Recently, in Ponce v. Welch, 15-669 (La. App. 5 Cir. 3/16/16) 2016 WL 107-8579, Louisiana’s Fifth Circuit Court of Appeal upheld summary judgment in favor of an insurance company by denying a UM rejection form challenge of an insured claiming she did not understand the UM rejection agreement because she was not fluent in English. Specifically, she claimed that her first language was Spanish, and that she did not speak, read, or write the English language fluently. Accordingly, she claimed she did not understand that she was rejecting UM coverage, and that she blindly followed instructions of the insurance agent of where to sign and initial.
In considering her argument, the Court cited jurisprudence that a “properly completed and signed form creates a rebuttable presumption that the insured knowingly rejected coverage, selected a lower limit, or selected economic-only coverage.” Id.; Dixon v. Direct Gen. Ins. Co., 08–907 (La. App. 1 Cir. 3/27/09), 12 So.3d 357, 361. In the absence of fraud, duress, or misconduct by the insurance agent, an insured is presumed to know and understand what she is signing, and will have the burden of proving otherwise. Pena v. Simeon, (La. App. 5 Cir. 5/22/12) 96 So.3d 547, at 552; Detillier v. Borne, 15–129, p. 7 (La. App. 5 Cir. 9/23/15), 176 So.3d 669, 672.
Consistency Among Louisiana Appellate Court Decisions
In Ponce, the Court rejected plaintiff’s challenge and found the UM rejection form she signed was valid because she had lived in the United States for 32 years, could converse in English, received an explanation from the insurance agent, had previously signed other agreements in English, and did not claim fraud against the agent. The Court’s validation of the UM rejection form is consistent with several decisions by Appellate Courts across the state rejecting challenges by those claiming to not speak English well. (See Garza v. Argueta, 12–561, p. 3 (La. App. 5 Cir. 3/27/13), 113 So.3d 384, 385; Pena v. Simeon, (La. App. 5 Cir. 5/22/12) 96 So.3d 547, at 552; Rizzo v. Ward, (La. App. 4 Cir. 2/24/10), 32 So.3d 986). In considering whether the insured had overcome presumptions of consent created by a properly signed UM rejection form, the Courts considered the following factors: (a) fluency in English, (b) English literacy, (c) the number of years living in English speaking country, (d) employment in English speaking setting, (e) whether the insured has signed other agreements or applications in English, and (f) whether the insured has also claimed fraud/duress/misconduct by the insurance agent. Only in situations where an insured has lived in an English speaking country for just a few months, and has little experience speaking/reading English, have courts found enough evidence of lack of consent to overcome the presumptions described above. (See Duong v. Salas, (La. App. 2 Cir. 6/23/04), 877 So.2d 269, writ denied (La. 10/29/04), 885 So.2d 590).
Allen & Gooch is providing this legal update for informational purposes only. This article should not be construed as legal advice or a legal opinion as to any specific facts or circumstances. You should consult your own attorney concerning your particular situation and any specific legal questions you may have.