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Thibodeaux v. Arvie

Court of Appeals of Louisiana, Third Circuit

August 31, 2017



          Chuck D. Granger Christopher D. Granger Granger Law Firm COUNSEL FOR PLAINTIFF/RESPONDENT: Trae Thibodeaux

          David A. Strauss Adam P. Massey King, Krebs & Jurgens, P.L.L.C. COUNSEL FOR DEFENDANT/APPLICANT: Progressive Security Insurance Company

          Court composed of John D. Saunders, Shannon J. Gremillion, and John E. Conery, Judges.


         This matter arises out of a motorcycle accident that occurred on July 19, 2015, while plaintiff, Trae Thibodeaux, was riding his 2009 Harley Davidson motorcycle eastbound on La. Hwy. 29 in Eunice. When the 2014 Ford Mustang, driven by Steven Arvie, Jr. (Arvie), proceeded to make a left-hand turn across plaintiff's lane of travel, plaintiff, to avoid a collision, made a conscious decision to apply both his front and rear brakes and lay down his motorcycle on its left side, wiping out. The parties dispute whether any contact was made between the vehicles, but if so, the contact was minimal due to plaintiff's evasive action from which he sustained extensive road burns to his hands, arms, and legs, as well as neck and back injuries. The state police investigation concluded that the accident was caused by (1) plaintiff's excessive speed, for which he was cited as he admitted that he was traveling at least 65 miles per hour in a 45 miles per hour zone, and (2) plaintiff's inattentiveness. Arvie was not cited for any violation or fault.

         On October 27, 2015, plaintiff filed suit against Arvie and his insurer, State Farm Fire and Casualty Company (State Farm). He also named as a defendant, Progressive, his underinsured motorist (UM) insurance carrier. After settling with State Farm for the full policy limits of $25, 000, plaintiff made a demand on Progressive, claiming his "damages exceed $50, 000.00 exclusive of costs and interest." When Progressive denied the claim and refused to tender any money, plaintiff amended his original petition, adding bad faith claims against Progressive for its arbitrary and capricious denial and seeking penalties pursuant to La.R.S. 22:1892 and 22:1973.

         Thereafter, Progressive filed its motion for partial summary judgment, asserting that plaintiff's bad faith claim should be dismissed because he failed to meet his evidentiary burden for establishing bad faith in that (1) plaintiff had not shown, and could not show, that Progressive's coverage decision was "arbitrary and capricious", given the overwhelming evidence that he was responsible for his wipeout, and (2) plaintiff would not be entitled to any UM benefits unless it could be shown that Arvie was more than 55% at fault, but there was no evidence in the record that could reasonably put Arvie's degree of fault anywhere near that threshold.[1] Therefore, Progressive claimed its decision was reasonable and not in bad faith.

         In opposition, plaintiff argued that (1) the issue is not whether there are genuine questions as to who was at fault, but rather whether Progressive acted in bad faith, which is a factual issue for the jury, and (2) a coverage issue under an UM policy only arises if the insured is 100% at fault, but there was ample evidence that plaintiff-the motorist with the right of way-was not 100% at fault for the wipeout caused by his evasive maneuver taken to avoid a collision with a motorist negotiating, at too slow a rate of speed, a left turn across the lane of travel. After hearing arguments, the trial court denied the motion, reasoning:

Let me start by saying this . . . there is no question in my mind that there's going to be a question of who's at fault and what percentage of fault. That's a given, based on the evidence that's presented. . . .
. . . I have a real problem with it, because I think to grant this summary judgment I have to review and make some credibility determinations, which I'm not allowed to do. I have a real problem with being able to do that. I mean in every case insurers have to look at is this a hundred percent fault case, is this a comparative fault case? If so, how do I evaluate it, do I evaluate damages? I think it requires some factual determinations to be made, some credibility determinations to be made, that I'm not prepared to make in a summary judgment proceeding, and as a result, I'm going to deny the motion for summary judgment for the oral reasons given today.

         A court of appeal has plenary power to exercise supervisory jurisdiction over trial courts and may do so at any time, according to the discretion of the court. When the trial court's ruling is arguably incorrect, a reversal will terminate the litigation, and there is no dispute of fact to be resolved, judicial efficiency and fundamental fairness to the litigants dictate that the merits of the application for supervisory writs should be decided in an attempt to avoid the waste of time and expense of a possibly useless future trial on the merits. Herlitz Const. Co., Inc. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878 (La.1981) (per curiam). This supervisory jurisdiction may also be exercised to reverse a trial court's denial of a motion for summary judgment and to enter summary judgment in favor of the mover. Csaszar v. Nat'l Cas. Co., 14-1273 (La.App. 3 Cir. 11/4/15), 177 So.3d 807, writ denied, 15-2221 (La. 1/25/16), 185 So.3d 752. Nevertheless, appellate courts generally will not exercise their supervisory jurisdiction when an adequate remedy exists by appeal. Douglass v. Alton Ochsner Med. Found., 96-2825 (La. 6/13/97), 695 So.2d 953.

         Appellate courts review motions for summary judgment de novo, using the identical criteria that govern the trial court's consideration of whether summary judgment is appropriate. Samaha v. Rau, 07-1726 (La. 2/26/08), 977 So.2d 880. The reviewing court, therefore, is tasked with determining whether "the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." La.Code Civ.P. art. 966(A)(3).

         In order to succeed on a claim for statutory penalties under La.R.S. 22:1892[2]and 22:1973, [3] an insured must show that (1) the insurer received satisfactory proof of loss, (2) the insurer failed to tender payment within thirty or sixty days of receipt thereof, and (3) the insurer's failure to pay was arbitrary, capricious or without probable cause. La. Bag Co., Inc. v. Audubon Indemn. Co., 08-453 (La. 12/2/08), 999 So.2d 1104. In Guillory v. Lee, 09-75, pp. 31-32 (La. 6/26/09), 16 So.3d 1104, 1127 (citations omitted), the supreme court addressed the arbitrary and capricious factor, expounding:

With regard to what constitutes "arbitrary, capricious, or without probable cause, " this court has held that the phrase is synonymous with "vexatious." Furthermore, a "vexatious refusal to pay" means "unjustified, without reasonable or probable cause or excuse." Both phrases describe an insurer whose willful refusal of a claim is not based on a good-faith defense.
This court has also stated that penalties should be imposed only when the facts "negate probable cause for nonpayment." Moreover, whether or not a refusal to pay is arbitrary, capricious, or without probable cause depends on the facts known to the insurer at the time of its action, and this court has declined to assess penalties "when the insurer has a reasonable basis to defend the claim and acts in good-faith reliance on that defense." More specifically, not only are the statutory penalties inappropriate when the insurer has a reasonable basis to defend the claim and acts in good-faith reliance on that defense, especially when there is a reasonable and legitimate question as to the extent and causation of a claim, bad faith should not be inferred from an insurer's failure to pay within the statutory time limits when such reasonable doubt exists. An insurer who does not tender unconditionally a reasonable payment, a figure over which reasonable minds could not differ, will be ...

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