Marquette et al v. Southern Fidelity Insurance Company

Filing 24

ORDER denying 9 Motion for Summary Judgment. Signed by Judge Jay C. Zainey on 1/6/15. (jrc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CHARLES MARQUETTE, ET AL.

CIVIL ACTION

VERSUS

NO: 14-2311

SOUTHERN FIDELITY INSURANCE
COMPANY

SECTION: "A" (2)

ORDER AND REASONS
Before the Court is a Motion for Summary Judgment (Rec. Doc. 9) filed by
defendant Southern Fidelity Insurance Company. Plaintiffs Charles Marquette and Angela
Marquette oppose the motion. The motion, noticed for submission on December 31, 2014, is
before the Court on the briefs without oral argument.1 For the reasons that follow, the
motion is DENIED.
I.

Background
Plaintiffs allege that a fire caused substantial damage to their Belle Chasse residence

on April 1, 2014. Defendant had previously issued an insurance policy to cover this residence
and related property. Plaintiffs claim that they promptly reported the incident to Defendant
and submitted proper proof of loss documentation.
Plaintiffs allege that the repairs to the home will cost $266,600.00 and that their
interim living arrangements will cost $23,800.00. They claim that to date Defendant has
paid $96,122.85 toward the repair costs, $6800.00 toward the interim living costs, and has
refused to authorize an appraisal – all in derogation of policy requirements.
After allegedly making two unsuccessful demands for an appraisal in August 2014 as
Defendant requested oral argument, but argument would not be helpful in light of the
issues presented.
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well as further unsuccessful requests for additional payment, Plaintiffs filed a petition on
September 22, 2014 in the 25th Judicial District Court for the Parish of Plaquemines.
Defendant subsequently removed the case to this Court on October 8, 2014. Plaintiffs seek a
range of damages for the alleged failure of Defendant to perform under the policy, including
"[a]rbitrary and capricious penalties, attorney's fees, and general and special damages
pursuant to" LSA R.S. Arts. 22:1973 and 22:1892.
A bench trial is scheduled to commence on July 20, 2015.
Via the instant motion Defendant moves for judgment as a matter of law on all causes
of action. Defendants contend that Plaintiffs cannot prevail on their claims, because
Plaintiffs have failed to both submit to an examination under oath and fully produce
requested documents as required by the policy.
II.

Discussion
Summary judgment is appropriate only if "the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any," when viewed in
the light most favorable to the non-movant, "show that there is no genuine issue as to any
material fact." TIG Ins. Co. v. Sedgwick James, 276 F.3d 754, 759 (5th Cir. 2002) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)). A dispute about a material
fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the
non-moving party. Id. (citing Anderson, 477 U.S. at 248). The court must draw all justifiable
inferences in favor of the non-moving party. Id. (citing Anderson, 477 U.S. at 255). Once the
moving party has initially shown "that there is an absence of evidence to support the nonmoving party's cause," Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986), the non-movant
must come forward with "specific facts" showing a genuine factual issue for trial. Id. (citing
Fed. R. Civ. P. 56(e); Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986)).

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Conclusional allegations and denials, speculation, improbable inferences, unsubstantiated
assertions, and legalistic argumentation do not adequately substitute for specific facts
showing a genuine issue for trial. Id. (citing SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir.
1993)).
Defendant argues that Plaintiffs have failed to fully comply with the policy, and thus
any claim for coverage fails. More specifically, Defendant argues that per the policy, a
lawsuit cannot be instituted by the insured unless the insured has complied with all
provisions of the policy. (Rec. Doc. 9-1, at 4 (citing the Rec. Doc. 9-5, at 30; SFD LA AE 08
12)). One such provision of the policy calls for the insured to, "[a]s often as [Defendant]
reasonably require[s]," "[s]ubmit to examination under oath" and "provide [Defendant] with
records and documents [Defendant] request[s]." (Rec. Doc. 9-5, at 21-22; SFD LA D3 10 10).
Counsel for Defendant submits a copy of his correspondence sent to counsel for Plaintiffs
containing a request to conduct an examination of the Plaintiffs under oath and a request for
the Plaintiffs to produce certain documents pursuant to the policy provisions. (Rec. Doc. 97). Defendant sent this letter on September 25, 2014. Plaintiffs responded on that same day
informing Defendant that they had filed their lawsuit the previous week and "[t]hus . . . will
not agree to any [examination under oath] at this time." (Rec. Doc. 9-8).
Defendant cites several cases for the proposition that an examination under oath and
production of requested documents are conditions precedent to coverage and required
before filing suit, and a plaintiff's incomplete response or outright refusal to comply obviates
his claim. However, in applying these cases to the present set of facts, Defendant overlooks
the critical issue of timing. In all of the cases cited by Defendant arising in this Circuit or in
this state, the plaintiff's incomplete response or outright refusal to comply took place in
relation to invocations of these conditions prior to the filing of a lawsuit. Kerr v. State Farm

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Fire and Cas. Co., 511 F. Appx. 306, 306-07 (5th Cir. 2013); Assaf v. Allstate Indem. Co., No.
10-1063, 2011 WL 3178551, at *3 (E.D. La. July 27, 2011); Mosadegh v. State Farm Fire and
Cas. Co., No. 07-4427, 2008 WL 4544361, at *1-2 (E.D. La. Oct. 14, 2009), aff'd, 330 F.
Appx. 65 (5th Cir. 2009); Honore v. AIG Prop. Cas. Ins. Agency, Inc., 2014 WL 4986780, at
*1-2 (M.D. La. Sept. 15, 2014); Lee v. U.S., 607 So.2d 685, 686-87 (La. App. 4 Cir. 2009);
U.S. Fidelity and Guar. Co. v. Conway, 674 F. Supp. 1270, 1272 (N.D. Miss. 1987).
The timeline here, by contrast, bears repeating. Plaintiffs filed suit on September 22,
2014. (Rec. Doc. 1-1). Defendant requested the examination under oath and the production
of several documents on September 25, 2014. (Rec. Doc. 9-7). Counsel for Plaintiffs
responded on September 25, 2014, noting that a lawsuit had already been filed, and thus
Plaintiffs would not submit to the examination under oath at that time. (Rec. Doc. 9-8).
In summary, on the record currently available, it appears that Plaintiffs did not fail,
nor could have failed, to fulfill these conditions prior to the filing of their lawsuit as the
examination under oath and the production of documents were not requested until after the
filing of the lawsuit.
Of course, Plaintiffs have the legal obligation to comply with discovery properly
propounded by Defendant.
Accordingly, and for the foregoing reasons;
IT IS ORDERED that the Motion for Summary Judgment (Rec. Doc. 9) filed
by Defendant is DENIED.
January 6, 2015
JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE

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