United States District Court, E.D. Louisiana
ORDER AND REASONS
JAY C. ZAINEY UNITED STATES DISTRICT JUDGE
following motions are before the Court:
for Partial Summary Judgment (Rec. Doc. 54) filed by
Defendants, Brian Jarreau and Magdalena Budziakowska (herein
after collectively referred to as “Defendants”).
Plaintiff, Americas Insurance Company
(“Americas”) opposes the motion (Rec. Doc. 60)
and Defendants have replied (Rec. Doc. 64). This motion,
noticed for submission on January 9, 2019 is before the Court
on the briefs without oral argument.
for Partial Summary Judgment (Rec. Doc. 59) filed by
Americas. Defendants oppose this motion (Rec. Doc. 62) and
Americas has replied (Rec. Doc. 68). This motion, noticed for
submission on January 9, 2019, is before the Court on the
briefs without oral argument.
considered the motions, memoranda of counsel, the
oppositions, the replies, the record, and the applicable law,
the Court finds that Defendants' Motion for
Partial Summary Judgment (Rec. Doc. 54) is
DENIED and Plaintiff's Motion
for Partial Summary Judgment (Rec. Doc. 59) is
GRANTED for the reasons set forth below.
Brian Jarreau and Magdalena Budziakowska own immovable
property in New Orleans, Louisiana allegedly damaged by a
fire on or about January 5, 2018. (Rec. Doc. 1, Complaint
¶ 7). On January 5, 2018, Defendants submitted a claim
for the damaged property to Plaintiff, Americas Insurance
Company (Americas). (Id. ¶ 8). On March 19,
2018, Defendants submitted correspondence to Americas
invoking the appraisal provision set forth in Americas'
policy. (Id. ¶ 15). Defendants appointed Nader
Anthony Odeh (Odeh) as their independent appraiser.
(Id.). On April 3, 2018, Americas accepted
Defendants' demand for appraisal pursuant to the
Americas' policy, appointed Mitash Patel as Americas'
appraiser, and objected to Odeh as Defendants' appraiser.
(Id. ¶ 18).
filed suit for declaratory judgment, to declare Odeh
ineligible to serve as Defendants' appraiser and to order
Brian Jarreau and Magdalena Budziakowska to comply with the
Americas' policy by participating in the appraisal and by
appointing a competent and impartial appraiser (Id.
¶ 33). Defendants Brian Jarreau and Magdalena
Budziakowska counterclaimed that Americas failed to appoint a
competent and impartial appraiser pursuant to the
Americas' policy. (Rec. Doc. 6 ¶ 14). In their
counterclaim, Defendants requested an award for their costs
and attorney's fees incurred. (Id. ¶ 26).
parties now move this court to grant partial summary
judgment. Defendants request partial summary judgment on the
issue of bad faith claims and an entitlement to additional
living expenses (“ALE”). Plaintiffs request
partial summary judgment on the issue of Defendants'
counterclaim request for declaratory judgment to enlarge the
applicable policy limits of further policy payments for ALE.
judgment is appropriate only if “the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, ” when
viewed in the light most favorable to the non-movant,
“show that there is no genuine issue as to any material
fact.” TIG Ins. Co. v. Sedgwick James, 276
F.3d 754, 759 (5th Cir.2002) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249-50 (1986)). A dispute
about a material fact is “genuine” if the
evidence is such that a reasonable jury could return a
verdict for the non-moving party. Id. (citing
Anderson, 477 U.S. at 248). The court must draw all
justifiable inferences in favor of the non-moving party.
Id. (citing Anderson, 477 U.S. at 255).
Once the moving party has initially shown “that there
is an absence of evidence to support the non-moving
party's cause, ” Celotex Corp. v. Catrett,
477 U.S. 317, 325 (1986), the non-movant must come forward
with “specific facts” showing a genuine factual
issue for trial. Id. (citing Fed.R.Civ.P. 56(e);
Matsushita Elec. Indus. Co. v. Zenith Radio, 475
U.S. 574, 587 (1986)). Conclusory allegations and denials,
speculation, improbable inferences, unsubstantiated
assertions, and legalistic argumentation do not adequately
substitute for specific facts showing a genuine issue for
trial. Id. (citing SEC v. Recile, 10 F.3d
1093, 1097 (5th Cir.1993)).
Partial Summary Judgment on Bad Faith Handling
argue that Americas refused to participate in the appraisal
process for more than six months to pursue the
disqualification of Odeh, (Rec. Doc. 54-4, p. 1). They allege
that this deliberate halt of the appraisal process has forced
the Defendants to incur ALE exceeding the amount permitted
via the policy. (Id.). Defendants argue that
Americas' bad faith conduct violates Louisiana Revised
Statutes 22 §§ 1973 and 1892 entitling Defendants