Allstate Insurance Co. v. Duncan

703 So. 2d 36, 96 La.App. 3 Cir. 1603, 1997 La. App. LEXIS 1639, 1997 WL 331011
CourtLouisiana Court of Appeal
DecidedJune 18, 1997
DocketNo. 96-1603
StatusPublished
Cited by1 cases

This text of 703 So. 2d 36 (Allstate Insurance Co. v. Duncan) 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
Allstate Insurance Co. v. Duncan, 703 So. 2d 36, 96 La.App. 3 Cir. 1603, 1997 La. App. LEXIS 1639, 1997 WL 331011 (La. Ct. App. 1997).

Opinions

| iWOODARD, Judge.

Plaintiffs were awarded penalties and attorneys fees, under La.R.S. 22:1220, pursuant to the trial court’s finding that the defendant insurance company acted in bad faith in handling the plaintiffs’ claim. Defendants appeal.

FACTS

On July 22, 1994, the defendant, Roger Duncan, d.b.a. A-l Portable Buildings, attempted to deliver a portable building purchased by Marion and Annie Sellers. During the course of the delivery, Duncan struck and damaged the septic tank located on the Sellers’ property.

At the time of the accident, the Sellers had in effect a policy of homeowner’s insurance through Allstate Insurance Company [hereinafter “Allstate”]. The cost of the new septic tank totaled $1,785.00. Pursuant to the terms of the policy, Allstate paid the Sellers the full replacement cost of the septic tank, totaling $1535.00, after the Sellers had met their $250.00 deductible.

^Subsequently, Allstate and the Sellers filed suit against Duncan and his liability [37]*37insurer, Midland Risk Insurance Company [hereinafter “Midland”]. Allstate alleged a claim against Midland arising out of its conventional subrogation rights. The Sellers brought suit to recover their $250.00 deductible. Both Allstate and the Sellers sought penalties and attorney’s fees pursuant to La. R.S. 22:1220.

Trial of the matter was held on July 2, 1996. In its judgment, the trial court found Duncan to be liable for the damage to the septic tank and awarded Allstate $1,535.00 in damages and the Sellers $250.00 in damages. Additionally, the trial court found that, in handling the Sellers’ claim, Midland acted in bad faith pursuant to La.R.S. 22:1220. As such, the trial court awarded an additional $500.00 in penalties to the Sellers along with attorney’s fees of $1,889.93 to Allstate. The defendants now appeal the ruling of the trial court, alleging two assignments of error.

ASSIGNMENTS OF ERROR

The defendants, Midland Insurance Company and Roger Duncan, claim the following two assignments of error:

1. The Trial Court erred in finding Midland was in bad faith and in awarding penalties to the Sellers under LSA-R.S. 22:1220 where Midland had a reasonable ground upon which to dispute the claim.
2. The Trial Court erred in awarding attorney’s fees without a statutory or contractual basis for the claim.

LAW

Bad Faith

In their first assignment of error, the defendants claim that the trial court erred in finding that Midland was in bad faith and in awarding damages to the plaintiffs pursuant to La.R.S. 22:1220. For the following reasons, this assignment of error has merit.

La.R.S. 22:1220 provides, in pertinent part:

A. An insurer ... owes to his insured a duty of good faith and fair dealing. The insurer has an affirmative duty to adjust claims fairly and promptly and to make a reasonable effort to settle claims with the insured or the claimant, or both. Any insurer who breaches these duties shall be liable for any damages sustained as a result of the breach.
|3B. Any one of the following acts, if knowingly committed or performed by an insurer, constitutes a breach of the insurer’s duties imposed in Subsection A:
(1) Misrepresenting pertinent facts or insurance policy provisions relating to any coverages at issue.
(2) Failing to pay a settlement within thirty days after an agreement is reduced to writing.
(3) Denying coverage or attempting to settle a claim on the basis of an application which the insurer knows was altered without notice to, or knowledge or consent of, the insured.
(4) Misleading a claimant as to the applicable prescriptive period.
(5) Failing to pay the amount of any claim due any person insured by the contract within sixty days after receipt of satisfactory proof of loss from the claimant when such failure is arbitrary, capricious, or without probable cause.
C. In addition to any general or special damages to which a claimant is entitled for breach of the imposed duty, the claimant may be awarded penalties assessed against the insurer in an amount not to exceed two times the damages sustained or five thousand dollars, whichever is greater. Such penalties, if awarded, shall not be used by the insurer in computing either past or prospective loss experience for the purpose of setting rates or making rate filings.

Recently, in Theriot v. Midland Risk Insurance Co., 95-2895 (La.5/20/97); 694 So.2d 184, the Louisiana Supreme Court held in relation to the above statute:

[W]e conclude that although a right of action is available to both insureds and third-party claimants under La.R.S. 22:1220, only the commission of the specific acts listed in La. R.S. 22:1220 B can support a private cause for breach of the statute.

[38]*38Allstate and the Sellers contend that the following acts of Midland entitle them to penalties under La.R.S. 22:1220.

There is little evidence in the record of any actions taken on the part of Midland to reasonably settle this claim with Allstate or the Sellers. The testimony of Phyllis Cooper, a branch claims manager at Midland, indicates that the company expended very little effort in an attempt to resolve the claim. First, Ms. Cooper testified that ^Midland conducted an investigation. However, Midland’s so-called investigation consisted solely of its conversation with its insured, Roger Duncan. Duncan claimed that the accident occurred because he was following Mrs. Sellers’ instruction on where to place the metal building, despite the fact that he warned her it would likely cause damage to the septic tank. Based on this conversation, Midland determined that the accident was caused by the comparative fault of Mrs. Sellers, and that, therefore, they would not pay 100% of the claim.

Midland made no attempt to substantiate Duncan’s claim. Midland did not depose Mrs. Sellers, nor did anyone visit the accident site to survey the scene. In addition, Midland made no attempts to determine if there were witnesses who could shed light on the events that took place on the day of the accident. Therefore, Midland had little, if any, evidence or factual basis that would tend to support its conclusion that the accident involved the comparative fault of Mrs. Sellers. The only evidence regarding affirmative steps taken by Midland include undocumented phone calls and a letter, dated September 7, 1995, to Allstate in which Midland offered to settle the case.

On the contrary, none of Midland’s above described acts constituted a violation of La. R.S. 22:1220 B. Accordingly, Sellers has no cause of action pursuant to La.R.S. 22:1220. Therefore, the trial court’s award of $500.00 as penalties pursuant to that statute must be reversed.

Attorney Fees

In their second assignment of error, the defendants argue that the trial judge erred in awarding attorney’s fees to Allstate pursuant to La.R.S. 22:1220. While we agree that the trial court erred in awarding attorney’s under 22:1220, we find that plaintiffs were entitled to attorney’s fees pursuant to La. R.S. 22:658.

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Bluebook (online)
703 So. 2d 36, 96 La.App. 3 Cir. 1603, 1997 La. App. LEXIS 1639, 1997 WL 331011, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allstate-insurance-co-v-duncan-lactapp-1997.