United States District Court, W.D. Louisiana, Lafayette Division
PATRICK J. HANNA, Magistrate Judge.
Currently pending before this Court is Evanston Insurance Company's motion for partial summary judgment on Technical Industries, Inc.'s claim seeking the recovery of damages for Evanston's alleged bad faith in the handling of an insurance claim under La. R.S. 22:1892(A). (Rec. Doc. 75). The motion is opposed. (Rec. Doc. 83). Oral argument was held on November 24, 2014. Ruling was deferred pending oral argument on motions filed by Aspen Specialty Insurance Company and briefing by the parties on the issue of which state's law should be applied in resolving the disputes raised in this lawsuit. Considering the evidence, the law, and the arguments of the parties, and for the reasons fully explained below, the motion is GRANTED IN PART and DENIED IN PART.
The Court adopts by reference the factual background set forth in its memorandum ruling regarding choice of law. (Rec. Doc. 123).
A. THE APPLICABLE STANDARD
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is appropriate when there is no genuine dispute as to any material fact, and the moving party is entitled to judgment as a matter of law. A fact is material if proof of its existence or nonexistence might affect the outcome of the lawsuit under the applicable governing law. A genuine issue of material fact exists if a reasonable jury could render a verdict for the nonmoving party.
The party seeking summary judgment has the initial responsibility of informing the court of the basis for its motion and identifying those parts of the record that demonstrate the absence of genuine issues of material fact. If the moving party carries its initial burden, the burden shifts to the nonmoving party to demonstrate the existence of a genuine issue of a material fact. All facts and inferences are construed in the light most favorable to the nonmoving party.
If the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by pointing out that there is insufficient proof concerning an essential element of the nonmoving party's claim. The motion should be granted if the nonmoving party cannot produce evidence to support an essential element of its claim.
B. ANALYSIS OF THE ISSUES PRESENTED
In its third-party demand, Technical alleged, among other things, that Evanston violated La. R.S. 22:1892(A)(3) by failing to initiate loss adjustment within fourteen days of notification of the loss and that Evanston failed to make a reasonable attempt to settle the claims asserted against Technical in the underlying litigation. Technical did not expressly allege that its failure to settle claim violated Section 1892(A)(4). In this motion, however, Evanston argues that it is entitled to summary judgment in its favor with regard to Technical's untimely adjustment claim under Section 1892(A)(3) and Technical's untimely settlement claim under Section 1892(A)(4).
Technical conceded that it does not have a valid claim under Section 1892(A)(4) for Evanston's alleged failure to timely settle. (Rec. Doc. 83 at 7). Accordingly, Evanston's motion will be granted with regard to that claim, without further discussion.
In conceding this point, Technical noted that its third-party demand against Evanston is not limited to statutory claims but also addresses any claims it might have that arise out of the duties of good faith and fair dealing that an insurer owes to its insured. (Rec. Doc. 83 at 7). In its reply brief, Evanston then argued that Louisiana law does not recognize a cause of action for breach of the duty of good faith and fair dealing outside the context of La. R.S. 22:1892 and La. R.S. 22:1973. "Arguments raised for the first time in a reply brief are generally waived." More importantly, this argument does not support Evanston's motion, which seeks relief only from the claims that were asserted by Technical under Section 1892. Accordingly, this issue is not properly before the Court in connection with this motion and will not be considered further.
The sole remaining issue to be resolved, therefore, is whether Evanston is entitled to summary judgment in its favor with regard to Technical's claim that Evanston violated Section ...