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Bosse v. Access Home Insurance Co.

Court of Appeals of Louisiana, First Circuit

December 17, 2018

RICKY BOSSE AND DANIELLE BOSSE
v.
ACCESS HOME INSURANCE COMPANY AND MAISON INSURANCE COMPANY

          ON 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

          Donald 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

          John 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 Insurance Company

          BEFORE: PETTIGREW, WELCH, AND CHUTZ, JJ.

          CHUTZ, J.

         Plaintiffs-appellants, 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.[1] 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.[2] We affirm.

         PROCEDURAL AND FACTUAL BACKGROUND

         The 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.

         As with 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.

         The 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.

         After 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 favor.

         A 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.

         DISCUSSION

         Appellate 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).

         Summary 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. Miller v. Superior Shipyard ...


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