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Pentacost v. American Bankers Insurance Company of Florida

United States District Court, W.D. Louisiana, Lake Charles Division

November 21, 2019





         Pending before the Court is a Motion for Partial Summary Judgment [Doc. No. 15] filed by Defendants American Bankers Insurance Company (“American Bankers”) and HomeFirst Agency, Inc. (“HFA”). Defendants move for summary judgment on Plaintiffs Joe Pentacost, Jr., and Charlotte Pentacost's claims for bad faith damages, including their claim for Mr. Pentacost's personal injuries and Mrs. Pentacost's derivative loss of consortium claim. Plaintiffs oppose summary judgment.

         For the following reasons, Defendants' Motion for Partial Summary Judgment is GRANTED, and Plaintiffs' claims for bad faith damages are DISMISSED WITH PREJUDICE.

         I. FACTS

         American Bankers issued Homeowners Plus Program Policy No. 21H0018773 (“the Policy”) to Mr. Pentecost with coverage for insured property located at 109 S. Green Street, DeQuincy, Louisiana 70633, according to its terms. The Policy limits are $66, 870.00 for damages sustained to the insured dwelling, $6, 700.00 for outbuildings/adjacent structures, and $26, 800.00 for personal effects.

         On or about December 20, 2017, a windstorm occurred, damaging the Pentacosts' manufactured home and property. The Pentacosts reported the claim, and it was assigned Claim No. 201731370. On or about the same date, American Bankers sent a request to Mr. Pentacost for a Personal Effects Summary Sheet to be returned by January 3, 2018, listing “each damaged item along with the original date and place of purchase, and proof of ownership.” [Doc. No. 15-8, Exh. O].

         HFA managed the claim for American Bankers. HFA retained adjuster Kevin Ferguson of Cross Country Adjusting. On December 27, 2017, Mr. Ferguson inspected the property. He issued a report and estimate two days later, on December 29, 2017. Mr. Ferguson estimated repairs in the amount of $18, 021.54, including a full roof replacement and repairs to the ceilings of the home for water damage.

         HFA reviewed the report and estimate and requested a modification for unrepaired damage from previous Claim No. 201204249, with a date of loss of March 20, 2012. On January 11, 2018, Mr. Ferguson submitted an amended report and estimate, deleting sheetrock repairs to the ceiling in the hallway and utility room because this damage was documented in the Pentacosts' 2012 claim and had not been repaired. The amended estimate was for $17, 832.37, a reduction of $189.17 from the original estimate.

         On or about January 9, 2018, American Bankers prepared a check for the damage to the fence and other structures for the Policy limits of $6, 700.00.

         On January 12, 2018, based on Mr. Ferguson's amended estimate, American Bankers paid $17, 832.37. HFA's claim notes, Mr. Pentacost did not agree with “scope” of the paid claim, and he was advised to submit a contractor's estimate for supplemental damages, along with pictures and to protect the home as well. [Doc. No. 15-3, Exh. J].

         Between that time and February 23, 2018, there appear to have been several calls between Mr. Pentacost and HFA.

         Within two weeks of the storm, Mr. Pentacost avers that he noticed mold and mildew on his walls. By February 1, 2018, he avers that he “began feeling ill” and that he “did not have this type of illness prior to the December 20, 2017 storm.” [Doc. No. 17-2, Affidavit of Joe Pentacost, Jr., ¶ 8]. He contends that “[a]s a result of the mold exposure, ” he was “hospitalized and required significant treatment” and that “several medical providers related to this illness . . . have informed me that the presence of mold and mildew is the likely cause of my illness.” Id. at ¶ 9. He claims that he now has “to use an oxygen tank to assist . . . with breathing.” Id.

         On or about January 30, 2018, according to claim notes, it appears that Mr. Pentacost advised HFA of damage to his walls from water, and the adjuster then advised him to submit estimate and pictures for additional damages.

         On February 8, 2018, Defendants again requested that the Pentacosts submit a Personal Effects Summary Sheet by February 22, 2018. The Pentacosts did not do so and have not done so since.

         The Pentacosts retained Landry's Construction to repair the insured property. The Pentacosts' receipts and invoices show that Landry's Construction commenced repairs on or about February 2, 2018, and concluded on or about April 1, 2018. However, these receipts and invoices were not provided to Defendants at that time.

         In March 2018, the Pentacosts had “an issue with the [air conditioning] unit the first time [they] attempted use the unit following the storm.” [Doc. No. 17-2, Pentacost Aff., ¶ 5]. Copies of invoices from the air conditioning repair person indicated that “the unit had been slid over far enough to break the seal.” [Doc. No. 17-3; Doc. No. 17-2, Pentacost Aff., ¶ 5]. Mr. Pentacost claims the repair person “related” the movement of the unit to the storm. [Doc. No. 17-2, Pentacost Aff., ¶ 5]. No. such relation is noted on the invoices.

         On October 22, 2018, the Pentacosts reported a new claim, Claim No. 201827206, with a stated loss date of July 3, 2018, relating to the floor being soft. On November 4, 2018, adjuster Timothy Ste. Marie of Cross Country Adjusting inspected the property. At that time, the Pentacosts claimed the floors were saturated during the December 2017 windstorm which caused them to become soft and buckle. However, Mr. Ste. Marie determined that “exposed insulation to underbelly” allowed condensation to form, which caused the sub-floor to become soft and buckle over time.

         On or about November 20, 2018, HFA received a telephone call from Mr. Pentecost indicating that the damages to the interior of his home should have been covered because there ...

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