Christopher Weiser v. Horace Mann Insurance Co.

Filing

Christopher Weiser v. Horace Mann Insurance Co.

Doc. 0

Case: 09-30665

Document: 00511218790

Page: 1

Date Filed: 08/30/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
August 30, 2010 N o . 09-30665 S u m m a r y Calendar Lyle W. Cayce Clerk

C H R I S T O P H E R WEISER P la in t iff - Appellant v. H O R A C E MANN 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 N o . 2:06-CV-9080

B e fo r e GARZA, DENNIS, and OWEN, Circuit Judges. P E R CURIAM:* F o llo w in g a bench trial, the district court entered judgment in favor of C h r is t o p h e r Weiser ("Weiser") and against Horace Mann Insurance Co. ("Horace M a n n " ). The court, however, awarded Weiser substantially less in property d a m a g e s than he sought. Weiser appeals the judgment, including the court's d e c is io n not to award penalties or full costs.

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

*

Dockets.Justia.com

Case: 09-30665

Document: 00511218790

Page: 2

Date Filed: 08/30/2010

No. 09-30665 T h e case began when Hurricane Katrina damaged Weiser's home in A u g u s t 2005. Weiser held a homeowner's insurance policy issued by Horace M a n n that excluded flood damage.1 Weiser reported the damage to Horace M a n n , which sent an adjuster to his home. The adjuster determined the damage w a s principally caused by flooding, with flood water in the one-story home r e a c h in g over six feet. Based on its adjuster's report, Horace Mann paid Weiser $ 5 9 2 .4 6 for minor exterior structural damage caused by wind. The company d e t e r m in e d any other damage to the home and its contents was caused by flo o d in g and thus not covered under the policy. Weiser disagreed, and in August 2006, filed suit against Horace Mann a lle g i n g that Horace Mann had breached its insurance contract and violated L o u is ia n a good faith law, which, inter alia, requires an insurer to adjust and pay c l a i m s within a statutory time limit. LA. REV. STAT. ANN. §§ 22:658 (2007); 2 2 :1 2 2 0 (2007).2 The statutes allow an insured to recover penalties if any delays w e r e "arbitrary, capricious, or without probable cause." Id. A fte r conducting a bench trial, the district court found flooding caused the m a jo r it y of the damage and held Horace Mann liable only for a relatively small a m o u n t of unpaid exterior damage. The court found that Horace Mann had not b r e a c h e d its good faith duties and denied any penalties. Additionally the court h e ld that Weiser could only recover part of his pre-settlement offer costs under F ED. R. CIV. P. 54(d).3

Weiser held a separate flood policy issued by Fidelity Insurance Co. ("Fidelity"). Fidelity paid Weiser his policy limits for structural and contents damage, which were approximately $5,000 less than the adjusted damages. Fidelity is not involved in this case. LA. REV. STAT. ANN. § 22:658 was redesignated as § 22:1892 in 2009. LA. REV. STAT. AN N . § 22:1220 was redesignated as § 22:1973 in 2009. Because Horace Mann made a FED. R. CIV. P. 68 offer that was greater than Weiser's ultimate recovery, Weiser could only recover pre-offer costs. See Payne v. Milwaukee County, 288 F.3d 1021, 1024 (7th Cir. 2002).
3 2

1

2

Case: 09-30665

Document: 00511218790

Page: 3

Date Filed: 08/30/2010

No. 09-30665 O n appeal from a bench trial, we review conclusions of law and mixed q u e s t io n s of fact and law de novo. Am. Int'l Specialty Lines Ins. Co. v. Res-Care, I n c ., 529 F.3d 649, 656 (5th Cir. 2008) (citation omitted). We review findings of fa c t for clear error. Dickerson v. Lexington Ins. Co., 556 F.3d 290, 294 (5th Cir. 2 0 0 9 ) (citation omitted). In addition, when a court denies full costs to the p r e v a ilin g party under FED. R. CIV. P. 54(d), we review for abuse of discretion. Salley v. E.I. Du Pont de Nemours & Co., 966 F.2d 1011, 1017 (5th Cir. 1992). After a careful review of the briefs, the district court's thorough and t h o u g h t fu l order and reasons, and all relevant portions of the record, we find no r e v e r s ib le error in the district court's judgment on damages and good faith. Furthermore, the district court clearly stated reasons for denying full pres e t t le m e n t costs to Weiser, and we find the decision was not an abuse of d is c r e t io n . See id. A F F IR M E D .

3