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McCartney v. Shelter Mutual Insurance Co.

Court of Appeals of Louisiana, First Circuit

July 10, 2018

JESSE AND DENA McCARTNEY
v.
SHELTER MUTUAL INSURANCE COMPANY

          On Appeal from the 19th Judicial District Court, Parish of East Baton Rouge, State of Louisiana Trial Court No. C6523 80 The Honorable William A. Morvant, Judge Presiding

          Charles S. Norris Jr. Christopher J. Norris Vidalia, Louisiana Attorneys for Plaintiffs/Appellants, Jesse and Dena McCartney

          Henry G. Terhoeve Brad M. Boudreaux Baton Rouge, Louisiana Attorneys for Defendant/Appellee, Shelter Mutual Insurance Co.

          David R. Nelson Baton Rouge, Louisiana Attorney for Defendant/Intervenor, Tensas State Bank

          BEFORE: GUIDRY, PETTIGREW, WELCH, CRAIN, AND THERIOT, JJ.

          CRAIN, J.

         The plaintiffs appeal a summary judgment dismissing their claims against their insurer based upon a breach of the terms and conditions of the policy. We reverse.

         FACTS

         After their home was destroyed by a fire on June 24, 2016, Jesse and Dena McCartney made a claim under their homeowner's policy issued by Shelter Mutual Insurance Company. The policy required that the insured cooperate with the insurer in any matter relating to a claim, answer under oath any questions posed by the insurer, then sign a written transcript of the questions and answers. The policy further required that the insured submit a proof of loss, submit to examinations under oath, produce records reasonably required by the insurer, and authorize the insurer to obtain records and documentation relevant to the claim. Payment under the policy was contingent upon receipt by the insurer of proof of loss and the insured's compliance with the policy conditions. The McCartneys filed suit seeking recovery under the policy, plus penalties and attorney's fees for Shelter's refusal to tender any payments.

         Shelter filed a motion for summary judgment seeking dismissal of the suit. Shelter claims the McCartneys violated the terms and conditions of the policy by failing to provide requested information and refusing to submit to an examination under oath. The McCartneys opposed the motion, asserting there is no evidence they failed to cooperate with Shelter's investigation. The McCartneys claim they submitted extensive documentation and provided Shelter with two recorded statements. Further, they claim they only postponed, but did not refuse, the examination under oath. They also point out Shelter's request for examination under oath was made more than sixty days after the McCartneys submitted their proof of loss and past the time when Shelter was required to make either payment or a written settlement offer under the policy.

         The trial court granted Shelter's motion for summary judgment, finding the McCartneys' failure to submit to an examination under oath voided the policy. The McCartneys appeal.

         DISCUSSION

         After an opportunity for adequate discovery, a summary judgment shall be granted if the motion, memorandum, and supporting documents show no genuine issue as to material fact and the mover is entitled to judgment as a matter of law. La. Code Civ. Pro. art. 966A(3). The summary judgment procedure is favored and shall be construed to secure the just, speedy, and inexpensive determination of every action. La. Code Civ. Pro. art. 966A(2). In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria governing the trial court's determination of whether summary judgment is appropriate. In re Succession of Beard, 13-1717 (La.App. 1 Cir. 6/6/14), 147 So.3d 753, 759-60.

         The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue before the court on the motion for summary judgment, the mover's burden does not require that all essential elements of the adverse party's claim, action, or defense be negated, but only that it point out the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden then shifts to the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. Code Civ. Pro. art. 966D(1). Factual inferences reasonably drawn from the evidence must be construed ...


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