Sikich v. Scottsdale Insurance Co

Filing 19

MEMORANDUM RULING re 15 MOTION to Dismiss Complaint filed by Scottsdale Insurance Co. Signed by Judge James D Cain, Jr on 1/7/2022. (crt,Benoit, T)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISON
STEVE SIKICH DBA THE SIKICH LAW
FIRM

CASE NO. 2:21-CV-2802

VERSUS

JUDGE JAMES D. CAIN, JR.

SCOTTSDALE INSURANCE COMPANY

MAGISTRATE JUDGE KAY

MEMORANDUM RULING
Before this Court is a Motion to Dismiss [doc. 15] by defendant Scottsdale
Insurance Company (“Scottsdale”), seeking a dismissal of claims brought by plaintiff,
Steve Sikich d/b/a The Sikich Law Firm (“Sikich”). The motion is unopposed.
I.
BACKGROUND
On August 24, 2021, Sikich filed a complaint against Scottsdale in this court seeking
damages to Sikich’s place of business located at 309 E. Sallier Street, Suite B, in Lake
Charles as a result of Hurricane Laura on August 27, 2020, and by Hurricane Delta on
October 9, 2020. The damages complained of are for monetary losses due to business
interruption, business income, and extra expenses, as well as a potential claim for damages
for contents and statutory penalties. In the complaint, it is alleged Scottsdale insured Sikich
under Policy Number CPS7231569. At the time both hurricanes made landfall in Calcasieu
Parish, Louisiana, this policy was active. Doc. 1.
While the policy provides various forms of property coverage, it also contains the
following exclusion:

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WINDSTORM OR HAIL
We will not pay for loss or damage:
1. Caused directly or indirectly by Windstorm or Hail, regardless of
any other cause or event that contributes concurrently or in any sequence to
the loss or damage; or
2. Caused by rain, snow, sand or dust, whether drive by wind or not,
if that loss or damage would not have occurred but for the Windstorm or
Hail.
Doc. 18, p. 106. The exclusion also provides that it modifies the policy and deletes
“windstorm or hail” as covered causes of loss under other sections of the policy. Id.
Scottsdale now moves to dismiss the complaint based on this exclusion. Doc. 15.
Sikich has filed no opposition to the motion and his time for doing so has passed.
Accordingly, the motion is regarded as unopposed.
II.
RULE 12(b)(6) STANDARD
Rule 12(b)(6) allows for dismissal of a claim when a plaintiff “fail[s] to state a
claim upon which relief can be granted.” When reviewing such a motion, the court should
focus on the complaint and its attachments. Wilson v. Birnberg, 667 F.3d 591, 595 (5th
Cir. 2012). The court can also consider documents referenced in and central to a party’s
claims, as well as matters of which it may take judicial notice. Collins v. Morgan Stanley
Dean Witter, 224 F.3d 496, 498–99 (5th Cir. 2000); Hall v. Hodgkins, 305 Fed. App’x
224, 227 (5th Cir. 2008) (unpublished).
Such motions are reviewed with the court “accepting all well-pleaded facts as true
and viewing those facts in the light most favorable to the plaintiff.” Bustos v. Martini
Club, Inc., 599 F.3d 458, 461 (5th Cir. 2010). However, “the plaintiff must plead enough
facts ‘to state a claim to relief that is plausible on its face.’” In re Katrina Canal Breaches
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Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). Accordingly, the court’s task is not to evaluate the plaintiff’s likelihood
of success but instead to determine whether the claim is both legally cognizable and
plausible. Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th
Cir. 2010).
III.
APPLICATION
A federal court sitting in diversity jurisdiction applies the substantive law of the
forum state. Erie Railroad Co. v. Thompkins, 304 U.S. 64 (1938); Cates v. Sears, Roebuck
& Co., 928 F.2d 679, 687 (5th Cir. 1991). Under Louisiana Law, “[a]n insurance policy is
a contract between the parties and should be construed by using the general rules of
interpretation of contracts set forth in the Louisiana Civil Code.” Barrios v. Centaur, LLC,
2021 WL 2680104, at *2 (E.D. La. June 30, 2021) (citing Mayo v. State Farm Mut. Auto.
Ins. Co., 869 So. 2d 96, 99 (La. 2004)). The contract must be interpreted as a whole, with
each provision reviewed in light of the others. Calcasieu Par. Sch. Bd. v. Miller, 92 So. 3d
1200, 1202 (La. Ct. App. 3d Cir. 2012).
“When the words of an insurance contract are clear and explicit and lead to no
absurd consequences, no further interpretation may be made in search of the parties’ intent
and the courts must enforce the contract as written.” Sims v. Mulhearn Funeral Home, Inc.,
956 So.2d 583, 589 (La. 2007) (citing La. Civ. Code art. 2046). When the terms are
ambiguous, however, that ambiguity must be construed against the insurer and in favor or
coverage. Id. at 589-590. Still, the principle of strict “construction of insurance contracts

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does not authorize a perversion of the words, or the exercise of inventive powers to create
an ambiguity where none exists.” Peterson v. Schimek, 729 So.2d 1024, 1029 (La. 1999).
Unless there is a violation of statutory provisions or public policy, “insurers, like other
individuals, are entitled to limit their liability and to impose and to enforce reasonable
conditions upon the policy obligations they contractually assume.” Carbon v. Allstate Ins.
Co., 719 So.2d 437, 440 (La. 1998). Yet, “[e]xclusionary provisions in insurance contracts
are strictly construed against the insurer, and any ambiguity is construed in favor of the
insured.” Ledbetter v. Concord Gen. Corp., 665 So.2d 1166, 1169 (La. 2006).
On a Rule 12(b)(6) motion to dismiss, the court focuses on the complaint and its
attachments. Wilson v. Birnberg, 667 F.3d 591, 595 (5th Cir. 2012). However, the court
can also consider documents referenced in and central to a party’s claims, as well as matters
of which it may take judicial notice. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496,
498–99 (5th Cir. 2000); Hall v. Hodgkins, 305 Fed. App’x 224, 227 (5th Cir. 2008)
(unpublished). The Scottsdale Policy is properly considered under this motion, as it is
referenced in the complaint and central to Sikich’s claims.
Scottsdale maintains that Sikich has failed to state a claim for which relief can be
granted because the windstorm storm exclusion is a complete bar to coverage. The
language of the policy is unambiguous and there is no dispute that Sikich’s claimed losses
are due to Hurricanes Laura and Delta. Sikich has provided no additional information as it
relates to the alleged policy coverage, nor has he sought leave to amend his complaint.
Upon review, the court agrees that Scottsdale’s exclusion provides a complete defense
against recovery.
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IV.
CONCLUSION
For the reasons set forth above, the Motion to Dismiss [doc. 15] will be granted and
all claims in this matter will be dismissed with prejudice.
THUS DONE AND SIGNED in Chambers on this 7th day of January, 2022.

_________________________________
JAMES D. CAIN, JR.
UNITED STATES DISTRICT JUDGE

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