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Melba Terry Shelton Succession v. Encompass Indemnity Co.

United States District Court, W.D. Louisiana, Lafayette Division

November 13, 2014

MELBA TERRY SHELTON SUCCESSION
v.
ENCOMPASS INDEMNITY CO., ET AL

For Melba Terry Shelton Succession, Plaintiff: Walter Antin, Jr, LEAD ATTORNEY, John Gerhardt Toerner, Hammond, LA.

For Encompass Indemnity Co, Encompass Insurance Co of America, Encompass Property & Casualty Co, Continental Insurance Co, Encompass Insurance Co, Defendants: Steven M Lozes, LEAD ATTORNEY, Lozes & Ponder (NO), New Orleans, LA.

REBECCA F. DOHERTY, UNITED STATES DISTRICT JUDGE. MAGISTRATE JUDGE HILL.

Page 723

MEMORANDUM RULING

REBECCA F. DOHERTY, UNITED STATES DISTRICT JUDGE.

Currently pending before the Court are cross-motions for summary judgment, whereby plaintiff seeks judgment in her favor on all claims, and defendant seeks judgment in its favor dismissing all claims. [Doc. Nos. 17, 22] For the following reasons,

Page 724

plaintiff's motion [Doc. 22] is DENIED, and defendant's motion [Doc. 17] is GRANTED.

I. Factual and Procedural Background

This suit was brought by Carita Shelton Boutte, in her capacity as the administratrix of the Succession of Melba Terry Shelton.[1] [Doc. 1-4, p. 1] The following facts are not in dispute:

On October 3, 2002, the home of Mrs. Melba T. Shelton was seriously damaged by Hurricane Lili. Mrs. Shelton's home was insured by Encompass Indemnity Company (" Encompass" ). Ms. Lori Barnes was assigned by Encompass to adjust the contents portion of the claim. As Mrs. Shelton was hospitalized at the time of loss, her son, attorney Thomas Robert Shelton (" Mr. Shelton" ), began the claims process.[2] [Doc. 17-10, pp. 18-19]

On November 15, 2002, Ms. Barnes and Mrs. Shelton's three children inspected some of the damaged contents in three storage facilities.[3] On December 10, 2002, Ms. Barnes spoke with Mr. Shelton by telephone, and they discussed the progress Mr. Shelton had made on the list of damaged contents.[4] Between December 18, 2002 and May 27, 2003, Ms. Barnes placed eight separate telephone calls to Mr. Shelton to inquire about the status of the contents list, but on each occasion was advised either Mr. Shelton was awaiting information regarding the contents or he was unavailable. On July 18, 2003, Ms. Barnes sent a letter to Mr. Shelton, again requesting a contents list and supporting information. On October 2, 2003, Mr. Shelton submitted the contents list to Ms. Barnes, along with correspondence reading, in part, " As the first anniversary is nearing, I must make demand, as the attorney-in-fact for my mother, Melba T. Shelton, for payment of the itemized loss set forth herein totaling $267,230.88." [5]

On November 19, 2003, Ms. Barnes spoke to Mr. Shelton by telephone and acknowledged receipt of the contents inventory. On January 26, 2004, Ms. Barnes faxed a list of items for which further information was needed prior to payment by Encompass. In February and March of 2004, Ms. Barnes placed three telephone calls to Mr. Shelton seeking the additional information for those items referenced in her January 26, 2004 facsimile. On April 22, 2004, Ms. Barnes sent a letter to Mr. Shelton, again requesting the additional information.

By May of 2004, with no further information ever provided by Mr. Shelton, Ms. Barnes began adjusting the contents loss for those items for which she had adequate information to establish a replacement/repair

Page 725

cost and the Actual Cash Value (" ACV" ). Ms. Barnes prepared an estimate, assigning a value for those items for which she had sufficient information, and listing and assigning a zero for those items for which additional information was needed. In her estimate, Ms. Barnes calculated a replacement cost of $230,810.82, applied depreciation of $50,653.88 based on the age and condition of the items, thereby yielding an ACV amount of $180,156.94. Applying the two advance contents payments of $25,000.00 each, Ms. Barnes determined Encompass owed Mrs. Shelton an additional $130,156.94 for contents coverage.

On June 14, 2004, Ms. Barnes sent Mr. Shelton correspondence and attached a copy of the itemized estimate explaining the process by which the figures were derived. She further advised a check would issue separately. The same day, Encompass issued a check to Mrs. Shelton in the amount of $130,156.94, and mailed the check to the office of Mr. Shelton. On October 21, 2004, Encompass sent a letter to Mrs. Shelton at Mr. Shelton's office advising the foregoing check had not been cashed, and would become " stale dated and invalid 180 days from [June 14, 2004]." [Doc. 179, p. 1] No further contact was made by anyone from, or on behalf of, the Shelton family until May 14, 2012. On that date, counsel for plaintiff herein sent a facsimile to Encompass, advising the June 14, 2004 check had been lost, and asked that the check be reissued.[6] [Doc. 17-11]

On June 26, 2012, Encompass reissued the check for $130,156.94 and sent it to counsel for plaintiff. [Doc. 17-12] In a letter dated July 18, 2012, counsel for plaintiff acknowledged receipt of the foregoing check, and then " requested] accrued interest for the eight years from the date of the original check, June 14, 2004." [Id.] Encompass declined the request for interest. Thereafter, this suit was filed.

As set forth in the complaint, by this suit the administratrix of Mrs. Shelton's estate seeks: (1) damages for defendant's " failure to accurately adjust and pay the property claim of Decedent by omitting certain personal property items . . ." [Doc. 12, p. 3]; (2) " interest at the legal rate, compounded annually, on the $130,156.94 from June 14, 2004 through June 26, 2012, or, in the alternative, for damages and/or unjust enrichment due to its negligent delay in paying Decedent's Personal Property Claim in an amount to be determined by the Court in these proceedings" [Doc. 1-4, p. 3]; (3) " damages in an amount equal to the Depreciation [ i.e. $50,653.88], plus interest thereon at the legal rate, compounded annually, from June 14, 2004 through the date of payment" [Id. at 3-4]; and (4) " penalties attorney fees and costs under LRS 22:1892 and 22:1973 in such amounts to be determined by the Court in these proceedings" [Id. at 3].

Page 726

II. Standard of Review

" A party may move for summary judgment, identifying each claim or defense--or the part of each claim or defense--on which summary judgment is sought." Fed.R.Civ.P. 56(a). " 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." Id.

A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Id. at § (c)(1).

As summarized by the Fifth Circuit in Lindsey v. Sears Roebuck and Co., 16 F.3d ...


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