JAY C. ZAINEY, District Judge.
The following motions are before the Court on the briefs without oral argument: Plaintiff's
Plaintiff Michael Bitton is a resident of Listowel, Ontario, Canada, who attends graduate school at Louisiana State University. In Listowel, Bitton lives with his parents, Steve and Anna Bitton. On May 15, 2010, Bitton was riding his bicycle on State Highway 327, also known as River Road, when he was struck by a 2005 Toyota Tundra truck driven by Marshall Hahn. Hahn fled the scene leaving Bitton with life threatening injuries. Bitton was transported to Baton Rouge General Medical Center where he received life saving treatment. Bitton's medical bills from the accident exceeded $204,045.78, and Bitton claims to have sustained permanent disabling injuries as a result of the accident.
Bitton filed this lawsuit to recover under the Family Protection Coverage endorsement or "OPCF 44R,"
Less than a month after invoking jurisdiction in federal court, State Farm moved to dismiss the lawsuit based on a forum selection clause contained in Mr. Bitton's Ontario policy. (Rec. Doc. 6). State Farm argued that the forum selection clause contained in the policy was mandatory such that Plaintiff's suit should be dismissed and re-filed in an Ontario court. At the initial status conference held on November 10, 2011, the Court advised counsel for the parties that it would deny State Farm's motion with written reasons to follow.
The issue presented by the parties' cross motions as to coverage is whether certain exclusionary language contained in the Ontario policy voids coverage as to one of the two avenues in which Bitton seeks "dependent relative" coverage under the Family Protection Coverage of his father's policy.
Plaintiff does not dispute that the law of Ontario, Canada governs the interpretation of the policy. (Plaintiff's memorandum in support, Rec. Doc. 35-1, at 1). Moreover, the parties are in agreement that the rules of contract interpretation applicable in Ontario are in accord with the rules of contract interpretation in Louisiana. (Plaintiff's memorandum in support, Rec. Doc. 35-1, at 5; State Farm's memorandum in support, Rec. Doc. 39-1, at 6).
Insurance policies, like other contracts, are to be interpreted based on the plain and ordinary meaning of the language used therein absent any special or defined meanings set out in the contract.
In Ontario, the basic automobile insurance policy and optional endorsements are comprised of standard forms drafted by the insurance industry and approved by the Commissioner of Insurance.
Turning now to the instant case, Plaintiff's ability to qualify as a "dependent relative" under § 1.2(c) of OPCF 44R depends on whether or not Michael Bitton is an insured person as defined in the family protection coverage of any other policy of insurance.
State Farm, as the proponent of the "similar indemnity" exclusion, advises that a Canadian court of appeal has not specifically considered the meaning of the phrase "similar indemnity." (State Farm memorandum in support, Rec. Doc. 39-1, at 11). But State Farm does direct the Court's attention to
Meanwhile Plaintiff directs the Court's attention to the decision in
To be sure, UM coverage under Louisiana law and Family Protection Coverage under Ontario law are not "identical" coverages but of course they need not be for purposes of the § 12(c) exclusion because similarity is not nearly as high a hurdle to clear as being identical. But the problem with the phrase "similar indemnity," as Plaintiff points out in his ambiguity argument, is that the term "similar" can encompass limitless degrees of likeness that fall anywhere short of being identical. Regardless of how one defines the term "similar," similarity is a subjective determination subject to differences of opinion.
For instance, State Farm is certainly correct in its assertion that the coverages provided by OPCF 44R and Plaintiff's Louisiana UM policy are of the same general nature or character because both provide extra protection when the tortfeasor's liability limits are insufficient to pay for damages sustained in a motor vehicle accident. But the coverages are also subject to many differences one of which is the fact that OPCF 44R is a completely optional coverage that the insured must affirmatively elect to purchase whereas underinsured coverage in Louisiana comes bundled with mandatory liability insurance unless the insured affirmatively rejects it. Thus, the subjective determination of similarity will turn on which characteristics one chooses to ignore. A given coverage situation can arguably involve a "similar indemnity" situation, without changing any facts but again simply by arbitrarily choosing to ignore certain characteristics of the policies. If enough characteristics are ignored virtually any another other type of insurance can constitute "similar indemnity."
Based on the foregoing the Court is persuaded that this case presents a situation where there is a conflict between two reasonable but differing interpretations of the policy. Simply, the term "similar indemnity" is ambiguous under the facts of this case. It therefore must be interpreted against the insurer, State Farm.
Accordingly, Michael Bitton can obtain dependent relative status under § 1.2(c). State Farm's motion for partial summary judgment is DENIED and Plaintiff's is GRANTED.
State Farm moves for partial summary judgment on the application of Canada's limitation or cap on non-pecuniary damages. The Family Protection Coverage endorsement provides: "In determining the amount that an eligible claimant is entitled to recover from the inadequately insured motorist,
Plaintiff concedes that the damages cap is well-established jurisprudential law in Canada. (Rec. Doc. 44, Plaintiff's memorandum in support, at 2). But Plaintiff contends that under the plain language of § 10 of OPCF 44R, the damages cap is not triggered because Plaintiff is trying to recover from State Farm—not an "inadequately insured motorist."
This argument is not persuasive because when seeking coverage under OPCR 44R the eligible claimant will always be pursuing his insurer. But for the other driver being "inadequately insured," the claimant would not be making a claim against the insurer. In other words, a coverage claim under OPCF 44R will never be brought against the other inadequately insured driver. Thus, Plaintiff's argument that the cap does not apply in this case because the actual defendant is not an inadequately insured driver is unpersuasive.
Alternatively, Plaintiff argues that if the Court finds the damages cap to be applicable then choice of law rules mandate that the Court apply Louisiana law. This argument is likewise unpersuasive. Plaintiff is not suing the tortfeasor in this case but rather his father's underinsured motorist insurer. As Plaintiff himself points out, Family Protection Coverage is a variety of first-party coverage. (Plaintiff's opposition, Rec. Doc. 44, at 3). If Plaintiff can establish himself as an "eligible claimant" under OPCF 44R then he will have standing to sue to enforce his contractual rights under his father's policy. The contract between the parties clearly requires that quantum be determined under the laws of Ontario. Plaintiff has already recognized that the laws of Ontario govern interpretation of the policy. If the Court had granted State Farm's motion to dismiss and forced Plaintiff to refile this lawsuit in an Ontario court then there would have been no question as to whether the damages cap applies. Plaintiff cannot alter the parties' contractual agreement in so substantive a manner simply because he has been allowed to pursue his claim in this venue. State Farm's motion for partial summary judgment as to the damages cap is GRANTED.
Accordingly, and for the foregoing reasons;
