition, necessary for coverage as an after-

1
  Although the motorcycle co-owned by Gibson and Peterson was not expressly listed as an
insured vehicle on the Allstate policy issued to Gibson (which listed as insured vehicles only a
GMC sport utility vehicle and a Nissan car owned by Gibson and his wife), the Allstate policy
contained an after-acquired vehicle provision that covered any auto acquired by the Gibsons
during the policy premium period, provided Allstate insured all other private passenger motor
vehicles owned by the policyholder, Allstate was notified within sixty days after acquisition of
the vehicle, and any additional premium was paid.


                                               2
acquired vehicle, as contained in the UM section of the policy; thus, the plaintiff

asserted that Mr. Peterson had UM coverage under the policy. Following a July

23, 2012 hearing on Allstate’s motion for summary judgment and the res judicata

exception raised by the plaintiff, the district court overruled the exception and

rendered summary judgment dismissing Allstate, finding that Mr. Peterson was

required to qualify as an insured under the liability portion of the policy in order to

qualify for UM coverage.

      The plaintiff appealed the district court decision to the appellate court, which

affirmed. See Green v. Johnson, 13-0103, 2013WL5177142 (La. App. 1 Cir.

9/13/13) (unpublished).      This court granted the plaintiff’s subsequent writ

application.   See Green v. Johnson, 14-0292 (La. 4/17/14), 138 So.3d 614.

Concluding that the lower courts erroneously interpreted the policy provisions and

UM jurisprudence, we reverse.

                              LAW AND ANALYSIS

Motion for Summary Judgment

      This court applies a de novo standard of review in considering lower court

rulings on summary judgment motions. Thus, we use the same criteria that govern

the district court’s consideration of whether summary judgment is appropriate. A

court must grant a motion for summary judgment if the pleadings, depositions,

answers to interrogatories, and admissions, together with the affidavits, if any,

show that there is no genuine issue as to material fact, and that the mover is

entitled to judgment as a matter of law, pursuant to LSA-C.C.P. art. 966(B). See

Catahoula Parish School Board v. Louisiana Machinery Rentals, LLC, 12-

2504 (La. 10/15/13), 124 So.3d 1065, 1071.

      On motion for summary judgment, the burden of proof remains with the

movant. However, if the moving party will not bear the burden of proof on the

issue at trial and points out that there is an absence of factual support for one or

                                          3
more elements essential to the adverse party’s claim, action, or defense, then the

non-moving party must produce factual support sufficient to establish that he will

be able to satisfy his evidentiary burden of proof at trial. If the opponent of the

motion fails to do so, there is no genuine issue of material fact and summary

judgment will be granted. See LSA-C.C.P. art. 966(C)(2). See also Schultz v.

Guoth, 10-0343 (La. 1/19/11), 57 So.3d 1002, 1006.

      In its motion for summary judgment, Allstate asserted that the policy it

issued to Benjamin Gibson did not provide UM coverage to Dave Peterson while

riding the co-owned motorcycle. Allstate argued that Dave Peterson was required

to qualify as an “insured” under the liability portion of the Allstate policy in order

for him to be entitled to UM coverage and that the plaintiff could not meet her

burden to show that the motorcycle was an “insured auto” as defined by the

Gibsons’ Allstate policy.

Uninsured Motorist Coverage

      As this court recognized in Sims v. Mulhearn Funeral Home, Inc., certain

elementary legal principles apply in analyzing an insurance policy. First and

foremost is the rule that an insurance policy is a contract between the parties and

should be construed using the general rules of interpretation of contracts set forth

in the Civil Code. According to those rules, the responsibility of the judiciary in

interpreting insurance contracts is to determine the parties’ common intent; this

analysis is begun by reviewing the words of the insurance contract. When the

words of an insurance contract are clear and explicit and lead to no absurd

consequences, no further interpretation may be made in search of the parties’

intent, and courts must enforce the contract as written. The determination of

whether a contract is clear or ambiguous is a question of law.          See Sims v.

Mulhearn Funeral Home, Inc., 07-0054 (La. 5/22/07), 956 So.2d 583, 589-90.

      UM coverage is determined by contractual provisions and by applicable

                                          4
statutes. Under the UM statute, currently LSA-R.S. 22:1295,2 the requirement of

UM coverage is an implied amendment to any automobile liability policy, even

when not expressly addressed, as UM coverage will be read into the policy unless

validly rejected. See Duncan v. U.S.A.A. Insurance Company, 06-0363 (La.

11/29/06), 950 So.2d 544, 547. However, the coverage requirement of LSA-R.S.

22:1295 “is not applicable when any insured named in the policy either rejects

coverage, selects lower limits, or selects economic-only coverage.” See LSA-R.S.

22:1295(1)(a)(i).3


2
  At the time of the accident at issue herein, July 16, 2007, the UM statute was cited as LSA-
R.S. 22:680 (formerly LSA-R.S. 22:1406(D), redesignated as LSA-R.S. 22:680 by 2003 La.
Acts, No. 456, § 3); the UM statute was again redesignated as LSA-R.S. 22:1295 by 2008 La.
Acts, No. 415, § 1, although no changes were made to the substance of the statute by Act No.
415. For ease of discussion, we will refer to the UM statute by its current designation of LSA-
R.S. 22:1295, as there have been no substantive changes to Paragraph (1)(a)(i), at issue herein,
since the date of the 2007 accident. We note that 2010 La. Acts, No. 703 made a non-substantive
change to Paragraph (1)(a)(i), in changing “herein” to read “in this Section.”
3
    Paragraph (1)(a)(i) of LSA-R.S. 22:1295 provides:

                The following provisions shall govern the issuance of uninsured motorist
         coverage in this state:

                 (1)(a)(i) No automobile liability insurance covering liability arising out of
         the ownership, maintenance, or use of any motor vehicle shall be delivered or
         issued for delivery in this state with respect to any motor vehicle designed for use
         on public highways and required to be registered in this state or as provided in
         this Section unless coverage is provided therein or supplemental thereto, in not
         less than the limits of bodily injury liability provided by the policy, under
         provisions filed with and approved by the commissioner of insurance, for the
         protection of persons insured thereunder who are legally entitled to recover
         nonpunitive damages from owners or operators of uninsured or underinsured
         motor vehicles because of bodily injury, sickness, or disease, including death
         resulting therefrom; however, the coverage required under this Section is not
         applicable when any insured named in the policy either rejects coverage, selects
         lower limits, or selects economic-only coverage, in the manner provided in Item
         (1)(a)(ii) of this Section. In no event shall the policy limits of an uninsured
         motorist policy be less than the minimum liability limits required under R.S.
         32:900, unless economic-only coverage is selected as authorized in this Section.
         Such coverage need not be provided in or supplemental to a renewal,
         reinstatement, or substitute policy when the named insured has rejected the
         coverage or selected lower limits in connection with a policy previously issued to
         him by the same insurer or any of its affiliates. The coverage provided under this
         Section may exclude coverage for punitive or exemplary damages by the terms of
         the policy or contract. Insurers may also make available, at a reduced premium,
         the coverage provided under this Section with an exclusion for all noneconomic
         loss. This coverage shall be known as “economic-only” uninsured motorist
         coverage. Noneconomic loss means any loss other than economic loss and
         includes but is not limited to pain, suffering, inconvenience, mental anguish, and
         other noneconomic damages otherwise recoverable under the laws of this state.
         [Emphasis added.]
                                                  5
       In the instant case, the Gibsons’ Allstate automobile insurance policy

contractually provided both liability and UM coverage.                    The liability limits

selected by the Gibsons were $100,000/$300,000/$100,000, while the UM limits

selected were $50,000/$100,000; thus, the Gibsons “select[ed] lower limits” of UM

coverage than the policy provided for liability coverage in accordance with LSA-

R.S. 22:1295(1)(a)(i). Under these circumstances, by its own terms the coverage

requirements of the UM statute were inapplicable to the Gibson policy.

       Notwithstanding, and despite the language of the UM section contained in

the Gibson policy, the lower courts relied on jurisprudential language holding that

“it is well-settled that a person who does not qualify as a liability insured under a

policy of insurance is not entitled to UM coverage under the policy” as a basis for

finding that there was no UM coverage for the accident at issue under the Gibsons’

Allstate policy. See Green v. Johnson, 13-0103 at p. 6. However, this quoted

language first appeared in Magnon v. Collins, 98-2822 (La. 7/7/99), 739 So.2d

191, 196, in a discussion concerned with whether UM coverage was statutorily

mandated in a case in which the policy at issue did not contain express contractual

UM coverage.         Thus, the Magnon holding, because it discussed statutorily-

mandated UM coverage, is not examined at the outset when the automobile

insurance policy at issue contains express contractual UM coverage, absent some

contention that the contractual coverage runs afoul of the UM statute.4 Courts

begin their analysis of an insurance contract by examining the words of the

insurance contract itself. See Sims v. Mulhearn Funeral Home, Inc., 956 So.2d

at 589.

       In Magnon v. Collins, the plaintiff/tort victim sought UM coverage under

his employer’s commercial general liability policy (“CGI”), which included


4
 In the instant case, no issue has been raised by the parties as to whether the express contractual
UM coverage met other requirements for UM coverage set forth in LSA-R.S. 22:1295.


                                                6
limited automobile liability coverage for non-owned and hired vehicles; the CGI

policy did not contain either express UM coverage or a rejection of UM coverage.

Because the tort victim in Magnon was an employee of the policyholder and was

using his own vehicle at the time of the accident, and the CGI policy expressly

excluded, as insureds, the policyholder’s employees while using their own

vehicles, no coverage was found under the CGI policy for the plaintiff/tort victim’s

injuries. The Magnon court then examined the requirements of the UM statute to

determine whether the tort victim was entitled to statutory UM coverage, in the

absence of express contractual coverage. No statutorily-mandated UM coverage

was found to be required, as the court reasoned that UM coverage was mandated

by statute only for “an ‘insured’ under auto liability coverage.”5 Magnon v.

Collins, 739 So.2d at 196.

       Ergo, the quoted statement of law, taken from Magnon, was intended to

convey only that, in order for a tort victim to be entitled to statutory UM coverage,

which would be an implied amendment to an automobile liability policy not

expressly containing such coverage, the tort victim seeking UM coverage must

qualify as a liability insured under the policy at issue. Also considering CGI

policies, Succession of Fannaly v. Lafayette Insurance Company, 01-1355 (La.

1/15/02), 805 So.2d 1134, and Carrier v. Reliance Insurance Company, 99-2573

(La. 4/11/00), 759 So.2d 37, ruled in accordance with Magnon v. Collins.6

Significantly, in Carrier, this court stated: “Plaintiff obviously would be entitled

to recovery against [the defendant/insurer] if he qualified under the ‘Who is an


5
  At all pertinent times the UM statute has required that UM coverage be provided “in not less
than the limits of bodily injury liability” by an automobile liability policy “for the protection of
persons insured thereunder” unless “any insured named in the policy either rejects coverage,
selects lower limits, or selects economic-only coverage.” See LSA-R.S. 22:1295(1)(a)(i).
6
  Both Succession of Fannaly and Carrier similarly found no UM coverage under an
employer’s commercial liability policy, providing limited automobile liability coverage for non-
owned and hired vehicles and excluding coverage for the use of employee-owned vehicles, when
the tort victims were company employees occupying employee-owned vehicles.


                                                 7
Insured’ provision of the UM coverage.” See Carrier v. Reliance Insurance

Company, 759 So.2d at 41.

      The holding of Magnon v. Collins, that “a person who does not qualify as a

liability insured under a policy of insurance is not entitled to UM coverage under

the policy,” was also quoted in Filipski v. Imperial Fire & Casualty Insurance

Company, 09-1013 (La. 12/1/09), 25 So.3d 742, and Cadwallader v. Allstate

Insurance Company, 02-1637 (La. 6/27/03), 848 So.2d 577; albeit, after a

determination that no contractual UM coverage was provided in those cases.

      In Filipski, the plaintiff/tort victim was the subject of an “Exclusion of

Named Driver Endorsement” to the automobile insurance policy at issue, which

resulted in a contractual agreement between the policyholder and his insurer that

there would be no coverage under the policy while the insured vehicle was being

driven by the plaintiff, as authorized by LSA-R.S. 32:900(L); therefore, no UM

coverage was found to be available under the policy for the plaintiff.

      In Cadwallader, the plaintiffs sought UM coverage for the policyholder’s

resident foster children, who had sustained injuries while riding in a non-owned

vehicle. The policy at issue in that case provided UM coverage only for the

policyholder or her “resident relatives,” when occupying an uninsured auto. The

foster children, who were in the custody of the Department of Social Services,

which contracted with the foster parent to provide care for the children, were not

found to be “relatives” of the policyholder and, therefore, they were not entitled to

UM coverage under her automobile liability policy. See Cadwallader v. Allstate

Insurance Company, 848 So.2d at 582-83.

      In so holding, this court recognized that the UM statute only mandates that

an automobile liability policy provide UM coverage for its named insureds. See

Cadwallader v. Allstate Insurance Company, 848 So.2d at 583-84. Moreover,

Cadwallader went on to point out that, in the absence of a conflict with statutes or

                                          8
with public policy, insurers have the same rights as do individuals to limit their

liability and to enforce whatever conditions they impose upon their obligations,

stating, “It is the particular insurance policy of the insured that establishes the

limits of liability and it is well established that this contract of insurance is the law

between the parties.” Id. at 583. When the contract of insurance is clear and

unambiguous, the policy must be enforced as written. Id. Thus, we conclude that,

even when an insurer is not required by law to provide UM coverage, it is

nevertheless free to contract to do so.

       When the existence of UM coverage under a policy of automobile insurance

is at issue, Magnon v. Collins, Succession of Fannaly v. Lafayette Insurance

Company, Filipski v. Imperial Fire & Casualty Insurance Company, and

Cadwallader v. Allstate Insurance Company demonstrate a two-step analysis:

(1) the automobile insurance policy is first examined to determine whether UM

coverage is contractually provided under the express provisions of the policy; (2) if

no UM coverage is found under the policy provisions, then the UM statute is

applied to determine whether statutory coverage is mandated. See also Bernard v.

Ellis, 11-2377 (La. 7/2/12), 111 So.3d 995, 1000 (recognizing that an automobile

insurance policy must first be examined for contractual UM coverage, and if

contractual coverage is absent, “if a plaintiff is insured under the auto liability

coverage, he is entitled to UM coverage” (citing Magnon v. Collins and Filipski

v. Imperial Fire & Casualty Insurance Company)).

       As required by the first step in this two-step analysis, we turn now to an

examination of the UM coverage expressly provided in the Gibsons’ Allstate

policy to determine whether contractual UM coverage existed for the accident at

issue in this case.

       In support of her claim of UM coverage for Mr. Peterson’s accident, the

plaintiff in this case relies on “Part V” of the Gibsons’ Allstate policy, entitled

                                           9
“Uninsured Motorists Insurance,” which provided, in pertinent part, as follows:

      We will pay those damages which an insured person is legally entitled
      to recover from the owner or operator of an uninsured auto because
      of:
      (1) bodily injury sustained by an insured person, and

      (2)   property damage to your insured auto . . . .

      Bodily injury or property damage must be caused by accident and
      arise out of the ownership, maintenance, or use of an uninsured auto.
      We will not pay any punitive or exemplary damages.

                                      * * *
      Insured Persons
      (1) You and any resident relative.

      (2)   Any person while in, on, getting into or out of an insured auto
            with your express or implied permission.

      Any other person who is legally entitled to recover because of bodily
      injury to you, a resident relative, or an occupant of your insured auto
      with your express or implied permission.

      An insured auto is a motor vehicle:
      (1) described on the Policy Declarations. This includes the motor
            vehicle you replace it with.

      (2)   you become the owner of during the premium period. This
            additional motor vehicle will be covered if we insure all other
            private passenger motor vehicles you own. You must,
            however, tell us within 60 days after you acquire the motor
            vehicle. You must pay any additional premium.

                                      * * *
      Definitions
                                      * * *
      (3)   Motor Vehicle - means a land motor vehicle or trailer other
            than:
            a)    a vehicle or other equipment designed for use off public
                  roads, while not on public roads,
            b)    a vehicle operated on rails or crawler-treads, or
            c)    a vehicle when used as a residence or premises.
                                      * * *
      (5)   You or Your - means the policyholder named on the Policy
            Declarations and that policyholder’s resident spouse.

      Under these express contractual UM provisions, Dave Peterson would meet

the definition of an “insured person” since he was a “person while in, on, getting

into or out of an ‘insured auto’ with [the policyholder’s] express or implied


                                        10
permission.” Further, the co-owned motorcycle would qualify as an “insured auto”

for purposes of UM coverage since it was a “land motor vehicle.”

      In support of its claim that there was no UM coverage for the instant

accident, Allstate points to the limited definition of “auto” in “Part I” of the

Gibsons’ Allstate policy, entitled “Automobile Liability Insurance,” which

provided, in pertinent part, as follows:

      We will pay those damages which an insured person is legally
      obligated to pay because of:
      (1) bodily injury, sustained by any person, and

      (2)    damage to, or destruction of, property.

      Under these coverages, your policy protects an insured person from
      claims for accidents arising out of the ownership, maintenance or use,
      loading or unloading of an insured auto.

                                           * * *
      Insured Persons
      (1) While using your insured auto:
            a)     you,
            b)     any resident, and
            c)     any other person using it with your express or implied
                   permission.
                                      * * *
      Insured Autos
      (1) Any auto described on the Policy Declarations. This includes
            the four wheel private passenger auto or utility auto you
            replace it with.

      (2)   An additional four wheel private passenger auto or utility auto
            you become the owner of during the premium period. This
            auto will be covered if we insure all other private passenger
            autos or utility autos you own. You must, however, tell us
            within 60 days of acquiring the auto. You must pay any
            additional premium.
                                      * * *
      Definitions
                                      * * *
      (2) Auto - means a land motor vehicle designed for use on public
            roads.
                                      * * *
      (6) You or Your - means the policyholder named on the Policy
            Declarations and that policyholder’s resident spouse.

      The primary distinction between the UM provisions and the liability

provisions vis-à-vis coverage for the instant accident is that the UM provisions

                                            11
included within the definition of “insured auto,” for coverage as an after-acquired

vehicle, a “land motor vehicle,” which would encompass a motorcycle,7 while the

liability provisions included within the definition of “insured auto,” for coverage as

an after-acquired vehicle, only a “four wheel” auto, which would exclude liability

coverage for a motorcycle.        We conclude the former policy provisions are

applicable herein, rather than the latter.

      An insurance contract is to be construed as a whole and each provision in the

contract must be interpreted in light of the other provisions. One provision of the

contract should not be construed separately at the expense of disregarding other

provisions. Neither should an insurance policy be interpreted in an unreasonable

or a strained manner so as to enlarge or to restrict its provisions beyond what is

reasonably contemplated by its terms or so as to achieve an absurd conclusion.

Sims v. Mulhearn Funeral Home, Inc., 956 So.2d at 589.

      When the words of an insurance contract are clear and explicit and lead to

no absurd consequences, no further interpretation may be made in search of the

parties’ intent and courts must enforce the contract as written. Courts lack the

authority to alter the terms of insurance contracts under the guise of contractual

interpretation when the policy’s provisions are couched in unambiguous terms.

The rules of contractual interpretation simply do not authorize a perversion of the

words or the exercise of inventive powers to create an ambiguity where none exists

or the making of a new contract when the terms express with sufficient clarity the

parties’ intent. Id.

      We find no ambiguity in the Gibson policy; the parties clearly intended to

extend greater UM coverage to after-acquired vehicles, by defining an “insured

auto” to encompass any “land motor vehicle” (with only three listed exceptions),


7
 See Posey v. Commercial Union Insurance Company, 332 So.2d 909, 912 (La. App. 2 Cir.
1976) (“A motorcycle is clearly a land motor vehicle.”).


                                             12
than for liability coverage, which was limited to “four wheel” autos. The inclusion

in the policy of differing definitions for “insured auto” in differing coverage

sections produced no absurd consequences, and the policy must be applied as

written. See LSA-C.C. art. 2046 (“When the words of a contract are clear and

explicit and lead to no absurd consequences, no further interpretation may be made

in search of the parties’ intent.”); Sims v. Mulhearn Funeral Home, Inc., 956

So.2d at 589.

       Considering that the co-owned motorcycle fell within the definition set forth

in the Gibson policy’s UM coverage provisions, as a “land motor vehicle,” and the

motorcycle was acquired by the Allstate policyholder (Gibson) within the requisite

sixty-day time period,8 the motorcycle could be considered an insured motor

vehicle for purposes of UM coverage. Further, it was uncontested that Dave

Peterson was operating the motorcycle with the permission of Mr. Gibson.

Therefore, under the contractual UM provisions, Mr. Peterson’s accident could not

be excluded from UM coverage under the Gibson policy, on the basis alleged in

Allstate’s 2012 motion for summary judgment.                 Because there was express

contractual UM coverage in the Gibson policy, it was unnecessary for the lower

courts to apply the UM statute to determine whether UM coverage was statutorily

mandated, thus the second prong of the two-part inquiry demonstrated in the

Magnon v. Collins line of cases should not have been reached in this case.

       In this case, Allstate, as the mover, was required to show that it was entitled

to summary judgment as a matter of law, as set forth in LSA-C.C.P. art. 966(B)(2).

Allstate failed to show that UM coverage was excluded under its policy provisions;

therefore, summary judgment was inappropriate.



8
 The motorcycle was purchased on June 30, 2007, within the Gibson policy premium period of
February 26, 2007 through August 26, 2007, and the accident occurred on July 16, 2007, sixteen
days later.


                                             13
Issue First Raised at Oral Argument

       During oral argument before this court, counsel for Allstate argued, in

addition to the contentions it presented in brief to this court, that coverage to Mr.

Peterson was excluded under its policy provisions because the motorcycle he was

riding at the time of the accident was covered under an American Southern policy,

and the Allstate policy allegedly excluded coverage in such a circumstance.

       We note that this particular issue was not presented in briefs filed with this

court, nor does the appellate court opinion indicate that the issue was raised in that

court. Further, counsel for Allstate indicated during oral argument to this court

that, as he was not Allstate’s counsel in the district court, he was unsure whether

the matter was raised in the district court. However, a review of the record reveals

that Allstate’s 2009 motion for summary judgment was, in fact, based on this exact

argument,9 and the 2009 motion for summary judgment was denied by the district

court in February, 2012.10 Allstate did not seek appellate review of the denial of

that motion for summary judgment.

       Thereafter, in its subsequent April 2012 motion for summary, Allstate again

contended that there was no UM coverage under its policy, arguing that Mr.

Peterson did not qualify as an insured under the liability portion of the policy, and,

9
  Although the appellate record, which was designated by the plaintiff/appellant in accordance
with LSA-C.C.P. art. 2128 for purposes of appeal, does not contain the 2009 motion for
summary judgment filed by Allstate, Allstate points out, in a memorandum in support of its 2012
motion for summary judgment that is contained in the appellate record, the argument it
previously made in its 2009 motion for summary judgment: “Allstate as UM insure[r] for
Benjamin Gibson first filed a Motion for Summary Judgment arguing that the 60 day after-
acquired language in the UM policy does not apply to the motorcycle because Benjamin Gibson
and Dave Peterson chose liability and UM insurance with American Southern Home Insurance
Company, not Allstate.”
10
   The district court’s reasons for denying Allstate’s 2009 motion for summary judgment were
set forth in the court’s February 13, 2012 minute entry, which stated:

       Allstate has exposure under the UM policy. Even though Benjamin Gibson may
       not have desired to insure the motorcycle, it appears there may have been
       coverage under the 60-day acquisition rule. The Court believes there are
       genuine issues of material fact in dispute that would prevent the granting of the
       motion for summary judgment; therefore, the Court denies the motion for
       summary judgment. [Emphasis added.]


                                              14
in answer to the plaintiff’s plea of res judicata (based on the February 2012 denial

of Allstate’s motion for summary judgment) to the motion, Allstate specifically

stated that it was urging “a different issue of law.” (Underscoring and emphasis

original.) In its memorandum in opposition to the plaintiff’s plea of res judicata,

Allstate further expressly stated that its 2012 motion for summary judgment “raises

a completely new issue of law in this case.” Thus, the appellate record does not

reflect that the argument previously presented in the 2009 motion for summary

judgment (i.e., that the American Southern coverage precluded coverage under the

Allstate policy) was re-asserted in the 2012 motion for summary judgment or that

Allstate’s 2009 argument served as a basis for the district court’s decision on the

2012 motion for summary judgment.11

      In the plaintiff’s appeal to the court of appeal and subsequent writ of review

before this court, the plaintiff has exclusively sought review of only the 2012

summary judgment in Allstate’s favor. The appellate record, as designated by the


11
   The district court gave written reasons for granting Allstate’s 2012 motion for summary
judgment on August 9, 2012, stating in pertinent part as follows:

               The facts are that Mr. Gibson co-owned a motorcycle with Dave Peterson.
      Mr. Peterson was killed in an accident involving the motorcycle and a third party.
      The insurance on the motorcycle was provided by a separate insurer that listed
      Mr. Peterson and his girlfriend as permissive driver and insured respectively.
      Plaintiff has sued Allstate as the liability and underinsured motorist carrier for
      Ben Gibson, who simply signed as co-owner to allow Mr. Peterson to obtain
      financing.
               Allstate previously filed a motion for summary judgment claiming that the
      Gibson liability policy did not afford coverage to Peterson. That motion was
      denied because ... under the Allstate liability policy, Mr. Gibson had a 60 day
      grace period to add newly acquired vehicles and the accident occurred prior to the
      running of the 60 days.
               Allstate now argues that there is no coverage under the Gibson UM policy.
      The court agrees with the defendant that the Allstate UM policy does not provide
      coverage because Peterson does not qualify as an insured under the liability
      portion of the policy. It is undisputed that Mr. Peterson was not a named insured
      under the Gibson liability policy and that he was not a resident of the Gibson
      household. Therefore, the court agrees that the only way for Mr. Peterson to
      qualify for UM coverage is if the liability policy also afforded coverage to him
      and the motorcycle.
               In review of the liability policy, the motorcycle is clearly not covered and
      in order to be covered under the UM policy one must also be covered under the
      liability policy. Mr. Peterson was not an insured and the after acquired provisions
      of the liability policy does not include motorcycles.


                                               15
plaintiff, did not contain the 2009 motion for summary judgment, nor any

supporting documents submitted in connection therewith. Notably absent from the

appellate record is a copy of the American Southern insurance policy, which

formed the basis for Allstate’s policy defense raised in its 2009 motion for

summary judgment. Furthermore, at the time that the plaintiff designated the

appellate record in the district court, Allstate filed a motion to supplement the

appellate record with certain other items appearing in the district court record;

however, the 2009 motion for summary judgment, memorandum, and attachments

were not among the items sought to be supplemented into the appellate record.

       Since appellate review of motions for summary judgment is de novo, an

appellate court considers the pleadings, depositions, answers to interrogatories,

admissions on file, and any affidavits submitted by the parties.                   Cichirillo v.

Avondale Industries, Inc., 04-2894 (La. 11/29/05), 917 So.2d 424, 428 n.7 (citing

Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d

342, 345 (La. 1992)). The failure of Allstate to ensure that the appellate record

contains the basis for its 2009 policy defense (i.e. that UM coverage was excluded

under its policy because the co-owned motorcycle was expressly insured by

American Southern), re-urged by Allstate at oral argument before this court,

precludes review of the issue.12

                                       CONCLUSION

       As we state herein, a two-step analysis is employed in evaluating whether an

automobile insurance policy provides UM coverage:                     (1) the policy is first

examined to determine whether UM coverage is provided under the express
12
  Generally, a party who is satisfied with a judgment and does not file an appeal or a petition for
review is entitled to make any argument, supported by the record, in support of the judgment in
his favor. See City of Baton Rouge/Parish of East Baton Rouge v. Myers, 13-2011 (La.
5/7/14), 145 So.3d 320, 330 n.5; Mosing v. Domas, 02-0012 (La. 10/15/02), 830 So.2d 967,
976; Matthews v. Consolidated Companies, Inc., 95-1925 (La. 12/8/95), 664 So.2d 1191,
1191-92 (per curiam); Roger v. Estate of Moulton, 513 So.2d 1126, 1136 (La. 1987) (on
rehearing). However, “[m]atters dehors the record cannot be considered on appeal.” Wilson v.
Wilson, 219 La. 205, 207-08, 52 So.2d 716, 717 (La. 1951)


                                                16
provisions of the policy; (2) if no UM coverage is found under the policy

provisions, then the UM statute is applied to determine whether statutory coverage

is mandated. Since the Allstate policy at issue in this case contractually included

UM coverage, these express provisions governed whether UM coverage existed for

the accident at issue, and statutory UM coverage was not at issue. The lower

courts erred in first evaluating the policy for statutorily-mandated UM coverage

and holding that there could be no UM coverage absent liability coverage, in

disregard of the express contractual coverage provided under the UM portion of

the policy. Allstate failed to show on motion for summary judgment that the

plaintiff would be unable to establish UM coverage under its policy provisions for

the accident at issue. Further, arguments raised at oral argument, not previously

briefed and unsupported by the appellate record will not be considered by this

court.

                                     DECREE

         Accordingly, we reverse the appellate court’s affirmance of the district

court’s summary judgment in favor of Allstate Insurance Company, and we

remand the matter to the district court for further proceedings.

         REVERSED AND REMANDED.




                                          17
10/15/14


               SUPREME COURT OF LOUISIANA

                         NO. 2014-C-0292

            ASHANTI GREEN, AS TUTRIX OF THE MINORS,
             DAVE PETERSON III AND DAVID PETERSON

                            VERSUS

           MICHAEL JOHNSON, STATE FARM INSURANCE
            AGENCY, ALLSTATE INSURANCE COMPANY,
           AND AMERICAN SOUTHERN HOME INSURANCE

       ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
         FIRST CIRCUIT, PARISH OF EAST BATON ROUGE

VICTORY, J., concurs.
