Americas Insurance Company v. Jarreau et al
Filing
35
ORDER AND REASONS: IT IS ORDERED that 7 Motion to Dismiss Attorney's Fees is GRANTED without prejudice; IT IS FURTHER ORDERED that 8 Motion to Compel Appraisal and Disqualify Appraiser is DENIED; IT IS FURTHER ORDERED that 28 Motion for Summary Judgment and Motion to Compel is GRANTED in part to Compel Appraisal and otherwise DENIED. Signed by Judge Jay C. Zainey on 9/13/2018. (ajn)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
AMERICAS INSURANCE COMPANY
CIVIL ACTION
VERSUS
NO: 18-5055
BRIAN JARREAU and
MAGDALENA BUDZIAKOWSKA
SECTION: "A" (3)
ORDER AND REASONS
The following motions are before the Court:
Motion to Dismiss Claim for Attorney’s Fees (Rec. Doc. 7) filed by plaintiff,
Americas Insurance Company. Defendants Brian Jarreau and Magdalena Budziakowska
oppose this motion. This motion, noticed for submission on August 22, 2018, is before
the Court on the briefs without oral argument.1
Motion to Compel Appraisal and Disqualify Appraiser (Rec. Doc. 8) filed by
plaintiff, Americas Insurance Company. Defendants Brian Jarreau and Magdalena
Budziakowska oppose this motion. This motion, noticed for submission on August 22,
2018, is before the Court on the briefs without oral argument.
Motion for Summary Judgment and Motion to Compel Appraisal (Rec. Doc.
28) filed by defendants, Brian Jarreau and Magdalena Budziakowska. Plaintiff, Americas
Request for Oral Argument was filed in conjunction with the Motion to Dismiss Claim
for Attorney Fees (Rec. Doc. 7) and the Motion to Compel Appraisal and Disqualify
Appraiser (Rec. Doc. 8). The Court does not deem oral argument necessary.
1
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Insurance Company opposes this motion. This motion, noticed for submission on
September 5, 2018, is before the Court on the briefs without oral argument.
Defendants Brian Jarreau and Magdalena Budziakowska own immovable
property in New Orleans, Louisiana allegedly damaged by a fire on or about January 5,
2018. (Rec. Doc. 1, Complaint ¶ 7). On January 5, 2018, Defendants submitted a claim
for the damaged property to Plaintiff, Americas Insurance Company (Americas). (Id. ¶ 8).
On March 19, 2018, Defendants submitted correspondence to Americas invoking the
appraisal provision set forth in Americas’ policy. (Id. ¶ 15). Defendants appointed Nader
Anthony Odeh (Odeh) as their independent appraiser. (Id.). On April 3, 2018, Americas
accepted Defendants’ demand for appraisal pursuant to the Americas’ policy, appointed
Mitash Patel as Americas’ appraiser, and objected to Odeh as Defendants’ appraiser.
(Id. ¶ 18). Americas seeks a declaratory judgment to declare Odeh ineligible to serve as
Defendants’ appraiser and to order Brian Jarreau and Magdalena Budziakowska to
comply with the Americas’ policy by participating in the appraisal by appointing a
competent and impartial appraiser (Id. ¶ 33).
Defendants Brian Jarreau and Magdalena Budziakowska counterclaimed that
Americas failed to appoint a competent and impartial appraiser pursuant to the Americas’
policy. (Rec. Doc. 6 ¶ 14). In their counterclaim, Defendants requested an award for their
costs and attorney’s fees incurred. (Id. ¶ 26).
Americas now moves to dismiss Defendants’ claim for attorney’s fees, compel
appraisal, and disqualify Defendants’ appraiser, Odeh. Americas contends that
Defendants fail to cite to any contractual or statutory basis for an award of attorney’s
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fees in connection with counter-claims for declaratory judgment. (Rec. Doc. 7).
Americas also contends that Odeh should be disqualified as Defendants’
independent appraiser because he is not impartial and because Defendants retained
Odeh as a public adjuster (Rec. Doc. 8). Americas asserts that if the Court deems Odeh
a qualified independent appraiser, Americas will further challenge the appraisal award
because Odeh’s honesty and integrity are suspect. (Id.).
Defendants move for the Court to dismiss with prejudice Americas’ Complaint of
Declaratory Judgment, compel Americas to conduct the appraisal process on the terms
of Americas’ policy, and compel Americas to complete an appraisal with Odeh. (Rec.
Doc. 28).
The Court, having reviewed the parties’ submissions, rules as follows. The Motion
to Dismiss Defendants’ Claim for Attorney’s Fees (Rec. Doc. 7) is GRANTED without
prejudice subject to the Court’s consideration in the event Defendants amend their
pleading to allege bad faith.
The Motion to Compel Appraisal and Disqualify Appraiser (Rec. Doc. 8) is
GRANTED IN PART AND DENIED IN PART. Americas cites the Americas’ policy which
includes an appraisal provision designed to address disputes over the amount of the
loss. (Id., Exhibit 1-A). Defendants do not oppose the enforcement of the policy and the
appraisal process.
In the event of enforcement of the appraisal provision of the policy, each party
must choose a “competent and impartial” appraiser. (Rec. Doc. 8, Exhibit 1-A).
Defendants state in their Answer to the Complaint (Rec. Doc. 6) and Americas asserts
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now that Brian Jarreau contracted with Claims Consulting Contracting (CCC), Odeh’s
company, to pay an hourly rate up to a maximum of twelve percent of a payment
tendered for claim recovery (Rec. Doc. 8, Exhibit “1-H”). The CCC contract provides that
the twelve percent cap derives from the overall amount Defendants are permitted to
collect from the appraisal process. (Id.)
Defendants argue that Odeh is subject to cross-examination and Americas must
file a motion to vacate after the appraisal award is rendered. (Rec. Doc. 10). The Court
agrees. Plaintiff will have the opportunity to cross-examine Odeh and this Court will be
able to determine his competency and impartiality.
The Motion for Summary Judgment and Motion to Compel Appraisal is GRANTED
in part and DENIED in part. The Motion to Compel Appraisal is granted as Defendants
and Plaintiff agree that the appraisal process established by Americas’ policy should be
enforced. The Court in denying Americas’ request for disqualification of Odeh, also
denies Defendants’ Motion for Summary Judgment in all other respects.
Accordingly, and for the foregoing reasons;
IT IS ORDERED that the Motion to Dismiss Attorney’s Fees (Rec. Doc. 7) filed
by Americas Insurance Company is GRANTED without prejudice;
IT IS FURTHER ORDERED that the Motion to Compel Appraisal and
Disqualify Appraiser (Rec. Doc. 8) filed by Americas Insurance Company is DENIED;
IT IS FURTHER ORDERED that the Motion for Summary Judgment and
Motion to Compel Appraisal (Rec. Doc. 28) is GRANTED in part to compel appraisal
and otherwise DENIED.
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September 13, 2018
__________________________________
JUDGE JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE
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