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Gaspard v. Horace Mann Insurance Co.

Court of Appeals of Louisiana, Third Circuit

May 9, 2018

JACQUELINE J. GASPARD
v.
HORACE MANN INSURANCE COMPANY, ET AL.

          APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. 20134286 HONORABLE PATRICK L. MICHOT, DISTRICT JUDGE

          J. Lomax Jordan, Jr. Victor R. A. Ashy COUNSEL FOR PLAINTIFF-APPELLANT: Jacqueline J. Gaspard

          C. Shannon Hardy John. W. Penny, Jr. Penny & Hardy COUNSEL FOR DEFENDANT-APPELLEE: Allstate Insurance Company

          Court composed of John D. Saunders, Elizabeth A. Pickett, and Shannon J. Gremillion, Judges.

          ELIZABETH A. PICKETT JUDGE.

         Insured appeals the trial court's judgment that awarded her damages for injuries she sustained in an automobile accident but denied her claim for penalties and attorney fees for her uninsured motorist insurer's failure to make an unconditional tender under the uninsured motorist coverage provision of her automobile insurance policy. For the reasons discussed below, we affirm the judgment of the trial court.

         FACTS AND PROCEDURAL HISTORY

         On August 27, 2012, Jacqueline Gaspard's vehicle was rear-ended while she was stopped at a red light. She filed a suit for damages against the drivers and insurers of the two vehicles following her vehicle that were also involved in the accident. She also filed suit against Allstate Insurance Company, her uninsured motorist (UM) insurer, asserting that her damages exceeded the liability coverage of the party or parties who caused the accident. During the course of the litigation, the parties determined that the second vehicle behind Ms. Gaspard was 100% at fault for causing the accident. She settled her claims against that driver and his insurer for $50, 000.00, the limits of his liability policy, and dismissed them. She also dismissed her claims against the other driver and his insurer.

         Ms. Gaspard reserved her rights against Allstate and proceeded with her claims against it. She submitted demands, which included documentation of her injuries and treatment, to Allstate under McDill v. Utica Mutual Insurance Company, 475 So.2d 1085 (La.1985), seeking an unconditional tender under its UM policy. Allstate did not respond to her demands. Ms. Gaspard amended her claim against Allstate to include a claim for penalties and attorney fees under La. R.S. 22:1892 and 22:1973 for its failure to proffer an unconditional tender despite satisfactory proof that her injuries exceeded the underlying liability policy limits of Allstate's policy.

         In August 2016, the trial court set the matter for trial March 13, 2017. In January 2017, an issue arose over whether the matter would be tried as a jury trial or a bench trial. Allstate demanded a jury in its answer, and the trial court signed an order setting a jury bond, as provided in La.Code Civ.P. art. 1734. Neither Allstate nor Ms. Gaspard timely filed a jury bond. After the delay for filing a jury bond lapsed, Ms. Gaspard filed a motion to have the trial court order a cash deposit to secure a jury, as provided in La.Code Civ.P. art. 1734.1, which the trial court granted. Allstate then filed a motion to rescind that order, asserting that Ms. Gaspard had waived the right to a jury trial because she had not posted a jury bond.

         On February 2, 2017, the trial court held a status conference at which it heard counsel's arguments concerning Allstate's motion and granted the motion. The matter proceeded as a bench trial from March 13 through March 21, 2017. After Ms. Gaspard rested her case, Allstate moved for a directed verdict on her claims for penalties and attorney fees, which the trial court granted. Allstate then presented its defense. After Allstate rested, the parties presented closing arguments. At the conclusion of the arguments, the trial court rendered its decision in open court and stated oral reasons on the record. The trial court determined that the injuries Ms. Gaspard suffered in the August 2017 accident were an aggravation of injuries that she had suffered in a prior automobile accident on May 4, 2008. The trial court further determined that the aggravation of Ms. Gaspard's prior injuries was resolved by early February 11, 2013. It awarded Ms. Gaspard $3, 314.37 in medical expenses and $8, 000.00 in general damages.

         On April 26, 2017, the trial court signed a judgment that conformed to its oral reasons. Ms. Gaspard filed a motion for new trial. After receiving Allstate's opposition to the motion for new trial, the trial court denied the motion and rescinded its prior order setting the motion for oral argument. On July 21, 2017, Ms. Gaspard filed a motion to recuse the trial judge, which was denied without a hearing. She then appealed the trial court's judgment.

         ASSIGNMENTS OF ERROR Ms. Gaspard assigns the following errors with the trial court proceeding and judgment:

1. The Trial Court Erred in Granting Defense Motion to Strike the Jury Trial;
2. The Trial Court Erred in Becoming the Finder-of-fact, and Should Have Self-Recused;
3. The Trial Court Erred in Denying Plaintiff's Motion for a New Trial Without a Contradictory Hearing;
4. The Trial Court Erred in Finding That Most of the Damages Proved Were Not Caused by the August 27, 2012 Crash;
5. The Trial Court Erred in Awarding Insufficient Amount of General Damages;
6. The Trial Court Erred in Not Awarding Damages For Lost Earning Capacity; and
7. The Trial Court Erred in Dismissing the Bad Faith Claims Against Allstate Insurance Company Pursuant to [La.Code Civ.P. Article 1672].

         DISCUSSION

         Did the Trial Court Err in Granting Allstate's Motion to ...


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