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Dean v. State Farm Mutual Automobile Insurance Co.

Court of Appeals of Louisiana, Second Circuit

April 5, 2017

SILAS DEAN, JR., AND PRISCILLA D. DEAN Plaintiffs-Appellants

         Appealed from the Fourth Judicial District Court for the Parish of Morehouse, Louisiana Lower Court No. 2013-325 Honorable Stephens Winters, Judge

          THE LAW FIRM OF EDDIE CLARK & ASSOCIATES, LLP By: Eddie M. Clark Counsel for Appellants.

          DAVENPORT, FILES & KELLY, LLP W. David Hammett Counsel for Appellee.

          Before MOORE, PITMAN, and COX, JJ.

          MOORE, J.

         Silas Dean appeals a judgment that dismissed his claim against his uninsured/underinsured motorist ("UM") carrier, State Farm, for failing to prove that the other driver was uninsured or underinsured, as required by La. R.S. 22:1295 (6). He also contests a partial summary judgment that dismissed his claim for damages and attorney fees arising from bad-faith adjusting of his UM claim, under La. R.S. 22:1973, 1892. Finally, he seeks an award of reasonable damages for his personal injuries. Finding no merit in any of his arguments, we affirm, but amend the judgment to state the prevailing and losing parties more precisely.


         On July 11, 2012, Dean was driving his wife's 2001 Lexus 300, which was insured (with UM coverage) by State Farm. He was going west on East Madison Avenue, in Bastrop, through the intersection at South Washington Street. He testified that he had the green light, but was struck by a southbound 2011 Ford Ranger driven by Robert McKellar and insured by Progressive Insurance Co. The impact spun the Lexus around, resulting in two impacts. Dean testified that he was "in a daze" after the collision until McKellar walked up to his window and denied that he (McKellar) ran a red light. Dean was positive that he had the green light.

         Dean was taken to Morehouse General Hospital and, in the ensuing months, was treated by a chiropractor, a pain management specialist and a physical therapist; he was also examined by a neurosurgeon in Shreveport. He felt that the accident aggravated preexisting back and neck problems that he had been treating for years.


         Dean and his wife filed this suit against State Farm in August 2013. He alleged that Progressive was McKellar's liability carrier, State Farm was his own UM carrier, and McKellar's liability coverage was "insufficient to fully compensate petitioners for all" injuries and damage; hence, the UM claim. He also alleged that State Farm "arbitrarily, capriciously, and without cause refused to timely tender a reasonable and fair amount" under the UM policy, contrary to R.S. 22:1973 and 1892, entitling him to statutory penalties, damages and attorney fees.

         State Farm made general denials, admitting that it had issued a UM policy to the Deans with a limit of $25, 000 per person per accident. State Farm also asserted that Dean was comparatively negligent in the accident and had many preexisting injuries unrelated to the accident.

         State Farm moved for partial summary judgment in October 2013 to dismiss the bad-faith adjusting claim. In a memo in support, State Farm recited that Dean made a claim against McKellar's liability carrier, Progressive, which "paid its policy limit of $100, 000 to plaintiff for settlement of plaintiff's injury claim." State Farm showed that Dean had submitted medical bills of only $19, 249.05 as a result of the accident, and argued that his remaining damages were not worth $100, 000; hence, he could not prove bad faith just because he disagreed with State Farm's assessment of his injury. In support, State Farm attached a copy of the Deans' full release of all claims with indemnity ("the Settlement") with Progressive. This recited a payment of $100, 000 for "any and all claims, actions, causes of action, demands, rights, damages, costs" arising from the accident, but did not state that $100, 000 was Progressive's policy limit.

         Dean opposed the motion in February 2014, arguing that "adequate and/or meaningful discovery" had not yet taken place and a hearing would be premature. He asked for a continuance instead.

         The court held a hearing on March 6, 2014. No transcript of this is in the record, but the minutes show that the district court denied Dean's motion for continuance and granted State Farm's motion for partial summary judgment.

         Dean filed a motion in limine, in August 2015, to prohibit any mention at trial of, among other things, any benefits he might have received from a collateral source, and of the fact that he settled with Progressive for "its insured's liability policy limits in exchange for a limited release."

         The court held a hearing on Dean's motion in limine, and on several other motions, on August 20, 2015. The court voiced perplexity at Dean's request: "How do you get to the court not knowing that it's a UM claim[?] * * * You have to establish as an underlying basis that the policy limits which you've obtained are not sufficient?" Counsel replied, "Your honor, that's not what we have to do[, ]" and, moments later, "The petition * * * states that the settlement limits were paid." The court again advised that one of the elements of proof is that "there is not enough money from one source[.] You almost have to have this as an element of your case that these people are underinsured." After several minutes of dialogue in this vein, the court denied Dean's motion in limine.

         The matter proceeded to trial in February 2016. Dean offered medical records and bills, totaling $24, 119.90, and photos of the damaged Lexus. State Farm offered a copy of its UM policy, two medical depositions, and a copy of the Settlement. Regarding the Settlement, Dean's counsel persisted that it was inadmissible except to show "the policy limits for Progressive were fully exhausted." State Farm agreed to stipulate how much Dean received from Progressive, but nothing more.

         Dean himself was the only live witness, describing the accident, his course of treatment and his continued medical complaints. On cross-examination, he was unable to recall or explain medical records confirming very similar medical complaints before the accident. Dean also offered the deposition of Dr. John Ledbetter, a pain management specialist who treated him starting in December 2012, about five months after ...

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