Calogero v. Safeway Ins. Co. of Louisiana

753 So. 2d 170, 2000 WL 39134
CourtSupreme Court of Louisiana
DecidedJanuary 19, 2000
Docket99-C-1625
StatusPublished
Cited by113 cases

This text of 753 So. 2d 170 (Calogero v. Safeway Ins. Co. of Louisiana) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Calogero v. Safeway Ins. Co. of Louisiana, 753 So. 2d 170, 2000 WL 39134 (La. 2000).

Opinion

753 So.2d 170 (2000)

Steven J. CALOGERO
v.
SAFEWAY INSURANCE COMPANY OF LOUISIANA and Jennifer Menard.

No. 99-C-1625.

Supreme Court of Louisiana.

January 19, 2000.

*171 Keith Michael Borne, Borne Wilkes & Brady, Lafayette, for Applicant.

David John Calogero, Lafayette, for Respondent.

VICTORY, J.[*]

Although we review other issues, we granted Safeway Insurance Company of Louisiana's ("Safeway") writ primarily to determine whether the Third Circuit erred in finding that, in addition to penalties incurred for its violation of La. R.S. 22:1220, subd. B(5), Safeway also misrepresented the provisions of its policy under La. R.S. 22:1220, subd. B(1) and was liable for a second penalty under La. R.S. 22:1220, subd. C. After reviewing the record and the applicable law, we reverse the court of appeal's holding that Safeway is liable for additional penalties under La. R.S. 22:1220, subd. C for misrepresenting the provisions of the insurance policy. On all other issues, we affirm.

FACTS AND PROCEDURAL HISTORY

On July 16, 1997, Sylvia Calogero, wife of plaintiff Steven Calogero ("Calogero"), applied for a policy of automobile liability insurance with Safeway through an independent insurance broker, All American Insurance Agency of Shreveport. Upon learning that Sylvia had a 17-year-old unlicensed son, David Campos, living at their home, the insurance broker informed Sylvia that unless she paid a greatly increased premium, David would be excluded from coverage under the policy. Choosing the latter, Sylvia executed an "Exclusion of Named Driver"endorsement which provided as follows:

It is agreed that the Insurance afforded by this policy shall not apply with respect to loss, damage, or injury to person(s) or property caused by the excluded driver(s)
David Campos DOB 6-14-80 not licensed to drive
while operating the automobile(s) described in the policy or any other motor vehicle(s) to which the term and condition of the policy apply. It is understood that this exclusion also applies to all renewals of this policy. [Emphasis added.]

The policy was issued to Sylvia and Steven Calogero effective July 16, 1997. On August 25, 1997, Calogero added a new automobile to the policy, a 1993 Toyota pick-up truck.

On September 15, 1997, David was driving the pick-up truck with Sylvia as a passenger when their vehicle was struck by another vehicle. The pick-up truck was a total loss. David Campos was not at *172 fault in causing the accident. No coverage was available from the other vehicle's insurance because, coincidently, the driver of the other vehicle was an excluded driver under that policy. Calogero submitted a claim for property damages to Safeway for the full value of his vehicle, less any deductible, on September 17, 1997. On September 22, 1997, when Calogero called Safeway's adjuster to check on the status of the claim, the adjuster informed him that she believed that coverage would be denied because the pick-up truck was driven by an excluded driver, Campos, at the time of the accident. On September 24, 1997, Calogero's attorney wrote a formal demand letter to Safeway, expressing his view that Safeway had no basis to deny coverage to Calogero. On October 8, 1997, the adjuster sent a denial of coverage letter to Calogero's attorney, formally denying coverage based on the excluded driver endorsement.

On November 17, 1997, Calogero filed suit against Safeway for property damages under the policy, penalties and attorney fees. The issue of whether the "Exclusion of Named Driver" endorsement applied to preclude coverage was brought before the trial court by Motion for Partial Summary Judgment. Calogero argued that the applicability of the exclusion was limited to losses "caused by the excluded driver," and the trial court agreed, rendering judgment in favor of Calogero for $7,675, the full value of the truck. Safeway paid the judgment.

Thereafter, a trial was held on the remaining issue of penalties and attorney fees, with the trial court finding that Safeway was arbitrary and capricious in failing to pay Calogero's claim and awarding Calogero $5,000 in penalties and $490 in damages[1] under La. R.S. 22:1220. The trial court expressly rejected Calogero's assertion that Safeway misrepresented policy provisions. Although the trial court originally granted $2,000 in attorney fees and in the same judgment denied penalties and attorney fees under La. R.S. 22:658, in an amended judgment it deleted the $2,000 attorney fee award, apparently because La. R.S. 22:1220 does not provide for an award of attorney fees.

The court of appeal reversed the trial court's finding that Safeway did not misrepresent the policy provisions under La. R.S. 22:1220, subd. B(1) and awarded an additional penalty to Calogero in the amount of $5,000 under La. R.S. 22:1220(C). Calogero v. Safeway Ins. Co., 99-26 (La.App. 3 Cir. 5/5/99), 735 So.2d 816. The court of appeal also found that the penalty provision of La. R.S. 22:1220 supersedes the penalty provision of La. R.S. 22:658 because it provided the greater penalty. Id. (citing Wells v. Houston, 95-202 (La.App. 3 Cir. 6/7/95), 657 So.2d 474, writ denied, 95-1733 (La.10/13/95), 661 So.2d 500). In addition, for Safeway's failure to pay Calogero's claim, the court of appeal awarded attorney fees in the amount of $7,000 pursuant to La. R.S. 22:658, subd. B(1). Id. In all other respects, the trial court judgment was affirmed. Id. We granted Safeway's writ primarily to determine whether Calogero is entitled to a second penalty award under La. R.S. 22:1220, subd. C for misrepresenting the provisions of the policy, but will first address whether Safeway acted arbitrarily and capriciously in failing to pay Calogero's claim within 60 days and is thus liable for the penalties for violating La. R.S. 22:1220, subd. B(5) and attorney fees for violating La. R.S. 22:658. Calogero v. Safeway Ins. Co., 99-1625 (La.10/1/99), 747 So.2d 1132.

DISCUSSION
La. R.S. 22:1220 provides in pertinent part:
*173 A. An insurer, including but not limited to a foreign line and surplus 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.
B. 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.
. . . .
(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....

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753 So. 2d 170, 2000 WL 39134, Counsel Stack Legal Research, https://law.counselstack.com/opinion/calogero-v-safeway-ins-co-of-louisiana-la-2000.