Feingerts v. La. Citizens Prop. Ins. Corp.

265 So. 3d 62
Louisiana Court of Appeal·Decided February 13, 2019·No. NO. 2018-CA-0381·Published·Cited by 2 cases

Opinion

JAMES F. MCKAY III, CHIEF JUDGE

This suit was brought by the plaintiff, Bruce L. Feingerts ("Feingerts"), against the defendant insurer, Louisiana Citizens Property Insurance Company ("Citizens"), for Hurricane Katrina-related property damages. Feingerts appeals the trial court's December 16, 2016 judgment, which awarded him $ 45,000.00 in property damages, but failed to find that Citizens acted arbitrarily and capriciously in handling his claim. For the reasons set forth below, we amend to increase the property damage award to $ 100,000.00, and find that the trial court erred in failing to find Citizens arbitrary and capricious. Accordingly, we affirm in part as amended, reverse in part, and remand for further proceedings.

*65STATEMENT OF THE FACTS AND PROCEDURAL HISTORY

In 2003, Feingerts' home was damaged during a windstorm. The contents of the home suffered significant mold damage and was transferred to two facilities, Environmental Remediation Services ("ERS") and CRDN/Young's Dry Cleaning ("CRDN"), for cleaning/repair and storage. Travelers Insurance Company, Feingerts' homeowner's insurer, paid for the mold remediation of the home along with the cleaning, repair/replacement and storage of the contents.

After the 2003 storm, Feingerts temporarily leased an apartment in the American Can Company while his home underwent extensive mold remediation and renovation. While living at the American Can Company, Feingerts purchased a renter's policy with Citizens providing coverage for property damage caused by wind and hail, including wind-driven rain. The policy did not cover property damages caused by flood. Specifically, the policy provided $ 100,000.00 in coverage for personal property damage and $ 20,000.00 in coverage for loss of use/additional living expenses ("ALE"). It is undisputed that the policy included coverage for Feingerts' personal property stored offsite, i.e. , the property located at the ERS and CRDN storage facilities.

When Hurricane Katrina made landfall on August 29, 2005, the contents of Feingerts' home were still being stored at ERS and CRDN. The items that were cleaned/repaired were ready to be returned to his home. Both storage facilities flooded during the hurricane. The American Can Company, where Feingerts was still residing, sustained flood and wind-driven rain damage. As a result, Feingerts relocated to a hotel in Baton Rouge.

On August 31, 2005, Feingerts, through his insurance agent, notified Citizens regarding the damage to his personal property located in the storage facilities, and the need for ALE. Feingerts asserted that ERS and CRDN suffered roof damage in the hurricane and that his stored property was damaged by wind-driven rain prior to the flooding. Citizens proceeded to investigate the claim, utilizing a number of different adjusters over the course of several years.

Feingerts began receiving ALE payments, but received nothing on the property damage claim for the items stored at ERS and CRDN. As a result, Feingerts filed a petition for damages against Citizens on August 28, 2007, asserting that his personal property sustained damage from hurricane related wind, which is a peril covered under the renters' policy. Feingerts also asserted that Citizens did not fully compensate him for the ALE provided by the policy. Finally, the petition sought damages, penalties and attorney's fees against Citizens for its arbitrary and capricious handling of the claims.

The matter proceeded to a bench trial on August 24-26, August 31, and September 2, 2015. Judgment was rendered on December 16, 2016, awarding Feingerts $ 45,000.00 on his property damage claim. Sanctions were not assessed against Citizens on the arbitrary and capricious claim. The motion for new trial filed by Feingerts was denied on April 18, 2017.

In this appeal, Feingerts asserts that the trial court erred in: (1) failing to award sanctions against Citizens for failure to timely pay the ALE claim; (2) failing to find that Citizens waived its flood exclusion coverage defense; (3) failing to award sanctions against Citizens for failure to timely pay the property damage claim; (4) giving Citizens a full credit or offset for Feingerts' settlement with the excess insurer *66at the CRDN facility; and (5) awarding only $ 45,000.00 for property damage.

LAW AND ANALYSIS

Assignments of Error No. 1 and No. 3: Denial of Feingerts' arbitrary and capricious claim asserted against Citizens for its failure to timely pay the ALE and property damage claims.

Because assignments of error No. 1 and No. 3 relate to Feingerts' arbitrary and capricious claims, we will address them together.

The petition for damages alleges that Citizens acted arbitrarily and capriciously pursuant to La. R.S. 22:658 and La. R.S. 22:1220 in handling Feingerts' claims for ALE and property damage. Although the record reflects that the arbitrary and capricious claims were fully litigated, the trial court's judgment is silent on this issue. It is well established that when a judgment is silent as to a litigated claim, it is presumed that the claim is denied. Mason v. Bankers Ins. Group , 2013-0704, p. 12 (La. App. 5 Cir. 1/31/14), 134 So.3d 29, 36 (citing Cambre v. St. John the Baptist Parish , 2012-0590 (La. App. 5 Cir. 5/16/13), 119 So.3d 73, 81 ).

Both La. R.S. 22:1892 (formerly La. R.S. 22:658 ) and La. R.S. 22:1973 (formerly La. R.S. 22:1220 ) set forth affirmative duties for insurers and prescribe penalties for their breach.1 La. R.S. 22:1892 requires insurers to pay "the amount of any claim due any insured" and imposes penalties if the insurer arbitrarily, capriciously, or without probable cause fails to make such payment "within thirty days ... after receipt of satisfactory proofs of loss of that claim." See La. R.S. 22:1892(A)(1) and (B)(1). Similarly, La. R.S. 22:1973 imposes an obligation of good faith and fair dealing on an insurer, including the 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." See La. R.S. 22:1973(A). Penalties may be imposed if an insurer arbitrarily, capriciously, or without probable cause fails to pay "the amount of any claim due any person insured by the contract within sixty days after receipt of satisfactory proof of loss." See La. R.S. 22:1973(B)(5) and (C).

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Feingerts v. La. Citizens Prop. Ins. Corp., 265 So. 3d 62 (La. Ct. App. 2019).

265 So. 3d 62 (Feingerts v. La. Citizens Prop. Ins. Corp.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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