Johnson v. LOUISIANA FARM BUREAU CASUALTY INSURANCE CO.

55 So. 3d 1024, 2010 La.App. 3 Cir. 979, 2011 La. App. LEXIS 106, 2011 WL 309601
CourtLouisiana Court of Appeal
DecidedFebruary 2, 2011
Docket10-979
StatusPublished
Cited by1 cases

This text of 55 So. 3d 1024 (Johnson v. LOUISIANA FARM BUREAU CASUALTY INSURANCE CO.) 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
Johnson v. LOUISIANA FARM BUREAU CASUALTY INSURANCE CO., 55 So. 3d 1024, 2010 La.App. 3 Cir. 979, 2011 La. App. LEXIS 106, 2011 WL 309601 (La. Ct. App. 2011).

Opinion

KEATY, Judge.

|,Defendant, Louisiana Farm Bureau Casualty Insurance Company (Farm Bureau), appeals a judgment granting Plaintiff, Janice Losey Johnson (Johnson), full policy limits under a homeowner’s insurance policy that was effectively still valid at the time Johnson’s house burned down in November 2007. The jury found that although Farm Bureau mailed a notice of intent not to renew Johnson’s homeowner’s insurance, the notice was not delivered. For the following reasons, we affirm.

Facts and Procedural History

Janice and Robert Losey purchased from Farm Bureau, in 2001, insurance policy number H0358756 to cover their home located at 2571 Highway 71 North, Camp-ti, Louisiana, 71411. The policy limit was $297,000 with a $500 deductible. After Robert Losey’s death in 2005, Johnson set up automatic debit with City Bank to pay her recurring monthly bills, including the Farm Bureau premiums.

Farm Bureau, in late 2006, conducted a routine five-year inspection of Johnson’s property and decided not to renew her policy upon its expiration in July of 2007 because the house had become an unacceptable risk. On May 2, 2007, Farm Bureau mailed a written notice of nonrenewal properly addressed to Johnson at the mailing address on her policy, Post Office Box 366, Campti, Louisiana, 71411. It deducted the final premium from her account on May 14, 2007, and on July 10, 2007, her policy expired.

On November 7, 2007, Johnson’s house burned down. This lawsuit arose after *1026 Farm Bureau rejected Johnson’s claim for total loss caused by the fire on the grounds that Johnson did not have a current homeowner’s insurance policy with them.

|2Johnson filed a petition for relief in the 10th Judicial District Court, Natchitoches Parish, Louisiana on July 24, 2008, seeking monetary relief for the losses she sustained. In her petition, Johnson alleged that she was covered by the policy, that she was not notified that the policy had expired until after the fire, and that her losses totaled approximately $300,000.

Farm Bureau filed a general denial, asserting that Johnson was provided with written notice of nonrenewal more than thirty days prior to the termination of her policy, the policy was not in effect at the time of the fire, and, therefore, Farm Bureau was not responsible for Johnson’s losses.

A jury trial took place on January 26, 2010, on Johnson’s petition for relief. At the conclusion of the trial, the jury was asked to answer two questions: first, did Farm Bureau properly mail a notice of its intent not to renew Johnson’s policy on May 2, 2007, and, second, could they “find by a preponderance of the evidence that Louisiana Farm Bureau Mutual Insurance Company’s notice of intent not to renew Janice Losey’s homeowners insurance policy dated May 2, 2007, was delivered by the United States Post Office to Janice Lo-sey’s Post Office Box?” After deliberation, the jury found Farm Bureau had properly mailed the notice on May 2, 2007 and that the notice had not been delivered to Johnson.

On February 9, 2010, having found that the jury verdict was properly voted upon and the law and evidence were in favor thereof, the trial court awarded Johnson full benefits under the policy: $297,000 less a $500 deductible, plus judicial interest. Accordingly, judgment was signed in favor of Johnson and against Farm Bureau.

Farm Bureau is now before this court on appeal asserting the following three assignments of error:

|sl. That the jury committed manifest error and was clearly wrong when it found that Johnson did not receive the notice of nonrenewal;
2. That the trial court committed error as a matter of law in awarding judgment to Johnson; and
3. That the trial court committed error as a matter of law when it signed the judgment in favor of Johnson.

DISCUSSION

Manifest Error by Jury

We must decide whether the jury was manifestly erroneous when it found that the notice of nonrenewal that Farm Bureau mailed to Johnson on May 2, 2007, was not delivered.

Pertinent Law

In order to understand the importance of the jury interrogatories at issue herein, it is imperative to review the law governing nonrenewal of insurance policies at the time of the fire found in La.R.S. 22:636.6. 1 This statute requires that an insurance company mail written notice of its intent to not renew an existing policy to the insured at the address listed on their policy at least thirty days prior to the policy expiration. La.R.S. 22:636.6. The purpose of the notice is to provide the *1027 insured with ample time to obtain insurance with another company before their existing policy expires. Broadway v. All-Star Ins. Corp., 285 So.2d 536 (La.1973). 2

| .¡Proof of mailing said notice creates a prima facie rebuttable presumption that the notice was delivered to the insured. Funk v. La. Underwriters Ins. Co., 613 So.2d 1018 (La.App. 3 Cir.), writ denied, 616 So.2d 705 (La.1993). The burden then shifts to the insured to prove “by affirmative evidence, nondelivery.” Id. at 1021-22. The presumption of delivery is overcome when the insured provides affirmative proof that the notice was not delivered. Collins v. State Farm Ins. Co., 08-790 (La.App. 4 Cir. 10/14/08), 997 So.2d 51, writ denied, 08-3012 (La.2/20/09), 1 So.3d 499.

The jury in this case was tasked with answering two interrogatories. The first was whether Farm Bureau mailed the notice of nonrenewal to Johnson at the address listed on her policy and at least thirty days before said policy expired as required by La.R.S. 22:636.6. Having found that Farm Bureau mailed the notice, the jury then had to decide if Johnson was able to prove by a preponderance of the evidence that although the notice had been mailed, it had not been delivered to her. The jury found that Johnson met her burden. Farm Bureau contends that the jury committed manifest error and was clearly wrong in answering interrogatory number two.

Standard of Review

When reviewing a trial court’s finding of fact, we use the manifest error/clearly wrong standard of review set forth by our supreme court in Rosell v. ESCO, 549 So.2d 840 (La.1989). A court of appeal, after reviewing the record in its entirety, cannot overturn a reasonable finding of fact even if there is some conflicting testimony or it would have chosen differently between two permissible views of the evidence. Rosell, 549 So.2d 840. Further, the supreme court made it clear that when “a factfinder’s finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly |-wrong.” Id. at 845. Indeed, Rosell

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Related

Johnson v. Louisiana Farm Bureau Casualty Insurance Co.
60 So. 3d 607 (Supreme Court of Louisiana, 2011)

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Bluebook (online)
55 So. 3d 1024, 2010 La.App. 3 Cir. 979, 2011 La. App. LEXIS 106, 2011 WL 309601, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-louisiana-farm-bureau-casualty-insurance-co-lactapp-2011.