The issue in this case is whether or not Act 494 of 1975, amending and reenacting La.R.S. 22:1406(D)(1), may be applied retroactively to effect uninsured motorist coverage for an incident occurring after its effective date, even though the policy was issued prior to its effective date.
We hold it may not be given retroactive effect in such instances and, therefore, reverse the partial summary judgment from which this appeal was taken.
The original automobile liability policy which was issued provided for coverage from May 31, 1974 to May 31, 1975. Rejection of uninsured motorist coverage was made in writing. A renewal policy issued which provided for coverage from May 31, 1975 to May 31, 1976. No rejection of uninsured motorist coverage was made as regards this renewal policy. On September 12, 1975, Act 494 of 1975 became effective. The incident giving rise to this litigation occurred on February 20, 1976.
Act 494 of 1975 added to the existing law the following reference to uninsured motorist coverage:
Appellee contends even though the renewal policy went into effect approximately three and one-half months prior to the effective date of Act 494 of 1975, any uninsured motorist coverage written into the policy by virtue of the law then in effect was written out of the policy by Act 494 upon its effective date.
The law in effect when the renewal policy issued was Act 154 of 1974. It provides, in pertinent part:
Prior to the effective date of Act 494 of 1975, UM coverage was statutorily read into a policy unless the insured specifically rejected it. After its effective date, such coverage may be lost if there has been a rejection in a policy previously issued by the same insurer. Because Act 494 may result in the deprivation of this important right to UM coverage, it is substantive in nature and thus prospective, not retrospective in application. In this instance the
A review of relevant jurisprudence discloses no conflict with our holding in this case, as limited by the specific facts before us. Supportive of our determination is Le-Boyd v. Louisiana Transit Co., 375 So.2d 749 (La.App. 4th Cir. 1979), a case with like operative facts. In LeBoyd, the original policy was written in 1967 at which time UM coverage was rejected. It was renewed annually with the viable policy being issued December 31, 1974, before the effective date of Act 494 of 1975. The accident occurred on October 3, 1975, after the effective date of Act 494. The court stated, at p. 751:
In treating the effect of another legislative change in R.S. 22:1406(D)(1),
In Breaux, supra, at page 1338, we distinguished Myers v. Thibeaux,, 365 So.2d 266 (La.App. 3d Cir. 1978), thusly:
In Williams v. State Farm Mut. Auto. Ins. Co., supra, at page 1278, treating the legislative change in coverage limits, we said:
We believe the rationale of Breaux, supra, and Williams, supra, to be applicable to the instant matter even though the statutory change before the court in those cases is different from that here under consideration. In those cases the change dealt with limits of coverage. Here, the change deals with the existence of coverage, per se. We see no contextual difference.
We note also our brothers of the Third Circuit have relied upon the date of issuance of the policy in determining the applicable law. In Landry v. Government Emp. Ins. Co., 390 So.2d 1385 (La.App. 3d Cir. 1980), the court had before it a policy issued August 10, 1973. The accident occurred October 25, 1973. In holding the applicable version of R.S. 22:1406(D)(1) to be contained in Act 137 of 1972, the court commented upon its prior decision of Myers v. Thibeaux, supra, as related to the Fourth Circuit case of LeBoyd, supra. It stated, footnote, page 1389:
Although the precise issue was not before the Second Circuit in Turner v. Allstate Ins. Co., 368 So.2d 797 (La.App. 2d Cir. 1979), we find the pertinent facts in that case to be consistent with those in the case before us and the result to correlate with our view. In Turner, supra, the first policy was issued June 17, 1975. UM coverage was rejected. Act 494 of 1975 intervened prior to the renewal policy which issued June 17, 1976. The accident occurred September 21, 1976. Effect was given to Act 494, the court holding there was no UM coverage.
For the foregoing reasons, and in light of the jurisprudence discussed, we reverse the judgment appealed and assess appellate costs against appellee.