# Vincent v. Richardson

> District Court, M.D. Louisiana · February 23, 2024

URL: https://www.frixlaw.com/law-library/cases/10192885

## Case

- **Court:** District Court, M.D. Louisiana
- **Decided:** February 23, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10192885

## How later opinions describe it (automated extraction)

- finding the insurer of the plaintiff’s employer to be a co-primary UM insurer with the UM insurer of the loaner vehicle provided to the plaintiff while his vehicle was being serviced

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
JEFFREY VINCENT
CIVIL ACTION
VERSUS
NO. 22-123-JWD-SDJ
EDWARD RICHARDSON, ET AL.
RULING ON MOTION FOR PARTIAL SUMMARY JUDGMENT
TO DETERMINE RANKING OF INSURANCE
Before the Court is the Motion for Partial Summary Judgment to Determine Ranking of
Insurance (“Motion”) brought by Starr Indemnity & Liability Insurance Company (“Starr”). (Doc.
28.) It is opposed by Blue Hill Specialty Insurance Company (“Blue Hill”). (Doc. 32.) Starr filed
a reply. (Doc. 35.) The Court has carefully considered the law, facts in the record, and the
arguments and submissions of the parties and is prepared to rule. For the reasons which follow, the
Motion is granted in part and denied in part.
I. BACKGROUND
This case arises out of a motor vehicle accident which occurred on June 25, 2020, on
Interstate Highway 10 in West Baton Rouge Parish. (Doc. 1-2, Petition; Doc. 7, Joint Status Report
at 1.) Plaintiff Jeffrey Vincent (“Vincent” or “Plaintiff”) was driving a 2005 Peterbilt truck owned
by Touchet Oilfield Services, LLC and leased to Charles Holston, Inc., (Doc. 31-3), a subsidiary
of OMNI Environmental Solutions. (Doc. 28-1 at 1–2.) Plaintiff alleges that an underinsured
vehicle driven by defendant Edward Richardson negligently struck the truck Plaintiff was driving.
(Doc. 1-2, Petition; Doc. 7, Joint Status Report at 1.)
Plaintiff sued Richardson and his insurer in state court and, in a Second Supplemental and
Amending Petition for Damages, sued Starr and Blue Hill as underinsured motorist insurers liable
to Plaintiff for amounts over Richardson’s insurance coverage.1 (Doc. 1-2, Petition at 14, ¶¶ 13,
15.) The case was removed to this Court based on diversity of citizenship jurisdiction. (Doc. 1 at
3.) Plaintiff’s motion to remand was denied. (Docs. 22, 23.)
II. FACTS

“At the time of the accident, Plaintiff was driving a 2005 Peterbilt Truck bearing serial
number VIN 1XP5DB9X45N858716.” (Doc. 28-6, Starr’s Statement of Material Facts in Support
of Motion for Partial Summary Judgment to Determine Ranking of Insurance (“SMF”) at 1).2 “The
truck was owned by Touchet Oilfield Services, LLC (‘Touchet’) and leased to Charles Holston,
Inc. [‘Holston’], a subsidiary of OMNI Environmental Solutions [‘OMNI’].” (Id.)
The lease required Holston, the lessee, to provide automobile liability insurance on the
truck. (Doc. 31-3 at 2, ¶ 10.)3 It also required the owner/lessor, Touchet, to “maintain bobtail and
non trucking liability coverage” on the vehicle. (Id.)
Starr issued a policy of automobile liability insurance “to OMNI covering the vehicle
lessee” Holston. (Doc. 28-6, SMF at 2; see also Doc. 28-1 at 2 (“Starr issued coverage to the

vehicle lessee.”).) The Starr policy is attached to Starr’s motion as Doc. 31-1. The Starr policy
does not list the Peterbilt as a covered auto, (Doc. 31-1 at 8), but provides coverage to vehicles

1 Because Richardson has liability insurance, Plaintiff makes claims against Starr and Blue Hill’s underinsured
motorist provisions (“UIM”) and not for uninsured motorist (“UM”) coverage. For purposes of the issues raised in
this case, there is no distinction between these terms UM and UIM, and the Court will treat the terms interchangeably.
2 In its opposition, Blue Hill erroneously alleges that Starr “did not include a separate, short and concise statement of
material facts as required by Local Rule 56.” (Doc. 32 at 3, n.10.) This is incorrect, as Starr filed the required statement
of facts. (Doc. 28-6.) As a result of its error, Blue Hill did not, as required by Middle District Local Rule 56(c), file its
own statement of facts admitting, denying, or qualifying the mover’s facts. Rather, Blue Hill, “out of an abundance of
caution . . . identifie[d] facts in Starr’s motion that it disputes.” (Id.) Because Blue Hill did not file the required response
to Starr’s SMF, the Court could deem those facts as admitted. M.D. La. LR 56(f). In its discretion and based on Blue
Hill’s oversight, the Court will not do so. Sanford v. Kirst, No. 21-347, 2023 WL 4052957, at *1–2 (M.D. La. June 16,
2023). However, the nine items listed in Starr’s SMF are not contested by Blue Hill in the body of its opposition, and
there seem to be no issues of fact in dispute between the Starr and Blue Hill.
3 The lease was originally filed as Doc. 28-4 but, in order to comply with local rules, was refiled as Doc. 31-3. The
same is true of the Starr policy (originally filed as Doc. 28-2 and refiled as Doc. 31-1) and the Blue Hill policy
(originally filed as Doc. 28-3 but re-filed as Doc. 31-2).
hired by lessee OMNI and its subsidiary Holsten. (Id. at 7, 19 (showing the selection of Hired Auto
Liability coverage); id. at 53 (extending coverage to OMNI’s subsidiaries).)
While the Starr policy contains a UM endorsement, (id. at 37–39), it also contains a
rejection/waiver form executed by its named insured, (Doc. 31-4 at 1). However, Starr concedes

that “a recent decision of the Louisiana Supreme Court indicates the waiver was improper and,
thus, may be rendered invalid.” (Doc. 28-1 at 2–3 (citing Berkley Assurance Co. v. Willis, 2021-
01554 (La. 12/9/22), 355 So. 3d 591, 593, reh’g denied, 2021-01544 (La. 1/27/23) (holding that
the failure to include the insurer’s name on a UM/UIM coverage selection form renders the
attempted rejection ineffective).) The selection form on which the insured attempted to reject UM
bodily injury coverage does not include the insurer’s name. (Doc. 31-4 at 1.) Under these
circumstances, Starr concedes that UM “coverage would be mandatory under La. R.S. 22:1295 as
to the plaintiff here.” (Doc. 28-1 at 3.)
Blue Hill issued an insurance policy to the Touchet covering “Non-Trucking Liability to
Others Bodily Injury and Property Damage Liability.” (Doc. 31-2 at 2–3.) The Blue Hill policy

contains an “UNINSURED/UNDERINSURED MOTORIST COVERAGE ENDORSEMENT.”
(Id. at 45–50.) Although the Blue Hill policy contains an “other insurance” clause which purports
to make its UM coverage excess over any other uninsured or underinsured motorist coverage, the
clause contains an exception “for bodily injury to an insured when occupying an insured auto.”
(Doc. 28-6 at 2 (citing and quoting Doc. 31-2 at 49).)
The Blue Hill policy defines “insured auto” as “any auto specifically described on the
declarations page.” (Id. (citing Doc. 31-2 at 12).) The 2005 Peterbilt truck involved in the accident
is listed as an insured vehicle on the declarations page. (Id. (citing Doc. 31-2 at 3).)
III. ARGUMENTS OF THE PARTIES
A. Starr
Starr’s Motion argues that its policy coverage should be ranked “as an excess policy to be
in play . . . after all other available insurance, including the Blue Hill policy is fully exhausted.”

(Doc. 28 at 1.) Starr points the Court to La. R.S. § 22:1295(c), which ranks coverages when there
are multiple UM policies. (Doc. 28-1 at 4.) This statute provides, in pertinent part:
(c) *** [W]ith respect to other insurance available, the policy of insurance or
endorsement shall provide the following with respect to bodily injury to an injured
party while occupying an automobile not owned by said injured party, resident
spouse, or resident relative, and the following priorities of recovery under uninsured
motorist coverage shall apply:
(i) The uninsured motorist coverage on the vehicle in which the injured party was
an occupant is primary.
(ii) Should that primary uninsured motorist coverage be exhausted due to the extent
of damages, then the injured occupant may recover as excess from other uninsured
motorist coverage available to him. In no instance shall more than one coverage
from more than one uninsured motorist policy be available as excess over and above
the primary coverage available to the injured occupant.
La. R.S. § 22:1295 (emphasis added).
Here, argues Starr, it is undisputed that Blue Hill’s policy was on the vehicle involved in
the accident, the Peterbilt truck. (Doc. 28-1 at 4.) By contrast, Starr’s policy “issued coverage to
OMNI covering the vehicle lessee [Holston],” not the vehicle. (Doc. 28-6, SMF at 2.) Furthermore,
Starr’s UM coverage implicated in this case came not from its insured choosing UM coverage;
indeed, the insured selected no UM coverage. (Doc. 31-4.) However, because the rejection form
did not contain the insurer’s name, the mandatory UM coverage required by Louisiana law must
now be “read into” or “implied” in Starr’s policy. (Doc. 28-1 at 5.) Under these circumstances,
argues Starr, the UM coverage is on the person insured, i.e., Vincent, the driver, and not the vehicle.
(Id. at 5–6 (citing Higgins v. La. Farm Bureau Cas. Ins. Co., 2020-01094 (La. 3/24/21), 315 So.
3d 838, 845).)
Starr argues more specifically that the effect of mandatory UM coverage coming into force
by virtue of an insured failing to properly reject it is “not to apply UIM coverage to OMNI’s

vehicles, it is to apply UIM coverage to any person [‘]who enjoys the status of the insured[’] under
the liability section of the Starr policy.” (Id. at 5 (quoting Howell v. Balboa Ins. Co., 564 So. 2d
298, 301 (La. 1990)) (emphasis in Howell).)
In other words[,] the mandatory coverage to be “read into” Starr’s policy is not
coverage “on the vehicle,” it would be coverage on Mr. Vincent himself. This is
because “UM coverage is an implied amendment to any automobile liability policy
made ‘for the protection of persons insured thereunder’ . . . .”
(Id. (quoting Higgins, 315 So. 3d at 845).)
Therefore, concludes Starr, because Starr’s UM coverage insured “the person” and not the
vehicle, Blue Hill’s policy must be ranked ahead of Starr’s. (Id. at 5–6.)
Alternatively, Starr argues that if the Court rejects its argument that Blue Hill is primary
and that Starr’s coverage is also on the vehicle, then it and Blue Hill should be held to be co-
primary insurers. (Id. at 6.)
B. Blue Hill
Blue Hill does not disagree with Starr that generally, UM coverage on the vehicle is primary
over other UM coverages. It argues, however, that while Blue Hill did insure the vehicle, its policy
provided only “bobtail/non-trucking policy” coverage, which extended to instances in which “the
vehicle [was] not being used to carry property or used for any business purpose.” (Doc. 32 at 1.)
It points the Court to its policy exclusion “15. Trucking Use”:
Coverage under this Part I, including our duty to defend, does not apply to an
insured auto or any attached trailer while operated, maintained, or used:
a. To carry property or while such property is being loaded or unloaded from the
insured auto or an attached trailer; or

b. In any business or for any business purpose.

(Id. at 2 (emphasis omitted) (quoting Doc. 31-2 at 38).)
According to Blue Hill, “Vincent was hauling contaminated soil . . . pursuant to the lease
agreement” at the time of the accident, (id. at 3 (citing Doc. 32-2, Deposition of Plaintiff Vincent
at 84–92)), and was within the course and scope of his employment at the time, (id. (citing Doc.
31-1 at 132)). Since the truck was carrying cargo at the time of the accident, Starr’s policy provides
“the primary layer of UM coverage.” (Id. at 2 (citing as authority Williams v. Great Am. Ins. Co.,
240 F. Supp 3d 523 (E.D. La. 2017)).)
Blue Hill explains:
Companies shipping or providing transportation for cargo may engage independent
truckers to carry the cargo. Often, the company engaging the independent trucker
will provide liability coverage for the trucker while his equipment is being used
under the contract. At other times, particularly when the trucker is not hauling cargo
or is without a trailer, the trucker needs liability coverage. The coverage is available
under the bobtail policies or a/k/a policies providing limited liability for non-
trucking use of an automobile. Recognizing this, the lease required Holsten/Omni
to maintain auto liability coverage while being utilized for vacuum work and
hauling. Touchet would obtain bobtail and non-trucking liability coverage for those
occasions when the Peterbilt was not being used for these purposes.
(Id. at 3–4.)
Blue Hill acknowledges that under Louisiana’s ranking of UM policies, when a plaintiff is
occupying a non-owned vehicle, the UM coverage on the vehicle is primary. (Id. at 4–5.) But Blue
Hill argues, despite Starr’s argument to the contrary, Starr’s insurance covered the vehicle. (Id. at
5–6.)
Starr’s own policy defines a covered vehicle as any auto owned, hired, or borrowed with
the insured’s express or implied permission, which is the case here. (Id. at 2–3, 5 (citing Doc. 31-
1 at 6, 10, 19, 20, 31).) Accordingly, not only does Vincent meet the definition of an insured under
Starr’s policy, which Starr also acknowledges, the Peterbilt also meets the definition of a covered
auto. (Id. at 5.)
As to Starr’s alternative argument that the Court treat Starr and Blue Hill as co-primary
UM insurers, this “is a concept the Louisiana legislature is [sic] specifically prohibited.” (Id. at 6.)

In conclusion, argues Blue Hill, “pursuant to La. R.S. 22:1295, Starr’s policy provides primary
coverage for Vincent’s claims, and Blue Hill provides excess coverage.” (Id.)
C. Starr’s Reply
Starr notes that Blue Hill does not contest the three central facts that govern the ranking
issue: “(1) Blue Hill provides UIM coverage (2) the Blue Hill policy is ‘on the vehicle’ in question,
and (3) the terms of the Blue Hill policy expressly provide primary coverage.” (Doc. 35 at 1.)
“Blue Hill’s UIM coverage is statutorily primary under this statute and contractually primary under
the wording of the Blue Hill policy.” (Id. at 2.)
The arguments Blue Hill does make are all premised on its liability and not its UIM
coverage, “devot[ing] the entirety of its Opposition to the wholly irrelevant question of which
policy provides liability coverage.” (Id.) “Ranking liability coverages and ranking UIM coverages
are independent endeavors.” (Id. at 3.) “The Blue Hill Policy contains three separate ‘insuring

agreements’ for (1) liability to others, (2) damage to insured autos, and (3) UM/UIM coverage.”
(Id. at 2 (citing Doc. 31-2 at 16, 24, and 45, respectively).)
The Non-Trucking endorsement upon which Blue Hill mainly relies “modifies only the
liability coverage.” (Id. at 2–3 (emphasis omitted) (citing and quoting Doc. 31-2 at 38).) Blue Hill’s
contention that Williams v. Great Am. Ins. Co., supra, supports its argument regarding the ranking
of UM coverages is mistaken since Williams “centered on ranking liability policies.” (Id. at 3.)
As to Blue Hill’s argument that Starr’s policy covers the Peterbilt truck and is thus primary,
Starr notes that the language relied upon by Blue Hill, the “broad definition of insured auto,” is
from the liability part of Starr’s policy, not the UM section. (Id. at 4.) As to the latter, Starr’s insured
rejected UM coverage, and it is only by virtue of UM coverage being “read into” the policy by
way of an “implied amendment” that there is UM coverage. (Id.) Thus, under existing Louisiana
jurisprudence, such an implied amendment is “made ‘for the protection of persons insured

thereunder’ ” and not the vehicle. (Id. (again citing and quoting Higgins, 315 So. 3d at 845).)
IV. STANDARD
“The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). If the mover bears his burden of showing that there is no genuine issue of fact, “its
opponent must do more than simply show that there is some metaphysical doubt as to the material
facts. . . . [T]he nonmoving party must come forward with ‘specific facts showing that there is a
genuine issue for trial.’ ” See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586–87 (1986) (emphasis omitted) (internal citations omitted). The non-mover’s burden is not
satisfied by “conclusory allegations, by unsubstantiated assertions, or by only a scintilla of
evidence.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citations and internal
quotations omitted). “Where the record taken as a whole could not lead a rational trier of fact to

find for the non-moving party, there is no ‘genuine issue for trial.’ ” Matsushita Elec. Indus. Co.,
475 U.S. at 587. Further:
In resolving the motion, the court may not undertake to evaluate the credibility of
the witnesses, weigh the evidence, or resolve factual disputes; so long as the
evidence in the record is such that a reasonable jury drawing all inferences in favor
of the nonmoving party could arrive at a verdict in that party’s favor, the court must
deny the motion.
Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263 (5th Cir. 1991).
Insurance policies are contracts, and courts must interpret them “by using the
general rules of interpretation of contracts set forth in the Civil Code.” Louisiana
Ins. Guar. Ass’n v. Interstate Fire & Cas. Co., 630 So. 2d 759, 763 (La. 1994). The
court must ascertain the “parties’ intent as reflected by the words in the policy . . . .”
Id. “Such intent is to be determined in accordance with the general, ordinary, plain
and popular meaning of the words used in the policy, unless the words have
acquired a technical meaning.” Id.
Ohio Sec. Ins. Co. v. Hudson Specialty Ins. Co., 564 F. Supp. 3d 472, 476 (E.D. La. 2021).
“Louisiana’s public policy strongly favors UM coverage and a liberal construction of the
UM statute.” Higgins v. La. Farm Bureau Cas. Ins. Co., 2020-01094 (La. 3/24/21), 315 So. 3d
838, 841 (internal citations omitted.) See also Boudreaux v. Optimum Ins. Co., 854 F. 2d 88, 90
(5th Cir. 1988) (same).
V. DISCUSSION
A. Does the Starr policy provide UIM coverage?
The Starr policy contained an uninsured motorist endorsement. (Doc. 31-1 at 37–39.)
Starr’s insured attempted to reject UM coverage but did so on a form which did not contain the
insurer’s name. (Doc. 31-4 at 1.) Because the UM rejection form required by the Louisiana
Commissioner of Insurance requires the name of the insurer to appear on the form (La. R.S.
§ 22:1295(1)(a)(ii)), this deficiency rendered the attempted rejection ineffective. “Failure to

properly complete the UM form results in an invalid rejection or selection of lower limits of UM
coverage. Consequently, by operation of statute, UM coverage is equal to the liability limits of the
policy.” Berkley Assurance Co. v. Willis, 2021-21554 (La. 12/19/22), 355 So. 3d 591, 596 (internal
citations omitted). As “[t]he requirement of UM coverage is an implied amendment to any
automobile liability policy, ‘UM coverage will be read into the policy unless validly rejected.’ ”
Id. at 594 (emphasis added) (citations omitted). “[B]y operation of statute, UM coverage [is
deemed] equal to the liability limits of the policy.” Id. at 596 (emphasis added) (citation omitted).
Therefore, despite the insured’s attempt to reject UM coverage and Starr’s half-hearted argument
to the contrary, (Doc. 28-1 at 2), by operation of the UM statute, the Starr policy provided UM
coverage for the subject accident.
B. Does the Blue Hill policy provide UIM coverage?
Blue Hill argues that its “non-trucking endorsement limit[s] coverage to those instances in

which the vehicle is not being used to carry property or used for any business purposes.” (Doc. 32
at 1.) It maintains that the truck was carrying property and being used for a business purpose. (Id.
at 1, 3.) But Blue Hill does not argue it provides no coverage at all. Rather, it argues that because
“Starr’s policy provided primary liability coverage and therefore primary UIM coverage,” Starr’s
UIM coverage is primary, (id. at 3), “and Blue Hill’s provides excess coverage,” (id. at 6).
Here, the Court agrees with Starr that Blue Hill is mixing apples with oranges. The non-
trucking endorsement upon which it so heavily relies is an exclusion specifically limited to its
liability coverage. (Doc. 28-3 at 38.) The endorsement’s title reads: “Limited Liability Coverage
for Non-Trucking Use of an Automobile.” (Id. (emphasis added).) The exclusion by its own
language is limited to “[c]overage under this Part I” which is “Liability to Others.” (Id. (emphasis

added).)
Furthermore, the Louisiana Supreme Court has made clear that policy provisions in the
liability section of a policy do not necessarily control coverage under the UM section. Green ex
rel. Peterson v. Johnson, 2014-0292 (La. 10/15/14), 149 So. 3d 766, 779 (finding that “[t]he lower
courts erred in . . . holding that there could be no UM coverage absent liability coverage . . .”);
Higgins v. La. Farm Bureau Cas. Ins. Co., 2020-01094 (La. 3/24/21), 315 So. 3d 838, 842 (finding
that “even though the defendant in [Green] contended that the policy definitions for ‘insured
person’ and ‘insured auto’ as set forth in the liability section of the policy were not met, the Court
found that this was irrelevant, because contractual coverage existed for the accident under the
terms of the UM section of the policy.”)
C. Is the Blue Hill policy primary?
By way of Act 623 of 1977, the Louisiana Legislature adopted what became known as the

“anti-stacking” provision, which originally was La. R.S. § 22:1406(D)(1)(c) but is currently La.
R.S. § 22:1295(1)(c). 15 William Shelby McKenzie & H. Alston Johnson, III, Louisiana Civil Law
Treatise Insurance Law and Practice, § 4:27 (4th ed. 2023). The statute “prohibit[s] stacking of
multiple UM coverages available to the same insured, except in limited circumstances.” (Id.) 4
There is an exception to this rule provided in the anti-stacking statute “with respect to
bodily injury to an injured party while occupying an automobile not owned by said injured party.”
La. R.S. § 22:1295(1)(c); Ohio Sec. Ins. Co. v. Hudson Specialty Ins. Co., 564 F. Supp. 3d 472,
476 (E.D. La. 2021). Here, Vincent was injured in a vehicle he did not own and may thus take
advantage of this provision.
Where, as here, multiple UM coverages are available, the statute provides for the ranking

of the policies. La. R.S. § 22:1295(c) states, in pertinent part:
(c) *** [W]ith respect to other insurance available, the policy of insurance or
endorsement shall provide the following with respect to bodily injury to an injured
party while occupying an automobile not owned by said injured party, resident
spouse, or resident relative, and the following priorities of recovery under uninsured
motorist coverage shall apply:

4 As the Louisiana Supreme Court has said:

Stacking of UM coverages occurs when the amount available under one policy is inadequate to
satisfy the damages alleged or awarded the insured and the same insured seeks to combine or stack
one coverage on top of another for the same loss covered under multiple policies or under multiple
coverages contained in a single policy. Interpolicy stacking occurs when the insured attempts to
recover UM benefits under more than one UM coverage provision or policy . . . .

Boullt v. State Farm Mut. Auto. Ins. Co., 99-0942 (La. 10/19/99), 752 So. 2d 739, 742.
(i) The uninsured motorist coverage on the vehicle in which the injured party was
an occupant is primary.
(ii) Should that primary uninsured motorist coverage be exhausted due to the extent
of damages, then the injured occupant may recover as excess from other uninsured
motorist coverage available to him.***

La. R.S. § 22:1295(1)(c).
As discussed above, both the Blue Hill and Starr policies provided UM coverage, and so
the question becomes, did one or both policies provide UM coverage “on the vehicle” in which
Vincent was riding at the time of the accident, and are one or both therefore primary?5 As to Blue
Hill, the policy in question specifically names the Peterbilt truck as a covered auto, (Doc. 31-2 at
3), and the UM coverage insures “any person occupying your insured auto.” (Id. at 45.) As
discussed above, the non-trucking bobtail coverage is specifically limited to its liability coverage,
(Doc. 28-3 at 38), and, therefore, does not affect its UM coverage. Because Blue Hill clearly
provides UM coverage on the vehicle which Plaintiff was driving, it is primary within the meaning
of La. R.S. § 22:1295(1)(c)(i).
D. Is the Starr policy primary?
Blue Hill argues that Starr’s UM coverage is primary because “Starr’s own policy defines
a covered vehicle as any auto owned, hired, or borrowed with its insured’s express or implied
permission.” (Doc. 32 at 5.) Because the Peterbilt is a hired vehicle, it is a “covered vehicle” under
the policy, and the UM coverage is therefore “on the vehicle” and primary. (Id.)
Starr replies that its UM coverage exists not by virtue of the policy at issue; rather, because
its insured attempted unsuccessfully to reject UM coverage, that coverage was “read into the

5 As is discussed later in this ruling, despite Blue Hill’s argument to the contrary, there can be co-primary UM
coverages under La. R.S. § 22:1295(1)(c).
policy” by operation of law. (Doc. 28-1 at 5–6.) Because UM coverage follows the person and not
the vehicle, the Starr policy did not cover the vehicle, although it did insure Plaintiff. (Id.)
In other words[,] the mandatory coverage to be “read into” Starr’s policy is not
coverage “on the vehicle,” it would be coverage on Mr. Vincent himself. This is
because “UM coverage is an implied amendment to any automobile liability policy
made ‘for the protection of the persons insured thereunder’ . . . .”

(Id. at 5 (emphasis omitted) (quoting Higgins, 315 So. 3d at 845).)
First, it is clear that
an insurance policy need not specifically list the covered vehicle in order to be
considered “[t]he uninsured motorist coverage on the vehicle.” Numerous cases
have found policies that provide coverage to the injured occupant but which do not
list the vehicle are statutorily primary, finding them co-primary with policies that
do list the vehicle.

Ohio Sec. Ins. Co., 564 F. Supp. 3d at 477 (citing Capone v. King, 467 So. 2d 574 (La. App. 5th
Cir. 1985); Richardson v. Zurich Amer. Ins. Co., No. 17-571, 2018 WL 1409271 (E.D. La.
3/21/2018)).)
In the Ohio Security case, four potential UM coverages were being considered. Id. at 475.
Like here, one of the policies (Progressive’s) listed the vehicle involved in the accident as a covered
vehicle, and another policy (Ohio Security’s) provided coverage by virtue of a hired auto
endorsement. Id. The issue was, like here, the ranking of the policies.
Ohio Security argued that because its policy did not specifically list the subject vehicle, its
coverage was not “on the vehicle,” and, therefore, the Progressive policy should come before it.
Id. at 477. The court rejected this argument.
Notwithstanding the fact that the Starr policy provided liability coverage for the Peterbilt
truck as a hired auto of Holsten, Starr argues that the UIM coverage should be considered
separately and treated differently from the liability coverage. “Ranking liability coverages and
ranking UIM coverages are independent endeavors.” (Doc. 35 at 3 (lacking citation to authority).)
Starr relies heavily on the recent Louisiana Supreme Court case of Higgins v. Louisiana
Farm Bureau Casualty Insurance Co., 2020-01094 (La. 3/24/21), 315 So. 3d 838, for the
proposition that “UM coverage is an implied amendment to any automobile liability policy made
‘for the protection of persons insured thereunder’ . . . .” (Doc. 28-1 at 5 (emphasis omitted).) From

this, Starr argues that because UIM coverage “follows the individual” and not the vehicle, Starr’s
UIM coverage is not, for purposes on 1295(c)(i), “coverage on the vehicle.” (See also Doc. 35 at
4 (Starr’s reply brief, citing and quoting Higgins, 315 So. 3d at 845).)
In Higgins, however, the issue was whether the regular use exclusion on the plaintiff’s
personal auto policy violated Louisiana law’s mandatory UM coverage statute when the plaintiff
was injured in his employer’s vehicle which had no UM coverage. Higgins, 315 So. 3d at 839–40.
Higgins did not involve the issue of the interpretation of La. R.S. § 22:1295(1)(c)(i).
Starr points to Howell v. Balboa Ins. Co., 564 So. 2d 298, 301 (La. 1990) as standing for
the proposition that “UM coverage attaches to the person of the insured, not the vehicle.” (Doc.
28-1 at 3.) “Any person who enjoys the status of insured under a Louisiana motor vehicle liability

policy which includes uninsured/underinsured motorist coverage enjoys coverage protection
simply by reason of having sustained injury by an uninsured/underinsured motorist.” Howell, 564
So. 2d at 301. But Howell too did not involve the ranking of UM policies under La. R.S.
§ 22:1295(1)(c) or the interpretation of the phrase “coverage . . . on the vehicle” in that context.
Starr cites other cases which it argues support its position. (Doc. 28-1 at 3; see also id. at
5, n.28 (citing Myers v. Welch, 2017-0063 (La. App. 1st Cir. 10/25/17), 233 So. 3d 49, 58, writ
denied, 2017-2165 (La. 3/9/18), 238 So. 3d 454); Norton v. Lewis, 623 So. 2d 874, 874 (La. 1993);
Bennett v. Brown, 2016-622 (La. App. 3d Cir. 12/21/16), 209 So. 3d 830, 831–32, writ denied,
2017-0146 (La. 3/13/17), 216 So. 3d 803).) But none of these cases stand for the proposition Starr
posits: where the vehicle involved in the crash is a covered auto under its policy by virtue of a
hired auto endorsement, where its UM coverage exists by virtue of an ineffective UM rejection on
that same policy, and where the plaintiff has no personal UM coverage, then its UM coverage is
not “on the vehicle” and does not provide primary UM coverage under La. R.S. § 22:1295(1)(c)(i).

Nor has Starr pointed the Court to any such holding.
“[I]n 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.”
Green ex rel. Peterson, 149 So. 3d at 772 (emphasis omitted). See also Higgins, 315 So. 3d at 842
(endorsing the quoted language from Green). Here, Plaintiff is admittedly a liability insured under
the Starr policy, and the Starr policy is the only policy into which UM coverage can be statutorily
“implied” or “read” since Plaintiff had no personal UM coverage, and Blue Hill’s UM coverage is
contractual.
If Starr’s UM coverage, whether contractual or implied, had been on Plaintiff’s personal

vehicle, the coverage would clearly not have been “on the vehicle” in which Plaintiff was injured,
and Starr’s argument would have merit. But such was not the case. The Starr policy’s liability and
uninsured motorist sections purport to cover the Peterbilt truck by virtue of it being a hired auto.
It is Plaintiff’s use and occupancy of the covered truck that qualifies him as an insured under the
Starr policy. With the failed rejection of UM coverage, there is no policy into which UM statutory
coverage can be read or implied other than that issued by Starr which insures the Peterbilt truck as
a hired auto. The Court finds, therefore, that, for purposes of La. R.S. § 22:1295(1)(c)(i), Starr’s
statutory UM coverage is “on the vehicle” which Vincent was driving, and, therefore, Starr
provides primary UM coverage for this accident.
E. Are the Blue Hill and Star Policies co-primary?
Blue Hill argues without citation to authority that there cannot be co-primary policies
because La. R.S. § 22:1295 “provides for one primary and one excess policy to provide UIM
coverage.” (Doc. 32 at 5–6.) This is incorrect, as the statute does not so state and “[n]umerous

cases have found policies that provide coverage to the injured occupant but which do not list the
vehicle are statutorily primary, finding them co-primary with policies that do list the vehicle.”
Ohio Sec. Ins. Co., 564 F. Supp. 3d at 477 (emphasis added); id. at 476 (“When more than one UM
policy covers the vehicle for purposes of [La. R.S. § 22:1295(c)], all such policies are primary.”).
See also, e.g., Capone v. King, 84-361 (La. App. 5th Cir. 1985), 467 So. 2d 574; Richardson, 2018
WL 1409271; Boudreaux v. Optimum Ins. Co., 854 F.2d 88, 91–92 (5th Cir. 1988) (finding the
insurer of the plaintiff’s employer to be a co-primary UM insurer with the UM insurer of the loaner
vehicle provided to the plaintiff while his vehicle was being serviced).
Blue Hill offers no other reason for its argument that its coverage is excess to that of Starr.6
For the reasons expressed above, the Court rejects Blue Hill’s argument that there can only be one

primary insurer and finds that Starr and Blue Hill provide co-primary coverage.

6 The Court notes that the Blue Hill UIM policy includes an “other insurance” clause which states, in pertinent part,
“any insurance we provide shall be excess over any other uninsured or underinsured motorist coverage, except for
bodily injury to an insured when occupying an insured auto . . . .” (Doc. 31-2 at 49 (emphasis added).) Thus, this
clause has no relevance to the issues in this case.
VI. CONCLUSION
Accordingly,
IT IS ORDERED that Starr’s Motion for Partial Summary Judgment to Determine
Ranking of Insurance (Doc. 28) is GRANTED IN PART AND DENIED IN PART. The Motion

is GRANTED to the extent it requests a declaration that the Starr and Blue Hill policies provide
co-primary underinsured motorist coverage. In all other respects, the Motion is DENIED.
Signed in Baton Rouge, Louisiana, on February 23, 2024.

S

JUDGE JOHN W. deGRAVELLES
UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10192885. Public record. Not legal advice.