Twine v. Allstate Insurance Company

Filing 34

ORDER AND REASONS denying 24 Motion for Summary Judgment. Signed by Judge Susie Morgan on 12/28/2016. (cg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JOYCE TWINE,
Plaintiff

CIVIL ACTION

VERSUS

NO. 15-5168

ALLSTATE INSURANCE COMPANY,
Defendant

SECTION: “E” (4)

ORDER AND REASONS
Before the Court is a motion for summary judgment filed by Allstate Insurance
Company.1 The motion is opposed.2 For the following reasons, the motion is DENIED.
BACKGROUND
Defendant, Allstate Insurance Company (“Allstate”), issued a homeowners’
insurance policy to Plaintiff, Joyce Twine, for her property at 4412 Duplessis Street in
New Orleans, Louisiana.3 No one had been living at the property since 2005 when it was
severely damaged by Hurricane Katrina.4 Although the property was repaired from flood
and wind damage after Hurricane Katrina, the interior of the home was not outfitted with
handicap-accessible features, which Twine requires.5 As a result, Twine was forced to
reside with her mother, and then with her daughter, with whom she still lives.6
Twine alleges the Allstate homeowners’ policy was in effect on November 6, 2014,
when she discovered a water leak at her property from an icemaker supply line, which
caused extensive damages.7 Upon the inspection of Allstate’s adjuster, Richard Laraway,

R. Doc. 24.
R. Doc. 25.
3 R. Doc. 24-2 at 1, R. Doc. 25-1 at 1; see also R. Doc. 24-9 and R. Doc. 24-10 (Twine’s homeowners’ policy
with Allstate).
4 R. Doc. 24-2 at 1, R. Doc. 25-1 at 1, R. Doc. 24-4 at 11.
5 R. Doc. 54-4 at 12–13.
6 R. Doc. 24-2 at 1, R. Doc. 25-1 at 1, R. Doc. 24-4 at 15.
7 R. Doc. 24-2 at 1, R. Doc. 25-1 at 1.
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Allstate denied Twine’s claim because her policy contained an exclusion for continuous
and repeated leakage for a period of weeks, months, or years.8
Twine alleges she made settlement demands on March 30, 2014 and July 30, 2015,
both of which Allstate denied.9 Twine then filed suit for damages in the Civil District Court
for the Parish of Orleans, also alleging Allstate’s denial of her claim was arbitrary,
capricious, and without good faith.10 The suit was removed to this Court on October 14,
2015.11
On May 4, 2016, Allstate filed a motion for summary judgment seeking dismissal
of Twine’s claims.12 According to Allstate, it does not owe coverage and summary
judgment should be granted in its favor on two bases: (1) Twine breached the requirement
in the Louisiana Standard Fire Policy Endorsement that she inform Allstate if the
property is vacant or unoccupied for more than sixty days and any waiver of this
requirement had to be in writing, and (2) Exclusion 18, which precludes coverage for
damage caused by continuous seepage or leakage over a period of weeks, months, or
years, excludes coverage for Twine’s property damage. 13 Additionally, Allstate argues
Twine cannot meet her burden of proving Allstate acted arbitrarily or capriciously in its
refusal to cover Twine’s property damage because Allstate had a reasonable basis on
which to defend the claim.14

R. Doc. 25-4 at 13, R. Doc. 24-10 at 2.
R. Doc. 1 at 11–12.
10 R. Doc. 1 at 11.
11 R. Doc. 1.
12 R. Doc. 24.
13 See R. Doc. 24-3.
14 R. Doc. 24-3 at 11–13.
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SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate only “if 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.”15 “An issue is material if its resolution could affect the outcome of the action.” 16
When assessing whether a material factual dispute exists, the Court considers “all of the
evidence in the record but refrains from making credibility determinations or weighing
the evidence.”17 All reasonable inferences are drawn in favor of the nonmoving party.18
There is no genuine issue of material fact if, even viewing the evidence in the light most
favorable to the nonmoving party, no reasonable trier of fact could find for the nonmoving
party, thus entitling the moving party to judgment as a matter of law.19
If the dispositive issue is one on which the moving party will bear the burden of
persuasion 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.’” 20 If the
moving party fails to carry this burden, the motion must be denied. If the moving party
successfully carries this burden, the burden of production then shifts to the nonmoving
party to direct the Court’s attention to something in the pleadings or other evidence in the
record setting forth specific facts sufficient to establish that a genuine issue of material
fact does indeed exist.21

FED. R. CIV. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2005).
17 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008); see also
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150–51 (2000).
18 Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
19 Smith v. Amedisys, Inc., 298 F.3d 434, 440 (5th Cir. 2002).
20 Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263–64 (5th Cir. 1991) (quoting Golden Rule Ins. Co.
v. Lease, 755 F. Supp. 948, 951 (D. Colo. 1991)).
21 Celotex, 477 U.S. at 322–24.
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If the dispositive issue is one on which the nonmoving party will bear the burden
of persuasion at trial, the moving party may satisfy its burden of production by either (1)
submitting affirmative evidence that negates an essential element of the nonmovant’s
claim, or (2) demonstrating there is no evidence in the record to establish an essential
element of the nonmovant’s claim.22 When proceeding under the first option, if the
nonmoving party cannot muster sufficient evidence to dispute the movant’s contention
that there are no disputed facts, a trial would be useless, and the moving party is entitled
to summary judgment as a matter of law.23 When, however, the movant is proceeding
under the second option and is seeking summary judgment on the ground that the
nonmovant has no evidence to establish an essential element of the claim, the nonmoving
party may defeat a motion for summary judgment by “calling the Court’s attention to
supporting evidence already in the record that was overlooked or ignored by the moving
party.”24 Under either scenario, the burden then shifts back to the movant to demonstrate
the inadequacy of the evidence relied upon by the nonmovant.25 If the movant meets this
burden, “the burden of production shifts [back again] to the nonmoving party, who must
either (1) rehabilitate the evidence attacked in the moving party’s papers, (2) produce
additional evidence showing the existence of a genuine issue for trial as provided in Rule

Id. at 331–32 (Brennan, J., dissenting); see also St. Amant v. Benoit, 806 F.2d 1294, 1297 (5th Cir. 1987)
(citing Justice Brennan’s statement of the summary judgment standard in Celotex Corp. v. Catrett, 477 U.S.
317, 322–24 (1986), and requiring the movants to submit affirmative evidence to negate an essential
element of the nonmovant’s claim or, alternatively, demonstrate the nonmovant’s evidence is insufficient
to establish an essential element); Fano v. O’Neill, 806 F.2d 1262, 1266 (citing Justice Brennan’s dissent in
Celotex, and requiring the movant to make an affirmative presentation to negate the nonmovant’s claims
on summary judgment); 10A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL
PRACTICE AND PROCEDURE §2727.1 (2016) (“Although the Court issued a five-to-four decision, the majority
and dissent both agreed as to how the summary-judgment burden of proof operates; they disagreed as to
how the standard was applied to the facts of the case.” (internal citations omitted)).
23 First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288–89 (1980);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–50 (1986).
24 Celotex, 477 U.S. at 332–33.
25 Id.
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56(e), or (3) submit an affidavit explaining why further discovery is necessary as provided
in Rule 56(f).”26 “Summary judgment should be granted if the nonmoving party fails to
respond in one or more of these ways, or if, after the nonmoving party responds, the court
determines that the moving party has met its ultimate burden of persuading the court that
there is no genuine issue of material fact for trial.”27
LAW AND ANALYSIS
Twine bears the burden of proving at trial that she is entitled to coverage and that
Allstate’s denial of coverage was arbitrary and capricious. If coverage is established, the
insurer bears the burden of proving at trial that a policy exclusion applies to avoid
liability.28 As the moving party on summary judgment, it is Allstate’s burden to establish
the absence of genuine issues of material fact and that it is entitled to judgment as a matter
of law.
I.

WAIVER OF VACANCY/OCCUPANCY REQUIREMENT
Allstate first argues “[t]he undisputed facts illustrate plaintiff’s property remained

vacant and unoccupied after Hurricane Katrina through the loss date in November 2014,”
and coverage is therefore excluded under Louisiana Revised Statutes section
22:1311(F)(2)—Louisiana’s standard fire policy provisions29—which is incorporated into
the policy in an endorsement labeled “Louisiana Standard Fire Policy Provisions”
(hereinafter, “the Fire Endorsement”).30 The Fire Endorsement states the insurer is not

Celotex, 477 U.S. at 332–33, 333 n.3.
Id.; see also First National Bank of Arizona, 391 U.S at 289.
28 Grilletta v. Lexington Ins. Co., 558 F.3d 359, 364 (5th Cir. 2009); LA. REV. STAT. § 22:1893 (“If damage
to immovable property is covered, in whole or in part, under the terms of the policy of insurance, the burden
is on the insurer to establish an exclusion under the terms of the policy.”).
29 R. Doc. 24-10 at 25.
30 R. Doc. 24-3 at 6–7. Section 22:1311(F)(2) is contained in the Louisiana Insurance Code under the
subheading “Fire and Extended Coverage (Standard Fire Policy).”
26
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liable for loss occurring “[w]hile a described building, whether intended for occupancy by
owner or tenant, is vacant, or unoccupied beyond a period of sixty consecutive days.” 31
The waiver provision, in relevant part, reads: “No permission affecting this insurance
shall exist, or waiver of any provision be valid unless granted herein or expressed in
writing added hereto.”32
Allstate argues it never received any communication from Twine that her property
would remain vacant and unoccupied after it was repaired.33 Allstate further argues
section 22:1311 requires the waiver of any provision to be in writing, and it is undisputed
that Twine never requested or received a written waiver of the occupancy requirement.
As a result, Allstate argues that coverage is excluded because the property was unoccupied
for more than sixty days.34
In response, Twine argues there exist disputed issues of material fact with respect
to whether Allstate had notice that the home was vacant and waived the occupancy
requirement.35 Twine points to her claim file to show that in 2007 and 2009, she informed
Allstate of a change of address, which Twine argues put Allstate on notice she was not
residing in her home.36 Twine does not dispute that after September 2009, she had no
further communication with Allstate regarding the occupancy of her property until her
date of loss on November 6, 2014.37
The Court finds that it need not determine whether there are disputed issues of
material fact with respect to notice of non-occupancy or waiver. Even if there are no

LA. REV. STAT. § 22:1311(F)(2).
Id.
33 R. Doc. 24-3 at 6.
34 R. Doc. 24-3 at 6–9.
35 R. Doc. 25 at 5.
36 R. Doc. 25 at 5, R. Doc. 24-6 at 64, R. Doc. 24-6 at 95, R. Doc. 24-7 at 18.
37 R. Doc. 24-2 at 2, R. Doc. 25-1 at 3, R. Doc. 24-5 at 46–47.
31

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disputed issues of material fact with respect to these issues, Allstate is not entitled to
judgment as a matter of law that it owed no coverage to Twine.
The Court finds the Fire Endorsement does not apply to the water leakage loss in
this case and, instead, applies only to claims for loss due to fire. Nowhere in the policy
does it state the provisions of the Fire Endorsement are incorporated into the remainder
of the policy. In fact, the statute itself, on which the Fire Endorsement is based,
contemplates there will be differences in coverage between the peril of fire and other
perils.38
The Fifth Circuit has held the standard fire policy provisions of section 22:1311
should not be read into coverage for non-fire perils. In In re Consolidated Companies, the
trial court refused to read the standard fire policy provisions into the insurance policy
coverage for theft and vandalism, which triggered the loss in that case.39 On appeal, the
Fifth Circuit affirmed the district court, and found that “the legislature’s handling of
additional coverages in section 22:691(E) further demonstrates that ‘other coverages’ do
not receive the benefits of the standard fire insurance provisions.” As a result, the Fifth
Circuit “believe[d] the legislature expressly authorized insurers to depart from the
standard policy with respect to other coverages because the other coverages were not the
legislature’s concern in adopting the standard fire insurance policy.”40 The Fifth Circuit
further stated “[i]n analyzing the scope of the fire statutes, we noted that the protective

See La. Rev. Stat. § 22:1311(E)(1) (“Such forms [of insurance against other perils] may contain provisions
and stipulations inconsistent with the standard policy if applicable only to such other perils.”); Id. at §
1311(E)(2) (“Any policy or contract . . . [that] includes . . . coverage against the peril of fire and substantial
coverage against other perils need not comply with the provisions of Subsections A and B . . . .”).
39 185 B.R. 223, 226 (E.D. La. Aug. 2, 1995).
40 In re Consol. Cos., 106 F.3d 396 (5th Cir. 1996). Louisiana Revised Statutes section 22:691 was
renumbered and is now section 22:1131.
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terms of the fire insurance provisions do not extend to other types of policies or other
perils causing damage without an accompanying fire loss.”41
In this case, there is no claim for fire damage. The provisions referenced in the Fire
Endorsement do not apply to the water leakage loss.42 Because the occupancy and waiver
clauses Allstate relies upon to establish that it is entitled to judgment as a matter of law
do not apply to the loss in this case, the motion for judgment as a matter of law is denied.43
II.

APPLICABILITY OF EXCLUSION 18—THE CONTINUOUS LEAKAGE EXCLUSION
Allstate also argues summary judgment should be granted in its favor because no

genuine disputes of material fact exist with respect to whether Exclusion 18 applies.
Exclusion 18 precludes coverage for damage caused by “continuous or repeated seepage
or leakage over a period of weeks, months, or years, of water, steam or fuel.”44 In response,
Twine argues there exist genuine disputes of material fact with respect to when the leak
began.45 Specifically, Twine contends the time the leak began is essential to the
determination of coverage because the Allstate policy covers leaks that are sudden and

Id. (internal citations omitted).
The Court also notes that Richard Laraway, Allstate’s adjuster who inspected Twine’s property, testified
he denied coverage based on only Exclusion 18, which precludes coverage for continuous water leaks. R.
Doc. 25-4 at 13. Laraway further testified he never sent a letter to Twine denying the claim based on vacancy,
and never spoke with his supervisors about the issue of Twine’s property being vacant. Id.
43 Even if the statute containing standard fire provisions was applicable to the facts of this case, the Court
would still deny summary judgment, as disputed issues of material fact exist with respect to whether
Twine’s alleged breach of the occupancy provision was known by Allstate. Under Louisiana Revised Statutes
section 22:1314 “a breach shall not afford a defense to a suit on the policy . . . if the facts constituting such
a breach existed at the time of the loss and were, at such time, known to the insurer or to any of his or its
officers or agents.” LA. REV. STAT. § 22:1314(B).
44 R. Doc. 24-10 at 2.
45 R. Doc. 25 at 7.
41

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accidental, but does not cover those leaks that are continuous over a period of weeks or
months.46
As the insurer, Allstate bears the burden of proving at trial that Exclusion 18
applies.47 As the moving party on summary judgment, Allstate must submit evidence that
would “entitle it to a directed verdict if the evidence went uncontroverted at trial.”48 If
Allstate does not submit sufficient evidence to meet this burden, the motion must be
denied. If Allstate presents sufficient summary judgment evidence, the burden shifts to
Twine, as the nonmoving party, to submit evidence sufficient to establish that a genuine
dispute of material fact exists.
In support of its position, Allstate submits the affidavit of its engineering expert,
Charles E. Prewitt, P.E., in which he opines the water leakage at Twine’s property began
between August 20, 2014 and September 18, 2014—months before Twine discovered the
leak in November of 2014.49 Prewitt also opines “approximately a hundred gallons of
water had leaked from the water line serving the refrigerator into the property.”50 Allstate
contends Prewitt relied on Twine’s Sewerage and Water Board bills, which show there
was no water consumption at the property in June, July and August of 2014, but water
consumption began in September and continued through November 2014.51 Allstate
argues these bills show the water leakage began in August of 2014 and continued until
November 2014, making Exclusion 18 applicable.52 The Court finds Allstate submitted
R. Doc. 25 at 8, R. Doc. 24-10 at 2.
Grilletta v. Lexington Ins. Co., 558 F.3d 359, 364 (5th Cir. 2009); LA. REV. STAT. § 22:1893 (“If damage
to immovable property is covered, in whole or in part, under the terms of the policy of insurance, the burden
is on the insurer to establish an exclusion under the terms of the policy.”).
48 Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263–64 (5th Cir. 1991) (quoting Golden Rule Ins. Co.
v. Lease, 755 F. Supp. 948, 951 (D. Colo. 1991)).
49 R. Doc. 24-8 at 2.
50 R. Doc. 24-8 at 2.
51 R. Doc. 24-3 at 10.
52 R. Doc. 24-3 at 10.
46
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sufficient evidence, such that the burden shifted to Twine for her to direct the Court to
evidence setting forth facts sufficient to establish that a genuine dispute of material fact
exists with respect to whether Exclusion 18 applies.
Twine presents summary judgment evidence that there has “never been a
determination by Allstate during the claim, or by their expert, Charles Prewitt, of when
the leak began and how long it continued before Twine discovered [the leak].” 53 In
support, Twine submits the deposition of Allstate’s adjuster, Richard Laraway, in which
he testified he denied coverage based on Exclusion 18, but also testified he did not know
on which date the leak began.54 Laraway testified he did not even know “a ballpark” date
when the leak began.55 Finally, Twine submits her deposition, in which she states she
visited her property every few weeks and did not see a leak until her visit on November 6,
2014.56
The Court finds Twine produced sufficient summary judgment evidence to
establish disputed issues of material fact exist with respect to when the leak began and
how long it lasted. Accordingly, Allstate’s motion for summary judgment with respect to
the applicability of Exclusion 18 is denied.
III.

ARBITRARY AND CAPRICIOUS REFUSAL TO PAY
Finally, Allstate seeks summary judgment on Twine’s claim that its refusal to pay

for the damage to her property is arbitrary and capricious. At trial, Twine will bear the
burden of proving that Allstate acted arbitrarily and capriciously by refusing to cover her
claim. 57 Allstate, as movant on summary judgment, must submit affirmative evidence to

R. Doc. 25 at 7.
R. Doc. 25-4 at 3.
55 R. Doc. 25-4 at 3.
56 R. Doc. 24-4 at 29.
57 See Reed v. State Farm Mut. Ins. Co., 857 So. 2d 1012, 1020–21 (La. 2003).
53

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negate an essential element of Twine’s claim or demonstrate there is no evidence in the
record to establish an essential element of Twine’s claim.
Louisiana Revised Statutes section 22:189258 mandates insurers “shall pay the
amount of any claim due to any insured within 30 days after receipt of satisfactory proofs
of loss from the insured or any party in interest.59 “Failure to make such payment within
thirty days after receipt of such satisfactory written proofs and demand . . . when such
failure is arbitrary, capricious, or without probable cause, shall subject the insurer to a
penalty, in addition to the amount of the loss, of fifty percent damages on the amount
found to be due from the insurer to the insured, or one thousand dollars, whichever is
greater.”60 Section 22:1973 of the Louisiana Revised Statutes states “[f]ailing to pay the
amount of any claim due any person insured by the contract within sixty days after receipt
of satisfactory proof of loss from the claimant when such failure is arbitrary, capricious,
or without probable cause” may subject the insurer to penalties.61 The conduct prohibited
in these two statutes is “virtually identical” and the “primary difference is the time periods
allowed for payment.”62
At trial, Twine will bear the burden of proving that Allstate acted arbitrarily and
capriciously by refusing to cover her claim. 63 To prove Allstate breached its duty to timely
pay her claim, at trial Twine must show “(1) the insurer has received satisfactory proof of
loss, (2) the insurer fails to tender payment within thirty days of receipt thereof, and (3)

Previously Louisiana Revised Statutes section 22:658.
LA. REV. STAT. § 22:1892(A)(1).
60 Id. at § 1892(B)(1).
61 Id. § 22:1973.
62 Reed, 857 So. 2d at 1020.
63 See id. at 1020–21.
58
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the insurer’s failure to pay is arbitrary, capricious, or without probable cause.” 64 The issue
in this case is whether Allstate’s failure to pay is arbitrary and capricious.
With respect to the first issue—whether Allstate was arbitrary and capricious in its
denial based on the vacancy provision in the Fire Endorsement—Allstate contends its
reasonable defense is its reliance upon the statutory mandates of the Louisiana Standard
Fire Policy language and the Fire Endorsement, which requires the insured to inform the
insurer if the property becomes vacant or unoccupied. 65 There are two problems with
Allstate’s contention. First, Allstate’s adjuster admitted in his deposition that he did not
deny Twine’s claim based on the occupancy requirement.66 Second, as discussed above,
the Fire Endorsement does not apply to the loss in this case. Therefore, even if Allstate
could establish that there are no genuine disputes of material fact, it is not entitled to
judgment as a matter of law, because its reliance upon section 22:1311 to deny coverage
for this non-fire peril is unreasonable. Accordingly, Allstate’s motion for summary
judgment with respect to whether it acted arbitrarily and capriciously in its denial based
on the vacancy provision in the Fire Endorsement is denied.
With respect to the second issue—whether Allstate was arbitrary and capricious in
its denial based on Exclusion 18—Allstate must submit affirmative evidence to establish
no disputed issues of material fact exist. In support of its position that it did not act
arbitrarily or capriciously because it has a reasonable basis on which to defend the claim,
Allstate submits the affidavit of Charles Prewitt, in which he states the water leakage
began between August 20, 2014 and September 18, 2014.67 Allstate argues this evidence

Versai Mgmt. Corp. v. Clarendon Am. Ins. Co., 597 F.3d 729, 739 (5th Cir. 2010) (quoting La. Bag Co. v.
Audubon Indem. Co., 999 So. 2d 1104, 1112–13 (La. 2008)).
65 R. Doc. 24-3 at 12.
66 R. Doc. 25-4 at 13.
67 R. Doc. 24-8.
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shows it had reasonable doubts about the extent of Twine’s loss.68 Specifically, Allstate
contends “[t]here was clearly a legitimate dispute over . . . [whether the] excluded
damages occur[ed] over weeks.”69
Twine responded by showing there are material facts in dispute with respect to
whether Allstate’s denial of coverage is arbitrary and capricious. Twine points out that
Allstate has made no determination of when the leak began, so it is impossible to know
whether the leak was continuous over a period of weeks, as required by Exclusion 18.70 In
support of her position, Twine submits the deposition of Richard Laraway, in which he
states he did not know on which date the leak began.71
The Court finds disputed issues of material fact exist with respect to whether
Allstate acted arbitrarily and capriciously by denying Twine’s claim based on Exclusion
18. A determination of whether an insurer’s failure to pay a claim was arbitrary and
capricious is a finding of fact.72 Summary judgment is inappropriate when a claim against
an insurer for bad-faith penalties depends on factual determinations with respect to the
reasonableness of the insurer’s actions.73 Accordingly, Allstate’s motion for summary
judgment with respect to Twine’s claim that Allstate engaged in arbitrary and capricious
behavior with respect to its denial of coverage based on Exclusion 18 is denied.

R. Doc. 24-3 at 12.
R. Doc. 24-3 at 12–13.
70 R. Doc. 25 at 8–9.
71 R. Doc. 25-4 at 13.
72 Grilletta v. Lexington Ins. Co., 558 F.3d 359, 368 (5th Cir. 2009).
73 Cedar Ridge, LLC v. Landmark Am. Ins. Co., No. 13-672, 2014 WL 906211, at *2 (E.D. La. Mar. 7, 2014).
68
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CONCLUSION
IT IS ORDERED that the motion for summary judgment74 filed by Allstate
Insurance Company is DENIED.
New Orleans, Louisiana, this 28th day of December, 2016.
______________ _______ _________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

74

R. Doc. 24.

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