AMW Sports, LLC et al

Filing 58

RULING as to 19 Motion for Summary Judgment. Defendant State Farms Motion for Summary Judgment is granted in part, dismissing the claims of plaintiffs Abdallah Mizyed, Maher Mizyed and Walid Mizyed. The remaining aspects of the defendants motion are denied.. Signed by Magistrate Judge Stephen C. Riedlinger on 1/6/2012. (LSM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

AMW SPORTS, LLC D/B/A
THE ATHLETE’S FOOT

CIVIL ACTION

VERSUS

NUMBER 10-651-SCR

STATE FARM FIRE AND CASUALTY
COMPANY
RULING ON MOTION FOR SUMMARY JUDGMENT
Before the court is State Farm’s Motion for Summary Judgment
filed by the defendant State Farm Fire and Casualty Company.
Record document number 19.

The motion is opposed.1

Plaintiffs AMW Sports LLC d/b/a The Athlete’s Foot (“AMW”),
Abdallah Mizyed, Maher Mizyed and Walid Mizyed filed a Petition and
an Amended Petition in state court against defendant State Farm
Fire and Casualty Company.

Defendant removed the case to this

court on October 1, 2010 based on diversity jurisdiction.
Plaintiffs operate a store located in Baton Rouge, Louisiana
which sells athletic shoes and clothing.

Defendant issued a

business mercantile insurance policy to plaintiff AMW, which was in
effect during September 2008.
Gustav moved through Baton Rouge.

On September 1, 2008 Hurricane
Plaintiffs alleged that during

a power outage caused by the hurricane, unknown individuals created
a hole in the back wall of the store building and took $55,000

1

Record document number 29.
Defendant
memorandum. Record document number 43.

filed

a

reply

worth of merchandise. Plaintiffs alleged that on September 8, 2008
the theft was reported to the defendant and a claim was made claim
under the policy for the business losses.

Defendant investigated

and adjusted the claim, eventually denying it in a letter dated
November 24, 2009.

Defendant’s letter stated in part as follows:

Our investigation has revealed that the loss sustained
cannot be established with the documentation presented.
The loss you have sustained appears to be related to
unexplained, mysterious disappearance of property. This
is not an insurable loss per the policy provisions.
Additionally, you have failed to comply with the
conditions of the policy in establishing your loss
specifically
with
regards
to
providing
complete
inventories of the property and records to prove the
loss.
In their state court petitions the plaintiffs alleged that the
defendant breached its obligation under the policy by refusing to
provide coverage and payment for any of the losses sustained as a
result of the theft of their business/inventory.2

Plaintiffs

alleged

arbitrary,

further

that

the

defendant’s

refusal

was

capricious and without probable cause, and they sought to recover
the amount of their losses under the policy, general and special
damages, statutory penalties and attorney fees under LSA-R.S.
22:658 and LSA-R.S. 22:1220.
Defendant now moves for summary judgment as to all claims
alleged by the plaintiffs.

Defendant argued it is entitled to

2

Record document numbers 19-4 and 19-11, Plaintiffs amended
petition and petition, respectively.
2

summary judgment because there is no genuine dispute for trial on
the following issues: (1) the individual plaintiffs do not have a
valid cause of action under the policy because AMW is the only
named insured; (2) the plaintiffs cannot meet their burden of proof
as to the extent or value of the business loss claim; (3) the
plaintiffs cannot meet their burden of proof as to the value of the
building repair; and, (4) the plaintiffs cannot meet their burden
of proof to recover bad faith damages because there is no evidence
that the defendant’s coverage decisions were arbitrary, capricious
or unreasonable.
It is unnecessary to present a detailed analysis of the
evidence presented by the parties. Because summary judgment is not
appropriate, it is sufficient to state that based on a review of
the summary judgment record as a whole, there is sufficient
evidence to create a genuine dispute for trial as to (1) whether
there was a theft,

and (2) if there was a theft, the extent or

value of the losses to the business as a result.3

To grant the

defendant’s motion the court would have to weigh the evidence, view
the evidence and reasonable inferences which could be drawn from it
in the light most favorable to the defendant, and make credibility
determinations favorable to the defendant. When ruling on a motion

3

Defendant’s adjuster, Heather Blevins, made the decision to
deny the claim. She testified that a theft loss and damage to nonowned buildings from theft are types of losses covered under the
policy. Record document number 29-1, Exhibit 2, Blevins depo., pp.
27, 61, 80.
3

for summary judgment the court cannot do any of these things.

For

these same reasons summary judgment cannot be granted as to the
plaintiffs’ claim for statutory penalties and attorney fees.
In response to the defendant’s motion the plaintiffs did not
oppose summary judgment on the first issue.

Plaintiffs did not

dispute that the individual plaintiffs are not named insureds under
the policy.4

Therefore, summary judgment is appropriate as to this

one aspect of the defendant’s motion.
Accordingly,

defendant

State

Farm’s

Motion

for

Summary

Judgment is granted in part, dismissing the claims of plaintiffs
Abdallah Mizyed, Maher Mizyed and Walid Mizyed.

The remaining

aspects of the defendant’s motion are denied.
Baton Rouge, Louisiana, January 6, 2012.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE

4

Record document number 19-5, Exhibit C.
4