Southern Fidelity Insurance Company v. Martin
Filing
50
ORDER & REASONS: before the Court is Plaintiff Southern Fidelity Insurance Company ("SFIC") Motion for Summary Judgment (Rec. Doc. 22) seeking the dismissal of Defendant Jacquelin Martin's ("Martin") counterclaim against it; as set forth in document, this Court finds that there is a genuine dispute as to the material fact of whether Martin refused to cooperate and to submit to an EUO. Accordingly, Plaintiff SFIC is not entitled to summary judgment in this matter. IT IS HEREBY ORDERED that the motion for summary judgment is DENIED. Signed by Judge Nannette Jolivette Brown on 12/17/2013. (rll, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SOUTHERN FIDELITY INSURANCE COMPANY
CIVIL ACTION
VERSUS
NO. 13-0496
JACQUELIN MARTIN
SECTION: “G”(2)
ORDER AND REASONS
This litigation arises out of Defendant Jacquelin Martin's (“Martin”) claim for insurance
proceeds pursuant to her homeowners insurance policy with Plaintiff Southern Fidelity Insurance
Company (“SFIC”). On March 15, 2013, SFIC filed a complaint seeking declaratory judgment that:
(1) “both Martin and SFIC fully and completely participate in the Appraisal Process” specified in
the insurance policy; (2) ?the Appraisal Process . . . requires a selection of an Umpire”; and (3) this
Court appoint “a competent and disinterested Umpire.”1 On May 22, 2013, Martin answered the
complaint and filed a counterclaim, wherein she seeks damages for SFIC’s “breech [sic] of its
statutory duty of good faith and fair dealing under Louisiana R.S. 22:658, and Louisiana R.S.
22:1220 of the Louisiana Insurance Code” for SFIC's alleged “failure to tender a reasonable sum to
adequately compensate” Martin in connection with her insurance claim.2
Before the Court is SFIC's motion for summary judgment,3 seeking the dismissal of Martin's
counterclaim against it. SFIC contends that summary judgment should be entered against Martin
because Martin failed to comply with the terms of her SFIC homeowners insurance policy requiring
her to cooperate in the investigation of her claim, specifically by refusing to provide an examination
1
Rec. Doc. 1 at ¶¶ 15-17.
2
Rec. Doc. 12 at p. 6. The Court notes that Martin has cited provisions of the Louisiana Code that have since
been renumbered. See Louisiana R.S. §§ 22:1892 and 22:1973.
3
Rec. Doc. 22-1.
under oath (“EUO”), and so, as a matter of law, her claim should be dismissed. After considering
the pending motion, the memorandum in support, the opposition, the reply, the record, and the
applicable law, the Court will deny the motion.
I. Background
A. Factual Background
This case concerns an insurance dispute over the damage caused by Hurricane Isaac to
Defendant’s home in New Orleans, Louisiana. On or about August 28, 2012, Martin’s home was
damaged when the hurricane passed through the New Orleans area.4 The home was covered by a
homeowners insurance policy issued by SFIC.5 The policy contained a “Duties After Loss” section,
which included a requirement that the insured submit to an examination under oath as well as a
general cooperation clause.6
As a result of the hurricane damage, Martin filed an insurance claim with SFIC.7 The chain
of communication between Martin and SFIC regarding Martin’s claim is disputed by the parties.
According to Martin, on August 29 or August 30, 2012, Martin called her insurance agent
and SFIC’s claims department to report the hurricane damage.8 On September 2, an adjuster
inspected Martin’s house,9 and on September 5, Martin received a letter from the adjuster estimating
4
Rec. Doc. 1 at ¶ 8.
5
Id. at ¶ 7.
6
Homeowners Policy issued by SFIC to Jacquelin Martin, Policy No. LVH 100221070017, Rec. Doc. 22-3
7
Rec. Doc. 1 at ¶ 9.
8
Rec. Doc. 24-1 at p. 3
9
Id.
at p. 29.
2
that repairs would cost $33,094.66.10 Five days later on September 10, Martin states that she
received a payment from SFIC in the amount of $9,147.72 for damage to the house, $11,234.24 for
damage to personal property, and $692.60 for damage to other structures on the land,11 for a total
of $21,074.52. According to Martin, she also received an additional check for $19,200.00 for loss
of use at a later date.12
It is unclear from the record what, if any, communication between the parties occurred
between mid-September 2012 and late-February 2013. But, according to Martin, at various dates
after September 10, SFIC sent “several other persons,” including at least two adjusters, to inspect
the damage to Martin’s home.13
On February 26, 2013, SFIC mailed Martin a “Reservation of Rights” letter.14 In the letter,
SFIC claimed that it had assigned an engineer to inspect Martin’s property but that the engineer had
not been able to conduct the inspection: “The engineer was not allowed to complete his inspection
when first scheduled. The engineer has since set two follow-up dates and has now been told by your
contractor, that he is no longer allowed to inspect the property.”15
On March 14, 2013, one of SFIC’s attorneys, Matthew Monson (“Monson”) at the Monson
Law Firm, mailed Martin a letter requesting that she take part in an examination under oath on
10
Letter from Nicholas Miller, Trinity Insurance Services, to Jacquelin Martin (Sept. 3, 2012), Rec. Doc. 24-5
11
Rec. Doc. 24-1 at p. 4.
12
Id.
13
Id.
14
Letter from Wade Hargrove, SFIC, to Jacquelin Martin (Feb. 26, 2013), Rec. Doc. 22-3 at pp. 78-79.
15
Id.
at p. 8.
3
Monday, April 8, 2013 at 10:00 a.m. in downtown New Orleans.16 The letter also requested that
Martin bring eighteen categories of documents to the examination.17
Martin contends that she called the Monson Law Firm on April 5, 2012 and explained to
attorney Donald Latuso (“Latuso”) that she could not make the scheduled examination “because she
usually watches her granddaughter during the workday.”18 On April 11, Martin mailed a letter to
SFIC stating that she would submit to an examination under oath (“EUO”) “in the presence of my
lawyer and in his office” and that she would notify SFIC of her representation.19 According to
Martin, four days later, on April 15, she called Latuso again and informed him that “I did not
understand what a statement under oath is and that I wanted to obtain a lawyer.”20 Martin asserts that
Latuso told her “that this was fine . . . or words to this effect.”21
On April 16, Monson mailed Martin a letter stating “[t]his will confirm your telephone
conversation of yesterday, April 15, 2013, with our office in which you have stated to this office that
you will not be participating in the examination under oath.”22 On April 23, 2013, Monson sent
16
Letter from Matthew D. Monson, The Monson Law Firm, LLC, to Jacquelin Martin (Mar. 14, 2013), Rec.
Doc. 22-3 at pp. 70-73.
17
Id. at pp. 71-72.
18
Rec. Doc. 24-1 at p. 5.
19
Letter from Jacquelin Martin to Southern Fidelity Insurance (Apr. 11, 2013), Rec. Doc. 24-4 at p. 1.
20
Aff. of Jacquelin Martin (Aug. 5, 2013), Rec. Doc. 24-3 at p. 2.
21
Id.
22
Letter from Matthew D. Monson, The Monson Law Firm, LLC, to Jacquelin Martin (Apr. 16, 2013), Rec.
Doc. 22-3 at p. 75.
4
Martin another letter, again stating that Martin had informed SFIC’s attorneys that she would not
participate in an EUO.23
B. Procedural Background
On March 15, 2013, SFIC filed a complaint seeking declaratory judgment that: (1) “both
Martin and SFIC fully and completely participate in the Appraisal Process” specified in the
insurance policy; (2) ?the Appraisal Process . . . requires a selection of an Umpire”; and (3) this
Court appoint “a competent and disinterested Umpire.”24 On May 22, 2013, Martin answered the
complaint and filed a counterclaim, wherein she seeks damages for SFIC’s “breech [sic] of its
statutory duty of good faith and fair dealing under Louisiana R.S. 22:658, and Louisiana R.S.
22:1220 of the Louisiana Insurance Code” for SFIC's alleged “failure to tender a reasonable sum to
adequately compensate” Martin in connection with her insurance claim.25 SFIC filed its answer to
Martin’s counterclaim on June 12, 2013.26 On July 17, 2013, SFIC filed the pending motion for
summary judgment, seeking dismissal of Martin’s counterclaim.27 On August 6, 2013, Martin filed
an opposition to the motion for summary judgment.28 With leave of the Court, SFIC filed a reply on
August 13, 2013.29
23
Letter from Matthew D. Monson, The Monson Law Firm, LLC, to Jacquelin Martin (Apr. 25, 2013), Rec.
Doc. 22-3 at pp. 76-77.
24
Rec. Doc. 1 at ¶¶ 15-17.
25
Rec. Doc. 12 at p. 6. The Court notes that Martin has cited provisions of the Louisiana Code that have since
been renumbered. See Louisiana R.S. §§ 22:1892 and 22:1973.
26
Rec. Doc. 15.
27
Rec. Doc. 22-1.
28
Rec. Doc. 24-1.
29
Rec. Doc. 29.
5
II. Parties’ Arguments
A. Plaintiff SFIC’s Arguments in Support
In support of the pending motion, SFIC argues that Martin’s counterclaim should be
dismissed due to Martin’s “failure to comply with a condition precedent to coverage.”30 Specifically,
SFIC asserts that Martin failed to comply “by refusing to appear for an examination under oath
(‘EUO’), provide the requested documentation and by refusing to allow the expert retained by SFIC
to complete his evaluation of the property.”31 According to SFIC, “[t]he plain language of the Policy
requires Martin to comply with all policy provisions before filing suit.”32
SFIC maintains that under Louisiana law, it has the right to enforce the conditions of its
policies, including the requirement that Martin submit to an EUO. Citing to the Louisiana Supreme
Court in Oceanonics, Inc. v. Petroleum Distributing Co.,33 SFIC contends that “in the absence of
conflict with statutes or policy, insurers have the same rights as individuals to limit their liability and
to enforce whatever conditions they please upon their obligation.”34 Furthermore, SFIC argues that
a Louisiana statute mandates certain conditions in homeowners policies, including requirements that
the policyholder permit the insurer to inspect the property and that the policyholder submit to
examinations under oath.35
30
Rec. Doc. 22-1 at p. 1.
31
Id.
32
Id.
33
292 So. 2d 190 (La. 1974).
34
Rec. Doc. 22-1 at p. 8 (citing Oceanonics, 292 So. 2d at 192).
35
Id. (citing Louisiana R.S. § 22:1311). The Court notes that Louisiana R.S. § 22:1311 applies to fire insurance
policies, not homeowners insurance policies. Homeowners insurance policies are addressed at Louisiana R.S.
§§ 22:1331-38.
6
Focusing on the EUO requirement contained in Martin’s policy, SFIC maintains that “it is
necessary that the insurer have some means of cross-examining upon the written statement and
proofs of the insured for the purpose of getting at the exact facts before paying the sum claimed of
it.”36 SFIC characterizes the EUO as “an efficient device for expediting the evaluation, settlement
or adjustment of valid claims, and for detecting and discouraging improper or exaggerated claims.”37
It further states that the EUO and other duties to cooperate imposed upon the insured “are intended
in part to avoid litigation by permitting the insurer to fully and fairly evaluate the claim.”
SFIC contends because Martin refused to submit to an EUO, she should not be allowed to
bring suit to recover on her policy.38 According to SFIC,“virtually every court that has discussed this
issue has come to the conclusion that the failure to give the examination under oath, when requested,
is a bar to claim.”39 Specifically, SFIC points to Lee v. United Fire & Casualty Co., a Louisiana
appellate court case.40 According to the SFIC, the court in Lee held that “the insured’s repeated
failure to provide information that was requested by the insurer violated the cooperation clause of
their policy and justified dismissal of their claim with prejudice.”41 SFIC also discusses the Fifth
Circuit’s decision in Mosadegh v. State Farm Fire and Casualty Co.,42 contending that “[t]he Court
noted because Louisiana law teaches the failure to fulfill policy requirements that are conditions
36
Rec. Doc. 22-1 at p. 9.
37
Id.
38
Id. at pp. 11, 13.
39
Id. at p. 13; see also id. at 13-16 (collecting cases).
40
Id. at p. 12 (citing Lee v. United Fire & Cas. Co., 607 So. 2d 685 (La. Ct. App. 1992)).
41
Id.
42
330 F. App’x 65 (5th Cir. 2009) (per curiam).
7
precedent to an insurance policy precludes suit under the policy, [plaintiff’s] failure served as a basis
on which to grant the motion for summary judgment.”43
Preemptively addressing a potential counterargument by Martin, SFIC anticipates that “[t]his
motion will no doubt be met with a response by Martin that with the filing of the lawsuit, SFIC has
the opportunity to take her deposition” and that “[s]he will likely further suggest that somehow cures
any failures on her part for breaking the contract of insurance.”44 SFIC, however, avers that “the
right to take a deposition does not cure the failure to give an examination under oath.”45 To support
its position, SFIC discusses Goldman v. State Farm Fire General Ins. Co.,46 a Florida appellate court
decision. According to SFIC, the Florida state court was “not persuaded that a deposition after suit
obviates any prejudice for the carrier” stemming from the insured’s initial refusal to submit to an
EUO.47 SFIC notes that the Florida court reasoned that “the obligation for an examination under oath
is contractual rather than arising out of the rules of civil procedure.”48
After addressing this potential counterargument, SFIC raises the issue of whether it must
prove that it was prejudiced by Martin’s alleged refusal to submit to an EUO. SFIC begins its
discussion by noting a lack of Louisiana case law directly on point:
Undersigned counsel has located no Louisiana Supreme Court case that has ever discussed
EUOs, which could serve as a critical foundation for this Court’s decision as a Federal Court
applying Louisiana law. Furthermore, as a second tier approach, SFIC suggests that it has
43
Rec. Doc. 22-1 at p. 17.
44
Id. at pp. 17-18.
45
Id.
46
660 So. 2d 300 (Fla. Dist. Ct. App. 1995).
47
Rec. Doc. 22-1 at p. 18.
48
Id.
8
located no Louisiana appellate court case that discusses the fundamental question of whether
“prejudice” must be shown to bar a claim/suit for failing to fulfill the terms and conditions
of the contract of insurance and its requirement for an examination under oath.49
SFIC does, however, point to two cases from Louisiana’s intermediate appellate courts where
the courts denied insurance claims for failure to submit to an EUO:
In Lee v. United Fire and Casualty Company, the Court dismissed the case with prejudice
for failing to give an EUO and commented that the outright refusal to submit to an
examination “is the easy case.” The Louisiana Second Circuit Court of Appeals came to a
similar conclusion in Brantley v. State Farm Insurance Company, where the Court dismissed
the case for failing to comply with the policy coverage provisions by failing to cooperate in
the investigation by giving an EUO and producing documents. There is no discussion in Lee
or Brantley of a requirement of proof of prejudice.50
SFIC also looks to Louisiana statutes, arguing that “a focus of Louisiana codified law further
suggests that to impose a requirement of proof of ‘prejudice’ by SFIC, would be to impose a
requirement that the Louisiana Legislature has not seen fit to impose.”51 Noting that “[t]here are
many codified provisions in Louisiana law that require proof of prejudice,” SFIC contends that “[t]o
the contrary, Louisiana Insurance Code is void of any legislated requirement of proof of prejudice
in a setting as has been presented to this Court.”52
For additional guidance on the issue of prejudice, SFIC revisits the Fifth Circuit’s opinion
in Mosadegh. According to SFIC, the Fifth Circuit “held that it need not pause on the Louisiana law
question because in that case prejudice was demonstrated.”53
49
Id. at p. 20.
50
Id. at p. 20 (citing Brantley v. State Farm Ins. Co., 37,601 (La. App. 2 Cir. 1/28/04); 865 So. 2d 265; Lee,
607 S.2d at 685).
51
Id. at p. 21.
52
Id.
53
Id. at p. 22 (citing Mosadegh, 330 F. App’x at 65).
9
Going outside Louisiana law, SFIC asserts that courts in other jurisdictions view a refusal
to submit to an EUO as per se prejudicial:
Courts in other jurisdictions have explained that, even where prejudice is required as to
certain failures by the insured to cooperate, an EUO is so integral to an insurer’s ability to
gather relevant information that failure to submit to an EUO is sufficient prejudice in and
of itself to void coverage.54
SFIC next contends that “the issue before this Honorable Court has been recently determined
in the Fifth Circuit case of Kerr v. State Farm Fire & Casualty Co.”55 According to SFIC, the Fifth
Circuit, applying Louisiana law, held that “plaintiff’s failure to submit to an EUO and provide
requested documents constituted a material breach of the insurance policy, precluding plaintiff from
recovering in a suit under the policy.”56
SFIC finally contends that even if this Court holds that SFIC must show that it was
prejudiced by Martin’s alleged refusal to submit to an EUO, prejudice does exist in this case.
Quoting the Affidavit of Anthony Hargrove, a claims adjuster at SFIC, SFIC contends that “[a]s a
result of the refusal and delays caused by Martin’s conduct, SFIC can no longer ‘obtain relevant
information concerning the loss while the information is fresh.’”57 SFIC further avers that because
of Martin’s conduct “SFIC will no longer have the opportunity to inspect the Property on a timely
basis.”58
54
Id. at p. 24. In particular, SFIC cites Massachusetts and California case law. See id. at pp. 24-25 (citing
Hanover Ins. Co. v. Cape Cod Custom Home Theater, Inc., 891 N.E. 2d 703 (Mass. App. Ct. 2008); Brizuela v. Calfarm
Ins. Co., 10 Cal. Rptr. 661 (Cal. Dist. Ct. App. 2004)).
55
Id at. p. 29 (citing Kerr v. State Farm Fire & Cas. Co., 511 F. App’x 306 (5th Cir. 2013) (per curiam)).
56
Id. at p. 29.
57
Id. at p. 30 (quoting Aff. of Anthony Hargrove (July 16, 2013), Rec. Doc. 22-3 at pp. 1-3).
58
Id.
10
B. Defendant Martin’s Arguments in Opposition
In opposition to the pending motion, Martin contends that “[t]here are genuine issues of
material fact in this fact-intensive case that preclude Judgment as a matter of law.”59 Furthermore,
Martin challenges the validity of SFIC’s evidence, characterizing it as “hearsay and double
hearsay.”60
Addressing whether she ever refused to submit to an EUO and provide SFIC with requested
documents, Martin maintains that SFIC’s allegations rely exclusively on hearsay:
Plaintiff’s sole Affiant (Mr. Hargrove, Plaintiff’s employee) attaches four letters to his
Affidavit. Plaintiff’s attorneys (who are not Plaintiff’s employees) wrote those letters.
Plaintiff offers them, not to show that the letters were written, but to prove the truth of the
matters asserted in the letters’ contents. Three of those letters are Plaintiffs’ [sic] only
offered proof that Defendant refuses to submit to an Examination Under Oath.61
Martin avers that rather than relying on SFIC’s alleged hearsay, this Court should look to the
statements contained in her affidavit, which are based on “personal knowledge of conversations in
which she participated.”62 Pointing to her affidavit, Martin contends that:
[S]he has always been ready to give her Examination; Mr. Latuso agreed to continue the date
that he set without consulting Defendant in advance; Defendant requested that the rescheduled Examination take place at her attorney’s office with her attorney present; and
Defendant never told Mr. Latuso or anyone else that she would not submit to an Examination
Under Oath.63
59
Rec. Doc. 24-1 at p. 2.
60
Id.
61
Id. at p. 8 (internal citations omitted) (emphasis omitted).
62
Id. at p. 10.
63
Id. (internal citations omitted) (citing Aff. of Jacquelin Martin (Aug. 5, 2013), Rec. Doc. 24-3).
11
Turning to SFIC’s argument that Martin refused to allow an engineer to inspect the damage
to her property, Martin asserts that “Plaintiff’s sole evidence is inadmissible hearsay.”64 Martin
argues that SFIC never identifies the engineer who was allegedly refused access to her property.65
Again, Martin contrasts SFIC’s alleged hearsay evidence with statements contained in her own
affidavit: “I have allowed at least three (3) separate inspectors from Southern Fidelity Insurance
Company to inspect my home as well as an engineer of Southern Fidelity Insurance Company.”66
Regarding SFIC’s contention that it does not have to prove prejudice, Martin first argues that
Louisiana courts have not adopted the out-of-state case law cited in SFIC’s brief.67 Furthermore,
Martin avers that the insurance policy at issue specifically requires that SFIC demonstrate
prejudice.68 Martin points to the language of the “Duties After Loss” section of the policy:
In case of a loss to covered property, we have no duty to provide coverage under this policy
if the failure to comply with the following duties is prejudicial to us. All insureds and their
representatives must see that the following are done: . . .69
According to Martin, “[t]he clear, explicit, general, ordinary, plain and popular meaning of the
words used in this insurance contract require that a refusal to submit to an Examination Under Oath
be proven prejudicial to Plaintiff for it to be grounds for a denial of coverage.”70
Having argued that SFIC must show prejudice, Martin further maintains that there is a
64
Id.
65
Id.
66
Id. at p. 11.
67
Id. at p. 12.
68
Id.
69
Id. (citing Homeowners Policy issued by SFIC to Jacquelin Martin, Policy No. LVH 100221070017, Rec.
Doc. 22-3 at p. 29) (emphasis omitted).
70
Id. at p. 13.
12
disputed issue of material fact as to whether the alleged refusal to submit to an EUO was in fact
prejudicial.71 According to Martin, the existence of prejudice is “usually a fact-intensive inquiry
unsuitable for summary judgment.”72 Martin contends that SFIC’s argument that it was prejudiced
by the lack of timely cooperation from Martin is undermined by the fact that “it [SFIC] waited from
September until April to set Martin’s Examination Under Oath and have her bring documentation
at that time.”73
Finally, Martin asserts that SFIC’s reliance on Lee v. United Fire & Casualty Co. is
misplaced. Martin contends that no other Louisiana case has cited the Lee opinion, and avers that
this Court should not use Lee to “make an Erie guess that the Louisiana Supreme Court would apply
Lee to the facts in this case.”74 Furthermore, Martin distinguishes the case at hand from Lee, arguing
that “there is no refusal to submit to an examination here as there was in Lee,” and that “unlike in
Lee, here the policy requires that a refusal be ‘prejudice to us,’ meaning prejudicial to Plaintiff
[SFIC].”75
C. Plaintiff SFIC’s Reply
In reply, SFIC reiterates its argument that Martin should be barred from pursuing her
counterclaim because she did not comply with her duties under the policy.76 SFIC maintains that “it
71
Id. at p. 15.
72
Id.
73
Id.
74
Id. at p. 14.
75
Id. (citing Homeowners Policy issued by SFIC to Jacquelin Martin, Policy No. LVH 100221070017, Rec.
Doc. 22-3 at p. 29).
76
Rec. Doc. 29 at p. 2.
13
is undisputed that none of the Policy-required conditions, the EUO, appraisal or reinspection, have
occurred at this time,”77 and it further contends that “SFIC has been prejudiced in its multiple
attempts to adjust Martin’s claim.”78 SFIC concludes that its motion for summary judgment should
be granted and that Martin’s counterclaim should be dismissed with prejudice.79 Alternatively, in
the event that this Court denies SFIC’s motion for summary judgment, SFIC contends that this Court
should dismiss Martin’s counterclaim without prejudice “for her failure to comply with conditions
present in the SFIC Policy.”80
Turning to Martin’s contention that SFIC’s motion for summary judgment presents
arguments premised on improper hearsay evidence, SFIC asserts that the affidavit of claims adjuster
Anthony Hargrove is “admissible hearsay pursuant to the business records exception.”81 SFIC
further maintains that the letters from the Monson Law Firm as well as the Reservation of Rights
letter are also admissible as business records.82 Citing United States v. Duncan,83 SFIC contends that
?[t]here is no requirement that the witness who lays the foundation be the author of the record or be
able to personally attest to its accuracy.”84
77
Id.
78
Id.
79
Id.
80
Id.
81
Id. at p. 3.
82
Id. at p. 3.
83
919 F.2d 981, 986 (5th Cir. 1990).
84
Rec. Doc. 29 at p. 4.
14
III. Standard on a Motion for Summary Judgment
Summary judgment is appropriate when the pleadings, the discovery, and any affidavits show
that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.”85 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.”86 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.”87 If the record, as
a whole, could not lead a rational trier of fact to find for the non-moving party, then no genuine issue
of fact exists and the moving party is entitled to judgment as a matter of law.88
The party seeking summary judgment always bears the initial responsibility of informing the
district court of the basis for its motion, and identifying those portions of the record, which it
believes demonstrate the absence of a genuine issue of material fact.89 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.’”90 The nonmoving party can then defeat the motion for summary judgment
by either countering with sufficient evidence of its own or “showing that the moving party’s
85
Fed. R. Civ. P. 56(a); 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).
86
Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008).
87
Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); Little, 37 F.3d at 1075.
88
Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986).
89
Celotex, 477 U.S. at 323.
90
Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263-64 (5th Cir. 1991).
15
evidence is so sheer that it may not persuade the reasonable fact-finder to return a verdict in favor
of the moving party.”91 The nonmoving party may not rest upon the pleadings, but must identify
specific facts in the record and articulate the precise manner in which that evidence establishes a
genuine issue for trial.92
IV. Law and Analysis
A. Applicable Law
This Court’s subject matter jurisdiction was invoked pursuant to 28 U.S.C. § 1332, which
provides original jurisdiction over civil actions between citizens of different states where the matter
in controversy exceeds $75,000. As a federal court exercising diversity jurisdiction, it is “axiomatic”
that this Court must apply Louisiana law to resolve matters of substantive law presented in the
pending motion and “attempt to discern how Louisiana’s highest court would resolve the issues at
hand.”93 Although that doctrine is equally applicable when a federal court is “[a]ddressing an
unsettled area of Louisiana law,” federal courts should “avoid creating new rights and remedies in
Louisiana state law where [the court] lack[s] express statutory authority or clear directive from the
Louisiana Supreme Court.”94
1. Duty to Cooperate Under the Insurance Policy
This dispute arises out of an insurance policy between SFIC and Martin. Under Louisiana
law, “a policy of insurance is a contract between the parties and as between them constitutes the law
91
Id. at 1265.
92
See, e.g., Celotex, 477 U.S. at 325; Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).
93
In re Whitaker Const. Co. Inc., 411 F.3d 209, 209 n.4 (5th Cir. 2005) (citing Erie R. Co. v. Tompkins, 304
U.S. 64 (1938)). The parties do not dispute that the insurance policy is governed by Louisiana law.
94
Id.
16
of the case governed by the rules of interpretation for such agreements.”95 The provision at issue
here, entitled “B. Dutites After Loss,” states:
In case of a loss to covered property, we have no duty to provide coverage under this policy
if the failure to comply with the following duties is prejudicial to us. All insureds and their
representatives must see that the following are done:
...
5.
Cooperate with us in the investigation of a claim;
...
7.
As often as we reasonably require:
a.
Show the damaged property;
b.
Provide us with records and documents we request and permit us to make
copies; and
c.
Submit to an examination under oath, while not in the presence of another
“insured”, and sign the same.96
In LeBlanc v. Davis, the Louisiana Supreme Court explained that the purpose of such provisions is
“to assure the [insurance] company of adequate information in order to evaluate the extent of the
injury and the amount of the damages which might be involved in order to fulfill its obligations
under the contract.”97 The LeBlanc Court characterized these obligations on the part of the insured
as “a condition precedent to his right of recovery.”98 Accordingly, courts have upheld these
95
LeBlanc v. Davis, 223 So. 2d 862, 863 (La. 1969); see also Crabtree v. State Farm Ins. Co., 93-C-0509 (La.
2/28/94); 632 So. 2d 736, 741 (“An insurance policy is a contract between the parties and should be construed using the
general rules of interpretation set forth in the Civil Code.”).
96
Homeowners Policy issued by SFIC to Jacquelin Martin, Policy No. LVH 100221070017, Rec. Doc. 22-3
97
LeBlanc, 223 So. 2d at 864.
98
Id.
at p. 29.
17
provisions and have found that an insured is obligated to cooperate in the insurer's investigation of
the claim.99
2. Breach of a Cooperation Clause and Prejudice to the Insurer
In Lee v. United Fire & Casualty Co., the Louisiana Fourth Circuit Court of Appeal noted
that ?[c]ourts have generally reviewed compliance with insurance policy provisions as a condition
precedent to recovery,” and therefore ?the failure of an insured to cooperate with the insurer has
been held to be a material breach of the contract and a defense to a suit on the policy.”100 The court
elaborated that this is the case regardless of whether ?the failure to cooperate is manifested by a
refusal to submit to an examination under oath or a refusal to produce documents.”101 In Williams
v. Lowe,102 the Louisiana Fifth Circuit Court of Appeal explained that ?[f]or coverage to be excluded
for an insured’s violation of an insurance policy’s cooperation clause, the breach on the part of the
insured must be both material and prejudicial to the insurer.”103 Louisiana courts have not permitted
an insurer to escape liability when the noncompliance with a cooperation clause has been minor,104
99
See, e.g., Hamilton v. State Farm Fire and Cas. Co., No. 11-00024, 2011 WL 5078963, at *2 (E.D. La. Oct.
24, 2011) (Lemelle, J.) (?This Court has recognized that ‘the failure of an insured to cooperate with the insurer has been
held to be a material breach of the contract and a defense to suit on the policy.’”) (quoting Mosadegh v. State Farm Fire
and Casualty Co., No. 07-4427, 2008 WL 4544361, at *3 (E.D. La. Oct. 8, 2008) (Feldman, J.)); Assaf v. Allstate
Indemnity Co., No. 10-1063, 2011 WL 3178551, at *6 (E.D. La. July 27, 2011) (Engelhardt, J.); Jackson v. State Farm
Fire & Cas. Co., No. 06-7207, 2010 WL 724108, at *8 (E.D. La. Feb. 22, 2010) (Vance, C.J.) (?State Farm is correct
in its assertion that, in specific circumstances, an insured's failure to comply with its policy's cooperation clause may
preclude the insurer's liability.”).
100
607 So. 2d at 688.
101
Id. (internal citations omitted).
102
02-355 (La. App. 5 Cir. 10/16/02); 831 So. 2d 334.
103
Id. at 336; see also Desadier v. Safeway Ins. Co., 97-1412 (La. App. 3 Cir. 4/8/98); 712 So. 2d 925, 928
(explaining that the breach ?must be material and prejudicial to the insurer”); Freyou v. Marquette Cas. Co., 149 So. 2d
697, 699-700 (La. Ct. App. 1963) (noting that ?a breach of the cooperation clause must be both material and
prejudicial”).
104
See Lee, 607 So. 2d at 685 (describing how barring an insured from recovering insurance proceeds due to
noncooperation is ?a draconian remedy which we do not ordinarily favor”).
18
but rather have found that the failure to cooperate precludes recovery when the insured engages in
a ?protracted, willful, and apparently bad faith refusal” to comply with a cooperation clause.105
The Louisiana Supreme Court has not yet decided whether prejudice to the insurer must be
demonstrated, or whether the breach of a cooperation clause, under specific circumstances such as
the refusal to submit to an EUO, can be considered prejudicial as a matter of law. However, in
Trosclair v. CNA Insurance, the Louisiana Fourth Circuit Court of Appeal stated that ?in a motion
for summary judgment where coverage is denied because of . . . refusal to cooperate, the central
question is whether there is prejudice to the insurer.”106 The court further elaborated that ?[t]he
burden is on the insurer to show actual prejudice,”107 and that the ?conduct of the insured, following
the accident, is relevant and material to the issue of cooperation, material prejudice, and credibility
as to liability and damages.”108
The United States Court of Appeals for the Fifth Circuit seems to have reached a similar
conclusion in Mosdegh v. State Farm Fire & Casualty Co.,109 an unpublished opinion affirming the
district court’s grant of summary judgment in favor of the insurer. The Fifth Circuit relied on the
district court’s finding that ?State Farm showed that it had been prejudiced by the failure of the
plaintiffs to submit to examinations under oath.”110 The Fifth Circuit acknowledged the reasoning
articulated in Lee that the failure to fulfill policy requirements that are conditions precedent to an
105
Id. at 687; see also Brantley v. State Farm Ins. Co., 37,601 (La. App. 2 Cir. 1/28/04); 865 So. 2d. 265, 271
(discussing evidence of an extended pattern of noncompliance by insureds).
106
637 So. 2d 1168, 1170 (La. Ct. App. 1994).
107
Id.
108
Id. at 1171.
109
330 F. App’x at 65.
110
Id.
19
insurance policy precludes suit under the policy, but the Fifth Circuit explicitly noted that State Farm
had ?certainly demonstrated prejudice to its investigation and adjustment capacity through the
[plaintiffs’] unwillingness to submit to the required examinations.”111 Therefore, the Fifth Circuit
did not find it necessary to address the ?Louisiana law question” that State Farm ?need not even
show prejudice” when a plaintiff refuses to submit to an EUO, because the district court found that
the insured had indeed demonstrated prejudice.112
3. Admissibility of Alleged Hearsay Evidence
Rule 56(c)(2) of the Federal Rules of Civil Procedure, which governs summary judgement
proceedings, provides that ?[a] party may object that the material cited to support or dispute a fact
cannot be presented in a form that would be admissible in evidence.”113 Furthermore, Rule 56
requires that any affidavit or declaration used to support or oppose a motion for summary judgment
?must be made on personal knowledge, set out facts that would be admissible in evidence, and show
that the affiant or declarant is competent to testify on the matters stated.”114
Explaining Rule 56, the Fifth Circuit has instructed that the evidence proffered by the
moving party to satisfy its burden must be ?competent and admissible at trial.”115 However, the
district court has the discretion to consider unobjected-to hearsay ?for such probative value as it may
111
Id.
112
Id.
113
Fed. R. Civ. P. 56(c)(2).
114
Fed. R. Civ. P. 56(c)(4).
115
Bellard v. Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012) (citing Martin v. John W. Stone Oil Distrib., Inc.,
819 F.2d 547, 549 (5th Cir. 1987)).
20
have”116 unless ?failure to notice and correct it would affect the fairness, integrity, or public
reputation or judicial proceedings.”117
The Federal Rules of Evidence define hearsay as ?a statement that (1) the declarant does not
make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the
truth of the matter asserted in the statement.”118 Pursuant to the Rules of Evidence, hearsay is not
admissible in evidence unless it falls into an exception created by federal statute, the Rules
themselves, or a rule prescribed by the Supreme Court.119
Rule 803(6) identifies ?Records of Regularly Conducted Activity” as an exclusion to the
general rule prescribing hearsay evidence.120 Under Rule 803(6), a record of an act, event, or
condition is admissible if:
(A)
(B)
(C)
(D)
(E)
the record was made at or near the time by—or from information transmitted
by—someone with knowledge;
the record was kept in the course of a regularly conducted activity of a business,
organization, occupation, or calling, whether or not for profit;
making the record was a regular practice of that activity;
all of these conditions are shown by the testimony of the custodian or another
qualified witness, or by a certificate that complies with Rule 902(11) or (12) or with
a statute permitting certification; and
neither the source of information nor the method or circumstances of preparation
indicate a lack of trustworthiness.
116
Id. at 461 (quoting Whitehead v. Food Max of Mississippi, Inc., 163 F.3d 265, 275 (5th Cir. 1998)).
117
Whitehead, 163 F.3d at 275.
118
Fed. R. Evid. 801(c)(1)-(2).
119
Fed. R. Evid. 802.
120
Fed. R. Evid. 803(6).
21
For the purposes of Rule 803(6), a record is ?made” when ?an entity takes custody of the
record for use in its business.”121 There is no requirement that the record be created by the business
having custody of it.122 As the Fifth Circuit explained in United States v. Duncan, instead the Rule
803(6)’s “primary emphasis” is on reliability or trustworthiness of the records.123 A company’s using
a record in conducting its business, even if that company did not create the record, is indicative of
reliability.124
Rule 803(6) requires that ?each participant in the chain which created the record—from the
initial observer-reporter to the final entrant—must generally be acting in the course of regularly
conducted activity.”125 Furthermore, the record must be created by persons with knowledge of the
facts recorded.126Although the person making the record is not required to have first-hand
knowledge, the information must at least have been transmitted by someone with knowledge.127 If
the source of the information reported cannot be identified, then the record does not qualify for the
exception.128
Materials prepared for litigation purposes are typically inadmissible under Rule 803(6). As
the Fifth Circuit has explained, ?[a]lthough rule 803(6) does not refer to an exception for business
121
5 J. Weinstein & M. Berger, Weinstein’s Federal Evidence § 803.8[2] (J. McLaughlin ed., 2d ed. 2013);
see also Duncan, 919 F.2d at 986 (explaining that the business having custody of the record does not have to be the
business that created the document).
122
5 J. Weinstein & M. Berger, Weinstein’s, supra note 121, at § 803.8[2].
123
Duncan, 919 F.2d at 986.
124
See id. at 986-87 (noting that hospitals and insurance companies relied on the records in question in
conducting business).
125
5 J. Weinstein & M. Berger, Weinstein’s, supra note 121, at § 803.8[2].
126
Id. at § 803.8[4].
127
Id.
128
Id.; see also United States v. Jackson, 636 F.3d 687(5th Cir. 2011) (holding that drug ledgers were not
admissible under Rule 806(3) where the government’s witness could not identify who was the recorder of the legers and
could not personally vouch for the credibility of the entries in the legers).
22
records prepared in anticipation of litigation, the exception amounts to a corollary of rule 803(6)’s
requirement that admissible business records result from a ‘regularly conducted business
activity.’”129 For example, in Broadcast Music, Inc. v. Xanthas, Inc.,130 the Fifth Circuit deemed that
reports were inadmissible where their ?primary utility” was for litigation.131
B. Analysis
1. Admissibility of Alleged Hearsay Evidence
Because this Court must only consider evidence that is ?competent and admissible” in
determining whether SFIC is entitled to judgment as a matter of law, it is first necessary to evaluate
the admissibility of the evidence SFIC provides in support of its motion for summary judgment.
Martin asserts that four of the exhibits SFIC attaches to its motion constitute improper hearsay: (1)
a letter from Donald J. Latuso, The Monson Law Firm, LLC, to Jacquelin Martin, dated April 5,
2013; (2) a letter from Matthew D. Monson, The Monson Law Firm, LLC, to Jacquelin Martin,
dated April 16, 2013; (3) a letter from Matthew D. Monson, The Monson Law Firm, LLC, to
Jacquelin Martin, dated April 23, 2013; and (4) a letter from Wade Hargrove, Southern Fidelity
Insurance Company, to Jacquelin Martin, dated February 26, 2013.132 SFIC maintains that these
documents are admissible as records of regularly conducted activity.133
The Court finds that the three letters from the Monson Law Firm are not admissible as
business records for the following reasons. The Court acknowledges that SFIC is correct that
129
Brauninger v. Motes, 260 F. App’x 634, 637 (5th Cir. 2007).
130
855 F.2d 233(5th Cir. 1988).
131
Id. at 238-39.
132
Rec. Doc. 24-1, at pp. 8-10.
133
Rec. Doc. 29, at pp. 3-6.
23
pursuant to Rule 803(6) and the Fifth Circuit’s decision in Duncan, these letters could theoretically
be business records of SFIC even though they were created by another entity, in this case, the
Monson Law Firm.134 However, the requirements of Rule 803(6)(A)-(C) must still be attested to.
Although Hargrove, a claims adjuster for SFIC, attaches these letters to his affidavit,
Hargrove makes no statement verifying that the letters were made by someone with knowledge of
the recorded events or that the letters were kept in the course of regularly conducted activity.135
Furthermore, it appears from the face of the April 16, 2013 letter that the author, Monson, did not
have personal knowledge of the recorded events. In that letter, he writes: ?This will confirm your
telephone conversation of yesterday, April 15, 2013, with our office in which you have stated to this
office that you will not be participating in the examination under oath. . . .”136 He does not indicate
who at the Monson Law Firm participated in the telephone conversation. Similarly, in the April 23,
2013 letter, Monson writes: ?you have informed this office that you do not wish to participate in
your examination.”137 Again, Monson does not indicate the specific person or persons who
participated in the conversation.
Comparing the facts here to the Fifth Circuit’s decision in United Sates Commodity Futures
Trading Commission v. Dizona138 further indicates that Hargrove did not properly attest that the
requirements of Rule 803(6) were met. In Dizona, the Commodity Futures Trading Commission
(“CFTC”) attempted to have spreadsheets, showing trading data from a energy trading firm,
134
See 5 J. Weinstein & M. Berger, Weinstein’s, supra note 121, at § 803.8[2]; Duncan, 919 F.2d at 986-87.
135
See Aff. of Anthony Hargrove (July 16, 2013), Rec. Doc. 22-3 at pp. 1-3.
136
Letter from Matthew D. Monson, The Monson Law Firm, LLC, to Jacquelin Martin (Apr. 16, 2013), Rec.
Doc. 22-3 at p. 75.
137
Letter from Matthew D. Monson, The Monson Law Firm, LLC, to Jacquelin Martin (Apr. 25, 2013), Rec.
Doc. 22-3 at pp. 76-77.
138
594 F.3d 408 (2010).
24
admitted in evidence as a business record.139 The Commission however, only called its investigator
as a summary witness. The Court held that the investigator was not a “qualified witness” because
she “did not interview any [trading firm] employee or have any knowledge regarding the keeping
of the records.”140 Furthermore, she did not know whether the spreadsheets showing trading data
were made at or near the time of the trade.141 In sum, the Fifth Circuit found that “she had no
information about how the record was produced.”142 Like the investigator in Dizona, Hargrove has
failed to attest that he had any knowledge regarding the creation of the letters that SFIC seeks to
admit as business records.
Turning to the letter from Hargrove to Martin, this document is also inadmissible as a
business record. In his affidavit, Hargrove makes no statement verifying that the letter was kept in
the course of regularly conducted activity. Furthermore, the letter contains statements that are not
based on Hargrove’s personal knowledge. In particular, Hargrove writes that an SFIC ?engineer was
not allowed to complete his inspection” and that the engineer ?has now been told by your contractor,
that he is no longer allowed to inspect the property.”143 Hargrove does not purport to have
knowledge of these events; rather, his knowledge appears to come from the engineer, who is not
identified in the letter. In this manner, Hargrove’s affidavit is not sufficient to verify that Rule
803(6)(A)’s requirement that the record be made “by—or from information transmitted
by—someone with knowledge” is satisfied.
139
Id. at 414-15.
140
Id. at 416.
141
Id.
142
Id.
143
Letter from Wade Hargrove, SFIC, to Jacquelin Martin (Feb. 26, 2013), Rec. Doc. 22-3 at pp. 78-79.
25
Finally, all four of the letters appear to have been created in anticipation of litigation.
Hargrove’s February 23 letter is labeled as a ?Reservation of Rights,” and specifically references
settlement negotiations as well as SFIC’s ?defending any lawsuit arising out of the above captioned
claim.”144 The three other letters are from a law firm representing SFIC and were written after SFIC
filed its complaint against Martin, indicating that these documents were created with an eye toward
litigation.145
In Palmer v. Hoffman, the Supreme Court, construing the statutory predecessor of Rule
803(6), specifically warned against the use of law firm records memorializing a litigant’s version
of the facts as business records:
The conduct of a business commonly entails the payment of tort claims incurred by the
negligence of its employees. But the fact that a company makes a business out of recording
its employees’ versions of their accidents does not put those statements in the class of
records made ‘in the regular course’ of business within the meaning of the Act. If it did, then
any law office in the land could follow the same course, since business as defined in the Act
includes the professions.146
SFIC cannot have its lawyers develop “records” indicating that Martin failed to submit to
an EUO and then have those records serve as evidence in support of a motion for summary
judgment.
2. Whether Martin Breached Her Duties Under the Policy
In this case, coverage under Martin’s policy with SFIC required her to fulfill certain duties,
which included producing various documents and submitting to an EUO. Martin’s duty to cooperate
144
Letter from Wade Hargrove, SFIC, to Jacquelin Martin (Feb. 26, 2013), Rec. Doc. 22-3 at pp. 78-79.
145
Letter from Donald J. Latuso, The Monson Law Firm, LLC, to Jacquelin Martin (Apr. 5, 2013), Rec. Doc.
22-3 at p. 74; Letter from Matthew D. Monson, The Monson Law Firm, LLC, to Jacquelin Martin (Apr. 16, 2013), Rec.
Doc. 22-3 at p. 75; Letter from Matthew D. Monson, The Monson Law Firm, LLC, to Jacquelin Martin (Apr. 25, 2013),
Rec. Doc. 22-3 at pp. 76-77; see also See Aff. of Anthony Hargrove (July 16, 2013), Rec. Doc. 22-3 at pp. 1-3.
146
Palmer v. Hoffman, 318 U.S. 109, 113 (1943).
26
in the investigation of her claim was a condition precedent to her recovery under the policy, and
LeBlanc establishes that the failure of an insured to cooperate with the insurer, including the refusal
to submit to an EUO, may be a material breach of the contract and a defense to suit on the policy.147
As the party moving for summary judgment, SFIC has the burden of showing that “there is
no genuine dispute as to any material fact,” with respect to whether Martin breached her duty to
cooperate and submit to an EUO.148 The Court finds that SFIC has not met its burden. In support
of its motion for summary judgment, SFIC submitted the Hargrove affidavit, the February 26, 2013
letter from Hargrove to Martin, and four letters from the Monson Law Firm to Martin. But as
discussed above, the February 26 letter from Hargrove to Martin, the April 5 letter from Latuso to
Martin, the April 16 letter from Monson to Martin, and the April 25 letter from Monson to Martin
are all hearsay and do not fall within Rule 803(6)’s exception for records of regularly conducted
activity. Thus, this Court cannot consider this evidence in deciding SFIC’s motion for summary
judgment.149
The remaining evidence in the record is insufficient to establish that there is no genuine
dispute as to any material fact. In his affidavit, Hargrove contends that SFIC’s engineer was not
allowed to complete his initial inspection of Martin’s property, that the engineer set two follow up
dates, and that the engineer was eventually told by Martin’s contractor that he could not inspect the
property.150 He further asserts that ?Martin failed to provide the information requested and failed to
147
See LeBlanc, 223 So. 2d at 863-64; see also Lee, 607 So. 2d at 688.
148
Fed. R. Civ. P. 56(a); see also Celotex, 477 U.S. at 322-23; Little, 37 F.3d at 1075.
149
See Fed. R. Civ. P. 56(c)(2); Bellard, 675 F.3d at 460
150
Aff. of Anthony Hargrove (July 16, 2013), Rec. Doc. 22-3 at pp. 1-3.
27
give her examination under oath.”151 Martin challenges Hargrove’s statements saying that she has
allowed at least three inspectors to come to her house. She also avers that ?I never told Mr. Latuso,
or anyone else, that I would not submit to a statement under oath” and that ?I have always been
willing to give a statement.”152 Accordingly, whether Martin refused to submit to an EUO is a
material fact in dispute precluding summary judgment.
3. Whether SFIC Must Demonstrate Prejudice
Because this Court finds that it is disputed whether Martin refused to submit to an EUO, at
this time it is not necessary to rule on whether SFIC would have to show that it was prejudiced by
Martin’s refusal.
Without ruling on the prejudice issue, the Court makes the following observations. Although
the Louisiana Supreme Court has not decided whether an insurer must show prejudice, it has
explained that an insurance policy is a contract that “constitutes the law of the case” between the
insurer and the insured.153 Here, the insurance policy at issue specifically addresses the prejudice
requirement, stating that SFIC has “no duty to provide coverage under this policy if the failure to
comply with the following [cooperation] duties is prejudicial to us.”154 Thus by the terms of the
policy, SFIC is required to show that any failure to cooperate on the part of Martin is prejudicial.
151
Id.
152
Id.
153
LeBlanc, 223 So.2d at 863.
154
Homeowners Policy issued by SFIC to Jacquelin Martin, Policy No. LVH 100221070017, Rec. Doc. 22-3
at p. 29 (emphasis added).
28
V. Conclusion
This Court finds that there is a genuine dispute as to the material fact of whether Martin
refused to cooperate and to submit to an EUO. Accordingly, Plaintiff SFIC is not entitled to
summary judgment in this matter.
IT IS HEREBY ORDERED that the motion for summary judgment155 is DENIED.
NEW ORLEANS, LOUISIANA, this ____ day of December, 2013.
_________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE
155
Rec. Doc. 22-1.
29
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