AMMAR INVESTMENTS, LLC D/B/A ZEGAR, INC. AND D/B/A FOUAD & FARIS, INC.
CERTAIN UNDERWRITERS OF LLOYD'S, LONDON
APPEAL FROM THE FORTIETH JUDICIAL DISTRICT COURT PARISH OF
ST. JOHN THE BAPTIST, STATE OF LOUISIANA NO. 65, 349,
DIVISION "A" HONORABLE MADELINE JASMINE, JUDGE
FOR PLAINTIFF/APPELLANT, AMMAR INVESTMENTS, LLC D/B/A ZEGAR,
INC. AND D/B/A FOUAD & FARIS, INC. Joseph B. Landry, Jr.
Joseph B. Landry
COUNSEL FOR DEFENDANT/APPELLEE-2ND APPELLANT, CERTAIN
UNDERWRITERS OF LLOYD'S, LONDON Robert L. Blankenship
Gregory E. Bodin
composed of Judges Susan M. Chehardy, Hans J. Liljeberg, and
John J. Molaison, Jr.
J. MOLAISON, JR. JUDGE.
Ammar Investments, LLC d/b/a Zegar, Inc. and d/b/a Fouad
& Faris, Inc. ("AI"), appeals the trial
court's judgment awarding it $26, 654.10 in damages for
loss of personal property as a result of Hurricane Isaac, but
denying its claim for damages sustained to the roof of its
building. AI also appeals the trial court's denial of its
motion for new trial and/or rehearing of a prior judgment
granting summary judgment in favor of defendant, Certain
Underwriters of Lloyd's, London
("Underwriters"), and dismissing AI's claim for
bad faith damages due to Underwriters' alleged
misrepresentation of its policy provisions pertaining to the
hurricane deductible. Underwriters filed a cross appeal
seeking reversal of the trial court's award to AI for
loss of its business inventory. For the following reasons, we
affirm the trial court's judgment in part and reverse in
AND PROCEDURAL HISTORY
Zughayer is the owner of AI, which owns and operates
Mike's Food Mart, a convenience store and gas station
located on River Road East in Garyville, Louisiana.
Mike's Food Mart was insured against building and
personal property (inventory) loss under a policy of
insurance issued to AI by Underwriters ("the
Policy"). The Policy, which required a three percent
(3%) wind and hail deductible, was effective from June 8,
2012 to June 8, 2013; its coverage included a $300, 000.00
limit for damages occasioned to the building, and a $200,
000.00 limit for loss of personal property located on the
August 28-29, 2012, Hurricane Isaac made landfall in St. John
the Baptist Parish causing widespread power outages
throughout the parish. These power outages caused the coolers
and freezers at Mike's Food Mart to shut down. Following
the storm, Mr. Zughayer filed a claim under the Policy on
behalf of AI averring that Mike's Food Mart sustained
both building and personal property damage as a result of the
hurricane's "wind, tornadoes, rain, and/or wind
retained SyNerGy Adjusting Corporation to investigate Mr.
Zughayer's claims. On September 8, 2012, SyNerGy's
senior claims' adjuster, Mike Dossett, inspected the
property and assessed the damages. Specifically, Mr. Dossett
inspected the outside of the building, which he noted was
newly constructed, and observed the canopies, awnings, gas
pumps and signs. In doing so, he discovered only minimal
damage to the metal fascia of the canopy situated over the
diesel pumps. Mr. Dossett then inspected the inside of the
building, which he found to be in good condition and
well-stocked. Mr. Zughayer identified for him two areas of
the store where he claimed water was leaking through the
roof: (1) in between a walk-in cooler and a back wall, and
(2) around a hood vent positioned over cooking equipment in
the kitchen. Mr. Zughayer then showed Mr. Dossett the
store's inventory that was damaged, which included food
and drinks that were spoiled as a result of the power outage.
Dossett found the building to be in "excellent
condition" and determined that the covered damages to
the premises were minor. Mr. Dossett provided Mr. Zughayer
with a Contents Loss Claims Sheet with instructions to
itemize any inventory and contents losses. By letter dated
September 28, 2012, Mr. Dossett informed Mr. Zughayer that
his "initial inspection" of AI's loss to the
building indicated that the damages did not exceed the
Policy's 3% hurricane "deductible of $15,
000.00." Mr. Dossett also advised Mr. Zughayer that
if he disagreed with the assessment, he was encouraged to
forward any "competitive, detailed estimates for
… review and further consideration." No estimates
for building damages, nor a completed itemized list of
damaged contents, were ever provided by Mr. Zughayer to Mr.
Dossett during the adjustment period. Several months later,
having heard nothing further from Mr. Zughayer, Mr. Dossett
closed the file on AI's claim.
September 27, 2013, AI filed suit against Underwriters
seeking recovery for damages to the building and personal
property (i.e., business inventory) caused by
Hurricane Isaac. AI sought additional damages claiming that
Underwriters acted in bad faith and was "arbitrary and
capricious" in adjusting its claim and refusing to pay
for its property damage. The matter proceeded to a two-day
trial held on September 18 and 19, 2017. At its
conclusion, the trial court took the matter under advisement
and later issued judgment on February 9, 2018, with written
reasons. The trial court denied AI's claim for damages to
the building on the basis that AI failed to adduce sufficient
evidence to satisfy its burden of proving that damages were
sustained to the building's roof, canopies or signs.
Despite its rejection of AI's claim for damages to the
building's roof caused by the hurricane, the trial court
awarded $26, 654.10 to AI for the cost of replacing its
water-damaged tobacco inventory (less the 3% hurricane
deductible), which was stored in the attic directly
underneath the roof.
instant appeal and cross appeal ensued.
appeal, AI contends the trial court erred in failing to grant
its motion for new trial and/or rehearing of the prior
judgment rendered in favor of Underwriters granting
Underwriters' motion for summary judgment and dismissing
AI's claim for bad faith damages. AI further contends the
trial court erred in failing to award damages for the loss
occasioned to the building's roof.
filed a cross appeal wherein it contends the trial court
erred in finding that AI presented sufficient evidence to
prove its claim for damages to its inventory.
civil cases, the appropriate standard for appellate review of
factual determinations is the manifest error - clearly wrong
standard, which precludes the setting aside of a trial
court's finding of act unless that finding is clearly
wrong in light of the record reviewed in its entirety.
Cenac v. Public Access Water Rights Ass'n,
02-2660 (La. 6/27/03), 851 So.2d 1006, 1023. Thus, a
reviewing court may not merely decide if it would have found
the facts of the case differently. Hall v. Folger Coffee
Co., 03-1734 (La. 4/14/04), 874 So.2d 90, 98. Rather, in
reversing a trial court's factual findings, the appellate
court must satisfy a two-step process based on the record as
a whole: there must be no reasonable factual basis for the
trial court's conclusion, and the finding must be clearly
wrong. Stobart v. State through Dept. of Transp. and
Development, 617 So.2d 880, 882 (La. 1993).
test requires the reviewing court to do more than simply
review the record for some evidence that supports or
controverts the trial court's findings. The court must
review the entire record to determine whether the trial
court's findings were clearly wrong or manifestly
erroneous. Parish Nat. Bank v. Ott, 02-1562 (La.
2/25/03), 841 So.2d 749, 753-54. The issue to be resolved on
review is not whether the judge or jury was right or wrong,
but whether the judge's or jury's fact-finding
conclusion was a reasonable one. Rosell v. ESCO, 549
So.2d 880, 884 (La. 1989); Canter v. Koehring Co.,
283 So.2d 716, 724 (La. 1973).
there is conflict in the testimony, reasonable evaluations of
credibility and reasonable inferences of fact should not be
disturbed upon review, even though the appellate court may
feel its own evaluations and inferences are as reasonable.
Varmall v. Bankers Specialty Ins. Co., 15-223
(La.App. 5 Cir. 10/28/15), 178 So.3d 181, 183-84 citing
Waguespack v. Sentry Select Ins. Co., 12-280 (La.App. 5
Cir. 11/13/12), 105 So.3d 880, 884-85, writ denied,
12-2700 (La. 2/8/13), 108 So.3d 90. Moreover, where there are
two permissible views of the evidence, the fact finder's
choice between them cannot be manifestly erroneous.
Id., 178 So.3d at 184. It is only where the
objective evidence so contradicts a witness' testimony,
or the testimony itself if so internally inconsistent or
implausible on its face that a reasonable fact finder would
not credit it, that the court of appeal may find manifest
error even in a finding purportedly based upon a credibility
appellate court finds that a reversible error of law or
manifest error of material fact was made in the trial court,
it is required, whenever possible, to re-determine the facts
de novo from the entire record and render a judgment
on the merits. Ferrell v. Fireman's Fund Ins.
Co., 94-1252 (La. 2/20/95), 650 So.2d 742, 745. While
great deference should be accorded to the fact finder,
appellate courts have a constitutional duty to review facts,
and to perform its constitutional duty properly. Thus,
appellate courts must determine whether the lower court's
conclusions were clearly wrong based on the evidence or are
clearly without evidentiary support. Stewart v. State ex
rel Dep't of Transp. & Dev., 08-0772 (La.App. 1
Cir. 3/20/09), 9 So.3d 957, 963, writ denied,
09-1228 (La. 9/18/09), 17 So.3d 968.
these legal precepts in mind, we turn to the issues presented
herein for our review.
of the Policy Provisions
to trial, the trial court granted Underwriters' motion
for summary judgment dismissing AI's claim for bad faith
damages. Thereafter, AI filed a motion for new trial and/or
rehearing, which motion the trial court considered and denied
in open court on the morning of trial. On appeal, AI
contends the trial court manifestly erred in granting
Underwriters' summary judgment motion, and in denying its
motion for new trial, despite clear evidence that
Underwriters misrepresented the Policy's deductible. We
courts review summary judgments de novo using the
same criteria that govern the trial court's determination
of whether summary judgment is appropriate. Jones v. ABC
Ins. Co., 17-368 (La.App. 5 Cir. 5/30/18), 249 So.3d
310, 315. The decision as to the propriety of a grant of a
motion for summary judgment must be made with reference to
the substantive law applicable to the case. Ricalde v.
Evonik Stockhausen, LLC, 16-178 (La.App. 5 Cir.
9/22/16), 202 So.3d 548, 551-52, writ denied,
16-1923 (La. 12/16/16), 212 So.3d 1170. To prevail on a claim
for bad faith claims adjusting under La. R.S. 22:1892 and La.
R.S. 1973,  a plaintiff bears the burden of proving:
(1) the insured provided a proof of loss; (2) the proof of
loss was satisfactory; that is, sufficient information to
allow the adjuster to pay the undisputed amount within 30
days; and (4) the insurer's failure to timely make
payment of the undisputed amount was the result of conduct
that was arbitrary, capricious and/or without probable cause.
La. R.S. 1892(B)(1). An insurer's actions are
"arbitrary and capricious" when its willful refusal
of a claim is not based on a good faith defense, or is
unreasonable or without probable cause. Calogero v.
Safeway Ins. Co. of Louisiana, 99-1625 (La. 1/19/00),
753 So.2d 170, 173.
case sub judice, although AI posits that
"[Underwriters] … acted arbitrarily and
capricious and without probable cause in failing to pay [its]
claim," AI does not set forth any facts upon which it
relies to support this contention, nor does it direct this
Court to any testimony or exhibits in the record to
substantiate its bald allegation. Our de novo review
of the record convinces us that the trial court properly
dismissed AI's claim that Underwriters acted in bad faith
or was "arbitrary and capricious" in its handling
of AI's insurance claim.
contends that Underwriters' breached its duty of good
faith and fair dealing when its adjuster, Mr. Dossett,
misrepresented the Policy's deductible. In particular, AI
contends that "[m]isrepresenting the deductible is a
breach of the ...