United States District Court, M.D. Louisiana
BETH FORBES ET AL.
WEST AMERICAN INSURANCE COMPANY ET AL.
RULING AND ORDER
A. JACKSON UNITED STATES DISTRICT COURT JUDGE.
the Court are three motions for summary judgment. Both
parties filed responses. (Doc. 47, 48, 49). For the reasons
stated herein, Defendant's Motion for Partial
Summary Judgment Concerning Plaintiffs' Bad Faith Claim
Under La. Rev. Stat. 22:1892 (Doc. 44) is
GRANTED IN PART AND DENIED IN PART.
Defendant's Motion for Partial Summary Judgment
(Doc. 45) is GRANTED IN PART and DENIED IN
PART. Plaintiffs Motion for Summary Judgment
Regarding Right to Payment, Credit or Offset (Doc.
46) is DENIED.
9, 2015, Plaintiff Beth Forbes (Mrs. Forbes) was involved in
a car accident at the intersection of Greenwell Springs Road
and Monterrey Boulevard in Baton Rouge Louisiana. Mrs. Forbes
was stopped at a red light in the westbound lane of Greenwell
Springs Road when she was struck from behind by a Jeep Grand
Cherokee driven by Clytisha Smith ("Smith"). (Doc.
1-2 at p. 7). It appears to be undisputed that Mrs. Forbes
was not at fault for the accident.
insured Smith under an auto liability policy with a §15,
000 limit, which it paid to Mrs. Forbes on December 24, 2015.
(Doc. 44-1 at p. 2). At the time of the collision, Mrs.
Forbes was covered by an uninsured motorist insurance policy
issued by Defendant, West American Insurance Company, through
her employer. It appears to be undisputed that, over time,
Defendant issued six payments from the $1, 000, 000 policy
totaling $780, 519.68. (Doc. 44 at p. 1). Plaintiffs, Mrs.
Forbes and her husband Ben Forbes (Mr. Forbes), assert that
the payments were untimely and insufficient and that
Defendant "arbitrarily, capriciously, and without just
caused failed to timely tender, unconditionally, sufficient
sums" for their damages. (Doc. 1-2 at p. 9). Plaintiffs
seek to recover for Mr. Forbes' loss of consortium under
La. R.S. 22:1973 and for Mrs. Forbes' injuries under La.
R.S. 22:1892. (Id.)
to Rule 56, "[t]he [C]ourt shall grant summary judgment
if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a
matter of law." Fed.R.Civ.P. 56(a). In determining
whether the movant is entitled to summary judgment, the Court
views the facts in the light most favorable to the non-movant
and draws all reasonable inferences in the non-movant's
favor. Coleman v. Houston Independent School Dist,
113 F.3d 528, 533 (5th Cir. 1997).
proper motion for summary judgment is made, the non-movant
must set forth specific facts showing there is a genuine
issue for trial. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 250 (1986). At this stage, the Court does not
evaluate the credibility of witnesses, weigh the evidence, or
resolve factual disputes. Int'l Shortstop, Inc. v.
Rally's, Inc., 939 F.2d 1257, 1263 (5th Cir. 1991),
cert, denied, 502 U.S. 1059 (1992). However, if the evidence
in the record is such that a reasonable jury, drawing all
inferences in favor of the non-moving party, could arrive at
a verdict in that party's favor, the motion for summary
judgment must be denied. Int'l Shortstop, Inc.,
939 F.2d at 1263.
other hand, the non-movant's burden is not satisfied by
some metaphysical doubt as to the material facts, or by
conclusory allegations, unsubstantiated assertions, or a mere
scintilla of evidence. Little v. Liquid Air Corp.,
37 F.3d 1069, 1075 (5th Cir. 1994). Summary judgment is
appropriate if the non-movant "fails to make a showing
sufficient to establish the existence of an element essential
to that party's case." Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986). In other words,
summary judgment will be appropriate only "if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with affidavits if any, show
that there is no genuine issue as to any material fact, and
that the moving party is entitled to judgment as a matter of
law." Sherman v. Hallbauer, 455 F.2d 1236, 1241
(5th Cir. 1972).
Mrs. Forbes' Claim Under La. R.S. 22:1892
Timeliness of Payments
seeks a judgment declaring that five of the six payments it
disbursed were timely and that the maximum penalty for Mrs.
Forbes' damages under La. R.S. 22:1892 is $222, 033.22.
La. R.S. 22:1892 requires an insurer to tender "the
amount of any claim due any insured within thirty days after
receipt of satisfactory proofs of loss from the
insured." The failure to do so, if found to be
"arbitrary, capricious, or without probable cause,"
subjects the insurer to a penalty of fifty percent damages on
the amount due. Id.
contends that its payments made on April 19, 2016, July 18,
2017, October 10, 2017, January 31, 2018, and July 3, 2018
were timely as a matter of law. Plaintiffs dispute the
timeliness of the April 19, 2016 payment. Plaintiffs assert
that their payment demand was received by Defendant on March
17, 2016 while Defendant claims it was received on March 21,
2016. (Doc. 44-3 at p. 144, 181-182). The dispute over the
date stems from the location to which the demand was mailed.
All payment demands to Defendant are sent to mail centers in
either Kentucky or California, depending on the type of
policy an insured party holds. (Doc. 44-3 at p. 183). Insured
parties are informed by Defendant which address should be
used. Id. The mail centers are owned and operated by
an outside vendor who Defendant has contracted to scan the
mail sent to Defendant. Id. In this case, it is
undisputed that Defendant directed Plaintiffs to mail their
payment demand to California, but Plaintiffs instead sent it
to Kentucky. (Doc. 44-3 at p. 179). Defendant asserts that
Plaintiffs' mistake resulted in a four to five day delay
of the demand's arrival at the correct claims center.
Id. Ultimately, it appears to be undisputed that the
delay in receipt ...