Rosenthal v. Allstate Property & Casualty Insurance Company

Filing 24

ORDER AND REASONS. It is ORDERED that Allstate's motion for summary judgment (Rec. Doc. 10 ) is GRANTED. It is FURTHER ORDERED that Rosenthal's claims are DISMISSED WITH PREJUDICE. It is FURTHER ORDERED that Allstate's motion in limine to exclude Rosenthal's expert (Rec. Doc. 12 ) is DENIED AS MOOT. Signed by Judge Carl Barbier. (gec)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

HENRY ROSENTHAL

CIVIL ACTION

VERSUS

NO: 16-13732

ALLSTATE PROPERTY AND
CASUALTY INSURANCE COMPANY

SECTION: “J” (1)

ORDER AND REASONS
Before the Court is a Motion for Summary Judgment (Rec. Doc.
10) filed by Defendant Allstate Property and Casualty Insurance
Company (“Allstate”), an opposition thereto filed by Plaintiff
Henry Rosenthal (“Rosenthal”) (Rec. Doc. 15), and a reply filed by
Allstate (Rec. Doc. 21). Having considered the motion and legal
memoranda, the record, and the applicable law, the Court finds
that the motion should be GRANTED.
FACTS AND PROCEDURAL BACKGROUND
This case arises from an insurance claim Rosenthal made on
his motor home policy.

On June 20, 2013, Rosenthal purchased a

1991 Bluebird RV in Virginia.

He drove the RV off the lot, across

the country, and to his home in Mandeville, Louisiana.

From July

23, 2013 until June 8, 2015, Rosenthal never once drove the RV on
the road.

However, Rosenthal avers that he would occasionally run

1

the engine and drive the RV on the driveway of his property to
ensure that it remained in good working order.
Rosenthal alleges that an unusually heavy rainstorm occurred
at his home on or about May 27, 2015.

Rosenthal avers that

following this severe weather, he attempted to run the RV.
contends that that the engine would not initially turn over.

He
When

the engine did eventually run, water dripped from it and spewed
out of the exhaust.

Believing that the engine may have been

damaged from rain water that entered the RV’s vertical exhaust
pipe during the May 27, 2015 storm, Rosenthal made a claim with
Allstate on June 8, 2015.
On June 10, 2015, Allstate sent an adjuster to assess the
extent

and

conclusions

the

cause

about

what

of

the

caused

damage.

The

Rosenthal’s

adjuster
engine

drew

trouble

no
and

instead requested that Rosenthal have a mechanic of his choice
evaluate the RV and provide a repair estimate.
3.)

(Rec. Doc. 10-2 at

Rosenthal did not have a mechanic inspect the RV at that time.

Instead, he submitted an estimate for repairing the engine from
Clarke Power Services (“Clarke”) after discussing the situation
over the phone with someone from the company.

Id. at 4-5.

An

Allstate representative informed Rosenthal that the estimate from
Clarke would be insufficient and that Rosenthal would need to
obtain an estimate from a mechanic who actually inspected the RV.

2

After
referred

more

the

phone

claim

to

conversations
a

with

mechanical

Investigation Unit named Jeff Stark.

Rosenthal,

engineer
Id. at 5.

in

Allstate

its

Special

Stark determined

that the engine damage was most likely caused by the RV being left
idle for two years, but advised that a conclusive determination of
the

engine’s

condition

would

require

it

to

be

disassembled.

Allstate once again informed Rosenthal that he needed to have a
mechanic inspect the RV’s engine.

Rosenthal asserts that Allstate

refused to pay to have the RV’s engine disassembled or transported
to a mechanic even though he alleges that the insurance policy
covers this service.

(Rec. Doc. 15 at 3.)

Because Rosenthal did

not obtain an inspection, Allstate took the position that he did
not cooperate with the investigation and denied the claim for
failure to provide sufficient proof of loss.
On May 25, 2016, Rosenthal filed suit against Allstate in
Louisiana state court, alleging breach of contract, negligent and
bad

faith

claims

handling

in

violation

of

Louisiana

Revised

Statutes § 22:1973 and § 22:1892, violations of Louisiana Civil
Code

Articles

misrepresentation.
August 9, 2016.

2315,

2316,

and

2320,

and

negligent

Allstate removed the case to this Court on
On March 14, 2017, Allstate filed the instant

motion for summary judgment.
At issue in this motion for summary judgment is whether the
damage to the engine of Rosenthal’s RV is covered by the vehicle’s
3

insurance policy.

There is no dispute that rusty water escaped

from exhaust pipes when Rosenthal attempted to run the engine.
Allstate’s expert, Jeff Stark, 1 has seen a video of this discharge
and acknowledges as much.

However, the parties disagree about how

the water entered the engine.

Rosenthal contends that when strong

rains fell on May 27, 2015, a large amount of rain water landed on
the roof of his home.

Rosenthal’s theory is that this water ran

off the roof and into the vertical exhaust pipe of the RV, which
was parked along the side of his home.

From there, Rosenthal avers

that the water ran down the vertical exhaust pipe and into the
exhaust manifold where it sat until he attempted to run the engine.
At that point, Rosenthal contends, the water entered the engine
and damaged it.

Rosenthal has an expert who supports this theory

and suggests that it is possible for rain to fall with such
intensity that it would result in a collection of water through
the vertical exhaust pipe of an RV.
Allstate argues that Rosenthal’s theory is not realistic and
not supported by enough evidence to withstand a motion for summary
judgment.

Allstate contends that the damage to the RV’s engine is

much more likely to have been caused from inactivity and from not
running the engine for extended periods of time.

Because damage

resulting from improper maintenance is not covered by the insurance

1

Jeff Stark first inspected the property on June 23, 2015 on behalf of Allstate.
He returned on January 31, 2017 to further assess the damage and prepare an
expert report for Allstate. (See Rec. Doc. 10-15 at 8.)

4

policy, Allstate argues that the damage to the RV’s engine falls
outside the policy’s scope of coverage.

Allstate also argues that

it did not violate Louisiana’s statutory scheme for insurer bad
faith and asks the Court to grant summary judgment on this claim.
LEGAL STANDARD
Summary judgment is appropriate when “the pleadings, the
discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed. R.
Civ. P. 56(c)); Little v. Liquid Air Corp., 37 F.3d 1069, 1075
(5th Cir. 1994). When assessing whether a dispute as to any
material fact exists, a court considers “all of the evidence in
the record but refrains from making credibility determinations or
weighing

the

evidence.”

Delta

&

Pine

Land

Co.

v.

Nationwide

Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008). All
reasonable inferences are drawn in favor of the nonmoving party,
but

a

party

cannot

defeat

summary

judgment

with

conclusory

allegations or unsubstantiated assertions. Little, 37 F.3d at
1075. A court ultimately must be satisfied that “a reasonable jury
could not return a verdict for the nonmoving party.” Delta, 530
F.3d at 399.
If the dispositive issue is one on which the moving party
will bear the burden of proof at trial, the moving party “must
5

come forward with evidence which would ‘entitle it to a directed
verdict if the evidence went uncontroverted at trial.’” Int'l
Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1264-65 (5th Cir.
1991). The nonmoving party can then defeat the motion by either
countering with sufficient evidence of its own, or “showing that
the moving party’s evidence is so sheer that it may not persuade
the reasonable fact-finder to return a verdict in favor of the
moving party.” Id. at 1265.
If the dispositive issue is one on which the nonmoving party
will bear the burden of proof at trial, the moving party may
satisfy its burden by merely pointing out that the evidence in the
record is insufficient with respect to an essential element of the
nonmoving party’s claim. See Celotex, 477 U.S. at 325. The burden
then shifts to the nonmoving party, who must, by submitting or
referring to evidence, set out specific facts showing that a
genuine issue exists. See id. at 324. The nonmovant may not rest
upon the pleadings, but must identify specific facts that establish
a genuine issue for trial. See, e.g., id. at 325; Little, 37 F.3d
at 1075.
DISCUSSION
The question here is whether Rosenthal has demonstrated that
the damage to the RV is a covered loss under the insurance policy.
“When determining whether or not a policy affords coverage for an
incident, it is the burden of the insured to prove the incident
6

falls within the policy’s terms.”

Doerr v. Mobil Oil Corp., 2000-

0947 (La. 12/19/00), 774 So. 2d 119, 124.

Therefore, an insurance

policy’s scope of coverage is “an element that must be proven by
the plaintiff.”

Naquin v. Elevating Boats, LLC, No. 10-4320, 2015

WL 1245757, at *2 (E.D. La. Mar. 18, 2015), aff'd sub nom. Naquin
v. Elevating Boats, L.L.C., 817 F.3d 235 (5th Cir. 2016); Bayle v.
Allstate Ins. Co., 615 F.3d 350, 358 (5th Cir. 2010) (noting that
the

insured

uncompensated

carries
(or

covered peril”).

the

burden

of

under-compensated)

“establish[ing]
damage

was

that

caused

any
by

a

An insured who files suit against the insurer on

an insurance contract bears the burden of proving “every fact
essential to his cause of action.”

Rosen v. United Servs. Auto.

Ass'n, 2012-0284 (La. App. 4 Cir. 11/14/12), 104 So. 3d 633, 637.
As will be discussed below, Rosenthal has failed to provide any
evidence on two elements of his claim: that an intense rain storm
occurred on May 27, 2015 and that water from his roof entered into
the engine through the vertical exhaust pipe.
Rosenthal has not demonstrated that heavy rains fell on May
27, 2015.

This is important because the section of the policy

under which Rosenthal made his claim would require the existence
of abnormally strong rain. Rosenthal filed his claim with Allstate
under

the

RV’s

comprehensive

insurance

policy.

That

policy

included a section providing coverage for “direct and accidental
loss,” which stated:
7

We will pay for direct and accidental loss to your
insured motor home or a non-owned motor home not caused
by collision. Loss caused by missiles, falling objects,
fire theft or larceny, explosion, earthquake, windstorm,
hail, water, flood, malicious mischief or vandalism, and
riot or civil commotion is covered.
Glass breakage,
whether or not caused by collision, and collision with
a bird or animal is covered.
(Rec. Doc. 10-12 at 23.)

Although there is little Louisiana law

on the subject of “direct and accidental loss” in comprehensive
insurance policies, other courts have understood accidental loss
to

require

events

that

are

unexpected

and

unforeseen.

See

Volquardson v. Hartford Ins. Co. of the Midwest, 647 N.W.2d 599,
614 (2002) (finding that a direct and accidental loss provision
similar to the clause at issue here was not ambiguous and covered
“damage

caused

either

by

truly

unforeseen

events

or

by

the

intentional act of a third party”); McCoy v. Coker, 620 S.E.2d
691, 694 (N.C. 2005) (quoting Black’s Law Dictionary to define the
term

accident

in

the

context

of

insurance

policies

as

“an

occurrence which is unforeseen, unexpected, extraordinary, either
by virtue of the fact that it occurred at all, or because of the
extent of the damage”); Fidelity and Guar. Ins. Underwriters, Inc.
v. Allied Realty Co., 384 S.E.2d 613, 615 (Va. 1989) (defining
accidental “in the same manner as Black’s Law Dictionary, to wit:
‘happen by chance, or unexpectedly; taking place not according to
the

usual

course

of

things;

casual;

fortuitous’”

(internal

citation omitted)); Tuturea v. Tennessee Farmers Mut. Ins. Co.,

8

No. W200901866COAR3CV, 2010 WL 2593627, at *11 (Tenn. Ct. App.
June 29, 2010) (analyzing a provision and concluding that “the
word ‘accident’ as used in an insurance policy refers to an
unforeseen,

unexpected

event

occurring

without

intention

or

design”).

Accordingly, the Court is satisfied that direct and

accidental

loss

in

the

context

of

this

comprehensive

policy

requires that damage to the RV be the product of unexpected or
unforeseen events.

A normal rain storm would likely not qualify

as a direct and accidental loss because such a rain event would be
expected to occur in the usual course of things.

See Allied Realty

Co., 384 S.E.2d at 615.
Rosenthal asserts that a particularly severe storm occurred
on May 27, 2015, and that this storm resulted in rainfall of
approximately six to eight inches in the span of a couple hours.
(Rec. Doc. 10-4 at 12-13).

He has presented no evidence other

than his own self-serving testimony to support this allegation.
Allstate’s expert, on the other hand, obtained records of the
rainfall during May 2015 from the weather station closest to
Mandeville, the Slidell Airport.

The total rainfall during May

2015 at the Slidell Airport was 3.95 inches, and the total on May
27, 2015 was .45 inches.

(Rec. Doc. 10-15 at 37.)

Although

information about precipitation in Slidell does not automatically
foreclose Rosenthal’s assertion that a deluge occurred at his home
in Mandeville, Rosenthal puts forth no evidence of such a rain
9

storm.

Rosenthal has failed to create an issue of fact as to

whether a severe rain storm that fell outside the normal course of
things actually occurred in May 2015.
Rosenthal has also failed to provide any evidence for his
theory that water fell onto his roof and into the RV’s vertical
exhaust pipe.

By his own admission, Rosenthal has never witnessed

water entering the vertical exhaust pipe during any rain event,
let alone during any alleged storms of May 2015.
at 12.)

(Rec. Doc. 10-4

Rosenthal’s speculative theory is not sufficient to rebut

the evidence provided by Allstate.
At the time of the alleged rain storm in May 2015, the RV was
parked along the side of Rosenthal’s home.
12.)

(Rec. Doc. 10-4 at 11-

The left side of the RV was 54 inches away from the house,

and the roof of the house had a 24 inch overhang.
15 at 7.)

(Rec. Doc. 10-

This resulted in a 30-inch separation between the roof

of the house and the left side of the RV.

Id.

The vertical

exhaust pipe was on the back left corner of the RV and it faced
Rosenthal’s home at a forty-five degree angle.

See id. at 27.

The RV was in the same position on January 31, 2017 2 when
Allstate’s expert Jeffrey Stark visited the property and attempted
to re-create Rosenthal’s theory.
Rec. Doc. 10-4 at 11-12.)

(See Rec. Doc. 10-15 at 12 and

He placed a garden hose on the peak of

2

The report provided by Rosenthal’s expert states that the inspection occurred
on January 30, 2017. (Rec. Doc. 10-17 at 2-3.)

10

Rosenthal’s roof, routed the hose in the direction of the RV’s
vertical exhaust pipe, and turned the water on. Stark then watched
the water fall off the roof to determine if any fell into the
exhaust pipe.
the ground.

The water fell straight off the roof and down to
Images from the expert report confirm that no water

entered the vertical exhaust pipe.

(See Rec. Doc. 10-15 at 26-

27.)
Rosenthal’s only response to this demonstration comes from
himself and his expert witness. Rosenthal stated in his deposition
that his experience with rain storms is that they often result in
water falling off the roof at a forty-five degree angle.
Doc. 10-4 at 12.)

(Rec.

Rosenthal’s expert report stated:

[Allstate’s expert] failed to take into account weather
conditions
that
often
accompany
heavy
rain
–
particularly high-velocity winds.
It was my opinion,
given the angle of the water running off of the house,
that water exiting the roof at a higher velocity could
have easily entered directly into the vertical exhaust
pipe of the vehicle. However, I am not a meteorologist
or a hydrologist so I do not offer any professional
opinions about that.
(Rec. Doc. 10-17 at 3.)

This opinion by Rosenthal’s expert is not

enough to create a genuine issue of material fact about whether
water entered the engine through the vertical exhaust pipe.

This

is especially true because the report itself warns that the expert
is not in a position to posit a professional opinion about how
water runs off a roof in various weather conditions.

Furthermore,

Rosenthal’s expert acknowledged that the RV is “always going to
11

catch water” and that water could enter the engine through normal
rains and create problems if the engine is not run for a long
period of time.

(Rec. Doc. 21-1 at 9.)

Finally, Rosenthal

presents no evidence to support the theory that the rain would
have been more likely to enter the vertical exhaust pipe in a
severe rain storm than in the demonstration made by Allstate’s
expert.
Bad Faith Claim
Louisiana

law

has

penalties for insurers.

two

provisions

that

permit

bad

faith

Louisiana Revised Statute § 22:1892(A)(1)

requires an insurer to “pay the amount of any claim due any insured
within thirty days after receipt of satisfactory proof of loss
from the insured . . . .”

La. Rev. Stat. § 22:1892(A)(1).

An

insurer who fails to pay the claim within thirty days is subject
to certain penalties if the conduct is “found to be arbitrary,
capricious,

or

without

probable

cause.”

La.

Rev.

Stat.

§

22:1892(B)(1); Cazenave v. Anpac Louisiana Ins. Co., No. CV 161420, 2016 WL 7368414, at *4 (E.D. La. Dec. 20, 2016).

Section

22:1973 also provides penalties when an insurer breaches its “duty
of good faith and fair dealing,” and provides a list of six actions
which constitute a breach of those duties.
22:1973(A)-(B)(6).

La. Rev. Stat. §

To obtain damages under these provisions, the

insured must demonstrate (1) the insurer has received satisfactory
proof of loss, (2) the insurer has failed to tender timely payment,
12

and (3) the insurer's failure to pay is arbitrary, capricious, or
without probable cause.

Versai Mgmt. Corp. v. Clarendon Am. Ins.

Co., 597 F.3d 729, 739 (5th Cir. 2010) (citing La. Bag Co. v.
Audobon Indem. Co., 999 So. 2d 1104, 1112-13 (La. 2008)).
Rosenthal argues that Allstate violated both § 22:1892 and §
22:1973 by failing to provide timely payment on the claim, and by
failing

to

conduct

a

proper

violation of § 22:1973(B)(1).
that

by

conducting

two

investigation

into

the

claim

in

In particular, Rosenthal argues

inspections

which

ended

up

being

inconclusive and then requiring Rosenthal to assume the cost of
any further inspection, Allstate failed to meet its inspection
obligations.
position.

Rosenthal cites to no authority in support of this

Moreover, “a satisfactory proof of loss is . . . a

necessary predicate to a showing that the insurer was arbitrary
and capricious.”

Iteld v. Four Corners Const., L.P., 2013-0692

(La. App. 4 Cir. 1/30/14), 133 So. 3d 312, 322.

Because Rosenthal

did not provide Allstate with satisfactory proof of loss, he cannot
prevail on a bad faith claim under § 22:1892 or § 22:1973.

See

id.
CONCLUSION
Accordingly,
IT IS ORDERED that Allstate’s motion for summary judgment
(Rec. Doc. 10) is GRANTED.

13

IT IS FURTHER ORDERED that Rosenthal’s claims are DISMISSED
WITH PREJUDICE.
IT IS FURTHER ORDERED that Allstate’s motion in limine to
exclude Rosenthal’s expert (Rec. Doc. 12) is DENIED AS MOOT.
New Orleans, Louisiana this 19th day of April, 2017.

____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

14