APPEAL FROM THE TWENTY-SECOND JUDICIAL DISTRICT COURT NUMBER
2017- 11828, DIVISION A, PARISH OF ST. TAMMANY STATE OF
LOUISIANA HONORABLE RAYMOND S. CHILDRESS, JUDGE
F. de Boisblanc Donald F. de Boisblanc, Jr. New Orleans,
Louisiana and John Alden Meade New Orleans, Louisiana Counsel
for Plaintiffs-Appellants Ricky Bosse and Danielle Bosse
Michael Parker Ann M. Halphen John M. Parker, Jr. Ashley C.
Meredith Baton Rouge, Louisiana Counsel for
Defendant-Appellee Access Home Insurance Company
Stephen R. Barry Daphne McNutt Barry Kathleen Crowe Marksbury
New Orleans, Louisiana Counsel for Defendant-Appellee Maison
BEFORE: PETTIGREW, WELCH, AND CHUTZ, JJ.
Ricky and Danielle Bosse, appeal the trial court's
judgment, granting motions for summary judgment in favor of
defendants-appellees, Access Home Insurance Company (Access)
and Maison Insurance Company (Maison), and dismissing the
Bosses' claims for (1) declaratory relief, seeking a
declaration that the insurers' respective property
insurance policies afforded the Bosses the right to full
replacement cost value (RCV) of property damaged by hail in a
thunderstorm; (2) damages against the insurers for breach of
the insurance contracts; and (3) penalties under the
Louisiana Insurance Code. The trial court's judgment also
denied a cross-motion for summary judgment filed by the
Bosses, claiming entitlement to declaratory relief, damages,
and penalties. We affirm.
AND FACTUAL BACKGROUND
following is undisputed. On April 25, 2015, hail from a
thunderstorm caused roof damage to two homes in Mandeville
that the Bosses owned. On January 11, 2017, the Bosses
reported a claim to Access for the roof damage to the home
located at 1307 Girod Street. Access sent an adjuster to
inspect the damage. After concluding the roof and other
portions of the home had been damaged due to the April 25,
2015 storm, the adjuster determined that the RCV for the
damage was $5, 677.03. The adjuster valued the depreciation
of the damaged areas at $2, 277.28 and, subtracting the
amount of depreciation from the RCV, determined the actual
cash value (ACV) for the Girod Street home was $3, 399.75.
After subtraction of the policy's $1, 000.00 deductible,
Access sent a check to the Bosses in the amount of $2, 399.75
as payment for the claim.
the Girod Street home, on January 11, 2017, the Bosses
reported a claim to Maison for roof damage sustained as a
result of hail from the April 25, 2015 thunderstorm to the
home located at 1200 Albert Street. Maison sent an adjuster
to the Albert Street home who, after concluding the roof of
the home had been damaged due to the April 25, 2015 storm,
estimated that the RCV for the damage was $11, 899.26. The
adjuster valued the depreciation of the damaged area at $3,
270.51 and, subtracting the amount of depreciation from the
RCV, determined the ACV for the Albert Street home was $8,
628.75. After subtraction of the policy's $1, 000.00
deductible, Maison sent a check to the Bosses in the amount
of $7, 628.75 as payment for the claim.
Bosses subsequently requested the full amount of the RCV from
both Access and Maison. After each insurer denied the
request, the Bosses filed this lawsuit, on April 21, 2017,
seeking declaratory relief as well as damages and penalties
against the insurers. The Bosses reasoned that under the
terms of each insurer's policy, they were entitled to the
full amount of the RCV; by failing to tender the full amount
of the RCV and paying only the ACV, the insurers breached
their respective insurance contracts; and, thus, that each
insurer owed penalties under the Louisiana Insurance Code.
answering the petition, each insurer filed a motion for
summary judgment, seeking dismissal of the Bosses'
claims. Access and Maison both asserted that under the
unambiguous terms of their respective policies, the payment
of the ACV satisfied their obligations. The Bosses filed a
cross- motion for summary judgment, seeking judgment in their
hearing was held, after which the trial court granted the
motions for summary judgment filed by Access and Maison. A
judgment in conformity with the trial court's ruling and
dismissing the Bosses' claims was signed on January 23,
2018. The Bosses have devolutively appealed.
courts review the granting or denial of a motion for summary
judgment de novo under the same criteria governing the
district court's determination of whether summary
judgment is appropriate. Schultz v. Guoth, 2010-0343
(La. 1/19/11), 57 So.3d 1002, 1005-06. A motion for summary
judgment shall be granted only if the pleadings, depositions,
answers to interrogatories, written stipulations, and
admissions, together with the affidavits, if any, admitted
for purposes of the motion for summary judgment, show there
is no genuine issue as to material fact, and that the mover
is entitled to judgment as a matter of law. La. C.C.P. art.
966(A)(3) & (4).
judgment is appropriate for determining issues relating to
insurance coverage. In determining whether a policy affords
coverage for an incident, the insured bears the burden of
proving the incident falls within the policy's terms.
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