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Samberg v. Progressive Paloverde Insurance Co.

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

January 25, 2018

CINDY SAMBERG
v.
PROGRESSIVE PALOVERDE INSURANCE CO.

          HANNA MAGISTRATE JUDGE.

          RULING

          ROBERT G. JAMES UNITED STATES DISTRICT JUDGE.

         Before 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].

         Progressive 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.

         Additionally, for the reasons that follow, Progressive's Motion for Partial Summary Judgment [Doc. No. 9] is GRANTED.

         FACTUAL AND PROCEDURAL BACKGROUND

         Samberg 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.[1] 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].

         According 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].

         On 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].

         On July 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].

         On July 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].

         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 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).

         As 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 warranting trial.

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).

         When 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 ...


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