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Guidry v. Usagencies Casualty Insurance Co. Inc.

Court of Appeals of Louisiana, First Circuit

December 27, 2019

CALVIN GUIDRY AND DENISE GUIDRY
v.
USAGENCIES CASUALTY INSURANCE COMPANY, INC., PATRICIA MOUSSEAU, GLENN MOUSSEAU, VENTURE TRANSPORT LOGISTICS, L.L.C., AND ZURICH AMERICAN INSURANCE COMPANY

          On Appeal from the 17th Judicial District Court In and for the Parish of Lafourche State of Louisiana Trial Court No. 106901 Honorable Christopher J. Boudreaux, Judge Presiding

          J. Patrick Connick Marrero, LA Attorney for Plaintiffs-Appellants, Calvin Guidry and Denise Guidry

          Leigh Ann Schell Alexandra Roselli Edwin C. Laizer Christopher A. D'Amour New Orleans, LA Attorneys for Defendant-Appellee, Hudson Insurance Company

          BEFORE: HIGGINBOTHAM, PENZATO, AND LANIER, JJ.

          HIGGINBOTHAM, J.

         In this suit against an uninsured/underinsured motorist (UM) insurer, Hudson Insurance Company, the plaintiffs, Calvin Guidry and his wife, Denise Guidry, appeal a judgment in their favor. The Guidrys are seeking an additional award for penalties and attorney fees due to Hudson's alleged bad faith in handling their claim.

         FACTUAL AND PROCEDURAL HISTORY

         This case has a long thirteen-year history that began on July 14, 2006, when the Guidrys were involved in a motor vehicle accident on Highway 90 in Lafourche Parish. At the time of the accident, the Guidrys were transport "hotshot" delivery drivers for Venture Transport Logistics, LLC, and they were returning from a delivery made in their leased pickup truck. Mr. Guidry was driving and Mrs. Guidry was riding in the passenger seat; she sustained head and whiplash and concussion-type injuries in the accident, immediately feeling dazed and confused, pain in her neck, right shoulder, knee, and head. The Guidrys filed suit for personal injury damages on July 12, 2007, against numerous defendants, including the other driver, Patricia Mousseau, her husband, Glenn Mousseau, and their liability insurer, USAgencies Casualty Insurance Company, Inc. The Guidrys also sued Venture and its trucking liability insurer, Zurich American Insurance Company.

         In August 2008, the Guidrys settled and dismissed their claims against the Mousseaus and USAgencies, reserving their rights to pursue claims against other parties and to continue to litigate their claims against Venture and Zurich. On December 11, 2009, the Guidrys amended their petition to assert a UM claim against Hudson, the insurer from whom Venture's required "bobtail" personal coverage for the Guidrys' leased truck was obtained. The Guidrys amended their petition against Hudson primarily because Mrs. Guidry was still experiencing headaches and neck pain three years after the accident. Unrelated to the 2006 accident, however, Mrs. Guidry sustained a back injury approximately one month before Hudson was brought into the litigation. Mrs. Guidry suffered a second unrelated back injury a few months later in early 2010, which necessitated back surgery in March 2010. Mrs. Guidry was not able to return to work after her back surgery.

         In December 2010, Hudson moved for summary judgment, maintaining that the Hudson policy did not provide coverage to the Guidrys, because they were acting in "the business of their employment with Venture at the time of the accident and therefore, Hudson argued that Zurich's liability policy was primary. The trial court denied Hudson's motion on February 24, 2011, noting that Hudson's policy exclusion did not apply. This court denied supervisory review. Guidry v. USAgencies, 2011-0764 (La.App. 1st Cir. 10/14/11) (unpublished writ action). Thereafter, on December 22, 2011, even though the parties had very differing views on the extent and duration of Mrs. Guidry's injuries and whether they were all related to the 2006 accident, Hudson unconditionally tendered the undisputed amount of $100, 000.00 to the Guidrys, who had demanded Hudson's $1, 000, 000.00 policy limits. The unconditional tender was documented and pursuant to discussions between counsel. In March 2012, Venture and Zurich moved for summary judgment, seeking dismissal of all of the Guidrys' claims against them and arguing that the Hudson UM policy provided the primary coverage for the Guidrys' damages. The trial court granted summary judgment in favor of Venture and Zurich on October 23, 2012. No appeal was taken from that final judgment.

         The Guidrys then amended their petition again, to add claims against Hudson for bad faith damages and penalties. In January 2013, Hudson filed a motion for partial summary judgment, seeking dismissal of the bad faith claims. That motion was granted; however, this court reversed and the Louisiana Supreme Court denied supervisory review. Guidry v. USAgencies, 2013-0780 (La.App. 1st Cir. 8/29/13) (unpublished writ action), writ denied, 2013-2317 (La. 12/2/13), 126 So.3d 1288.

         In February 2014, Hudson filed an exception raising the objection of prescription, asserting that regardless of UM coverage under its policy, the Guidrys' claims against Hudson had prescribed. Hudson maintained that the Guidrys' suit against the Mousseaus and USAgencies could not serve to interrupt prescription as to Hudson, because the Guidrys had voluntarily dismissed those defendants. Additionally, Hudson argued that the Guidrys' suit against Venture and Zurich did not interrupt prescription against it since the trial court had found that neither Venture nor Zurich furnished UM coverage to the Guidrys, which meant that neither Venture nor Zurich were solidary obligors with Hudson. The trial court denied Hudson's prescription exception and this court denied Hudson's writ application. Guidry v. USAgencies, 2014-1348 (La.App. 1st Cir. 12/23/14) (unpublished writ action).

         A year later, in February 2015, Hudson filed yet another motion for summary judgment, again asserting no UM coverage based upon new facts and evidence that had been discovered revealing that the Guidrys were in fact in the business of Venture at the time of the accident and thus, the Zurich policy actually afforded coverage for the Guidrys' claims. The Guidrys filed an opposition and cross-motion for summary judgment to preclude further litigation of coverage issues. The trial court eventually denied Hudson's motion, granted the Guidrys' motion, and ordered Hudson to provide UM coverage. That judgment was signed on February 10, 2016. Hudson appealed the summary judgment ruling, partially arguing that the Guidrys' claims against Hudson were prescribed. In another appeal heard by a different panel, this court affirmed the trial court's judgment ruling that Hudson's policy provided UM coverage to the Guidrys and additionally finding no merit to Hudson's argument that the Guidrys' UM claims are prescribed. Guidry v. USAgencies, 2016-0562 (La.App. 1st Cir. 2/16/17), 213 So.3d 406, 422, writ denied, 2017-0601 (La. 5/26/17), 221 So.3d 81. When the supreme court denied Hudson's application for supervisory review as to the prescription issue on May 26, 2017, Hudson unconditionally tendered another undisputed amount of $200, 000.00 to the Guidrys on June 23, 2017, even though the parties continued to contest the duration and cause of Mrs. Guidry's injuries and her extensive medical treatment.

         The matter proceeded to a jury trial on the merits of damages and bad faith held on July 30 to August 8, 2018.[1] During the eight-day trial, the jury heard evidence that Mrs. Guidry was initially treated for concussion and whiplash/soft-tissue type injuries involving her neck, shoulder, and head after the 2006 accident. Shortly after the accident, Mrs. Guidry continued to suffer from daily headaches, and she continued to receive medical treatment for neck and head pain between 2006 and the time of trial. Mrs. Guidry was also treated for severe depression, anxiety, and insomnia related to her debilitating headaches. The medical treatment consisted of multiple facet joint injections, trigger point injections, cervical epidural steroid injections, nerve block injections, and botox injections in her neck and head, and in 2012, she ...


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