Advanced Sleep Center, Inc. v. Certain Underwriters at Lloyd's

213 So. 3d 1220, 16 La.App. 5 Cir. 525, 2017 WL 510991, 2017 La. App. LEXIS 180
CourtLouisiana Court of Appeal
DecidedFebruary 8, 2017
DocketNO. 16-CA-525
StatusPublished
Cited by3 cases

This text of 213 So. 3d 1220 (Advanced Sleep Center, Inc. v. Certain Underwriters at Lloyd's) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Advanced Sleep Center, Inc. v. Certain Underwriters at Lloyd's, 213 So. 3d 1220, 16 La.App. 5 Cir. 525, 2017 WL 510991, 2017 La. App. LEXIS 180 (La. Ct. App. 2017).

Opinion

MURPHY, J.

| j Appellants, Advanced Sleep Center, Inc. and Advanced Neurodiagnostic Center, Inc., have appealed the trial court judgment in favor of defendant, Certain Underwriters at Lloyd’s London.1 For the reasons that follow, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

Defendant issued a policy of insurance to insure plaintiffs’ property, (hereinafter referred to as “the subject property”), which consists of a three-story stucco building, located at 2905 Kingman Street in Metairie, Louisiana, for the policy period from June 29, 2012 to June 29, 2013. Hurricane Isaac struck the area where the subject property is located on August 29, 2012. On October 11, 2012, Dr. Morteza Shamsnia, one of the owners of the plaintiff corporations, submitted a property loss notice to their insurance broker asserting that winds from the hurricane caused damage to the subject property’s roof, which resulted in damaged flooring, and that “damage to the building caused power outage and medicines were destroyed.” Defendant denied coverage for the alleged losses and plaintiffs filed suit.

At trial, Daniel Onofrey testified that he is a licensed commercial contractor and has worked in the construction industry for forty years. Prior to 2008, he was an insurance adjuster and handled property damage claims for insurance companies and property owners. Mr. Onofrey had a long standing relationship with Dr. Shams-nia. At the time Hurricane Isaac struck, he was in the process of constructing a building for Dr. Shamsnia, located next door to the subject property. Dr. Shamsnia asked Mr. Onofrey to look at the subject property after Hurricane Isaac. Mr. Onofrey met with Dr. Shamsnia’s maintenance man, identified as |2Mohammad Tareh, to repair the roof of the subject property. In repairing the roof, Mr. Tareh applied an elas-tomeric coating to the roof.

Mr. Onofrey testified that there was widespread water damage to the building, which was caused by water intrusion from Hurricane Isaac. In his deposition, Mr. Onofrey stated that the leaks into the building were caused by the parapet wall surrounding the roof. At trial, Mr. Onofrey testified that water came in through the flashing for the parapet wall, explaining that the flashing “waffled up” allowing water to enter. Mr, Onofrey stated that he had recently realized that the flashing “was lifting and a breach of the counter flashing caused water intrusion” and this was the only thing that could cause so much widespread damage. Mr. Onofrey stated that this damage to the flashing was visible, and referred to pictures of the flashing, which Mr. Onofrey stated was “waffling up.”

[1223]*1223At Dr. Shamsnia’s request, Mr. Onofrey prepared a repair estimate for damage to the building alleged to be caused by the hurricane. The estimate includes the costs to repair roof leaks and the exterior stucco, as well as numerous interior repairs throughout the building including replacing insulation, ceiling tiles, flooring, cabinetry, countertops, sinks, light fixtures, cameras, smoke detectors, blinds, window hardware, replace and/or repair and paint drywall, and paint molding and doors. The total estimated cost of these repairs was $369,693.89. Mr. Onofrey explained that this estimate was compiled from items Dr. Shamsnia pointed out as they walked through the building, Mr. Onofrey took notes during this inspection but he no longer had the notes at the time of trial. Mr. Onofrey testified that he did not take pictures during this inspection. Mr. Ono-frey was listed as the insured’s contact person on the property loss claim form.

Mr. Onofrey testified that he inspected the building with the adjuster assigned to the claim by defendant, J. Scott McClary. Mr. Onofrey pointed out [¡¡damage to the building as he walked through the building with Mr. McClary. Mr, Onofrey accompanied Mr. McClary to the roof of the building.

Dr. Shamsnia, a professor of neurology, testified that he and his wife work in the subject building, where they operate a sleep study center and a neurodiagnostic center. He testified that defendant inspected the property twenty-eight days before the storm and determined the building was in “good standing.”

Dr. Shamsnia stated that he and his wife, Simin Mirtaheri, evacuated to Los Angeles for Hurricane Isaac. When he went into the building after the storm, there were multiple areas of damage on the second and third floors from water getting into the building from the windows and roof. He instructed his “superintendent,” Mohammad Tareh, to make the necessary repairs to stop water from leaking into the building from the roof. Mr. Tareh tightened the screws on the roof and changed the seals at the bottom of windows. Mr. Tareh also picked up wet carpet and dried it. Some of the carpet was replaced with laminate flooring. The minimum amount of repairs were done to make the building functional so Dr. Shamsnia and his wife could resume patient care. Dr. Shamsnia did not have an invoice or a list of the repairs performed by Mr. Tareh.

After Mr. Tareh worked on the roof, Dr. Shamsnia had roofing work performed by the roofing contractor who was working on his new building. Dr. Shamsnia was told by this contractor that the roof needed to be replaced. Dr. Shamsnia testified that the roof had not been replaced and it can be observed that the “flanges and all of that are bent.” Dr. Shamsnia testified that the water damage inside the building is' obvious—there are water stains on the ceiling and walls throughout the building, some of the windows are “buckled,” and the building smells ft’om the water damage. In Dr. Shamsnia’s view the pictures of the building that were entered into evidence do not show all of the damage to the building.

|4In addition to the damage to the building, plaintiffs also submitted a claim for loss of medications. Dr. Shamsnia testified that there were medications in the building which had to be stored at a constant temperature. These medications are ruined if they are not held' at the recommended temperature for more than twenty-four hours. Dr. Shamsnia retained the ruined medications and pictures of the ruined medication were submitted into evidence at trial. Dr. Shamsnia testified that there was a “direct power loss” to the building based on the inspection performed by “his” electrician.2 He gave a copy of the electri-[1224]*1224eian’s report to defendant’s adjuster. Although defendant denied that this report was dated, Dr. Shamsnia testified that the report was dated.

Dr. Shamsnia received the letter denying his claim for damages in December 2012. In July 2013, he contacted Daniel Scott Claire, a public insurance adjuster, to inspect the building. Mr. Claire prepared a second repair estimate which totals $142,597.00. On July 30, 2013, Dr. Shamsnia mailed this repair estimate, along with a letter, to defendant stating that he disagreed with the decision to deny the claim and requested to proceed under the “request for appraisal” provision of the policy. Dr. Shamsnia testified that he did not receive a response to this letter from defendant; however, the property was reinspected by defendant in August 2013.

Glen Scarsone, an engineer for Entergy, which supplied power to the subject building, testified that there was a widespread power outage in Metairie which began at 6:01 a.m. on August 29, 2012 and lasted over twenty-four hours. He explained that the subject property was located in the area that was affected by the power outage.

■ J.

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213 So. 3d 1220, 16 La.App. 5 Cir. 525, 2017 WL 510991, 2017 La. App. LEXIS 180, Counsel Stack Legal Research, https://law.counselstack.com/opinion/advanced-sleep-center-inc-v-certain-underwriters-at-lloyds-lactapp-2017.