United States District Court, W.D. Louisiana, Lafayette Division
PATRICK J. HANNA UNITED STATES MAGISTRATE JUDGE
pending is the motion for summary judgment that was filed by
the defendant, Progressive Paloverde Insurance Company. (Rec.
Doc. 25). The motion is opposed. Oral argument was held on
January 24, 2019. Considering the evidence, the law, and the
arguments of the parties, and for the reasons fully explained
below, the motion is GRANTED IN PART and DENIED IN PART.
March 25, 2016, the plaintiff was allegedly injured in a
motor vehicle accident that occurred in St. Landry Parish,
Louisiana. The plaintiff contends that she was a passenger in
a vehicle that was owned by Genesis Learning Center, LLC,
being driven by Francisca Placencio-Santos, and insured by
Progressive under Commercial Auto Policy No. 04474596-8,
which was issued to Genesis. The other vehicle involved in
the accident was allegedly owned by Ravin Renee Savoy, being
driven by Kaylan Malik Coleman, and insured by Progressive
under a different automobile insurance policy.
plaintiff asserted a claim under Ms. Savoy's insurance
policy, alleging that the accident occurred due to the sole
fault of Ms. Coleman, the driver of Ms. Savoy's vehicle
at the time of the accident. That claim, sometimes referred
to hereinafter as “the liability claim, ” was
ultimately settled. The plaintiff also asserted a claim for
uninsured/underinsured motorist (“UM”) coverage
under the policy that was issued to Genesis. Progressive
refers to such circumstances, in which a liability claim is
asserted under a Progressive policy and a UM claim is
asserted under a different Progressive policy following a
single motor vehicle accident, as a “dual loss
claim is the focus of this lawsuit. Not only does the
plaintiff seek the recovery of UM benefits under the policy,
she also seeks the recovery of penalties, attorneys'
fees, and court costs under La. R.S. 22:1973 and/or 22:1892,
alleging that Progressive acted in bad faith by failing to
promptly pay her UM claim.
support of the instant motion for summary judgment,
Progressive argued that the plaintiff's UM claim should
be dismissed because the plaintiff breached the cooperation
clause of the insurance policy that was issued by Progressive
to Genesis, under which she is seeking UM coverage. In her
opposition brief, the plaintiff argued that she did not
breach the cooperation clause of the policy under which she
is seeking UM coverage because she had submitted to
Progressive all of the information necessary to evaluate her
UM claim when she dealt with Progressive in its capacity as
the liability insurer of the other vehicle involved in the
accident. Progressive responded to the plaintiff's
argument by establishing (a) that different adjusters handled
the liability claim and the UM claim and (b) that a
Progressive adjuster handling a UM claim is not authorized to
obtain copies of the medical records produced during the
adjustment of claims under other Progressive policies.
following facts are undisputed:
her counsel, Ms. Placencio promptly notified Progressive of
the accident and sought to recover under the automobile
liability insurance policy issued by Progressive to Ms.
Savoy. That claim, which was assigned Claim No.
16-4214959,  was ultimately settled,  and Ms.
Placencio's lawsuit against Ms. Savoy and Ms. Coleman was
correspondence to Progressive with regard to negotiating a
settlement of the liability claim,  the plaintiff's counsel
stated that the plaintiff wished to reserve any UM claim that
might have under her own automobile insurance policy.
However, there is no evidence in the record establishing that
the plaintiff's counsel identified Progressive as Ms.
Placencio's UM insurer or identified the Progressive
policy issued to Genesis as the policy under which she was
seeking to recover UM benefits.
before February 21, 2017, the claimant's counsel sent a
letter of representation to Progressive, notifying the
company of the UM claim. That letter is not in the record,
but Progressive's response,  dated February 21, 2017 and
authored by Progressive UM adjuster Jay Toddy, acknowledged
receipt of the letter and requested certain information.
Progressive assigned Claim No. 17-5508647 to the UM
insurance policy that was issued to Genesis, under which Ms.
Placencio seeks UM coverage, contains the following language
regarding duties in the event of an accident or loss:
A person seeking coverage must:
1. cooperate with us [Progressive] in any matter concerning a
claim or lawsuit; 27-12 at 1 (letter to Progressive dated
February 13, 2017); Rec. Doc. 27-15 (letter to Progressive
dated April 10, 2017); Rec. Doc. 27-16 at 2 (partial motion
and order to dismiss the suit against Ms. Savoy, et al., with
2. provide any written proof of loss we [Progressive] may
reasonably require; 3. allow us [Progressive] to take signed
and recorded statements, including sworn statements and
examinations under oath. . . .
7. authorize us to obtain medical and other records. . .
February 22, 2017, Progressive issued its first
reservation-of-rights letter regarding the UM
claim. The letter quoted the portion of the
insurance policy that lists the insured's duties in case
of an accident or loss and expressly requested that Ms.
Placencio provide a recorded statement to assist in
Progressive's coverage investigation. As noted above, the
insurance policy states that, in the event of an accident or
loss, a person seeking coverage must cooperate with
Progressive, must allow Progressive to take signed and
recorded statements, including sworn statements and
examinations under oath, and must authorize Progressive to
obtain medical and other records.
same day, the plaintiff's counsel e-mailed Mr. Toddy and
stated that Ms. Placencio was “under no obligation
whatsoever” to give a recorded statement. However, to
demonstrate her client's willingness to assist
Progressive, the e-mail requested that Mr. Toddy provide any
questions in writing.
February 23, 2017, Mr. Toddy e-mailed a list of thirteen
questions regarding the UM claim to the plaintiff's
March 16, 2017, Mr. Toddy sent an e-mail to the
plaintiff's counsel, asking that the plaintiff provide
answers to the written questions previously provided as well
as other information including a copy of itemized medical
bills and medical narratives related to the plaintiff's
March 24, 2017, Progressive issued its second
reservation-of-rights letter. The letter again quoted the
policy's requirements of an insured in the event of an
accident or loss and requested a recorded statement from Ms.
4, 2017, Progressive issued its third reservation-of-rights
letter. The relevant policy provision was again
quoted, a recorded statement was requested, and answers to
the written questions provided by e-mail was also requested.
31, 2017, the suit against Ms. Savoy and Ms. Coleman was
7, 2017, Progressive issued its fourth reservation-of-rights
letter.The letter again quoted the relevant
policy provision, again requested that Ms. Placencio give a
recorded statement, and again requested Ms. Placencio's
answers to the written list of questions previously provided.
7, 2017, Progressive issued its fifth reservation-of-rights
letter. The policy provision was again quoted, a
recorded statement was again requested, and Ms.
Placencio's answers to Progressive's written
questions was again requested.
August 15, 2017, Progressive issued its sixth
reservation-of-rights letter.This letter again quoted the
policy language regarding an insured's duties in the
event of an accident, claim, loss, or suit, requested that
Ms. Placencio give a recorded statement, and requested Ms.
Placencio's answers to the written list of questions
previously provided to her counsel.
August 17, 2017, the plaintiff's counsel sent a
settlement demand letter to Mr. Toddy at Progressive,
summarizing her injuries and demanding full policy limits of
August 24, 2017, Progressive issued its seventh
reservation-of-rights letter. The insured's duties in
the event of an accident or loss were again quoted, an
examination under oath was requested, and several documents
were requested, including signed medical authorizations,
medical records for the past seven years, work records for
the past seven years, a copy of settlements payments and
releases executed in this matter, an affidavit from the owner
and operator of the vehicle, and a copy of medical bills and
records concerning the injuries sustained in the accident.
September 5, 2017, the plaintiff's counsel provided
medical authorization forms to Progressive via
e-mail. One was a Progressive-supplied medical
authorization that did not contain the last four digits of
the plaintiff's social security number and was executed
by the plaintiff's counsel rather than by the
plaintiff.The other authorizations were signed by
the plaintiff and dated September 1, 2017 but only authorized
the release of records for treatment dates after the date of
September 6, 2017, Mr. Toddy sent an e-mail to the
plaintiff's counsel in which Progressive requested the
plaintiff's permission to obtain and access all prior
injury claims Ms. Placencio had made with Progressive for the
past seven years.
September 22, 2017, Progressive issued its eighth
reservation-of-rights letter. This letter again quoted the
policy provision regarding an insured's duties in the
event of an accident or loss, and it requested that Ms.
Placencio be examined under oath.
same date, September 22, 2017, the plaintiff's counsel
authorized Progressive to obtain any prior medical records
found in the plaintiff's prior claims with Progressive,
and Progressive immediately requested the prior claim
September 29, 2017, the plaintiff filed this lawsuit.
filing suit, the plaintiff did not provide a recorded
statement, did not respond to the written questions e-mailed
to her attorney by Progressive, and did not provide an
examination under oath.
liability claim was handled by Progressive adjusters Ashley
Zelaya and Joel Langford. The UM claim was handled by
Progressive adjusters Jay Toddy and Belinda
Summary Judgment Standard
Rule 56(a) of the Federal Rules of Civil Procedure, summary
judgment is appropriate when there is no genuine dispute as
to any material fact, and the moving party is entitled to
judgment as a matter of law. A fact is material if proof of
its existence or nonexistence might affect the outcome of the
lawsuit under the applicable governing law. A genuine
issue of material fact exists if a reasonable jury could
render a verdict for the nonmoving party.
party seeking summary judgment has the initial responsibility
of informing the court of the basis for its motion and
identifying those parts of the record that demonstrate the
absence of genuine issues of material fact. If the moving
party carries its initial burden, the burden shifts to the
nonmoving party to demonstrate the existence of a genuine
issue of a material fact. All facts and inferences are
construed in the light most favorable to the nonmoving
dispositive issue is one on which the nonmoving party will
bear the burden of proof at trial, the moving party may
satisfy its burden by pointing out that there is insufficient
proof concerning an essential element of the nonmoving
party's claim. The motion should be granted if the
nonmoving party cannot produce evidence to support an
essential element of its claim.
Louisiana Law Applies
federal court sitting in diversity must apply state
substantive law and federal procedural law. Because this
Court has subject-matter jurisdiction over this action under
28 U.S.C. § 1332, this is a diversity case and
Louisiana's substantive law must be
applied. To determine Louisiana law, federal
courts look to the final decisions of the Louisiana Supreme
Court. When the state's highest court has
not decided an issue, the court must make an
“Erie guess” as to how the state supreme
court would decide the issue. In making such a guess, the
federal court may rely upon state appellate court decisions,
unless persuasive data convinces the court that the state
supreme court would decide the issue
differently. When making an Erie guess
concerning Louisiana law, the Fifth Circuit relies upon
“(1) decisions of the [Louisiana] Supreme Court in
analogous cases, (2) the rationales and analyses underlying
[Louisiana] Supreme Court decisions on related issues, (3)
dicta by the [Louisiana] Supreme Court, (4) lower state court
decisions, (5) the general rule on the question, (6) the
rulings of courts of other states to which [Louisiana] courts
look when formulating substantive law and (7) other available
sources, such as treatises and legal
Interpretation of an Insurance Policy
Louisiana law, an insurance policy is a contract between the
parties and should be construed using the general rules of
interpretation of contracts set forth in the Louisiana Civil
Code. The role of a court interpreting the
terms and provisions of an insurance policy is to determine
the common intent of the parties. “If the policy
wording at issue is clear and unambiguously expresses the
parties' intent, the insurance contract must be enforced
The Cooperation Clause
insurance policies, like the one at issue in this lawsuit,
contain clauses requiring the insured to cooperate with the
insurer in providing information relevant to the
insured's claim. A cooperation clause protects the
insurer against fraud by enabling it to obtain relevant
information concerning the claimed loss while the information
is fresh. “The underlying purpose of a
cooperation clause is to allow the insurer to obtain the
material information it needs from the insured to adequately
investigate a claim of loss prior to the commencement of
litigation proceedings.”Under Louisiana law, an
insured's compliance with the provisions of an insurance
policy is a condition precedent to recovery. Therefore, an
insured's failure to cooperate may be held to be a
material breach of the policy and a defense to an
insured's lawsuit on the policy. More particularly, an
insured's failure to submit to an examination under oath
or its refusal to produce requested documentation may violate
the policy's cooperation clause. But the cooperation
clause is not merely an “escape hatch” that an
insurer may use when an insured fails to comply with trivial
policy requirements. Instead, a failure to cooperate
precludes recovery when the insured engages in a
“protracted, willful, and apparently bad faith
refusal” to comply with a cooperation
clause. Whether the cooperation clause has been
breached is a serious matter, and the dismissal of a suit
before trial based on the breach of a cooperation clause has
been described as a “draconian remedy which [courts] do
insurer seeking the dismissal of a lawsuit on a motion for
summary judgment based on the insurer's alleged failure
to comply with the policy's cooperation clause must meet
a heavy burden and clearly demonstrate noncompliance by the
insured. The insurer must demonstrate that it (1)
made a diligent effort to obtain the information requested
from the insured, and (2) that the failure of the insured to
provide such information was both material and
prejudicial. In particular, the burden is on the
insurer to prove actual prejudice.Whether an insured
breached the duty of cooperation is a factual
a valid dispute concerning whether the insured breached the
policy's cooperation clause will preclude summary
judgment in the insured's favor.
Does the Cooperation Clause Apply to ...