STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2019 CA 0549
JUSTIN DEWANE PELLE
VERSUS
ERIC MUNOS AND GEICO CASUALTY COMPANY
Judgment Rendered: FEB 19 2020
L On Appeal from the Eighteenth Judicial District Court In and for the Parish of West Baton Rouge State of Louisiana Trial Court No. 1043958
The Honorable J. Kevin Kimble, Judge Presiding
Mark A. Holden Attorney for Plaintiff/Appellant, Baton Rouge, Louisiana Justin Dewane Pelle
Russell L. Potter Attorneys for Defendant/Appellee, Andrew P. Texada Geico Casualty Company Alexandria, Louisiana
BEFORE: HIGGINBOTHAM, PENZATO, AND LANIER, JJ. PENZATO, I
Plaintiff, Justin Dewane Pelle, appeals a trial court judgment denying his
motion for summary judgment and granting summary judgment in favor of
defendant, Geico Casualty Company (Geico), and dismissing Pelle' s claims against
Geico with prejudice. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
The matter arises out of a motor vehicle accident that occurred on July 14,
2017, when Pelle' s vehicle was rear- ended by a vehicle driven by Eric Munos. At
the time of the accident, Munos was insured by Geico ( Geico Liability) under a
liability coverage policy numbered 4490- 73- 73- 60. Pelle was insured by Geico
Geico Collision) under a policy of insurance numbered 4488- 10- 81- 78, which
afforded collision and comprehensive coverage.
Pelle made a claim for his property damage against Geico Liability. Geico
Liability determined that Pelle' s vehicle was totaled in the collision and forwarded
a letter dated July 21, 2017, to Pelle containing the total loss settlement explanation
that the net settlement amount was $ 13, 087. 00, including the value of the vehicle, a
condition adjustment, and taxes. That letter referenced claim number 059626806-
0102- 022. On July 31, 2017, Pelle signed a bill of sale -power of attorney enabling
Geico Liability to obtain title to the vehicle. That document also referenced claim
number 059626806- 0102- 022 and was notarized by Pelle' s attorney. As the
liability insurer of Munos, Geico Liability paid Pelle' s total loss settlement to the
lienholder, as well as approximately a month of rental car expense under the
property damage liability coverage of the Munos policy. Pelle testified by
deposition that Geico provided a rental car for him for one month. He kept that car
for two additional months and paid for the rental car charges himself. A rental car
bill submitted into evidence shows the amount Pelle paid from August 25, 2017
through November 17, 2017. Geico Collision asserts that Pelle' s rental car bill was
N paid by Geico Liability from July 17, 2017, until August 24, 2017,' which is
confirmed by Pelle' s testimony. Therefore, Pelle' s rental car expenses were paid
by Geico Liability for approximately 25 days after the bill of sale -power of
attorney was signed by Pelle on July 31, 2017. Geico Liability advised counsel for
Pelle by letter dated September 15, 2017, that the property damage to Pelle' s
vehicle had been handled under claim number 059626806- 0102- 022, where Pelle
was a third -party claimant and no deductible was withheld from the payment.
Furthermore, Geico Liability paid the tax and title amount to the lienholder.
Pelle filed suit in this matter on September 27, 2017, specifically naming as
defendants Munos and Geico Liability. Although Geico Collision was not
specifically named as a defendant, Pelle asserted that Geico Collision had issued
him a policy of insurance for property damage and failed to submit payment to him
more than thirty days after his submission of proof of claim. Pelle sought his
deductible, tax and registration fees, the full amount of all property damage, all the
rental car fees he paid, plus bad faith penalties and attorney' s fees for the denial of
his claim.
Geico Liability answered the suit claiming that Pelle made a claim for
property damages against Munos' s Geico liability policy, and it was handled under
claim number 059626806- 0102- 022. Geico Liability also asserted that the bill of
sale -power of attorney signed on July 31, 2017, referenced claim number
059626806- 0102- 022, which Pelle signed and his attorney notarized.
On November 6, 2017, Geico Collision filed its own answer, asserting that
no claim had ever been submitted under the policy of insurance issued to Pelle, and
that all payments made by Geico Liability were pursuant to the policy issued to
Munos.
Geico Collision actually references the end date of payment as August 25, 2017. However, the rental car bill submitted into evidence shows that Pelle began paying for the rental car on August 25, 2017.
3 On August 16, 2018, Pelle dismissed all bodily injury claims against Munos
and Geico Casualty Company ( in its liability capacity), reserving his rights against
Munos, Geico Casualty Company, and any party related to or arising from the
property damage to his vehicle. On September 18, 2018, Geico Collision filed a
motion for summary judgment, claiming that Pelle had been fully compensated for
his property damage from Geico Liability, that he was not entitled to duplicative
payment from Geico Collision, that the collateral source rule does not apply to
Pelle' s claim for collision coverage, and that any property damage claims against
Geico Collision should be dismissed. Geico Collision attached several documents
to its motion for summary judgment, including, the deposition of Pelle with several
attached exhibits, including a vehicle application, the July 21, 2017 letter of total
loss explanation, the bill of sale -power of attorney, the rental car bill evidencing
the amount Pelle paid, and the policy of insurance issued to Pelle.
Pelle opposed Geico Collision' s motion for summary judgment and filed a
counter motion for summary judgment, asserting that the property collision
coverage on his vehicle is a collateral source; that Geico Collision has no legal or
conventional subrogation for the damages related to Munos' s liability policy; that
Geico Collision failed to adjust claims fairly and promptly and failed to make a
reasonable effort to settle claims in violation of La. R.S. 22: 1973( A); that Geico
Collision misrepresented pertinent facts in violation of La. R.S. 22: 1973( B); that
Geico Collision failed to make a written offer to settle any property damage claim
within thirty days of receipt of satisfactory proof of the loss in violation of La. R.S.
22: 1892; and that Pelle could receive a double recovery from a collateral source for
which he has given consideration, including under an insurance policy. Pelle
attached several documents to his motion for summary judgment, including his
own affidavit, the September 15, 2017 letter from Geico, Pelle' s amending and
4 supplemental petition, the July 21, 2017 letter from Geico, and discovery responses
from Geico Collision.
The trial court heard both motions for summary judgment on October 30,
2018, and orally granted Geico Collision' s motion for summary judgment and
denied Pelle' s cross motion for summary judgment. In accordance with its oral
ruling, the trial court signed a judgment dismissing the claims of Pelle against
Geico Collision on November 13, 2018. It is from this judgment that Pelle
appeals. 2
ASSIGNMENT OF ERROR
In his only assignment of error, Pelle contends that the trial court wrongfully
granted Geico Collision' s motion for summary judgment, wrongfully denied
Pelle' s motion for summary judgment, and wrongfully dismissed Pelle' s petition
for damages and penalties.
SUMMARY JUDGMENT
Summary judgment procedure is favored and " is designed to secure the just,
speedy, and inexpensive determination of every action .... and shall be construed to
accomplish these ends." La. C. C. P. art. 966( A)(2). In reviewing the trial court' s
decision on a motion for summary judgment, this court applies a de novo standard
of review using the same criteria applied by the trial courts to determine whether
summary judgment is appropriate. Reynolds v. Bordelon, 2014- 2371 ( La. 6/ 30/ 15),
172 So. 3d 607, 610.
After an opportunity for adequate discovery, a motion for summary
judgment shall be granted if the motion, memorandum, and supporting documents
Z The denial of a motion for summary judgment is an interlocutory judgment and is appealable only when expressly provided by law. However, where there are cross motions for summary judgment raising the same issues, this court can review the denial of a summary judgment in addressing the appeal of the granting of the cross motion for summary judgment. See Crowe v. Bio—Medical Application of Louisiana, LLC, 2014- 0917 ( La. App. 1st Cir. 6/ 3/ 16), 208 So. 3d 473, 479- 80 n.6; MP31 Investments, LLC v. Harvest Operating, LLC, 2015- 0766 ( La. App. 1 st Cir. 1/ 22/ 16), 186 So. 3d 750, 755.
5 show that there is no genuine issue as to material fact and that the mover is entitled
to judgment as a matter of law. La. C. C. P. art. 966( A)( 3). The only documents
that may be filed in support of or in opposition to the motion are pleadings,
memoranda, affidavits, depositions, answers to interrogatories, certified medical
records, written stipulations, and admissions. La. C. C. P. art. 966( A)( 4).
The mover bears the burden of proving that he is entitled to summary
judgment. However, if the mover will not bear the burden of proof at trial on the
subject matter of the motion, he need only demonstrate the absence of factual
support for one or more essential elements of his opponent' s claim, action, or
defense. La. C. C. P. art. 966( D)( 1). If the moving party points out that there is an
absence of factual support for one or more elements essential to the adverse party' s
claim, action, or defense, then the nonmoving party must produce factual support
sufficient to establish the existence of a genuine issue of material fact or that the
mover is not entitled to judgment as a matter of law. La. C. C. P. art. 966( D)( 1);
Holmes v. Lea, 2017- 1268 ( La. App. 1st Cir. 5/ 18/ 18), 250 So. 3d 1004, 1009.
In ruling on a motion for summary judgment, the trial court' s role is not to
evaluate the weight of the evidence or to determine the truth of the matter, but
instead to determine whether there is a genuine issue of triable fact. Janney v.
Pearce, 2009- 2103 ( La. App. 1st Cir. 5/ 7/ 10), 40 So. 3d 285, 289, writ denied,
2010- 1356 ( La. 9/ 24/ 10), 45 So. 3d 1078. A genuine issue is a triable issue, which
means that an issue is genuine if reasonable persons could disagree; if on the state
of the evidence, reasonable persons could reach only one conclusion, there is no
need for a trial on that issue. A fact is " material" when its existence or
nonexistence may be essential to plaintiffs cause of action under the applicable
theory of recovery. Kasem v. State Farm Fire & Cas. Co., 2016- 0217 ( La. App.
1 st Cir. 2/ 10/ 17), 212 So. 3d 6, 13. Interpretation of an insurance policy usually involves a legal question that
can be resolved properly in the framework of a motion for summary judgment. An
insurance policy is a contract between the parties and should be construed using
the general rules of interpretation of contracts set forth in the Civil Code.
Interpretation of a contract is the determination of the common intent of the
parties. La. C. C. art. 2045. When the words of a contract are clear and explicit
and lead to no absurd consequences, no further interpretation may be made in
search of the parties' intent. La. C. C. art. 2046. Prejean v. McMillan, 2018- 0919
La. App. 1st Cir. 2/ 28/ 19), 274 So. 3d 575, 578.
LAW AND DISCUSSION
Double Recovery, Collateral Source Rule, and Subrogation
In its motion for summary judgment, Geico Collision avers that despite the
fact that Pelle has already been paid the full value of his vehicle by Geico Liability,
he now seeks recovery from Geico Collision, as his own insurer. Geico Collision
maintains that if it is made to pay Pelle additional collision damages, he would
recover twice for the same damages. We note that " Louisiana law does not allow
for double recovery of the same element of damages." Albert v. Farm Bureau Ins.
Co., 2005- 2496 ( La. 10/ 17/ 06), 940 So. 2d 620, 622. In Albert, the plaintiff
attempted to argue that the sheriff had appeared in two different capacities, so that
payment in one capacity did not create double recovery. The Louisiana Supreme
Court recognized that such a distinction in capacities was irrelevant for purposes of
the prohibition against double recovery and stated:
W] e find it is of no moment that [ the sheriff] may have paid medical benefits under a different capacity than the capacity in which he was cast in judgment. The fact remains that plaintiffs have been compensated for [ the deputy' s] medical expenses and cannot be compensated twice for the same element of damages.
Albert, 940 So. 2d at 623- 24. Furthermore, in Gagnard v. Baldridge, 612 So. 2d 732, 736 ( La. 1993), the
Louisiana Supreme Court held that the defendant who appeared in two separate
capacities ( employer and tortfeasor) was entitled to a credit for disability benefits
and medical expenses paid to the plaintiff under the worker' s compensation act
against the amount of wages and medical expenses awarded to the plaintiff in tort.
W] hile an insured may not recover in excess of his actual loss, an insured
may recover under each policy providing coverage until the total loss sustained is
indemnified." Cole v. Celotex, 599 So. 2d 1058, 1080 ( La. 1992). It is equally
clear that a plaintiff is not entitled to double recovery for the same elements of
damages. Wegener v. Lafayette Ins. Co., 2010- 0810 ( La. 3/ 15/ 11), 60 So. 3d 1220,
1235.
Numerous federal cases following Hurricane Katrina addressed the issue that
an insured, even if having paid for additional property damage coverage, was still
prohibited from recovering more than the value of the property damage.
An insured party in Louisiana may generally " recover under all available coverages provided that there is no double recovery." The fundamental principle of a property insurance contract is to indemnify the owner against loss, that is " to place him or her in the same position in which he would have been had no [ accident] occurred."
Consequently, " while an insured may not recover in excess of his actual loss,an insured may recover under each policy providing coverage until the total loss sustained is indemnified." ( Citations omitted).
Bradley v. Allstate Ins. Co., 620 F. 3d 509, 521 ( 5th Cir. 2010). In Weiss v. Allstate
Ins. Co., 06- 3774, 2007 WL 891869, at * 3 ( E. D. La. 3/ 21/ 07), the court recognized
the well- established principle that insurance contracts are contracts of indemnity
and that an insured cannot recover an amount greater than his loss. Both Webster
v. State Farm Fire & Casualty Ins. Co., 07- 4812, 2008 WL 2080907, at * 4 ( E. D.
La. May 14, 2008), and Wellmeyer v. Allstate Ins. Co., 06- 1585, 2007 WL
1235042, at * 2 ( E.D. La. April 26, 2007), recognized that plaintiffs could not enjoy
a double recovery for the same lost property under their homeowners and flood
K policies even though they had paid for both coverages. Louque v. State Farm Fire
Cas. Co., 06- 2881, 2007 WL 1343636, at * 2 ( E.D. La. May 4, 2007), recognized
that an insured cannot recover twice for the same loss.
In Dauphin v. Lafayette Ins. Co., 2001- 1236 ( La. App. 3rd Cir. 2/ 6/ 02), 817
So. 2d 144, 148, an insured couple collected property damage from their collision
insurer and the husband received a check for the property damage from the
tortfeasor' s liability insurer. The court held that when a collision insurer paid the
property damage of its insured, after a liability insurer had already paid the same
damages, the collision insurer had paid an obligation that had already been
extinguished by payment. A thing is not owed when it is paid or delivered for the
discharge of an obligation that did not exist. Dauphin, 817 So. 2d at 148 ( citing
La. C. C. art. 2300). The insureds had received checks and cashed them from both
their collision insurer and the liability insurer of the tortfeasor. The court held that
the insureds were not entitled to double recovery and that the collision insurer' s
recourse was against the insureds. Dauphin, 817 So. 2d at 148.
If Geico Collision were to pay Pelle' s property damages for his vehicle, he
would obtain a double recovery for the same damages since he has already 3 received those damages from Geico Liability.
Pelle asserts that he is entitled to double recovery due to the collateral source
rule. He argues that because he paid for collision coverage, this coverage is a
collateral source, which obligates Geico Collision to pay the full value of the
vehicle to him even though Pelle was fully compensated for the value of the
vehicle by the tortfeasor' s liability policy payment to the lien holder.
3 With regard to the rental car charges, Pelle' s own policy provides that rental reimbursement ceases when the insured vehicle is deemed a total loss either ( 1) 72 hours after the limit of liability is paid under the property damage section of the policy or ( 2) 72 hours after the initial settlement offer, whichever comes first. Since Geico Liability extended rental reimbursement in excess of these time periods, Pelle has also been fully compensated for his rental car expenses.
W The collateral source rule is a rule of evidence and damages that is of
common law origin, yet embraced and applied by Louisiana courts. Bozeman v.
State, 2003- 1016 ( La. 7/ 2/ 04), 879 So. 2d 692, 697. The Louisiana Supreme Court
in both Bozeman, 879 So. 2d at 697, and Louisiana Dept. of Transp. and Dev. v.
Kansas City Southern Ry. Co., 2002- 2349 ( La. 5/ 20/ 03), 846 So. 2d 734, 739, cited
the Restatement ( Second) of Torts § 920A ( 1979) as source material for the
collateral source rule. Restatement ( Second) of Torts § 920A provides:
1) A Payment made by a tortfeasor or by a person acting for him to a person whom he has injured is credited against his tort liability, as are payments made by another who is, or believes he is, subject to the same tort liability.
2) Payments made to or benefits conferred on the injured party from other sources are not credited against the tortfeasor' s liability, although they cover all or a part of the harm for which the tortfeasor is liable.
Under the collateral source rule, a tortfeasor may not benefit, and an injured
plaintiff' s tort recovery may not be reduced, because of monies received by the
plaintiff from sources independent of the tortfeasor' s procuration or contribution.
Bozeman, 879 So. 2d at 698. Hence, the payments received from the independent
source are not deducted from the award the aggrieved party would otherwise
receive from the wrongdoer, and, a tortfeasor' s liability to an injured plaintiff
should be the same, regardless of whether or not the plaintiff had the foresight to
obtain insurance. Bozeman, 879 So. 2d at 698. As a result of the collateral source
rule, the tortfeasor is not able to benefit from the victim' s foresight in purchasing
insurance and other benefits. Bozeman, 879 So. 2d at 698. The primary policy
reason for the application of the collateral source rule is tort deterrence. The rule
reflects the beliefs that the tortfeasor should not profit from the victim' s prudence
in obtaining insurance, and that by reducing the amount the tortfeasor would have
to pay, the deterrent effect of the law would be hampered. Cutsinger v. Redfern,
2008- 2607 ( La. 5/ 22/ 09), 12 So. 3d 945, 952.
10 Voth v. State Farm Fire & Cas. Ins. Co., 07- 4393, 2009 WL 498625, at * 3
E.D. La. Feb. 19, 2009), addressed the same argument made by Pelle in this case
and stated:
Plaintiff also contends that the collateral source doctrine prevents State Farm from applying an offset for the payments under the flood policy. Judge Africk rejected this contention in Webster v. State Farm Fire & Casualty Insurance Co. opining that "[ b] ecause insurance
contracts are contracts of indemnity and do not allow double recovery, the collateral source rule cannot be used to permit Webster to recover for the same losses under both policies." Id. at n. 20. Judge Africk' s reasoning is persuasive.
In the present case, the tortfeasor, having already paid the property damage
claim, seeks no credit for the benefits paid. The tortfeasor will reap no benefits if
the collateral source rule is not applied. Rather, as indicated previously, Pelle,
having been fully compensated by the tortfeasor for his damages seeks double
recovery. Geico Collision is not the tortfeasor, nor does it stand in the shoes of the
tortfeasor. Pelle' s tort recovery has not been diminished due to benefits received
by him from sources independent of the tortfeasor' s procuration or contribution.
Application of the collateral source rule in this case would not further the major
policy goal of tort deterrence, and we find that application of the rule would result
in a windfall or double recovery to Pelle. See Cutsinger, 12 So. 3d at 955.
Pelle further argues that Rogers v. Graves, 2006- 0648 ( La. App. 1st Cir.
2/ 21/ 07), 959 So. 2d 990, 995, writ denied, 2007- 0939 ( La. 6/ 22/ 07), 959 So. 2d
500, is applicable to the facts of this case. However, we find Rogers to be
distinguishable. In that case, Allstate Insurance Company provided collision
coverage to the plaintiff (Allstate Collision) and liability coverage to the tortfeasor
Allstate Liability). Allstate Collision paid the plaintiff' s property damage
resulting from a vehicle accident with the tortfeasor. At trial, Allstate Liability
sought a credit for the property damage paid by Allstate Collision. The plaintiff
asserted the collateral source rule, seeking to deny Allstate Liability the credit
11 sought. This court held that the trial court erred in failing to apply the collateral
source rule. However, the ruling in Rogers was based on the fact that the insurance
policy between Allstate Collision and the plaintiff was not introduced into
evidence; therefore, there was no evidence that Allstate Collision had any right of
subrogation. Rogers, 959 So. 2d at 995.
Further, the issue in Rogers was whether the tortfeasor was entitled to a
benefit obtained by the plaintiff purchasing her own insurance. In the present case,
the tortfeasor is not seeking a credit. Here, the Geico policy evidencing the
subrogation rights of Geico Collision has been introduced into evidence. When
subrogation is proven, the plaintiff may recover only his remaining interest in a
partially subrogated claim. Southern Farm Bureau Cas. Ins. Co. v. Sonnier, 406
So. 2d 178, 180 ( La. 1981); see also La. C. C. P. art. 697. Therefore, Rogers is not
controlling in the present case.
Pelle has pointed this court to no cases that apply the collateral source rule to
mandate that an insurer make a payment to an insured even though the total loss
has been fully compensated by a tortfeasor. Similar to Dauphin, if Geico Collision
is forced to pay Pelle for the property damage to his vehicle, it will be for an
obligation that does not exist. Therefore, nothing is owed by Geico Collision as
the obligation has been discharged. See La. C. C. art. 2300.
Further, subrogation is an exception to the collateral source rule. Great West
Cas. Co. v. State ex rel. Dept. of Transp. & Dev., 2006- 1776 ( La. App. 1st Cir.
3/ 28/ 07), 960 So. 2d 973, 976, writ denied, 2007- 1227 ( La. 9/ 14/ 07), 963 So. 2d
1005. Thus, the collateral source rule is inapplicable where the right of
subrogation is involved, even if the party subrogated does not appear to assert its
subrogation rights and the defendants do not timely object to the nonjoinder of the
necessary party. Id. Pelle avers that under either policy issued by Geico, it has no
12 right of conventional or legal subrogation for property damage.' We also find this
argument to be without merit. Section III of the policy issued to Pelle is entitled
Physical Damages Coverages" and Geico agreed to pay for collision losses to the
insured vehicle. Under Section III, the policy contains a section entitled
Conditions." One of those conditions is subrogation, which states:
9. SUBROGATION
If we make payment under the policy and the insured has a right to recover damages from another, we shall be subrogated to that right. However, our right to recover is secondary to the insured' s right to be compensated fully for his damages.
This means we will have the right to sue for or otherwise recover the payment we have made from anyone else who may be responsible.
Pelle relies on Molony v. United Servs. Auto. Ass' n, 96- 1747 ( La. App. 4th
Cir. 11/ 6/ 96), 683 So. 2d 891, 893- 94, writ denied, 96- 2915 ( La. 2/ 21/ 97), 688 So.
2d 516, which discussed the Louisiana Supreme Court case Fertitta v. Allstate
Insurance Company, 462 So. 2d 159 ( La. 1985), involving the applicability of the
collateral source rule between an uninsured motorist carrier and a tortfeasor. The
Fertitta court considered whether a tort victim' s judgment against a tortfeasor for
the full amount of damages should be reduced by the amount of the victim' s
settlement with his uninsured motorist carrier, when the carrier has waived rights
of reimbursement or subrogation. The court found that the plaintiff' s uninsured
motorist carrier and the tortfeasor were solidarily liable and declined to apply the
collateral source rule. The court differentiated between uninsured motorist
coverage and other types of first party coverage. The court in Fertitta stated:
4 Despite the arguments of both parties regarding both policies in this case, the only policy relevant to the right of subrogation is the policy issued to Pelle. Although Geico Collision argues that the subrogation clause in the policy issued to Munos is relevant, that clause permits subrogation if Geico made a payment " and the insured for whom payment was made has a right to recover damages from another." Munos, the tortfeasor, does not have a right to recover
damages from another. Therefore, the subrogation clause in the Munos policy is not relevant. It is the subrogation clause contained in the Geico Collision policy that is relevant to determine whether a right of subrogation existed. See Rogers, 959 So. 2d at 995.
13 Louisiana law requires motorists to carry liability insurance, and the uninsured motorist law requires liability insurers to include uninsured motorist coverage ( unless expressly rejected by the insured). Because liability for the damages caused by the tortfeasor is imposed by law on the uninsured motorist carrier, that insurer is solidarily liable with the tortfeasor to repair those damages. In the case of medical payments or collision coverage, because only the
contract ( and not the law) imposes the obligation on the insurer to repair some of the damages caused by the tortfeasor, there arguably is no solidary liability. ... Therefore, while the collateral source rule perhaps would apply to payments under medical payments or collision coverage ( in the absence of a subrogation agreement), the rule does not apply to payments under uninsured motorist coverage.
Fertitta, 462 So. 2d at 164 n. 7 ( emphasis added). We disagree that the above
quoted language is controlling in the present case as we have found that a
subrogation clause was contained in the policy issued to Pelle.
Pelle asserts that Geico Collision has no conventional subrogation rights
because it has not made a payment under the policy.' Due to the fact that Pelle
initially made his claim against the tortfeasor and was fully compensated, it is true
that Geico Collision did not make any payments under the policy. In the event that
payment had first been first sought under the Geico Collision policy, Geico
Collision would have clearly had the right of subrogation pursuant to the insurance
contract. Pelle cannot defeat Geico Collision' s subrogation rights by first making a
claim under the tortfeasor' s policy and then demanding duplicate recovery.
As we have found no case directly on point where a plaintiff has accepted
payment from the tortfeasor and then sought the same payment from his own
insurer, it is helpful to look to the manner in which other jurisdictions have
resolved this issue. Benge v. State Farm Mut. Auto. Ins. Co., 297 Ill. App. 3d
1062, 1072, 697 N.E. 2d 914, 921 ( 1998), app. denied, 179 Ill. 2d 576, 705 N.E. 2d
433 ( 1998), involved similar arguments to those made by Pelle. The plaintiffs
5 Pelle also asserts that Geico Collision has no rights of legal subrogation. The issue of legal subrogation in this matter is governed by La. C. C. art. 1829. Having found the contract of insurance contains a subrogation clause, we pretermit a discussion of this issue.
14 purported to represent the class of persons holding automobile insurance policies
issued by State Farm who sustained damage to their vehicles when they were
involved in accidents with persons also insured by State Farm and who were not
paid for those damages by State Farm both under the liability coverage contained
in the tortfeasors' insurance policies, and pursuant to the physical damage
coverage contained in their own insurance policies. The court determined that
State Farm' s single payment of the plaintiffs' total damages to be nothing more
than the simultaneous discharge of its contractual obligations to both the plaintiffs
and the tortfeasors along with the exercise of its subrogation rights under the
plaintiffs' insurance policies. Benge, 297 Ill. App. 3d at 1072, 697 N.E.2d at 921.
In Logue v. Clarendon Nat. Ins. Co., 777 So. 2d 1122, 1125 ( Fla. Dist. Ct. App.
2001), the insured sought to recover from his collision insurer for property
damage. The court held that the insured had settled his property damage claim
with the tortfeasor and could not recover twice for the same damages. The court
noted that the insurer had a subrogation right to recover those damages.
Therefore, in the present case, we conclude that Geico Collision did have a
subrogation agreement and would have clearly had the right of subrogation
pursuant to the insurance contract. Geico Liability' s payment under its policy
discharged the liability of Geico Collision. See Dauphin, 817 So. 2d at 148.
Pelle is not entitled to double recovery of the same property damages from
Geico Collision that he has already received from Geico Liability. While the
collateral source rule does in certain instances permit double recovery to a plaintiff,
we have found the collateral source rule is inapplicable under the specific facts and
circumstances of this case. For the above and foregoing reasons, Pelle cannot
recover the damages he now seeks.
15 Damages, Penalties, and Attorney' s Fees
Pelle argues that he is entitled to damages, penalties, and attorney' s fees
pursuant to La. R.S. 22: 1973 and La. R.S. 22: 1892. He claims that numerous
demands were made for payment, the last being the amending petition on July 13,
2018. Pelle also asserts that satisfactory proof of loss was made to Geico Collision
on July 21, 2017.
The prohibited conduct under La. R.S. 22: 1973 and La. R. S. 22: 1892 is
virtually identical: the failure to timely pay a claim after receiving satisfactory
proof of loss when that failure to pay is arbitrary, capricious, or without probable
cause. Reed v. State Farm Mutual Automobile Ins. Co., 2003- 0107 ( La. 10/ 21/ 03),
857 So. 2d 1012, 1020. The primary difference between these two statutes is the
different time periods allowed for payment, thirty days under La. R.S. 22: 1892 and
sixty days under La. R. S. 22: 1973. Reed, 857 So. 2d at 1020. Because these two
statutes are penal in nature, they are strictly construed. Reed, 857 So. 2d at 1020.
In order to recover under La. R. S. 22: 1973 and La. R.S. 22: 1892, a plaintiff
must first have a valid, underlying, substantive claim upon which insurance
coverage is based. Clausen v. Fidelity and Deposit Co. of Maryland, 95- 0504 ( La.
App. 1st Cir. 8/ 4/ 95), 660 So. 2d 83, 85, writ denied, 95- 2489 ( La. 1/ 12/ 96), 666
So. 2d 320). The penalties authorized by these statutes do not stand alone; they do
not provide a cause of action against an insurer absent a valid, underlying
insurance claim. Clausen, 660 So. 2d at 85. Furthermore, breach of contract is a
condition precedent to recovery for the breach of duty of good faith, and we agree
with the trial court that Geico Collision did not breach its insurance contract with
Pelle. See Bayle v. Allstate Ins. Co., 615 F. 3d 350, 363 ( 5th Cir. 2010). Therefore,
we agree with the trial court' s dismissal of the bad faith claims of Pelle.
16 CONCLUSION
For the above and foregoing reasons, we affirm the trial court' s November
131 2018 judgment granting summary judgment in favor of Geico Casualty
Company dismissing all claims of Justin Dewane Pelle and denying the cross
motion for summary judgment filed by Justin Dewane Pelle. All costs of this
appeal are assessed to Justin Dewane Pelle.
AFFIRMED.