Douglas et al v. Renola Equity Fund II, LLC et al

Filing 108

ORDER AND REASONS granting 104 Motion by Southern Fidelity for Summary Judgment on plaintiff Steve Douglas's insurance claim. Plaintiff Steve Douglas's claim against Southern Fidelity under policy number LVH 1007241 01 17 is dismissed WITH PREJUDICE.. Signed by Chief Judge Sarah S. Vance on 8/7/15. (jjs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
STEVE B. DOUGLAS, ET AL.

CIVIL ACTION

Plaintiffs,
NO: 13-6192
VERSUS
RENOLA EQUITY FUND, II, LLC,
ET AL.

SECTION: R(2)

Defendants.

ORDER
Defendant Southern Fidelity Insurance Company moves the Court
for summary judgment on plaintiff Steve Douglas's insurance claim.1
The Court grants the motion because plaintiff has failed to provide
any evidence to create a genuine question of material fact as to
whether Southern Fidelity breached the insurance contract at issue.

I.

Background
Plaintiff Steve Douglas is one of several plaintiffs who

initially brought suit in the 34th Judicial District Court for the
Parish of St. Bernard alleging a variety of claims against a
multitude of defendants.2

The only allegation against Southern

Fidelity, however, is that it is obligated ("upon information and
belief") to pay plaintiff Steve Douglas's insurance claim under

1

R. Doc. 104.

2

R. Doc. 2-2.

policy number LVH 1007241 01 17 relative to Unit 119 of Park view
Condominiums.3
Plaintiff insured his Chalmette, Louisiana condominium with an
insurance policy issued by Southern Fidelity.

The policy has

coverage limits of $15,000 for the dwelling, $10,000 for personal
property, and $5000 for loss of use, all subject to a $200
"hurricane" deductible.4
On August 29, 2012, Hurricane Isaac struck southeast Louisiana
and caused damaged to plaintiff's condominium.

Plaintiff filed a

claim with Southern Fidelity on October 18, 2012.5

Six days later,

Southern Fidelity sent Joe Ciochon, an insurance adjuster with
Cunningham Lindsey U.S., Inc., to inspect plaintiff's condominium.6
Mr. Ciochon estimated damages in the amount of $4094.88 under
plaintiff's

dwelling

coverage.7

On

November

8,

2012,

after

deducting the $200 deductible, Southern Fidelity paid plaintiff

3

Id. at 22-23 ("Your petitioner, STEVE B. DOUGLAS, further
alleges on information and belief that under the terms of said
policy, defendant SOUTHERN FIDELITY INSURANCE COMPANY is
obligated to pay for any and all damage to the dwelling, personal
property, and loss of use associated with Unit 119 of Park View
Condominiums.").
4

R. Doc. 104-11 at 1-2.

5

R. Doc. 104-6 at 1.

6

R. Doc. 104-7.

7

Id. at 8.
2

$3894.88.8

In his deposition, plaintiff admits that he received

the $3894.88 check from Southern Fidelity and further admits that
he never had a contractor prepare an independent estimate of the
damage or otherwise attempt to repair the damage.9
On January 31, 2013, plaintiff filed a claim under the
policy's "loss of use" coverage because plaintiff was forced to
move while repairs were made at the condominium complex.10 Southern
Fidelity paid plaintiff $325 for two weeks lodging on February 4,
2013.11
Southern Fidelity now moves for summary judgment arguing that
plaintiff has failed to provide any evidence that it underpaid on
plaintiff's insurance claims.

Plaintiff does not oppose the

motion.12
II.

Legal Standard
Summary judgment is warranted when "the movant shows that

there is no genuine dispute as to any material fact and the movant

8

R. Doc. 104-8.

9

R. Doc. 104-12 at 3-4 and 11-12.

10

R. Doc. 104-9.

11

R. Doc. 104-10.

12

Southern Fidelity set the motion for submission on May 6,
2015. The Court contacted plaintiff's counsel in late June to
determine whether plaintiff planned to file an opposition, and
plaintiff's counsel was unable to provide an explanation for his
failure to oppose the motion, but stated that he "would look into
it." As of the date of this order, plaintiff's counsel has not
filed an opposition or otherwise contacted the Court.
3

is entitled to judgment as a matter of law."

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).

When assessing whether a dispute as to any material fact

exists, the Court considers "all of the evidence in the record but
refrain[s] from making credibility determinations or weighing the
evidence." Delta & Pine Land Co. v. Nationwide Agribusiness Ins.
Co.,

530

inferences

F.3d
are

395,

398–99

drawn

in

(5th

favor

Cir.
of

2008).

the

All

nonmoving

reasonable
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)(internal
quotations omitted); see also 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."
Inc.

v.

Rally's,

Inc.,

939

F.2d

1991)(internal quotations omitted).

1257,

Int'l Shortstop,

1264–65

(5th

Cir.

The nonmoving party can then

defeat the motion by either countering with evidence sufficient to
demonstrate the existence of a genuine dispute of material fact, 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

4

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.

See, e.g., id.; 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
322)).
III. Analysis
Summary judgment may not be awarded by default because the
non-moving party fails to respond.

Resolution Trust Corp. v.

Starkey, 41 F.3d 1018, 1022-23 (5th Cir. 1995).

Nevertheless, a

court may accept as undisputed the facts listed in support of the
unopposed motion for summary judgment.
843 F.2d 172, 174 (5th Cir. 1988).
5

Eversley v. MBank Dallas,

It is not the task of the Court

to "scour the record in search of a genuine issue of triable fact."
Richards v. Combined Ins. Co. of Am., 55 F.3d 247, 251 (7th Cir.
1995). Instead, "[t]he party opposing summary judgment is required
to identify specific evidence in the record and to articulate the
precise manner in which the evidence supports his or her claim."
Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).
Here,

plaintiff

bears

the

burden

of

demonstrating

Southern Fidelity breached the insurance contract.

that

See Roe v.

Loyola University New Orleans, Civ. A. No. 07-1828, 2007 WL
4219174, at *2 (E.D. La. Nov. 26, 2007) ("[T]he party seeking to
recover must not only prove the existence of the contract, but must
also prove its breach."); Broussard v. State Farm Fire & Cas. Co.,
Civ. A. No. 06-8084, 2007 WL 2264535, at * 3 (E.D. La. Aug. 2,
2007)

("[I]n

order

to

recover

for

a

breach

of

an

insurance

contract, plaintiffs are required to prove the amount of their
claim for covered damages under their homeowner's policy by a
preponderance of the evidence.").

Southern Fidelity has not only

pointed to the absence of evidence in the record to support
plaintiff's claim, but has also provided undisputed documentary
evidence that it fully compensated plaintiff for his claimed
losses.

Indeed, plaintiff's own deposition testimony indicates

that he received Southern Fidelity's checks and that he did not
repair the damage or seek an independent estimate of the damages to

6

the insured property.13

Absent any evidence that plaintiff made a

claim under his insurance policy that went unpaid or underpaid,
plaintiff cannot survive summary judgment on his breach of contract
claim.
IV.

Conclusion
For the reasons stated above, defendant's motion for summary

judgment is GRANTED, and plaintiff Steve Douglas's claim against
Southern

Fidelity

under

policy

number

LVH

1007241

01

dismissed WITH PREJUDICE.

7th
New Orleans, Louisiana, this ___ day of August, 2015.

_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

13

R. Doc. 104-12 at 3-4 and 11-12.
7

17

is