James et al v. Hanover Insurance Company

Filing 23

ORDER AND REASONS the Court GRANTS defendant's motion to reopen the case 17 and GRANTS defendant's motion for summary judgment 9 . Plaintiffs' claims are DISMISSED WITH PREJUDICE.. Signed by Chief Judge Sarah S. Vance on 7/12/13.(jjs, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
GREGORY JAMES, ET AL.

CIVIL ACTION

VERSUS

NO: 11-2610

HANOVER INSURANCE COMPANY

SECTION: R(2)

ORDER AND REASONS
Before the Court are defendant Hanover Insurance Company's
Motion to Reopen Case, the opposition of plaintiffs Gregory and
Aurora James to Hanover's motion, and defendant's reply. For the
following reasons, the Court GRANTS defendant's motion to re-open
the case and also GRANTS defendant's pending motion for summary
judgment.

I. BACKGROUND
Plaintiffs sued defendant Hanover in state court on
September 2, 2011, alleging that defendant failed to pay coverage
for wind damage to plaintiffs' property resulting from Hurricane
Katrina.1 The case was removed to this Court on October 17, 2011
on the basis of diversity jurisdiction.2 On April 19, 2012,
defendant moved for summary judgment, arguing that it was
entitled to judgment as a matter of law because plaintiffs'
claims were prescribed.3 On the same day, plaintiffs moved for a

1

R. Doc. 1-1.

2

R. Doc. 1.

3

R. Doc. 9.

stay of the proceedings pending the resolution of two cases then
before the Supreme Court of Louisiana that involved the
prescription of Katrina-related claims.4 The Court granted that
motion and ordered this matter stayed and closed "pending final
disposition of" the two cases.5
The two cases, Quinn, et al. v. Louisiana Citizens Property
Insurance Corp., No. 2012-C-0152, and Duckworth v. Louisiana Farm
Bureau Mutual Insurance Co., No. 2011-C-2385, were both decided
on November 2, 2012. On June 18, 2013, defendant filed a motion
to reopen the case and renewed its request for summary judgment.

II. STANDARD
Summary judgment is warranted when “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(c)(2); see also Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075
(5th Cir. 1994). When assessing whether a dispute as to any
material fact exists, the Court considers “all of the evidence in
the record but refrains from making credibility determinations or
weighing the evidence.” Delta & Pine Land Co. v. Nationwide
Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008). All

4

R. Doc. 10.

5

R. Doc. 16.
2

reasonable inferences are drawn in favor of the nonmoving party,
but “unsupported allegations or affidavits setting forth
‘ultimate or conclusory facts and conclusions of law’ are
insufficient to either support or defeat a motion for summary
judgment.” Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216
(5th Cir. 1985); Little, 37 F.3d at 1075.
If the dispositive issue is one on which the moving party
will bear the burden of proof at trial, the moving party “must
come forward with evidence which would ‘entitle it to a directed
verdict if the evidence went uncontroverted at trial.’” Int’l
Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263-64 (5th
Cir. 1991). The nonmoving party can then defeat the motion by
either countering with sufficient evidence of its own, or
“showing that the moving party’s evidence is so sheer that it may
not persuade the reasonable fact-finder to return a verdict in
favor of the moving party.” Id. at 1265.
If the dispositive issue is one on which the nonmoving party
will bear the burden of proof at trial, the moving party may
satisfy its burden by merely pointing out that the evidence in
the record is insufficient with respect to an essential element
of the nonmoving party's claim. See Celotex, 477 U.S. at 325.
The burden then shifts to the nonmoving party, who must, by
submitting or referring to evidence, set out specific facts
showing that a genuine issue exists. See id. at 324. The

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nonmovant may not rest upon the pleadings, but must identify
specific facts that establish a genuine issue for trial. See,
e.g., id. at 325; Little, 37 F.3d at 1075 ("Rule 56 'mandates the
entry of summary judgment, after adequate time for discovery and
upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential to
that party's case, and on which that party will bear the burden
of proof at trial.'" (quoting Celotex, 477 U.S. at 332)).

III. DISCUSSION
A. Motion to Reopen
On May 21, 2012, the Court ordered this matter "stayed and
ADMINISTRATIVELY CLOSED pending final disposition" of Duckworth
and Quinn.6 Both cases were decided on November 2, 2012, and
rehearing was denied in Quinn on January 25, 2013. Yet plaintiffs
argue that Duckworth and Quinn are not "final dispositions"
within the meaning of the Court's Order because the Supreme Court
of Louisiana remanded both cases to the district court for
further proceedings. Thus, plaintiffs contend, the court "did not
resolve all issues" related to Katrina prescription claims.
Plaintiffs are incorrect. Duckworth and Quinn both concerned
the interpretation of La. Code Civ. Proc. art. 596, which
provides in relevant part that "[l]iberative prescription on the

6

R. Doc. 16.
4

claims arising out of the transactions or occurrences described
in a petition brought on behalf of a class is suspended on the
filing of the petition as to all members of the class as defined
or described therein." Duckworth held that this statute suspends
prescription even as to a class member who brought an individual
lawsuit before resolution of the class certification issue.
Duckworth v. La. Farm Bureau Mut. Ins. Co., No. 2011-C-2835, 2012
WL 5374248, at *2 (La. Nov. 2, 2012). In other words, a putative
class member who elects to file a separate suit before the class
is certified does not effectively "opt out" of the class action
and forfeit the benefit of the suspension of prescription. Id. at
*7. Quinn held that Article 596 applies only to class actions
brought in the State of Louisiana; it "do[es] not extend to
suspend prescription on claims asserted in a putative class
action filed in a federal court." Quinn v. La. Citizens Prop.
Ins. Corp., No. 2012-CC-0152, 2012 WL 5374255, at *1 (La. Nov. 2,
2012). In both cases, the court remanded in order that the
district court could address the remaining issues in the cases in
a manner consistent with the prescription-related holdings.
Quinn and Duckworth are "final dispositions" in that they
resolved "the prescription issues regarding Hurricane Katrina
cases" on which plaintiffs wanted "guidance"7 before the Court
ruled on defendant's motion for summary judgment. Cf. Int'l Tel.

7

R. Doc. 10-1.
5

& Tel. Corp., Commc'ns Equip. & Sys. Div. v. Local 134, Int'l
Bhd. of Elec. Workers, AFL-CIO, 419 U.S. 428, 443 (1975)
(defining the term "final disposition" as used in the
Administrative Procedure Act as a ruling that has "some
determinate consequences for the party to the proceeding"). It is
highly doubtful that any further issues related to the
interpretation of Article 596 will be clarified by further
proceedings in Quinn and Duckworth. Accordingly, the Court finds
it appropriate to reopen this case.
B. Motion for Summary Judgment
The Court also has before it the parties' submissions on
defendant's motion for summary judgment that were filed before
this matter was stayed. The Court, having considered those
submissions, as well as the impact of Duckworth and Quinn (if
any) on this case, determines that plaintiffs' claims are
prescribed, and summary judgment for defendant is appropriate.
This Court applies the Louisiana prescriptive period to
diversity cases. Holt v. State Farm Fire & Cas. Co., 627 F.3d
188, 191 (5th Cir. 2010). Under Louisiana law, the burden of
proving that a suit has prescribed generally rests with the party
asserting prescription. Taranto v. La. Citizens Prop. Ins. Corp.,
62 So.3d 721, 726 (La. 2011). But if a petition is prescribed on
its face, the plaintiff must rebut the resulting presumption of

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prescription by establishing that prescription has been suspended
or interrupted. Id.
The prescriptive deadline for insurance claims for property
damage resulting from Hurricane Katrina was September 1, 2007.
The Louisiana Legislature's Act 2006, No. 802, passed in response
to the devastation wrought by Katrina, provides as follows:
[A]ny claim seeking to recover for loss or damage to
property against an insurer on any homeowner's insurance
policy . . . when such loss or damage was caused by or as
a result of Hurricane Katrina . . . shall be instituted
on or before August 30, 2007, and suit not instituted
within that time and any claims relating thereto shall be
forever barred unless a contract or the parties thereto
provide for a later date.
Taranto, 62 So.2d at 724 n.3. Plaintiffs' suit was filed
September 2, 2011, four years after the prescriptive period for
Katrina-related insurance claims elapsed. Thus, plaintiffs'
claims are facially prescribed, and the plaintiffs must prove
that prescription was suspended.
In an attempt to discharge this burden, plaintiffs assert
that their claims are "still viable due to the class action
titled Louisiana State, et al. v. AAA Insurance, et al." (the
"Road Home litigation"), originally filed in state court.8 They
also contend that they were a member of plaintiffs' classes in
"class actions involving Hanover as a defendant after Katrina."9

8

R. Doc. 12 at 2.

9

Id.
7

Plaintiffs' position is apparently that they were members of
either the Road Home class or of other classes in unnamed suits
in which Hanover was a defendant, and consequently that the
filing of those suits tolled the prescriptive period for their
insurance claims pursuant to La. Civ. Code Proc. art. 596.
Plaintiffs have failed to put forth any evidence in support
of this contention. With regard to the Road Home litigation, that
class was defined in the petition as
[a]ll current and former citizens of the State of
Louisiana who have applied for and received or will
receive funds through The Road Home Program, and who have
executed or will execute a subrogation or assignment
agreement in favor of the State, and to whom insurance
proceeds are due and/or owed for damages sustained to any
such recipient's residence as a result of any natural or
man-made occurrence associated with Hurricane Katrina
and/or Rita under any policy of insurance, as plead
herein, and for which the State has been or will be
granted or be entitled to recover as repayment or
reimbursement of funds provided to any such recipient
through the Road Home program.10
The Road Home Program is a program developed by the state under
which recipients may "apply for grants of funds to assist them in
rebuilding their damaged residences."11 "Any recipient desiring
to receive funds under The Road Home Program had to make written
application for funds by July 31, 2007."12 Plaintiffs have never

10

Louisiana State et al. v. AAA Insurance et al., No.
2:07-cv-05528, R. Doc. 1-1 at 21.
11

Id. at 5.

12

Id.
8

alleged, either in their complaint or their response to
defendant's motion for summary judgment, that they applied for
funds through The Road Home Program.13 To the extent that
plaintiffs mean to suggest that they qualify as class members
because they were eligible to receive benefits under that program
at some point in the past,14 this argument must fail. Because
plaintiffs have not alleged that they applied for benefits before
the July 31, 2007 deadline, they are not –- and never were –members of a class comprising "[a]ll current and former citizens
of the State of Louisiana who have applied for and received or
will receive funds through The Road Home Program."15 Accordingly,
the filing of the Road Home class action could not suspend
prescription of plaintiffs' claims under Article 596. See McGee
v. State Farm Fire & Cas. Co., 2013 WL 702702, at *1 (5th Cir.
Feb. 26, 2013) (affirming district court's conclusion that
prescriptive period for plaintiffs' suit against insurer for
Katrina-related damages was not suspended by the filing of the
Road Home class action because plaintiffs "were neither members
of[,] nor had claims related to[,] the class action in Road
Home").

13

See R. Docs. 1-1, 12.

14

See R. Doc. 12 at 3 (emphasizing the words "all
eligible and/or future recipients").
15

Louisiana State et al. v. AAA Insurance et al., No.
2:07-cv-05528, R. Doc. 1-1 at 21.
9

Similarly, plaintiffs' conclusory assertions that they are
members of classes in unspecified "class actions involving
Hanover as a defendant after Katrina"16 are "not the type of
'significant probative evidence' required to defeat summary
judgment." United States v. Lawrence, 276 F.3d 193, 197 (5th Cir.
2001); see also Little, 37 F.3d at 1075 (noting that nonmovant's
burden to show the existence of a "genuine issue for trial" is
"not satisfied . . . by 'conclusory allegations'" or
"unsubstantiated assertions" (quoting Lujan v. Nat'l Wildlife
Fed'n, 497 U.S. 871, 871-73 (1990))); Galindo, 754 F.2d at 1216
("[U]nsupported allegations or affidavits setting forth 'ultimate
or conclusory facts and conclusions of law' are insufficient to .
. . defeat a motion for summary judgment."). Accordingly,
plaintiffs have not borne their burden to show that prescription
on their claims was suspended. Defendant is therefore entitled to
summary judgment.17 Cf. McGee, 2013 WL 702702, at *1 (affirming
dismissal of suit brought against insurer for Katrina-related
losses that was filed after the prescriptive period ended where

16

R. Doc. 12 at 2.

17

Given this resolution of the case, the Court need not
address defendant's alternative arguments that (1) the
plaintiffs' claims would be prescribed even if they were members
of the Road Home class; and (2) plaintiffs forfeited the benefit
of prescriptive tolling by choosing to file an individual
lawsuit.
10

appellants could not show that they were members of the plaintiff
class in any relevant class actions).
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS defendant's
motion to reopen the case and GRANTS defendant's motion for
summary judgment. Plaintiffs' claims are DISMISSED WITH
PREJUDICE.
New Orleans, Louisiana, this 12th day of July, 2013.
__
_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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