United States District Court, W.D. Louisiana, Lafayette Division
G. JAMES UNITED STATES DISTRICT JUDGE.
the Court is a Motion for Partial Summary Judgment filed by
Defendant Progressive Paloverde Insurance Company
(“Progressive”), whereby Progressive seeks a
partial judgment dismissing Plaintiff's claim for
“bad faith” statutory penalties and
attorney's fees, arguing Plaintiff is not entitled to
penalties and attorney's fees because Progressive made an
unconditional tender of underinsured motorist
(“UM”) benefits to Plaintiff within the statutory
deadline. [Doc. No. 9; see also Doc. No. 9-3 at 1-2,
11]. Plaintiff Cindy Samberg opposes the motion, arguing
Progressive's tender was untimely under the statute, and
even if Progressive's tender was timely, it was
“abusively low” and therefore Progressive remains
liable for bad faith penalties. Doc. No. 12 at 2, 6].
has submitted a Motion for Leave to File a Reply to
Plaintiff's Opposition to Progressive's Motion for
Partial Summary Judgment (“Motion for Leave to File
Reply”). [Doc. No. 14]. The Motion for Leave to File
Reply is hereby GRANTED.
for the reasons that follow, Progressive's Motion for
Partial Summary Judgment [Doc. No. 9] is
AND PROCEDURAL BACKGROUND
brings this suit against Progressive to recover underinsured
motorist benefits, as well as statutory penalties and
attorney's fees pursuant to La. Rev. Stat. 22:1892(A)(1)
for Progressive's alleged untimely tender of uninsured
motorist benefits. Although not specifically alleged in her
Complaint, in her opposition memorandum, Samberg raises a new
argument - namely, that even if Progressive's tender was
timely, it was “abusively low, ” and, therefore,
she is still entitled to bad faith penalties. [Doc. No. 12 at
6]. Progressive seeks dismissal of Samberg's claim for
bad faith penalties, arguing its tender was both timely and
reasonable. [Doc. No. 9-3].
to Samberg, on or about December 10, 2014, while riding as a
guest passenger in a vehicle owned by her employer, she was
struck and injured when another driver failed to yield at a
stop sign. [Doc. No. 1-1 at ¶¶ 2-3; Doc. No. 12 at
1]. Following the accident, Samberg settled with Allstate,
the tortfeasor's automobile insurer, for $15, 000.00,
which Samberg asserts was the policy limit. [Doc. No. 1-1 at
¶ 6]. At the time of the accident, Progressive provided
Samberg's employer with an underinsured/uninsured
motorist (“UM”) insurance policy. Id. at
¶ 7; see also [Doc. No. 9-5 at 1]. The parties
agree Samberg was a covered insured guest passenger eligible
for UM benefits pursuant to Progressive's policy. [Doc.
9-3 at 3].
April 15, 2015, Samberg's attorney advised Progressive
that his client intended to file a claim for UM benefits.
[Doc. No. 13 at ¶ 3; Doc. No. 11 at ¶ 2].
Samberg's attorney did not provide a proof of claim or
issue a demand at that time, but merely put Progressive on
notice that Samberg would file a UM claim at some point in
the future. [Doc. No. 11 at ¶ 2]. Progressive opened a
UM claim later that day. Id. On July 7, 2015,
Progressive spoke with Samberg's counsel regarding
Samberg's claim. Id. at ¶ 4. Samberg's
counsel informed Progressive that Samberg had filed a claim
with her workers' compensation carrier, and her
workers' compensation carrier was handling her medical
treatment. Id. On January 19, 2016, Samberg's
attorney called Progressive and advised his client was still
treating, and he had not yet requested Samberg's medical
records. Id. at ¶ 5. Counsel additionally
advised that he had settled with the tortfeasor's
liability insurer for the policy limits of $15, 000, and that
he had requested the tortfeasor execute an affidavit of no
other insurance. Id.; see also [Doc. No. 13
at ¶ 4].
6, 2016, Progressive reviewed Samberg's first formal
demand for UM benefits, which was dated June 21, 2016, and
included a copy of Samberg's medical bills and records
supporting her claim. [Doc. No. 13 at ¶ 5; Doc. No. 11
at ¶ 6]. According to Progressive, Samberg's
attorney had advised in a previous phone call that the formal
UM demand package would include an affidavit of no other
insurance from the tortfeasor, but the affidavit was not
included in the package. [Doc. No. 11 at ¶ 6].
Progressive states it contacted Samberg's counsel on July
13, 2016, regarding the missing affidavit. Id.
According to Progressive, counsel “admitted that he was
mistaken about including [the affidavit] in his demand
package-he explained that he wrongly believed he had such an
affidavit in his file when in fact he did not, ” and
counsel stated he would work to obtain an affidavit from the
tortfeasor. Id. While Samberg does not dispute the
foregoing recitation of the July 13, 2016 conversation with
Progressive, she nevertheless contends her July 6, 2016
formal demand for UM benefits “provided satisfactory
written proof of loss, ” thereby triggering
Progressive's duty to pay her claim, despite the fact her
demand did not include an affidavit of no other insurance.
[Doc. No. 13 at ¶ 5].
28, 2016, Samberg's counsel emailed a copy of the
tortfeasor's executed affidavit of no other insurance.
[Doc. No. 11 at ¶ 7]. Eighteen days later, on August 16,
2016, Progressive made Samberg an unconditional tender of
$78, 378.00. Id.; see also [Doc. No. 13 at
¶ 7]. As noted, Samberg contends she provided
Progressive with satisfactory proof of loss on or before July
6, 2016, and because Progressive's tender was made more
than thirty days after July 6, 2016, Progressive is liable to
her for penalties and attorney's fees pursuant to La.
Rev. Stat. 22:1892, which requires insurers to pay claims
within thirty days of receipt of satisfactory proof of loss.
[Doc. No. 1-1 at ¶¶ 12-15; Doc. No. 12 at 4, 7].
According to Progressive, Samberg did not provide it with
satisfactory proof of loss until July 28, 2016, when she
submitted the tortfeasor's affidavit of no other
insurance. [Doc. No. 11 at ¶ 7]. Because Progressive
made an unconditional tender to Samberg on August 16, 2016
(nineteen days after Progressive contends it received
satisfactory proof of loss), Progressive argues Samberg's
claim for “bad faith” penalties must be
dismissed. [Doc. No. 9-3 at 2, 11].
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 genuine issue of material
fact exists when the evidence is such that a reasonable jury
could return a verdict for the non-moving party.”
Quality Infusion Care, Inc. v. Health Care Service
Corp., 628 F.3d 725, 728 (5th Cir. 2010).
summarized by the Fifth Circuit:
When seeking summary judgment, the movant bears the initial
responsibility of demonstrating the absence of an issue of
material fact with respect to those issues on which the
movant bears the burden of proof at trial. However, where the
nonmovant bears the burden of proof at trial, the movant may
merely point to an absence of evidence, thus shifting to the
non-movant the burden of demonstrating by competent summary
judgment proof that there is an issue of material fact
Lindsey v. Sears Roebuck and Co., 16 F.3d 616, 618
(5th Cir.1994) (internal citations omitted). To
satisfy this burden, the non-movant is “required to
identify specific evidence in the record, and to articulate
the ‘precise manner' in which that evidence
support[s] [its] claim.” Forsyth v. Barr, 19
F.3d 1527, 1537 (5th Cir. 1994) (citing
Topalian v. Ehrman, 954 F.2d 1125, 1131
(5th Cir. 1992)). “This burden is not
satisfied with some metaphysical doubt as to the material
facts, by conclusory allegations, by unsubstantiated
assertions, or by only a scintilla of evidence.”
Little v. Liquid Air Corp., 37 F.3d 1060,
1075 (5th Cir. 1994) (internal citations and
quotation marks omitted).
reviewing evidence in connection with a motion for summary
judgment, “the court must disregard all evidence
favorable to the moving party that the jury is not required
to believe, and should give credence to the evidence favoring
the nonmoving party as well as that evidence supporting the
moving party that is uncontradicted and unimpeached.”
Roberts v. Cardinal Servs., 266 F.3d 368, 373
(5th Cir.2001); see also Feist v. Louisiana,
Dept. of Justice, Office of the Atty. Gen., 730 F.3d
450, 452 (5th Cir. 2013) (court must view all
facts and evidence in the light most favorable to the
non-moving party). “Credibility determinations are not
part of the summary judgment analysis.” Quorum
Health Resources, L.L.C. v. Maverick County Hosp. Dist.,
308 F.3d 451, 458 (5th Cir. 2002). Rule 56
“mandates the entry of summary judgment . . . against a
party who fails to make a showing sufficient to establish the