FROM ST. BERNARD 34TH JUDICIAL DISTRICT COURT NO. 13-0977,
DIVISION "E" Honorable Jacques A. Sanborn, Judge
Michael C. Ginart, Jr. Joyce D. Young Nicholas N.S. Cusimano
John C. Ginart LAW OFFICES OF MICHAEL C. GINART, JR. &
ASSOCIATES COUNSEL FOR PLAINTIFF/APPELLEE
A. Tabary, III Elizabeth Borne TABARY AND BORNE, LLC Three
Courthouse Square Chalmette, LA COUNSEL FOR
composed of Judge Roland L. Belsome, Judge Paula A. Brown,
Judge Tiffany G. Chase
L. Belsome, Judge
appeal is taken from the trial court's ruling in favor of
the appellee, Warren Dudenhefer, for damages caused to his
property due to Hurricane Isaac.
Dudenhefer owns property located at 4601 Hopedale Hwy. in St.
Bernard, Louisiana. Louisiana Citizens Property Insurance
Corporation ("LCPIC") issued a homeowner policy of
insurance for the property with a hurricane deductible of
August of 2012, Hurricane Isaac struck parts of Louisiana
producing excessive wind and rain. Mr. Dudenhefer's
property sustained extensive damage as a result of those
weather conditions. Following the hurricane, Mr. Dudenhefer
contacted LCPIC to initiate a claim. An adjuster was sent to
Mr. Dudenhefer's property on September 4, 2012, to assess
the damages and to estimate the loss.
the adjuster inspected the property, Mr. Dudenhefer waited
for a report from LCPIC. During that time, he continued to
send pictures of his damages and repeatedly requested a
written report. LCPIC denied his claim stating that the
covered damages did not exceed the deductible on the policy
and other damages were excluded. Mr. Dudenhefer filed suit
against LCPIC to recover for his damages. In his petition he
alleged that LCPIC was arbitrary and capricious in the
handling of his claim.
a bench trial, the original final judgment was rendered and
signed on May 23, 2018. Thereafter, in response to motions
for new trial, additional judgments were rendered on August
31, 2018, October 14, 2018, November 19, 2018, and December
6, 2018. The final judgment awarded Mr. Dudenheffer $99,
022.50, which was inclusive of general damages, penalties and
attorney's fees. LCPIC filed this appeal challenging the
trial court's judgment.
appeal, LCPIC argues that the trial court erred in its award
of damages and penalties. 
maintains that its denial of the claim was based on the
policy provision excluding loss caused by water whether
driven by wind or not, unless the insured property first
sustains actual damage by direct force of wind, and water
enters the property through openings made by direct action of
the wind. LCPIC asserts that Mr. Dudenhefer did not meet his
burden of proof to overcome the water damage exclusion.
Therefore, the trial court erred in awarding damages under
appellate review, the trial court's findings of fact are
reviewed under a manifest error clearly or clearly wrong
standard. Hall v. Folger Coffee Co., 2003-1734, p. 9
(La. 4/14/04), 874 So.2d 90, 98. Under that standard, this
Court cannot reweigh the evidence or substitute the factual
findings to decide the case differently. Id.
Further, as factfinder, the trial court can accept or reject,
in whole or in part, any witness's testimony ...