Schlosser v. Metropolitan Property & Casualty Insurance Company
Filing
31
ORDER granting 17 Motion for Partial Summary Judgment. Signed by Chief Judge Sarah S. Vance on 9/27/12. (jjs, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ANTHONY SCHLOSSER
CIVIL ACTION
VERSUS
NO: 12-1301
METROPOLITAN PROPERTY AND
CASUALTY INSURANCE COMPANY
SECTION: R
ORDER AND REASONS
Before the Court is defendant Metropolitan Property and
Casualty Insurance Company’s motion for partial summary judgment.
For the following reasons, the Court GRANTS defendant’s motion.
I.
BACKGROUND
This case arises out of a car accident that occurred on
February 8, 2011.1 On that date, a car driven by plaintiff,
Anthony Schlosser, collided with a car driven by Gilberto
Contreras.2 Plaintiff alleges that Contreras rapidly backed into
his car while plaintiff was turning into the parking lot of
Regions Bank in Kenner, Louisiana.3 In support of his insurance
claim, plaintiff attached a police report from the scene of the
accident which supplied an account of Schlosser’s and Contreras’s
statements regarding the accident: “The Reporting Person
1
R. Doc. 1-1.
2
Id.
3
Id.
(RP)[Schlosser] advised involved person one (IP1)[Contreras] hit
the rear left fender of his vehicle (vehicle two) with vehicle
one. The RP [Schlosser] advised as he was attempting to park, IP1
[Contreras] back [sic] out of his parking space and into his
vehicle. IP1 [Contreras] advised the RP [Schlosser] was speeding
in the parking lot and he did not see him.”4
Plaintiff settled his case against Contreras and Contreras’s
insurer for $15,000, the maximum limit of Contreras’s insurance
policy.5 Plaintiff then brought this suit against defendant,
Metropolitan Property and Casualty Insurance Company, plaintiff’s
uninsured and underinsured motorist insurer. Plaintiff alleges
that defendant has failed to make payments in accordance with its
insurance policy.6 Additionally, plaintiff alleges that
Metropolitan’s refusal to pay has been arbitrary and capricious
and seeks penalties pursuant to La. Rev. Stat. Ann. §§ 22:1892,
1973 (2011).7 Defendant now moves for partial summary judgment to
dismiss plaintiff’s claim for penalties.8
4
R. Doc. 17-4.
5
R. Doc. 1-1.
6
R. Doc. 1-1..
7
Id.
8
R. Doc. 17.
2
II.
STANDARD
A.
Summary Judgment 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(a); 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 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) (quoting Wright &
Miller, Fed. Prac. and Proc. Civ. 2d § 2738 (1983)).
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
3
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
nonmovant may not rest upon the pleadings, but must identify
specific facts that establish a genuine issue for trial. Id. at
325; see also 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).
B.
Penalties for Failing to Pay Insurance Claims
Louisiana law authorizes the recovery of bad faith penalties
from insurers under two provisions. Under La. Rev. Stat. Ann. §
22:1892(A)(1), “all insurers . . . shall pay the amount of any
4
claim due any insured within thirty days after receipt of
satisfactory proofs of loss from the insured.” § 22:1892(A)(1).
If an insurer refuses to pay a claim within 30 days of receiving
satisfactory proof of loss, then § 22:1892(B)(1) provides that
the insurer is subject to penalties if its conduct is “found to
be arbitrary, capricious, or without probable cause.” §
22:1892(B)(1). In addition, Section 22: 1973 requires insurers to
act in good faith and provides for penalties if an insurer fails
to pay a claim within sixty days after receipt of satisfactory
proof of loss when “such failure is arbitrary, capricious, or
without probable cause.” § 22:1973(B)(5).
The insured who claims penalties “has the burden of proving
that the insurer has received ‘satisfactory proof of loss’ as a
necessary predicate to a showing that the insurer was arbitrary,
capricious or without probable cause.” Hart v. Allstate Ins. Co.,
437 So. 2d 823, 828 (La. 1983). Further, both § 22:1892 and §
22:1973 must be “strictly construed and should not be invoked
when the insurer has a reasonable basis for denying coverage.” In
re Hannover Corp., 67 F.3d 70, 73 (5th Cir. 1995).
Satisfactory proof of loss is a showing “sufficient to fully
apprise the insurer of the insured’s claim.” Hart, 437 So. 2d at
828; McDill v. Utica Mut. Ins. Co., 475 So. 2d 1085, 1089 (La.
1985). A person who invokes an uninsured motorist provision must
establish that he is “legally entitled to recover.” Hart, 437 So.
5
2d at 828. This requires that he prove that the “insurer received
sufficient facts which fully apprise the insurer” of four
elements: “(1) [that] the owner or operator of the other vehicle
involved in the accident was uninsured or underinsured; (2) that
he was at fault; (3) that such fault gave rise to damages; and
(4) establish the extent of those damages.” McDill, 475 So. 2d at
1089.
III. SATISFACTORY PROOF OF LOSS
Defendant argues that it is entitled partial summary
judgment on plaintiff’s bad faith claims because Schlosser did
not provide it with satisfactory proof of loss. Specifically,
defendant asserts that Schlosser did not establish that the
accident was Contreras’s fault. See Hart, 437 So. 2d at 828
(“‘[L]egally entitled to recover’ mean[s] simply that the
plaintiff must be able to establish fault on the part of the
uninsured motorist which gives rise to damages and prove the
extent of those damages.”).
Plaintiff’s claim for penalties must fail if there “was a
genuine issue as to who was at fault in the accident.” Hart, 437
So. 2d at 828. In Hart v. Allstate Ins. Co., for example, the
Court held that plaintiff did not provide satisfactory proof of
loss because there was a genuine dispute as to fault. Id. There,
the insured informed the insurer that the driver had “switched
6
lanes several times and that the accident occurred in the ‘middle
of both lanes.’” Id. The Court found a genuine dispute as to
fault even though the uninsured motorist admitted fault at the
scene of the accident and was charged with reckless driving. Id.
at 826, 828; cf. McDill, 475 So. 2d at 1090 (finding no dispute
as to fault when no evidence supported insurer’s contention that
insured’s negligence contributed to accident). Accordingly, the
insured in Hart was not entitled to penalties. Id. at 829.
The facts of this case are similar to Hart because the
evidence available to the insurer showed that fault was genuinely
disputed. On August 27, 2011, plaintiff’s counsel filed its claim
with defendant under plaintiff’s uninsured/underinsured motorist
coverage.9 On September 1, 2011, plaintiff’s counsel supplied
defendant with the police report that described the accident.10
Although Schlosser told the police that Contreras backed into the
rear left fender of his vehicle in the parking lot, Contreras
told the police that Schlosser “was speeding in the parking lot
and he did not see him.”11 Contreras’s statement that Schlosser
9
R. Doc. 19-1.
10
R. Doc. 17-3, 17-4. Plaintiff’s counsel had received
the report on February 15, 2011. R. Doc. 17-4.
11
R. Doc. 17-4.
7
was speeding in the parking lot indicated that fault was disputed
when plaintiff submitted his claim to Metropolitan.12
Plaintiff advances a number of arguments in support of his
position, but none has merit. First, he suggests that Contreras’s
statements were contradictory because he said that Schlosser was
speeding and that “he did not see him.”13 Yet, Contreras’s
statement was not necessarily contradictory because it is
possible for Contreras to have noticed that Schlosser was
speeding, but not to have seen him in time to stop. Further, it
is not clear from the police report to whom Contreras was
referring when he said “he” didn’t see him. The statement could
be read that Schlosser was speeding and that it was Schlosser who
did not see Contreras. Nevertheless, it is beyond dispute that
the police report, even under plaintiff’s reading, establishes
that Contreras said Schlosser was speeding at the time of the
accident. Thus, the report submitted with plaintiff’s claim
showed that at the scene of the accident, both drivers blamed
each other. Further, Contreras did not receive a ticket, which is
additional proof that his fault was not obvious.
12
Metropolitan submits that Contreras himself asserted a
claim against Metropolitan as Schlosser’s liability insurer. R.
Doc. 24 at 2. The Court does not credit this assertion because
Metropolitan did not submit any exhibit supporting the existence
of this claim.
13
R. Doc. 17-4.
8
Plaintiff’s second argument is that the location of the
damage to plaintiff’s car indicates that the accident was
Contreras’s fault. The argument is likewise unpersuasive because
it does not necessarily counter the statement in the report that
Schlosser was speeding. Plaintiff’s last argument is that
Contreras’s insurance company settled the claim for $15,000.
Settlement of a claim does not amount to an admission of
liability; instead, it is merely reflects a choice by the insurer
not to defend the suit. The insurer’s position as to who was at
fault would not bind defendant in this case. See Hart, 437 So 2d.
823 at 828 (noting that an admission of fault by an uninsured
driver is not binding on insurer).
Thus, the record establishes that a dispute existed as to
who was at fault when plaintiff submitted his claim, which
provided a reasonable basis for Metropolitan to defend the suit.
Accordingly, Metropolitan is entitled to partial summary judgment
on plaintiff’s bad faith claim because statutory penalties are
not available when the insurer has a reasonable basis to defend
against coverage. See In re Hannover Corp., 67 F.3d 70, 73 (5th
Cir. 1995); Saavedra v. Murphy Oil U.S.A., Inc., 930 F.2d 1104,
1111 (5th Cir. 1991); Block v. St. Paul Fire & Marine Ins. Co.,
742 So. 2d 746 (La. Ct. App. 1999) (noting that penalties should
not be applied “where there is a reasonable and legitimate
question as to the extent and causation of a claim; bad faith
9
should not be inferred from an insurer’s failure to pay within
the statutory time limits when such reasonable doubts exist”)
(emphasis added).
IV.
NO ADDITIONAL DISCOVERY IS NECESSARY
Plaintiff asks for additional discovery before the Court
decides this motion. But whether an insurer’s refusal to pay is
“arbitrary, capricious, or without probable cause depends on the
facts known to the insurer at the time of its action.” Reed v.
State Farm Mut. Auto. Ins. Co., 857 So. 2d 1012, 1021 (La. 2003).
Further discovery is therefore unnecessary because the record
contains the facts made known to the insurer upon which plaintiff
relies for his penalties claim. These facts establish a dispute
as to fault at the time the insurer acted, and the existence of
this dispute is dispositive of this motion as a matter of law.
V.
CONCLUSION
For the foregoing reasons, defendant’s motion is GRANTED.
New Orleans, Louisiana, this 27th day of September, 2012.
__
_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
10
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?