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Dudenhefer v. Louisiana Citizens Property Insurance Corp.

Court of Appeals of Louisiana, Fourth Circuit

September 25, 2019

WARREN DUDENHEFER
v.
LOUISIANA CITIZENS PROPERTY INSURANCE CORPORATION, ET AL

          APPEAL 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

          Paul A. Tabary, III Elizabeth Borne TABARY AND BORNE, LLC Three Courthouse Square Chalmette, LA COUNSEL FOR DEFENDANT/APPELLANT

          Court composed of Judge Roland L. Belsome, Judge Paula A. Brown, Judge Tiffany G. Chase

          Roland L. Belsome, Judge

         This 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.

         Facts

         Mr. 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 $14, 008.00.

         In 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.

         After 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.

         Procedural History

         Following 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.[1]

         On appeal, LCPIC argues that the trial court erred in its award of damages and penalties. [2]

         Damages

         LCPIC 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 the policy.

         On 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 ...


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