FREDERICK E. LIND, JR. AND MARY E. LIND
UNITED SERVICES AUTOMOBILE ASSOCIATION, ET AL.
Appeal from the Nineteenth Judicial District Court In and for
the Parish of East Baton Rouge State of Louisiana No. C622646
Sec. 26 The Honorable Donald Johnson, Judge Presiding
D. Lind Alexandria, LA Attorney for Plaintiffs/ Appellees
Frederick Lind, Jr. and Mary E. Lind
L. Richardson Baton Rouge, LA Attorney for
Defendant/Appellant United Services Automobile Association
BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
United States Services Automobile Association (USAA), appeals
a judgment rendered in favor of plaintiffs, Dr. Fredrick
Lind, Jr. and Mary Elizabeth Lind, awarding actual damages
and penalties. We reverse both awards, conduct a de
novo review of the record, and render a damage award and
a penalty award based on that review.
AND FACTUAL BACKGROUND
early 1980's, the Linds purchased a 1972 Maserati Ghibli
SS, a very rare vehicle, from Edmond Waterman for
approximately $20, 000.00. In 1995, the Linds hired Wedge
Kyes Import Specialties, Inc. to repair the vehicle's
engine and retained Pierre Mabile to do restoration body work
on the vehicle. Later, the Linds hired Alex Peters to
complete the engine repair. In 2006 or 2007, Wedge Kyes
transferred the vehicle to Mr. Peters, who operated out of a
shop in New Orleans. Sometime thereafter, Dr. Lind inspected
his vehicle inside Mr. Peters' shop. On July 19, 2012,
Dr. Lind made a trip to Mr. Peters' shop and discovered
that Mr. Peters and the vehicle were nowhere to be found. Dr.
Lind reported the vehicle stolen to police a few days later
and made a claim with USAA, which issued a policy providing
comprehensive coverage on the Maserati to the Linds,
reporting the vehicle as stolen. On July 31, 2012, USAA
notified Dr. Lind that it opened a claim and was
investigating the matter.
Linds eventually found the vehicle on a rooftop of another
mechanic shop in New Orleans owned by Milton F.
"Chip" Hilbert. It is undisputed that the vehicle
was badly deteriorated when it was found and that it was
missing various component parts, including its engine,
transmission, radiator, and exhaust system.
letter dated November 29, 2012, USAA informed Dr. Lind that
it was denying coverage of the vehicle because there was no
evidence that a theft of the vehicle had occurred. By letter
dated January 30, 2013, Dr. Lind was notified that USAA could
not cover the claim on the basis of vandalism because its
appraiser had found no evidence of vandalism.
27, 2013, the Linds filed this lawsuit for "negligent
repair" and other damages against USAA, Mr. Peters,
Wedge Kyes, and Mr. Hilbert. In the petition, the Linds
alleged that Mr. Peters removed the engine, transmission, and
other component parts of the vehicle from the State of
Louisiana, requiring that they expend at least $70, 000.00 to
replace the stolen or lost component parts. As to USAA, the
Linds specifically alleged that it breached its contractual
obligation to compensate them and sought to recover all
replacement and repair costs. Additionally, the Lind's
sought to recover penalties in the amount of two times the
actual damages and attorney's fees for USAA's alleged
arbitrary and capricious failure to abide by its contractual
August 21, 2014, the Linds voluntarily dismissed Wedge Kyes
from the litigation. On August 21, 2015, the trial court
granted Mr. Hilbert's motion for summary judgment,
dismissing all of the Linds' claims against him with
prejudice. On April 16, 2016, a preliminary default judgment
was rendered against Mr. Peters, who failed to answer the
February 2, 2015, USAA made an unconditional tender in the
amount of $19, 800.00 to the Linds, which was refused. A
bench trial against USAA was held on July 14, 2016. The
disputed issues in the case were the date on which the loss
occurred, the value of the Maserati on the date of the loss,
and whether USAA was arbitrary and capricious in denying the
claim and waiting over two and a half years from the date
USAA opened a file on the Linds' claim to make a tender
of any type.
outset of the trial, the court addressed the Linds'
motion in limine to prevent USAA's adjuster to testify
regarding a Maserati valuation. USAA stipulated that its
adjuster, Bruce White, was not an expert in Maserati
valuation and the Linds withdrew their motion in limine.
During the one-day bench trial, the Linds presented the
testimony of Dr. Lind, Mr. Mabile, Wedge Kyes, the owner of
Wedge Kyes Import Specialties, Inc., and Mr. Waterman, an
expert in Maserati valuations. USAA presented the testimony
of its insurance adjuster, Mr. White, and the testimony of
Mr. Kyes. Documentary evidence, including the USAA policy,
photographs of the vehicle, ...