Bradley, et al v. Allstate Ins Co

Filing 501108505

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R E V I S E D MAY 11, 2010 I N THE UNITED STATES COURT OF APPEALS F O R THE FIFTH CIRCUIT
United States Court of Appeals Fifth Circuit

FILED
May 10, 2010 N o . 09-30035 Lyle W. Cayce Clerk F E L T O N BRADLEY; LUCILLE BRADLEY P la in t iffs - Appellants v. A L L S T A T E INSURANCE COMPANY D e fe n d a n t - Appellee

A p p e a l from the United States District Court for the Eastern District of Louisiana

B e fo r e HIGGINBOTHAM and STEWART, Circuit Judges, and * ENGELHARDT, D is tr ic t Judge. C A R L E. STEWART, Circuit Judge: T h is appeal involves an insurance dispute arising from the total d e s t r u c t io n of Felton and Lucille Bradley's home as a result of flood and wind d a m a g e suffered during Hurricane Katrina. The Bradleys' homeowners policy w it h Allstate Insurance Company carried a dwelling limit of $105,600. The B r a d le y s have received $105,139.06 in total insurance payments for their d w e llin g -- $ 4 1 ,3 3 9 .0 6 under their Allstate homeowners policy and $63,800 from

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District Judge, Eastern District of Louisiana, sitting by designation.

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No. 09-30035 t h e ir flood insurance policy. The Bradleys filed suit against Allstate, alleging t h a t they were entitled to the full limits under their homeowners policy and a d d i t io n a l payments for loss of personal property, additional living expenses, m e n t a l and physical distress, and Allstate's bad faith. The district court d e t e r m in e d that, despite the total loss provision of the homeowners policy, the B r a d l e y s were only entitled to the actual cash value of their home. The district c o u r t found that the actual cash value of the home prior to its destruction was le s s than the total amount they received under their homeowners and flood p o lic ie s , and any further recovery by the Bradleys would amount to a double r e c o v e r y . The district court further held that the Bradleys had not advanced any e v id e n c e in support of their other claims. The district court awarded the B r a d l e y s some relief as to additional living expenses, but granted summary ju d g m e n t in favor of Allstate on all other claims. We AFFIRM in part and V A C A T E and REMAND in part. This appeal presents the following issues: (1) whether the total loss or a c t u a l cash value provision of the policy controls; (2) the proper definition of a ct u a l cash value under Louisiana law; (3) how to determine whether the in s u r e d has received a double recovery, i.e., collected insurance proceeds in e x ce s s of actual losses; and (4) whether the district court erred by granting s u m m a r y judgment on the Bradleys' claims for loss of personal property, a d d itio n a l living expenses, mental and physical distress, and bad faith. I. FACTUAL AND PROCEDURAL BACKGROUND A . Factual Background P r io r to Hurricane Katrina, the Bradleys owned and resided at a house lo c a te d at 2637 Tennessee Street, New Orleans, Louisiana. The property was

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No. 09-30035 in s u r e d under a homeowners policy issued by Allstate and a separate flood policy is s u e d by Fidelity National Insurance Company. Like many homeowners p o lic ie s , the Bradleys' homeowners policy specifically excluded flood damage. T h e homeowners policy contained coverage limits of $105,600 for the dwelling, $ 7 3 ,9 2 0 for the contents, and $10,560 for other structures. Hurricane Katrina destroyed the Bradleys' home in August 2005. A few b a d ly damaged concrete blocks were the only structural component of the house le ft on the property. The Bradleys notified Allstate of their loss and filed a claim o n September 1, 2005. Allstate first sent an engineer to inspect and adjust the lo s s on December 22, 2005. The engineer's report concluded that "the structure h a s been destroyed from a combination of hurricane winds and flooding." On two la te r occasions, Allstate again sent engineers to adjust the claim. On January 5, 2 0 0 6 , one of those Allstate adjusters concluded that "the dwelling is unlivable d u e to Catastrophic Wind Damage." A lls ta t e ultimately paid $41,339.06 for structural damage and $10,632 for c o n te n ts under the homeowners policy. From their flood insurance, the Bradleys r e c e iv e d the policy limits of $63,800 for structural damage and $6,200 for home c o n te n ts . Thus, the total payment to the Bradleys for structural damage to their h o m e under both policies was $105,139.06. Allstate subsequently performed a retroactive analysis that appraised the p r e -s t o r m market value of the Bradleys' home at $85,000. At deposition, Mr. B r a d le y testified that the pre-storm value of the home was between $85,000 and $ 9 5 ,0 0 0 , and Mrs. Bradley testified that the pre-storm value was in the n e i g h b o r h o o d of $97,000. An expert hired by the Bradleys estimated the cost to r e b u ild the home at $265,427.

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No. 09-30035 T o date, the Bradleys have not rebuilt their Tennessee Street house, a lt h o u g h Mr. Bradley stated at deposition that he intends to rebuild. In order to b e n e fit from government assistance through the Road Home program, the B r a d le y s attested that they will rebuild and return to the property. The Bradleys d i d purchase another home in New Orleans East for $134,500, but they have not d e s ig n a te d that home as a replacement property. B. Procedural History O n May 30, 2007, the Bradleys filed suit against Allstate in Louisiana s ta t e court; Allstate removed the case to federal court based upon diversity ju r is d i c tio n . The Bradleys claimed that Allstate breached the insurance

c o n tr a c t , acted negligently, and acted in bad faith. They further alleged that u n d e r the Louisiana's Value Policy Law (VPL), they were entitled to the full p o lic y limits from Allstate, without deduction or offset. The complaint s p e c ific a lly sought to recover: (1) the policy limits under their homeowners in s u r a n c e , because their home was rendered a total loss; (2) additional recovery fo r loss of their personal property; (3) additional living expenses (ALE); (4) c o m p e n s a t io n for mental anguish and emotional distress related to Allstate's h a n d l in g of their homeowners claim for structural damage; and (5) damages for A lls ta t e 's alleged bad faith pursuant to LA. REV. STATS. 22:1220 and 22:658.1 T h r o u g h a series of orders addressing multiple motions for partial s u m m a r y judgment, motions to reconsider, motions in limine, and sua sponte g ra n tin g summary judgment, the district court awarded the Bradleys an amount le s s than they claimed for ALE and granted summary judgment in favor of

This provision has been recently recodified as § 22:1892, but is referred to here as § 22:658.

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No. 09-30035 A lls ta t e on all other claims. The court held that the Bradleys were only entitled t o the actual cash value (ACV) of their home, which was less than the amount t h e y received under their homeowners and flood policies combined. On the VPL c la im s , the court found that although the Bradleys "allege that the property was d a m a g e d by wind and flood and that the home is a total loss, there is no a l l e g a t io n that the total loss was caused by wind or any other peril covered u n d e r the homeowners policy." The court also dismissed the Bradleys' claims for lo s s of personal property for failure to introduce evidence of ownership or the v a l u e of the items claimed. The mental and emotional distress claims were r e je c t e d for failure to advance any evidence of mental anguish or emotional d i s tr e s s. With regard to the Bradleys' bad faith claims, the court found that A lls ta t e had fully paid the Bradleys' claims under the policy and therefore there w a s no "valid, underlying, substantive claim." The Bradleys filed this appeal, arguing that the district court erred in g ra n tin g summary judgment. The Bradleys contend that summary judgment w a s improper because: (1) the district court ignored the plain language of the in su ra n ce contract providing for the payment of policy limits in the event of a t o t a l loss; (2) used the wrong measure of value to determine their scope of r e c o v e r y ; (3) improperly allowed Allstate to offset its payments with the B r a d le y s ' recovery from their flood insurance; (4) failed to consider the weight o f the evidence regarding lost personal property and ALE; and (5) wrongly d i s m is s e d the Bradleys' bad faith, mental anguish, and emotional distress c la i m s . I I . STANDARD OF REVIEW

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No. 09-30035 " T h is court reviews a district court's grant of summary judgment de novo." B r e a u x v. Halliburton Energy Servs., 562 F.3d 358, 364 (5th Cir. 2009). We also r e v ie w de novo the district court's interpretation of state law and give no d e fe r e n c e to its determinations of state law issues. See Salve Regina Coll. v. R u ss ell , 499 U.S. 225, 239-40 (1991). Summary judgment is appropriate when " t h e discovery and disclosure materials on file, and any affidavits show that t h e r e is no genuine issue as to any material fact and that the movant is entitled t o a judgment as a matter of law." FED. R. CIV. P. 56(c). All the facts and evidence m u s t be taken in the light most favorable to the non-movant. Breaux, 562 F.3d a t 364. S u m m a r y judgment is also proper if the party opposing the motion fails to establish an essential element of his case. Celotex Corp. v. Catrett, 477 U.S. 3 1 7 , 322-23 (1986). The non-moving party must do more than simply deny the a lle g a tio n s raised by the moving party. See Donaghey v. Ocean Drilling & E x p l o ra t io n Co., 974 F.2d 646, 649 (5th Cir. 1992). Rather, the nonmovant must c o m e forward with competent evidence, such as affidavits or depositions, to b u tt r e s s his claims. Id I I I . DISCUSSION A . Structural Damages 1 . The Insurance Contract: "Total Loss" Provision U n d e r Louisiana law,2 an insurance policy "constitutes the law between

When sitting in diversity, this Court applies the substantive law of the state. In re Katrina Canal Breaches Litig., 495 F.3d 191, 206 (5th Cir. 2007) (citing Erie R.R. v. Tompkins, 304 U.S. 64 (1938)). As stated in In re Katrina Canal Breaches Litigation: To determine Louisiana law, we look to the final decisions of the Louisiana Supreme Court. See id. In the absence of a final decision by the Louisiana Supreme Court, we must make an Erie guess and determine, in our best

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No. 09-30035 th e insured and insurer, and the agreement governs the nature of their r e l a t io n s h ip ." Cadwallader v. Allstate Ins. Co., 848 So. 2d 577, 580 (La. 2003). "W o r d s and phrases used in an insurance policy are to be construed using their p la in , ordinary and generally prevailing meaning, unless the words have a c q u ir e d a technical meaning." Id. (citing LA. CIV. CODE art. 2047). "When the w o r d s of a contract are clear and explicit and lead to no absurd consequences, no f u r t h e r interpretation may be made in search of the parties' intent." Smith v. A m . Family Life Assur. Co. of Columbus, 584 F.3d 212, 215-16 (5th Cir. 2009) (c it in g LA. CIV. CODE art. 2046). A contract is ambiguous only if its terms are unclear or susceptible to more t h a n one reasonable interpretation, or the intent of the parties cannot be a s c e r ta in e d from the language employed. Cadwaller, 848 So. 2d at 580. Where a n insurance policy includes ambiguous provisions, the "[a]mbiguity . . . must be r e s o lv e d by construing the policy as a whole; one policy provision is not to be c o n s t r u e d separately at the expense of disregarding other policy provisions." In

judgment, how that court would resolve the issue if presented with the same case. See id. In making an Erie guess, we must employ Louisiana's civilian methodology, whereby we first examine primary sources of law: the constitution, codes, and statutes. Id. (quoting Lake Charles Diesel, Inc. v. Gen. Motors Corp., 328 F.3d 192, 197 (5th Cir. 2003)); Prytania Park Hotel, Ltd. v. Gen. Star Indem. Co., 179 F.3d 169 (5th Cir. 1999). "Jurisprudence, even when it rises to the level of jurisprudence constante, is a secondary law source in Louisiana." Prytania Park Hotel, 179 F.3d at 169 (footnote omitted); see also Am. Int'l Specialty Lines Ins. Co., [352 F.3d 254, 261 (5th Cir. 2003)] (quoting Transcon. Gas Pipe Line Corp. v. Transp. Ins. Co., 953 F.2d 985, 988 (5th Cir. 1992)). Thus, although we will not disregard the decisions of Louisiana's intermediate courts unless we are convinced that the Louisiana Supreme Court would decide otherwise, we are not strictly bound by them. Am. Int'l Specialty Lines Ins. Co., 352 F.3d at 261. Id.

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No. 09-30035 r e Katrina Canal Breaches Litig., 495 F.3d 191, 206 (5th Cir. 2007) (quoting La. I n s . Guar. Assoc. v. Interstate Fire & Cas. Co., 630 So. 2d 759, 763 (La. 1994)); L A. CIV. CODE art. 2050. "Words susceptible of different meanings must be in t e r p r e t e d as having the meaning that best conforms to the object of the c o n t r a c t ." LA. CIV. CODE art. 2048. "Ambiguity may also be resolved through the u s e of the reasonable-expectations doctrine, `by ascertaining how a reasonable in s u r a n c e policy purchaser would construe the clause at the time the insurance c o n t r a c t was entered.'" In re Katrina Canal Breaches Litig., 495 F.3d at 206 (q u o tin g La. Ins. Guar. Ass'n, 630 So. 2d at 764). "If, after applying the other general rules of construction, an ambiguity r e m a in s , the ambiguous contractual provision is to be construed against the i n s u r e r who furnished the policy's text and in favor of the insured finding c o v e r a g e ." Peterson v. Schimek, 729 So. 2d 1024, 1029 (La. 1999) (citing LA. CIV. C OD E. art. 2056). "The purpose of liability insurance is to afford the insured p r o t e c tio n from damage claims. Insurance contracts, therefore, should be in t e r p r e t e d to effect, not deny, coverage." Id. at 1028 (citing Yount v. Maisano, 6 2 7 So. 2d 148 (La. 1993)). With these principles in mind, we turn to a review of the insurance policy a t issue. The Allstate homeowners policy states in pertinent part: 5. How We Pay for a Loss U n d e r Coverage A - Dwelling Protection, payment for covered loss w ill be by one or more of the following methods: ... b) Actual Cash Value. If you do not repair or replace the damaged, d e s t r o y e d or stolen property, payment will be made on an actual c a s h value basis. This means there may be a deduction for d e p r e c ia t io n . Payment will not exceed the limit of liability shown on t h e Policy Declarations for the coverage that applies to the 8

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No. 09-30035 d a m a g e d , destroyed or stolen property regardless of the number of it e m s involved in the loss. Y o u may make a claim for additional payment as described in p a r a g r a p h "c" . . . if you repair or replace the damaged, destroyed or s t o le n covered property within 180 days of the actual cash value p aym en t. c) Building Structure Reimbursement. Under Coverage A--Dwelling P r o te c tio n and Coverage B--Other Structures Protection, we will m a k e additional payment to reimburse you for cost in excess of a ct u a l cash value if you repair, rebuild, or replace damaged, d e s t r o y e d or stolen covered property within 180 days of the actual c a s h value payment . . . . I f you replace the damaged building structure(s) at an address other th a n shown on the Policy Declarations through construction of a n e w structure or purchase of an existing structure, such r e p la c e m e n t will not increase the amount payable under Building S tr u c tu r e Reimbursement described above . . . . e ) In the event of the total loss of your dwelling and all attached s tr u c tu r e s covered under Coverage A--Dwelling Protection, we will p a y the limit of liability shown on the Policy Declarations for C o v e r a g e A--Dwelling Protection.3 T h e section of the homeowners policy referenced in 5(e), Coverage A Dwelling P r o te c tio n , provides as follows: C overage A D w e llin g Protection P ro p e r ty We Cover Under Coverage A:

The policy limit of liability shown on the Policy Declarations for Coverage A--Dwelling Protection is $105,600.

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No. 09-30035 1 . Your dwelling including attached structures. Structures connected to y o u r dwelling by only a fence, utility line, or similar connection are not c o n s id e r e d attached structures. .... L o s s e s We Do Not Cover Under Coverages A and B: W e do not cover loss to the property described in Coverage A--Dwelling P r o te c tio n or Coverage B--Other Structures Protection consisting of or c a u s e d by: 1 . Flood, including, but not limited to surface water, waves, tidal water or o v e r flo w of any body of water, or spray from any of these, whether or not d r iv e n by wind. Without addressing the section 5(e) total loss provision, the district court h e ld that the measure of the Bradleys' recovery was the ACV under 5(b). The B r a d le y s argue that--contrary to the determination of the district court-- s e c t io n 5(e) of their homeowners policy is the controlling provision in the event o f a total loss,4 and the total loss provision entitles them to the full policy limits o f their homeowners policy. Allstate claims that the plain and unambiguous la n g u a g e of section 5(e) renders it inapplicable where the total loss was caused, in part, by a non-covered peril such as a flood. Allstate further contends that e n fo r c in g the Bradleys' interpretation would lead to the absurd result of r e q u ir in g Allstate to pay the limit of liability for a total loss regardless of how it w a s caused, so long as some portion was caused by a covered peril.

When the cost to repair exceeds the value of the property, the property is considered a total loss. Real Asset Mgmt., Inc. v. Lloyd's of London, 61 F.3d 1223, 1229 (5th Cir. 1995) (citing Dumond v. Mobile Ins. Co., 309 So. 2d 776, 778 (La. Ct. App. 3d Cir. 1975)). It is undisputed that the Bradleys' home was rendered a total loss by Hurricane Katrina.

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No. 09-30035 T h e critical language of section 5(e) provides that "payment for covered lo s s will be by one or more of the following methods . . . In the event of a total lo s s of your dwelling and all attached structures covered under Coverage A -- D w e llin g Protection, we will pay the limit of liability . . . ." (emphasis added). T h is key provision is ambiguous; it is unclear whether the `total loss' must be `c o v e r e d under Coverage A' or merely `your dwelling and all attached structures' m u s t be `covered under Coverage A.' Section 5(e) is therefore "susceptible of two p o s s ib le meanings: (1) in the event of a total loss, [Allstate] is required to pay the h o m e o w n e r the agreed full value of the policy as long as a covered loss causes s o m e damage to the property, even if a non-covered peril renders the property a total loss; or (2) [Allstate] is only required to pay the homeowner the agreed f a c e value of a policy when the property is rendered a total loss by a covered lo s s ." Chauvin v. State Farm Fire & Cas. Co., 495 F.3d 232, 238 (5th Cir. 2007). I n Chauvin v. State Farm Fire & Casualty Co., we concluded that a similar p r o v is io n contained in Louisiana's VPL statute was ambiguous. Id. at 238. The p i v o t a l language in the statute stated that "in the case of a total loss the insurer s h a ll compute and indemnify or compensate any covered loss of, or damage to s u c h property. . . at such valuation without deduction. . . ." Id. Finding that the p r o v is io n was "susceptible of two possible meanings," the Court then interpreted th e statute in a manner that best conformed to the purpose of the law. Id. After c a re fu lly examining the legislative intent and history behind the VPL law, the C o u r t held that "the VPL only requires an insurer to pay the agreed face value o f the insured property if the property is rendered a total loss from a covered p e r i l." Id. at 239.

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No. 09-30035 U n lik e in Chauvin, here an insurance policy is at issue rather than a s ta t u t e . Under Louisiana insurance law, ambiguities in a policy are construed in favor of the party seeking coverage: an "ambiguous contractual provision is t o be construed against the insurer who furnished the policy's text and in favor o f the insured finding coverage." Peterson, 729 So. 2d at 1029 (citing LA. CIV. C ODE art. 2056); see also Pareti v. Sentry Indem. Co., 536 So. 2d 417, 420 (La. 1 9 8 8 ) (citing Albritton v. Fireman's Fund Ins. Co., 70 So. 2d 111, 111 (La. 1954)). T h e r e fo r e , because the language of the insurance contract is plainly susceptible t o more than one reasonable interpretation, subsection 5(e) must be construed in favor of the Bradleys. R e q u ir in g payment of the policy limits under the total loss provision, s u b je c t to reductions for non-covered losses under the policy, is consistent with t h e outcome in Real Asset Management v. Lloyd's of London, 61 F.3d 1223 (5th C ir . 1995). There we found that the Louisiana VPL required that the insurer pay t h e policy limits where Hurricane Andrew destroyed the insured property, r e s u ltin g in a total loss. Id. at 1229. We held, however, that the policy limits o w e d for the total loss were subject to reduction for the insured's failure to m it ig a t e the loss. Id. at 1230. The question of "the extent of damages that can b e shown to have been caused by the [insured's] failure to mitigate" was r e m a n d e d with the instruction that "the [insurer] bears the clear burden to show w h a t extent of damages should be mitigated." Id. Additionally, nothing in subsection 5(e) or Coverage A--Dwelling P r o te c tio n indicates that the provision is triggered only in the case of a total loss t h a t is completely caused by a covered event. Rather, the intent of the parties a p p e a r s to be to prevent, in the event of a total loss, a dispute regarding whether

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No. 09-30035 t h e loss should be valued at an amount different from the value of the home lis t e d on the policy. In other words, the contract bars either party from arguing a ft e r the loss that the insured property had a greater or lesser value than the p o l ic y amount. N o r does the Bradleys' interpretation of the total loss provision lead to the a b s u rd consequences that Allstate insists will result. Allstate asserts that the B r a d l e y s ' reading of the policy would necessarily mean that an insured whose h o u s e incurs only one dollar in wind-related damages, such as a few shingles b lo w n off the roof, but also suffered devastating flood damage, would be entitled t o receive the full limits of their policy.5 But section 5 clearly addresses the m e th o d s of "payment for covered losses." Thus, Allstate is permitted to withhold p a y m e n t for non-covered losses. Therefore, under the total loss provision the Bradleys are entitled to r e c o v e r up to the Coverage A policy limit of $105,600 for covered losses. The d is t r ic t court erred by ignoring the total loss provision under section 5(e) and g ra n tin g summary judgment to Allstate based on ACV under section 5(b). 2 . Louisiana Insurance Law: Actual Cash Value T h e district court found that the ACV of the Bradley's home was $97,000 b e c a u s e the market value of the Bradleys' home at the time that it was destroyed d id not exceed $97,000. Allstate contends that the district court correctly d e t e r m i n e d the ACV of the Bradleys' home based on its pre-storm value and a p p r o p r ia t e ly held that they were not entitled to recover further payment under

Allstate's interpretation suffers from its own reductio ad absurdum. By Allstate's logic, a home with a minor amount of termite damage, which catches fire and burns to the ground, would not trigger section 5(e) because the policy excludes loss caused by "insects, rodents, birds, or domestic animals."

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No. 09-30035 t h e ir homeowners policy. The Bradleys argue that ACV is properly calculated as t h e replacement value of the home less depreciation, but that--regardless-- A C V is not the correct measure of their potential recovery. "T h e touchstone for . . . determining actual cash value is the basic p r in c ip le that an adequately insured person should incur neither economic gain n o r loss when his property is destroyed . . . ." Bingham v. St. Paul Ins. Co., 503 S o . 2d 1043, 1045 (La. App. 2d Cir. 1987). The homeowners policy does not define A C V . Louisiana law defines ACV as "reproduction cost less depreciation." H a c k m a n v. EMC Ins. Co., 984 So. 2d 139, 143 (La. App. 5th Cir. 2008) (citing R ea l Asset Mgmt., 61 F.3d at 1228 n.7); see also La. Dept. Ins., Insurance B u lle t in No. 06-06 ("ACV is the amount needed to repair or replace the damaged o r destroyed property, minus the depreciation.").6 ACV is determined by c a lc u la t in g the cost of duplicating the damaged property with new materials of lik e kind and quality, less allowance for physical deterioration and depreciation.

Available at http://www.ldi.state.la.us/docs/CommissionersOffice/legal/Bulletins/ Bul06_06_Cur_CommercialAndHomeown.pdf.

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No. 09-30035 R ea l Asset Mgmt., 61 F.3d at 1230-31.7 Actual cash value is not necessarily s y n o n y m o u s with market value at the time of the loss. Id. at 1227-28. T h u s , ACV is computed as the cost of replacing the building as it existed a t the time of the accident, taking into account the replacement costs within a r e a s o n a b le time after the accident, minus depreciation. The district court erred b y calculating ACV based on the pre-storm market value of the house and h o ld in g that there were no disputed issues of material fact regarding the ACV o f the Bradleys' home. 3. Louisiana Insurance Law: No Double Recovery A n insured party in Louisiana may generally "recover under all available c o v e r a g e s provided that there is no double recovery." Cole v. Celotex, 599 So. 2d 1 0 5 8 , 1080 (La. 1992) (quoting 15A Couch on Insurance § 56:34 (2d ed. 1983)); s e e also Albert v. Farm Bureau Ins. Co., 940 So. 2d 620, 622 (La. 2006) (". . . L o u is ia n a law does not allow for double recovery of the same element of d a m a g e s." ). The fundamental principle of a property insurance contract is to

In Bingham v. St. Paul Ins. Co., the Louisiana Court of Appeals explained: This court had occasion to establish the definition of the term "actual cash value" as limited by the term "not exceeding the amount which it would cost to repair or replace the property with material of a like kind and quality." In Mercer v. St. Paul Fire and Marine Insurance Company, 318 So. 2d 111 (La. App. 2d Cir. 1975), we approved the assessment in Reliance Insurance Company v. Board of Supervisors, Louisiana State University Agricultural and Mechanical College, 255 F. Supp. 915 (E.D. La. 1966), that in determining actual cash value, the court should consider original cost, possible appreciation and depreciation, the nature of the property lost and the current replacement cost. This court further stated that "[t]he touchstone for the court in determining actual cash value is the basic principle that an adequately insured person should incur neither economic gain nor loss when his property is destroyed by fire." 503 So. 2d at 1045.

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No. 09-30035 in d e m n ify the owner against loss, that is "to place him or her in the same p o s i t io n in which he would have been had no [accident] occurred." Berkshire M u t. Ins. Co. v. Moffett, 378 F.2d 1007, 1011 (5th Cir. 1967). Consequently, " w h ile an insured may not recover in excess of his actual loss, an insured may r e c o v e r under each policy providing coverage until the total loss sustained is in d e m n if ie d ." Cole, 599 So. 2d at 1080 (quoting Appleman, Insurance Law and P r a c tic e § 5192 (1981)). a. Measure of Loss for Purposes of Determining Double Recovery As discussed above, the district court incorrectly found that the ACV of the B r a d l e y 's home was $97,000 because the evidence established that the market v a lu e of the Bradleys' home did not exceed $97,000 at the time that it was d e s t r o y e d by Hurricane Katrina. The court held that because the Bradleys had a lr e a d y collected $105,139.06 from flood and homeowners coverage combined, a n y additional recovery would amount to a double recovery. Relying upon Cole v . Celotex, the district court therefore held that the Bradleys were not entitled t o further recovery as a matter of law. A l ls t a te contends that the Bradleys were not entitled to recover any fu r t h e r payment under their homeowners policy because they have already r e c o v e r e d the ACV of the property, relying on the incorrect definition of ACV.8

As stated above, the correct measure of ACV under Louisiana law is replacement cost minus depreciation. Further, Allstate's position that actual loss for purposes of double recovery should be based on the pre-storm market value of the home would effectively invalidate the total loss provision of the policy. The policy limits and premium for the policy reflect Allstate's estimate of the home's pre-storm value. Real Asset Mgmt., 61 F.3d at 1227-28. Yet according to Allstate's interpretation, if the home were completely destroyed by wind, then Allstate would still not be required to pay the policy limits ($105,600) because the payment would exceed the pre-storm value ($97,000). This reads the total loss provision out of the contract and amounts to a windfall for Allstate. Such a construction does not reflect the intent of the parties, as expressed by the words of the policy. See LA. CIV. CODE art. 2049 ("A provision

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No. 09-30035 A n y further payment, Allstate insists--and the district court found--would a m o u n t to a double recovery and windfall to the Bradleys. The Bradleys argue t h a t the district court should have used their expert's estimate of the "cost of r e b u ild or replace" as the proper measure of damages for determining whether th e r e has been a double recovery. In order to determine whether there has been a double recovery by an in s u r e d party, the court must ascertain actual loss relative to amounts already r e c o v e r e d under the homeowners policy and other insurance coverages. In the c o n t e x t of evaluating double recovery--or whether any of the insured's losses r e m a in uncompensated--the insured's scope of recovery is measured by the a c t u a l loss, not by the total amount of insurance coverage. A review of decisions under Louisiana law demonstrates that actual loss h a s alternately been measured by the cost of repair, replacement, or A C V -- d e p e n d in g on the circumstances of each case.9 Recovery for up to the a m o u n t of replacement costs turns on whether those additional costs have been o r will be incurred. Using replacement costs as the measure of actual loss only in such limited circumstances squares with the general principles of double
susceptible of different meanings must be interpreted with a meaning that renders it effective and not with one that renders it ineffective."). The district courts of the Eastern District of Louisiana, presiding over the bulk of the Louisiana Hurricane Katrina insurance disputes, have adopted varying positions. See Davis v. Allstate Ins. Co., No. 07-4572, 2009 WL 122761 (E.D. La. Jan. 15, 2009) (measuring the scope of loss for double recovery purposes by "the value of the property" without articulating how the value is determined); Creecy v. Metro. Ins. Co., 06-9307, 2008 WL 4758625 (E.D. La. Oct. 30, 2008) (analyzing double recovery in terms of total cost of repair to insured's home); Johnson v. State Farm Fire & Cas. Co., No. 07-1226, 2008 WL 2178059 (E.D. La. May 19, 2008) (measuring scope of loss for double recovery purposes by cost of rebuilding destroyed home); Wellmeyer v. Allstate Ins. Co., No. 06-1585, 2007 WL 1235042, at *3-4 (E.D. La. Apr. 26, 2007) (noting a dispute of fact as to whether the "value" was properly characterized by prestorm actual cash value or some other measure of value).
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No. 09-30035 r e c o v e r y ; replacement costs constitute recovery of a different element of damages t h a n ACV. See Albert, 940 So. 2d at 622 ("Louisiana law does not allow for d o u b le recovery of the same element of damages"). Where contested, the proper m e a s u r e of actual loss, like the measure of recovery under the policy, is a q u e s tio n of fact. See Bennett v. State Farm Ins. Co., 869 So. 2d 321, 325-26 (La. A p p . 3d Cir. 2004) (question of fact whether, under insurance coverage, carport r e q u ir e d repair or replacement); Higginbotham v. New Hampshire Indem. Co., 4 9 8 So. 2d 1149, 1151-52 (La. App. 3d Cir. 1986) (question of fact whether, under in su ra n ce coverage, roof required repair or replacement). T h u s , the contested question of whether the appropriate measure of the B r a d le y s' actual loss is the cost to rebuild presents a genuine issue of material fa ct . The fact-finder must evaluate whether the Bradleys may recover rebuilding c o s t s based on their professed intent to rebuild. The fact-finder must then a d d it io n a lly decide whether the Bradleys' expert's estimate of $265,427 r e p r e s e n t s a reasonable figure for rebuilding costs. Subtracting insurance p a y m e n ts already received 1 0 results in the losses still recoverable under the

The double recovery rule applies to all available coverages--an insurer may not benefit from offsets for payments received by the insured from the United States Small Business Association (SBA) or Road Home Program. See Cole, 599 So. 2d at 1080 (an insured may "recover under all available coverages provided that there is no double recovery"). Rather, the SBA and Road Home programs are government incentives to return to New Orleans and to offset the costs of returning home where the costs associated with returning far exceed the amounts recoverable to insureds under their policies. See Metoyer v. Auto Club Family Ins. Co., 536 F. Supp. 2d 664, 670-71 (E.D. La. 2008) (Louisiana Recovery Authority benefits paid to insured homeowner do not result in a credit against homeowners insurance liability because "it could not have been the intention of the Federal Government grant writers, or the Louisiana Legislature that insurance companies should benefit from the provisions of the LRA").

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No. 09-30035 h o m e o w n e r s policy, subject to the policy limits.1 1 Alternatively, if the fact-finder c o n c lu d e s that the Bradleys are not rebuilding or replacing, then the starting p o in t for the double recovery analysis would be the ACV of their property. B e c a u s e the district court treated ACV as synonymous with the pre-storm m a rk e t value of the Bradleys' home, it incorrectly held that there was no e v id e n c e suggesting the Bradleys had uncompensated losses. b . Covered v. Excluded Losses T h e Bradleys additionally argue that because of the mutually exclusive n a tu r e of the wind and flood policies, the distinct coverages preclude double r e c o v e r y for the same element of damages. They assert that the district court e r r e d in its order-of-operations; after the court determines which contractual p r o v is io n of the policy controls, the Bradleys claim that the district court's next s te p must be evaluating whether the losses resulted from covered or excluded c a u s e s . They aver that only after the fact-finder 1 2 segregates damages caused by

If the fact finder decides that the Bradleys' actual loss is rebuilding costs and their expert's estimate of $265,427 is reasonable, then deducting their combined flood and homeowners policy payments of $105,139.06 from the estimated rebuilding cost of $265,427, the Bradleys' remaining uncompensated loss is $160,287.94. Generally, it is the task of the fact-finder to apportion the damage caused by wind and the damage caused by flood. Dickerson v. Lexington Ins. Co., 556 F.3d 290, 295 (5th Cir. 2009). As we explained in Dickerson: Under Louisiana law, the insured must prove that the claim asserted is covered by his policy. Once he has done this, the insurer has the burden of demonstrating that the damage at issue is excluded from coverage. Thus, once [the insured] proved his home was damaged by wind, the burden shifted to [the insurer] to prove that flooding caused the damage at issue, thereby excluding coverage under the homeowners policy. As no one disputes that at least some of the damage to the [the insured's] home was covered by the homeowners policy, [the insurer] had to prove how much of that damage was caused by flooding and was thus excluded from coverage under its policy. Id. (internal citations omitted).
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No. 09-30035 w in d and those caused by flood, will it be discernible whether there will be a d o u b le recovery by the insured. The district court's summary judgment ruling a d d r e s s e d the issue of double recovery first, and granted summary judgment b e fo r e reaching the contested issue of causation. A n insured "whose property sustains damage from flood and wind can c le a rly recover for his or her segregable wind and flood damages except to the e x t e n t that he seeks to recover twice for the same loss." Johnson v. State Farm F ir e & Cas. Co., No. 07-1226, 2007 WL 2178059, at *2 (E.D. La. May 19, 2008) (c it in g Weiss v. Allstate Ins. Co., No. 06-3774, 2007 WL 891869, at *2 (E.D. La. M a r . 21, 2007)). Insureds are entitled to recover any previously uncompensated lo s s e s that are covered by their homeowners policy and which, when combined w ith their flood proceeds, do not exceed the value of their property. Id. The h o m e o w n e r s and flood insurance policies provide distinct coverages; each p r o t e ct s against a different form of damage. See Ferguson v. State Farm Ins. Co., N o . 06-3936, 2007 WL 1378507, at *4 (E.D. La. May 9, 2007) ("While it is true t h a t plaintiffs paid for two separate policies, one homeowners and one flood, that d o e s not equate to double coverage in the event of a given loss. The flood policy is not excess insurance. Instead, it covers a loss not covered by the homeowner p o lic y ."). The interplay between the segregation of flood and wind losses and the d o u b le recovery rule ensures that proper adjustment by the insurance companies o r segregation of covered and excluded damages will, in theory, prevent the in s u r e d from receiving a double recovery.1 3
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As discussed in Ferguson: Plaintiffs achieved full coverage by having two policies, so that either homeowner or flood insurance would cover any loss in full, or at least to the value they selected in their contracts. Plaintiffs could have purchased more insurance coverage on either policy by paying higher premiums. By choosing a

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No. 09-30035 But payments under flood policies, like any insurance disbursement, may n o t always be entirely accurate. Fundamentally, Allstate and the Bradleys d i s p u t e who receives the potential windfall from an overpayment by the flood p o l ic y .1 4 As the Bradleys advocate, by first segregating losses into those covered b y wind and flood, and allowing the insured to collect all the proceeds for losses c a u s e d by wind--regardless of prior payments from flood insurance--the insured w o u ld receive the benefit of an overpayment by the flood insurance. If the in s u r e d were to collect flood overpayments plus the correct wind payments, r e c o v e r y under wind and flood insurance coverages combined would exceed a c tu a l losses; the insured would be receiving an unlawful double recovery. Therefore, the district court first evaluates whether the insured has a l r e a d y been fully compensated by payments under wind and flood insurance. I f the court concludes that the homeowners' insurer is not liable for further p a y m e n ts to the insured because additional payments would result in a double r e c o v e r y , then the homeowners' insurer effectively receives the benefit of the o v e r p a y m e n t by the flood insurance. Whether "the flood insurance overpayments

lower level of coverage, the plaintiffs assumed some of the risk of any potential loss for the benefit of a lower premium. . . . Ferguson, 2007 WL 1378507, at *4. The Bradleys' flood policy is a write-your-own policy under the National Flood Insurance Program (NFIP). The purpose of the NFIP is "to provide flood insurance protection to property owners in flood-prone areas under national policy promulgated by the Federal Emergency Management Agency (FEMA)." National Flood Insurance Act of 1968, Pub. L. No. 90-448, §§ 1302-1376, 42 U.S.C. §§ 4001-28. Congress also adopted a program to permit insurance companies to write their own flood insurance policies, remitting the premiums to the National Flood Insurance Administration. See 44 C.F.R. § 62.23-24. Write-your-own companies draw money from FEMA through letters of credit to disburse claims. Id. Consequently, United States Treasury funds are used to pay the insured's claims. See Gowland v. Aetna, 143 F.3d 951, 955 (5th Cir. 1988).
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No. 09-30035 . . . would have to later be returned to the federal government is not at issue h e r e . . . ." Ferguson, 2007 WL 1378507, at *5 n.34. But it is worth noting that the b e n e fit will not necessarily serve to enrich the insurer, because NFIP policies c o n ta in a subrogation clause providing: Whenever we make a payment for a loss under this policy, we are s u b r o g a t e d to your right to recover for that loss from any other p e r s o n . That means that your right to recover for a loss that was pa rtly or totally caused by someone else is automatically transferred t o us to the extent that we have paid you for the loss . . . . If you m a k e any claim against any person who caused your loss and r e c o v e r any money, you must pay us back first before you may keep a n y of the money. 4 4 C.F.R. 61.13, App. A(1) subsection (VII)(S) (2002). B e c a u s e Louisiana's double recovery bar prevents the insured from r e c o v e r in g in excess of actual loss, a district court does not necessarily err by e v a lu a tin g double recovery prior to the resolution of disputed issues of causation. W h e r e the value of the property in question has been conclusively established, a district court may find as a matter of law that the insured is limited to a s p e c ific recovery. Lambert v. State Farm Fire & Cas. Co., 568 F. Supp. 2d 698, 7 0 3 (E.D. La. 2008) (citing Broussard v. State Farm Fire & Cas. Co., No. 068 0 8 4 , 2007 WL 2264535, at *5 (E.D. La. Aug. 2, 2007). But where the insurer has n o t conclusively established the value of the property or the cost to rebuild--as h e r e -- t h e court cannot find as a matter of law that the insured is limited to a s p e c ific recovery based on the insurer's asserted valuation of the property. Id. c. Application of Total Loss Provision and No Double Recovery For the reasons discussed above, the total loss provision in section 5(e) d i c ta t e s that the Bradleys are entitled to recover the full policy limits for covered

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No. 09-30035 lo s s e s , subject to the prohibition against double recovery.1 5 Whether additional r e c o v e r y by the Bradleys amounts to a double recovery depends on whether their a ct u a l loss is calculated based on rebuilding or replacement costs, or ACV.1 6 The a p p r o p r ia te measure of actual loss presents a question of fact here, because it t u r n s on the contested question of whether the Bradleys will be rebuilding the p ro p e r ty ; Mr. Bradley's sworn testimony that he intended to rebuild the property c r e a te d a genuine issue of material fact. Upon remand, the fact-finder must d e t e r m in e whether to calculate the Bradleys' actual loss according to the cost of r e b u ild in g or replacing, or ACV. The fact-finder must additionally arrive at the p r o p e r figure for actual loss. As long as the Bradleys' combined recovery under t h e ir homeowners and flood policies is less than their actual loss, then the d o u b le recovery rule does not preclude the Bradleys from receiving additional c o m p e n s a tio n under their homeowners policy. Assuming the double recovery rule does not bar further payments to the B r a d le y s , then under the total loss provision they are entitled to recover up to th e policy limits of the homeowners policy. But while the Bradleys would p r e lim in a r ily be entitled to recovery, deductions may be made by Allstate for e x clu d e d losses. The losses attributable to excluded events, specifically floodr e l a t e d damages, raise factual questions inappropriate for summary judgment. U n d e r the Dickerson framework, Allstate bears the burden of establishing how

The Bradleys have recovered $41,339.06 for structural damage and the policy provides for recovery up to $105,600; the policy therefore allows for further recovery of up to $64,260.94 for covered losses. Even if the ACV of the Bradleys' home is less than the policy limits recoverable under the total loss provision, recovery of the policy limits would not amount to a double recovery on that basis alone. Rather, the total loss provision functions as a stipulation as to the amount of the ACV in the event of a total loss.
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No. 09-30035 m u c h of the total loss is attributable to flood damage. Dickerson, 556 F.3d at 295. T h e Bradleys' policy, of course, contains one additional, crucial limitation: by the e x p lic it terms of the contract, Allstate is liable for no more than the stated policy lim it s regardless of the extent of the Bradleys' loss. B . Louisiana Revised Statutes 22:658 and 22:1220 T h e Bradleys asserted claims for bad faith and mental and physical d i s t r e s s under Louisiana Revised Statutes §§ 22:658 and 22:1220 related to u n c o m p e n s a te d loss for damage to their home. A cause of action for penalties under § 22:658 requires a showing that: (1) t h e insurer has received satisfactory proof of loss; (2) the insurer fails to tender p a y m e n t within thirty days of receipt thereof; and (3) the insurer's failure to pay is arbitrary, capricious or without probable cause. LA. REV. STAT. ANN. § 22:658. W it h respect to mental anguish damages, "[t]he conduct prohibited in R.S. 2 2 :65 8 (A )(1 ) is virtually identical to the conduct prohibited in R.S. 22:1220(B)(5): t h e failure to timely pay a claim after receiving satisfactory proof of loss when t h a t failure to pay is arbitrary, capricious, or without probable cause." Sher v. L a f a y e tte Ins. Co., 988 So. 2d 186, 206 (La. 2008) (quoting Reed v. State Farm M u t. Auto Ins. Co., 857 So. 2d 1012, 1020 (La. 2003)). Thus, "a plaintiff a tt e m p tin g to base her theory of recovery against an insurer on [§§ 22:658 and 2 2 : 1 2 2 0 ] must first have a valid, underlying, substantive claim upon which in s u r a n c e coverage is based." Clausen v. Fid. & Deposit Co. of Md., 660 So. 2d 8 3 , 85-86 (La. Ct. App. 1st Cir. 1995). The district court did not speak to the arbitrariness of the insurer's failure t o pay; it instead granted summary judgment in favor of Allstate on the §§ 2 2 : 6 5 8 and 22:1220 claims based on its conclusion that the Bradleys had not c a r r i e d their burden of establishing a valid, underlying breach of contract. 24

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No. 09-30035 B e c a u se the §§ 22:658 and 22:1220 claims are inextricably intertwined with the u n d e r ly in g breach of contract claims, we do not reach the question of entitlement t o recovery under §§ 22:658 and 22:1220. We have held that the district court im p r o p e r l y granted summary judgment on the issue of the uncompensated s tr u c t u r a l damages and we therefore vacate the grant of summary judgment on t h e §§ 22:658 and 22:1220 claims as well, and remand for reconsideration c o n s is te n t with this opinion. C. Loss of Contents of the Home The Bradleys initially filed a loss of contents claim for $36,378, which in c lu d e d loss of jewelry, two flat-screen televisions, digital recording equipment, D V D equipment, VCRs, computers, leather jackets, and a mink coat. The claim r e lie d upon the original purchase price of these items rather than their ACV as r e q u ir e d under the policy.1 7 Mr. Bradley signed a "Personal Property Inventory L o s s Form" for that amount on February 20, 2006. Mrs. Bradley testified that t h e y were unable to obtain verification for many of the items on the list. Allstate d e te r m in e d that only $14,877.39 worth of the claimed contents were recoverable w ith o u t further documentation. After deducting for depreciation, Allstate paid t h e Bradleys $10,632.43, and requested additional documentation as to the r e m a in in g contents. During the discovery process, Allstate propounded the following in te r r o g a to r y :
The section of the policy, "What You Must Do After A Loss," provides in part: (c) separate damaged from undamaged property. Give us a detailed list of the damaged, destroyed or stolen property, showing the quantity, cost, actual cash value and the actual loss claimed. (d) give us all accounting records, bills, invoices and other vouchers, or certified copies which we may reasonably request to examine and permit us to make copies.
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No. 09-30035 I n t e r r o g a to r y No. 13 P r o v id e an itemized statement of all damages sought against A lls ta t e Insurance Company in this action of any kind or nature w h a t s o e v e r , including, but not limited to, any and all compensatory d a m a g e s , penalties and otherwise, and identify all documents r e la tin g thereto. With respect to their contents claim, the Bradleys answered "contents in the a m o u n t of $14,877.16." The Bradleys never attempted to amend their answer p u r s u a n t to Rule 26(e), nor have they argued that this response was error. B a s e d on the Bradleys' failure to put forth any summary judgment e v i d e n c e of the value of the specific items claimed and the answer to I n te r r o g a t o r y No. 13, the district court concluded that there was no genuine is s u e of material fact regarding uncompensated loss of contents, and granted s u m m a ry judgment in Allstate's favor on this issue. Allstate asserts that the d is t r ic t court correctly held that no material facts are in dispute regarding the B r a d le y s ' claim for uncompensated loss of contents. The Bradleys claim that the o r ig in a l, handwritten two-page loss of contents list totaling $36,878 establishes a genuine issue of material fact regarding their recovery under the homeowners p o lic y . Ordinarily, an affidavit in conjunction with a list of lost contents suffices t o raise a genuine issue of material fact. Lambert, 568 F. Supp. 2d at 709. In r e s p o n s e to Allstate's motion for summary judgment, however, the Bradleys did n o t offer even an affidavit as to the value of their lost contents. The failure to a d v a n c e any Rule 56(c) proof, together with the concession in their interrogatory r e s p o n s e ,1 8 demonstrates that no genuine issue of material fact exists as to the

Although interrogatory responses are not binding judicial admissions, FED. R. CIV. P. 33(c), they may be used as evidence for assessing summary judgment, FED. R. CIV. P. 56(c).

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No. 09-30035 v a lu e of the lost contents. Therefore, the district court did not err in concluding t h a t Allstate was entitled to judgment as a matter of law on the claim for loss of contents. D . Additional Living Expenses The policy provides for ALE as follows: 1 . Additional Living Expense a ) We will pay the reasonable increase in living expenses necessary t o maintain your normal standard of living when a direct physical lo s s we cover under Coverage A­Dwelling Protection, Coverage B ­ O t h e r Structures Protection or Coverage C­Personal Property P r o te c tio n makes your residence premises uninhabitable. W h e n the Bradleys evacuated, they initially went to a relative's home in A l a b a m a . Allstate advanced $850 to the Bradleys shortly after the evacuation. A ft e r approximately two or three weeks, the Bradleys moved to Phoenix City, A l a b a m a , and lived in a hotel that was paid for by FEMA for two weeks. The B r a d l e y s then moved to an apartment in Phoenix City, where they lived for th r e e or four months. The Bradleys presented evidence that they participated in a Section 8 housing assistance program and received $179 toward their rent, b e g i n n in g in September 2005. The out-of-pocket cost for rent was $280 per m o n t h , and FEMA reimbursed the Bradleys for two months of rent payments. T h e Bradleys also received $2,000, which FEMA provided to Katrina victims.

See Mahler v. Klein Karoo Landboukooperasie, No. 94-10635, 1995 WL 371037, at *4 n.3 (5th Cir. June 5, 1995) (unpublished) (citing Thurman v. Sears, Roebuck & Co., 952 F.2d 128, 136 n.23 (5th Cir. 1992)). Federal Rule of Civil Procedure 56(c) provides that "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." (emphasis added); see also, Kohler v Jacobs, 138 F.2d 440, 441 (5th Cir. 1943) ("[I]nterrogatories are in the nature of evidence, and . . . may be considered on a motion for summary judgment under Rule 56.").

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No. 09-30035 T h e Bradleys next moved to Columbus, Georgia, where they signed a 12-month le a s e on an apartment, with monthly rent of $600. In June 2007 the Bradleys r e tu r n e d to New Orleans. The district court sua sponte granted summary judgment in favor of the B r a d le y s for ALE incurred while living in Columbus, awarding them $7,200. The d is tr ic t court concluded that Allstate did not act in bad faith in failing to pay A L E because the Bradleys did not present evidence of ALE in a timely manner. T h e Bradleys assert that there exist genuine issues of material fact r e g a r d i n g unpaid ALE. They argue that leases provided to Allstate for the period t h a t they lived outside of New Orleans are sufficient to establish a genuine issue r e g a r d i n g uncompensated expenses, and any payments that they received from S e c tio n 8 and FEMA should not be credited to Allstate. Allstate argues that, by d e fin itio n , the Bradleys' living expenses did not increase during a time period in w h i c h they incurred no expenses because they received payments from other s o u r c e s , such as FEMA. T h e Bradleys have not presented evidence establishing a genuine issue of m a t e r ia l fact regarding further uncompensated ALE; no estimate has been p r o v id e d regarding uncompensated losses. Because the Bradleys have not e s ta b l is h e d any plausible breach of contract for unpaid ALE, there is no basis for a s s e r t in g a bad faith claim against Allstate with respect to unpaid ALE. The d i s tr ic t court did not err in granting summary judgment on both the breach of c o n t r a c t claim and the related bad faith claim for ALE. I V . CONCLUSION T h e district court erred by ignoring the total loss provision of the h om eow n e rs policy, instead relying on the ACV provision and granting summary ju d g m e n t in favor of Allstate based on its conclusion that the double recovery 28

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No. 09-30035 r u le barred further recovery by the Bradleys. The district court also erred by u tiliz in g an incorrect method of calculating ACV, rather than using replacement c o s t minus depreciation as required by Louisiana law. Because the district court g r a n t e d summary judgment on the §§ 22:658 and 22:1220 claims based upon its d e t e r m in a t io n that the Bradleys could not show an underlying breach of c o n tr a ct , we vacate the grant of summary judgment on the §§ 22:658 and 2 2 :1 2 2 0 claims. Lastly, the Bradleys' interrogatory response and absence of Rule 5 6 ( c ) evidence regarding loss of contents demonstrates that, for purposes of s u m m a r y judgment, they failed to meet their threshold burden of proof r e g a r d i n g the loss of contents; the district court did not err in concluding that t h e r e was no genuine issue of material fact regarding uncompensated loss of con ten ts F o r the reasons discussed above, the district court's grant of summary ju d g m e n t is VACATED and REMANDED for consideration consistent with this o p i n io n as to the breach of contract and related bad faith claims for u n c o m p e n s a t e d structural damage to the Bradleys' home. The summary ju d g m e n t is AFFIRMED with respect to the claim for loss of contents and ALE a n d the associated claims of bad faith.

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