Melanie and Chad Farber v. American National Property & Casualty Co.

• Court: Louisiana Court of Appeal
• Decided: December 10, 2008
• Docket: CA-0008-0821
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

08-821

MELANIE AND CHAD FARBER

VERSUS

AMERICAN NATIONAL PROPERTY & CASUALTY COMPANY

************

APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 2007-247 HONORABLE D. KENT SAVOIE, DISTRICT JUDGE

MICHAEL G. SULLIVAN JUDGE

Court composed of Michael G. Sullivan, Elizabeth A. Pickett, and Chris J. Roy, Sr.,* Judges.

AFFIRMED. ANSWER TO APPEAL STRICKEN.

Clayton Davis Lundy & Davis Post Office Box 3010 Lake Charles, Louisiana 70602-3010 (337) 439-0707 Counsel for Plaintiffs/Appellees: Melanie and Chad Farber

* Honorable Chris J. Roy, Sr., participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore. James R. Nieset, Jr. Michael J. Madere Ralph J. Aucoin, Jr. Porteous, Hainkel & Johnson 704 Carondelet Street New Orleans, Louisiana 70130 (504) 581-3838 Counsel for Defendant/Appellant: American National Property & Casualty Company

James R. Morris Fraser, Morris & Wheeler 4350 Nelson Road Lake Charles, Louisiana 70606-4886 (337) 478-8595 Counsel for Defendant/Appellant: American National Property & Casualty Company SULLIVAN, Judge.

Melanie and Chad Farber filed suit against their homeowner’s insurer,

American National Property and Casualty Company1 (ANPAC), for damages

associated with Hurricane Rita. Following a jury trial, judgment was rendered in

favor of the Farbers and against ANPAC in the amount of $436,704.34. ANPAC

appeals that judgment, as well as an earlier judgment granting summary judgment in

favor of the Farbers and homologating an appraisal award determined by an umpire

appointed under the appraisal clause of the policy. The Farbers answered the appeal.

For the following reasons, we affirm both judgments of the trial court and strike the

Farbers’ answer to appeal.

FACTS AND PROCEDURAL HISTORY

The Farbers’ home in Vinton, Louisiana, was damaged during Hurricane Rita

in the fall of 2005. They made a claim against ANPAC under their homeowner’s

policy on September 26, 2005. ANPAC issued a check to the Farbers on January 23,

2006, in the amount of $23,224.66. By certified letter dated May 9, 2006, the Farbers

made demand on ANPAC for an additional payment of $179,451.53 based upon a

May 3, 2006 report from R&D Insurance Consultants, L.L.C.

By certified letter dated May 15, 2006, the Farbers informed ANPAC that they

were invoking the appraisal clause of the policy.2 ANPAC responded by letter on

1 In its answer, the defendant averred that the petition incorrectly referred to it as American National Property and Casualty Company, rather than its actual name, ANPAC Louisiana Insurance Company. We will refer to it as ANPAC. 2 The appraisal clause provided as follows:

Appraisal. If you and we fail to agree on the amount of loss, either one can request that the amount of the loss be set by appraisal. If both parties agree to an appraisal, each shall select a competent independent appraiser, and notify the other of the appraiser’s identity within 20 days of receipt of the written demand. The two appraisers shall then select a competent impartial umpire. If the two appraisers are unable to agree upon an umpire within 15 days, you or we can ask a judge of a court

1 May 19, 2006, informing the Farbers that an engineer had been assigned to inspect

their property. The Farbers sent ANPAC a certified letter on May 22, 2006,

referencing their prior correspondence and reminding ANPAC of its obligation to

nominate an appraiser. The letter advised ANPAC that if it failed to nominate an

appraiser within the time allotted under the policy, the Farbers would request that a

court appoint an umpire to allow the appraisal process to go forward. After sending

ANPAC another follow-up letter regarding appraisal on June 16, 2006, and again

receiving no response, the Farbers requested that Judge Wilford Carter of the

Fourteenth Judicial District Court in Calcasieu Parish appoint an umpire. On July 7,

2006, Judge Carter wrote to the Farbers informing them that he had appointed retired

Judge John Navarre to serve as the umpire in the dispute. ANPAC was not copied on

either the Farbers’ letter requesting appointment of an umpire or Judge Carter’s letter

informing the Farbers that an umpire had been appointed.

The Farbers submitted information from their appraiser to Judge Navarre, and

on December 28, 2006, an appraisal award of $181,929.05 was signed off by Judge

Navarre and the Farbers’ appraiser. By certified letter dated December 29, 2006, the

Farbers notified ANPAC of the appraisal award and demanded its payment. On

January 16, 2007, the Farbers filed a petition for damages and statutory penalties

against ANPAC in the Fourteenth Judicial District Court. Therein, the Farbers sought

homologation of the umpire’s award, statutory penalties, attorney fees, and costs

of record in the state where the residence premises is located to select an umpire. The appraisers shall then set the amount of the loss. If the appraisers submit a written report of an agreement to us, the amount agreed upon shall be the amount of the loss. If the appraisers fail to agree within a reasonable time, they shall submit their differences to the umpire. Written agreement signed by any two of these three shall set the amount of the loss. Each appraiser shall be paid by the party selecting that appraiser. Other expenses of the appraisal and the compensation of the umpire shall be paid equally by you and us. Any agreement signed by any two of these three, appraisers or umpire, is not binding.

2 pursuant to La.R.S. 22:658 and/or 22:1220, damages caused by ANPAC’s breach of

the duty of good faith and fair dealing, and damages associated with their having to

hire an appraiser and pay the court-appointed umpire.3

The Farbers filed a motion for summary judgment in July of 2007 seeking

homologation of the appraisal award and an order declaring that ANPAC had violated

La.R.S. 22:658 and 22:1220. ANPAC countered by filing a motion to nullify the

appointment of the umpire and his decision. Following a hearing, the trial court

orally granted summary judgment in favor of the Farbers, homologating the

December 28, 2006 appraisal award and making it the judgment of the court. The

trial court noted that the difference between the actual cash value of the award and

the amount previously tendered by ANPAC amounted to $158,704.34. The trial court

denied the portion of the Farbers’ motion seeking a declaration that they were entitled

to penalties and attorney fees and instead referred those issues to trial on the merits.

Conversely, ANPAC’s motion to nullify the appointment of the umpire and his

decision was denied. Written judgment was signed on November 17, 2007. ANPAC

filed a motion to have the trial court designate the judgment as final and appealable.

In addition, ANPAC sought supervisory writs in this court. Thereafter, the trial court

denied ANPAC’s motion to designate. This court denied the writ, stating:

We find no abuse of discretion in the trial court’s ruling refusing to designate the subject judgment as immediately appealable. . . . We find that the Relator, ANPAC Louisiana Insurance Company, will have an

3 A default judgment was confirmed against ANPAC on March 27, 2007, awarding the Farbers general and special damages and statutory penalties and attorney fees, for a total award of $371,371.60. ANPAC responded by filing a motion to nullify judgment and/or for new trial. Following a hearing, oral judgment was rendered on June 29, 2007, granting a new trial in the matter and ordering ANPAC to file responsive pleadings within 15 days. ANPAC filed an answer on July 3, 2007.

3 adequate remedy through an ordinary appeal following entry of the final judgment adjudicating the remaining matters at issue in this litigation.4

The matter proceeded to a jury trial on February 25 through 27, 2008. On

March 18, 2008, the trial court rendered judgment on the jury verdict in favor of the

Farbers and against ANPAC in the amount of $436,704.34. The judgment included

an award of $158,704.34, representing the amount due under the policy, as well as

compensatory damages caused by ANPAC’s breach of its obligations of good faith

and fair dealing in the amount of $75,000.00. The judgment also included a bad faith

penalty in the amount of $150,000.00 and attorney fees of $53,000.00.5 ANPAC now

appeals that judgment as well as the earlier judgment granting summary judgment in

favor of the Farbers and homologating Judge Navarre’s appraisal award.

The Farbers filed an answer to the appeal claiming that the trial court erred in

denying their request that they be allowed multiple penalties under La.R.S. 22:658

and/or 22:1220 based on ANPAC’s five separate and distinct violations of those

statutes. ANPAC moved to strike the answer as having been untimely filed, and this

court referred the motion to the merits of this appeal.

4 See Farber v. ANPAC La. Ins. Co., an unpublished writ bearing docket number 07-1596 (La.App. 3 Cir. 1/8/08). Therein, this court also denied a request that we stay the proceedings. 5 According to the judgment, the parties agreed that the trial court would assess penalties pursuant to La.R.S. 22:658 and 22:1220. The jury awarded the Farbers $75,000.00 for damages caused by ANPAC’s violation of the bad faith statutes. After stating that La.R.S. 22:1220 sets forth a penalty of up to two times the damage sustained, the trial court concluded that a penalty award of $150,000.00 (i.e. two times the jury award) was appropriate. The jury awarded the Farbers attorney fees of $53,000.00. Noting that the penalties set forth in La.R.S. 22:658 at the time of the violations found by the jury allowed for the recovery of reasonable attorney fees, the trial court determined that the jury award was reasonable and thus awarded the Farbers $53,000.00 in attorney fees.

4 DISCUSSION

Motion to Strike Answer

According to La.Code Civ.P. art. 2133, an appellee seeking to have the

judgment modified must file an answer to the appeal not later than fifteen days after

the return day or the lodging of the record, whichever is later. This court mailed a

notice of lodging to the parties on July 1, 2008, making the answer due on July 16,

2008. Alternatively, the answer was due within fifteen days of the return date, which

the trial court set “according to the law.” The timing for the return day is governed

by La.Code Civ.P. art. 2125, which provides that when there is testimony to be

transcribed, the return day is forty-five days from the date estimated costs are paid.

ANPAC paid the estimated costs of this appeal on May 1, 2008. As a result, the

return day was June 15, 2008, and the Farbers had fifteen days within which to file

their answer to appeal or until June 30, 2008. The Farbers’ answer to appeal was

filed on August 15, 2008, long after the later of the two dates listed in La.Code Civ.P.

art. 2133. Moreover, the Farbers make no reference to their answer to appeal in their

appellate brief. The Farbers answer to appeal is dismissed and stricken from the

record.

Standard of Review

An appellate court may not set aside a jury’s or a trial court’s finding of fact in

the absence of manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d

840 (La. 1989). “[W]here there is conflict in the testimony, reasonable evaluations

of credibility and reasonable inferences of fact should not be disturbed upon review,

even though the appellate court may feel that its own evaluations and inferences are

as reasonable.” Id. at 844. If the trial court’s findings “are reasonable in light of the

5 record reviewed in its entirety, the court of appeal may not reverse even though

convinced that had it been sitting as the trier of fact, it would have weighed the

evidence differently.” Id.

Appellate courts review summary judgments de novo, using the same criteria

applied by the trial courts to determine whether summary judgment is appropriate.

Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La. 7/5/94), 639 So.2d 730. A

motion for summary judgment will be granted if the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue of material fact and that the mover is entitled to

judgment as a matter of law. La.Code Civ.P. art. 966(B). Summary judgment is

favored and shall be construed “to secure the just, speedy, and inexpensive

determination of every action . . . .” La.Code Civ.P. art. 966(A)(2).

ANPAC’s Assignment of Error Number One

ANPAC asserts that the trial court erred in granting summary judgment in favor

of the Farbers and homologating the appraisal award of the umpire and in denying its

motion to set aside the umpire’s award.

In Musso’s Corner, Inc. v. A & R Underwriters, Inc., 539 So.2d 915 (La.App.

4 Cir. 1989), the insurer appealed from a judgment homologating an umpire’s award

in an insurance arbitration proceeding.6 The appellate court stated that when one of

the parties “seeks homologation of the arbitration award, the action is not based upon

the original cause of action giving rise to the dispute between the parties but rather

upon the award of the arbitrator or umpire.” Id. at 919. The court noted that La.R.S.

6 The arbitration clause at issue in Musso’s Corner contained language similar to the appraisal clause in the policy at issue herein.

6 9:4210 lists the four grounds upon which an arbitration award can be challenged.7

After finding that only one of the grounds was pertinent, i.e., where the award was

procured by corruption, fraud, or undue means, but that the insurer’s allegations of

fraud were unrelated to the arbitration process, the appellate court affirmed the lower

court’s homologation of the umpire’s award.

In ruling on the competing motions before it, the trial court noted that the

policy language controlled the situation and that the Farbers had acted appropriately

in appointing an appraiser and in having a court appoint an umpire. The trial court

further noted that ANPAC had simply chosen not to participate in the appraisal

process and that ANPAC’s complaints concerning the arbitration award were

untimely.

ANPAC was clearly aware that the Farbers had invoked the policy’s appraisal

clause and at no time did it object to the appraisal process going forward. The

Farbers provided the trial court with a return receipt showing that ANPAC received

correspondence containing the appraisal award on January 5, 2007. ANPAC’s

motion to nullify the appointment of the umpire and his decision was not filed until

July 26, 2007, far beyond the three-month window within which it could have sought

to vacate or modify the award. We have reviewed the pleadings and evidence

submitted in conjunction with the Farbers’ motion for summary judgment and are

convinced that the trial court correctly found that no genuine issues of fact remained,

thus entitling the Farbers to judgment in their favor as a matter of law. In addition,

7 We note that according to La.R.S. 9:4213, notice of a motion to vacate, modify, or correct an award shall be served upon the adverse party or his attorney within three months after the award is filed or delivered.

7 we find no manifest error in the trial court’s denial of ANPAC’s motion to nullify the

umpire’s award. The trial court properly homologated the appraisal award.

ANPAC’s Assignment of Error Number Two

ANPAC complains that the trial court erred in instructing the jury that it failed

to pay the appraisal award. Because ANPAC did not brief this assignment of error,

we consider it abandoned. See Uniform Rules—Courts of Appeal, Rule 2–12.4.

ANPAC’s Assignment of Error Number Five

ANPAC asserts that the jury’s finding that it failed to initiate loss adjustment

within thirty days is contrary to the law and the evidence. Louisiana Revised Statutes

22:658 provides, in pertinent part, as follows: “In the case of catastrophic loss, the

insurer shall initiate loss adjustment of a property damage claim within thirty days

after notification of loss by the claimant. Failure to comply with the provisions of

this Paragraph shall subject the insurer to the penalties provided in R.S. 22:1220.”

ANPAC argues that because it presented evidence showing that one of its claims

specialists reviewed the Farbers’ policy, tried to contact the Farbers by phone, and

assigned their claim to PASCO Claims Service on the same day that the Farbers

reported their claim, it clearly satisfied the requirement that it initiate loss adjustment

within thirty days.

In Phillips v. Osmun, 07-50, p. 10 (La.App. 3 Cir. 10/24/07), 967 So.2d 1209,

1616 (citations omitted), this court held:

An insurer must take some action of substance in order for a court to consider that the insurer has initiated loss adjustment.

In initiating loss adjustment, the insurer must take some substantive and affirmative step to accumulate the facts that are necessary to evaluate the claim. Simply opening a file does not satisfy the requirement of La.R.S. 22:658(A)(3) that an insurer initiate loss adjustment.

8 In reversing the trial court’s finding that the plaintiff was entitled to penalties for the

insurer’s having failed to timely initiate loss adjustment, the Osmun court noted that

the insurer had taken steps to gather the facts needed to evaluate and process the

claim, had actively corresponded with plaintiff and her attorney, and had consistently

sought a formal demand.

Here, the Farbers provided the jury with testimony that, although an adjuster

from PASCO inspected their home in late October, they did not hear from ANPAC

again until January of 2006 when a second adjuster inspected their home, and then,

only after they had called ANPAC to check on their claim. ANPAC did much less

in this case to initiate loss adjustment than the insurer did in Osmun. Given the

conflicting evidence, we cannot say that the jury was manifestly erroneous or clearly

wrong in finding that ANPAC failed to timely initiate loss adjustment of the Farbers’

claim in violation of La.R.S. 22:658(A)(3).

ANPAC’s Assignment of Error Number Three

ANPAC next contends that the jury erred in finding that it breached any of the

duties imposed upon it by La.R.S. 22:658 or 22:1220. In our disposition of ANPAC’s

fifth assignment of error, we found no error in the jury’s determination that ANPAC

breached the duty imposed on it by La.R.S. 22:658(A)(3). Accordingly, we need not

determine whether ANPAC breached any other relevant provisions of La.R.S. 22:658,

and we turn our attention to La.R.S. 22:1220. That statute provides that an insurer

“owes to his insured a duty of good faith and fair dealing” and “has an affirmative

duty to adjust claims fairly and promptly and to make a reasonable effort to settle

claims with the insured.” La.R.S. 22:1220(A). Moreover, “[a]ny insurer who

breaches these duties shall be liable for any damages sustained as a result of the

9 breach.” Id. The statute goes on to list six acts which, if knowingly committed by

an insurer, constitute a breach of the duties imposed in subsection A. La.R.S.

22:1220(B). One of those acts is failing to pay any claim due an insured within sixty

days of satisfactory proof of loss when such failure is “arbitrary, capricious, or

without probable cause.” La.R.S. 22:1220(B)(5).

The Farbers allege that they provided ANPAC with satisfactory proof of their

Hurricane Rita losses. They point to the May 2006 estimates from R&D Insurance

Consultants and Ave Maria General Contractors as well as the December 28, 2006

appraisal award, all of which were provided to the jury along with evidence or

testimony indicating when ANPAC received each of those items.

We are convinced that the jury was provided ample evidence upon which to

conclude that ANPAC violated both the duty of good faith and fair dealing and the

duty of adjusting claims fairly and promptly that it owed to the Farbers pursuant to

La.R.S. 22:1220 when it failed to pay the Farbers any additional amounts due within

sixty days of its having received satisfactory proof of the Farbers’ loss.

ANPAC’s Assignment of Error Number Four

ANPAC next alleges error in the trial court’s having instructed the jury that the

2006 amendments to La.R.S. 22:658 or 22:1220 apply to the Farbers’ claim. The

pre-amendment version of La.R.S. 22:658 read, in pertinent part, as follows:

B. (1) Failure to make such payment within thirty days after receipt of such satisfactory written proofs and demand therefor or failure to make a written offer to settle any property damage claim, including a third-party claim, within thirty days after receipt of satisfactory proofs of loss of that claim, as provided in Paragraphs (A)(1) and (4), respectively, or failure to make such payment within thirty days after written agreement or settlement as provided in Paragraph (A)(2), when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of twenty-five percent damages on the amount found to be due

10 from the insurer to the insured, or one thousand dollars, whichever is greater, payable to the insured, or to any of said employees, or in the event a partial payment or tender has been made, twenty-five percent of the difference between the amount paid or tendered and the amount found to be due.

The amended version of La.R.S. 22:658(B)(1) increased penalties from twenty-five

percent to fifty percent and added the penalty of reasonable attorney fees and costs

for arbitrarily and capriciously refusing to pay a claim within thirty days. The

amendment became effective on August 15, 2006.

Before La.R.S. 22:1220 was amended in 2006, the statute only listed five acts,

which if knowingly committed by an insurer, constitute a breach of the duties

imposed in Subsection A of the statute. La.R.S.22:1220(B). The amended version,

which became effective on February 23, 2006, added a sixth act, “[f]ailing to pay

claims pursuant to R.S. 22:658.28 when such failure is arbitrary, capricious, or

without probable cause,” to the list contained in Subsection B. La.R.S.

22:1220(B)(6). ANPAC did not brief this assignment of error as it relates to the 2006

amendment to La.R.S. 22:1220; therefore, we consider that portion of its argument

abandoned. See Uniform Rules—Courts of Appeal, Rule 2–12.4.

The Louisiana Supreme Court in Sher v. Lafayette Insurance Co., 07-2441, 07-

2443 (La. 4/8/08), 988 So.2d 186, determined that the 2006 amendment to La.R.S.

22:658 was substantive and, therefore, could not be applied retroactively, regardless

of whether the amendment was remedial. The plaintiff in Sher had argued that the

amended version of the statute should apply to his claim, even though the amendment

did not occur until after his property was damaged and after his claim had been filed,

because his insurer had a continuing duty of good faith and fair dealing which the

8 Louisiana Revised Statutes 22:658.2 concerns claims involving immovable property. It was enacted in 2006 and became effective on February 23, 2006.

11 insurer had continued to breach after the amendment became effective. The supreme

court, while agreeing that an insurer has a continuing duty of good faith and fair

dealing which extends throughout the litigation period, rejected the plaintiff’s

argument finding that his “claim for penalties contained within the statute arose prior

to the effective date of the amendment.” Id. at 199.

Here, the jury found that ANPAC’s refusal to pay pursuant to the December 28,

2006 award letter was arbitrary and capricious. Because that claim arose after the

effective date of the 2006 amendment to La.R.S. 22:658, the trial court did not err in

instructing the jury that the amended version of that statute applied to the Farbers’

claim.

ANPAC’s Assignment of Error Number Six

ANPAC complains that the jury’s award to the Farbers of $53,000.00 in

attorney fees pursuant to La.R.S. 22:658 is contrary to the law and the evidence. The

basis for this argument is ANPAC’s flawed assumption that the 2006 amendments to

La.R.S. 22:658 do not apply to this case. Because we find that the 2006 amendments

do, in fact, apply, this assignment of error is without merit.

ANPAC’s Assignment of Error Number Seven

ANPAC next contends that the jury’s award to the Farbers of $75,000.00 in

general damages pursuant to La.R.S. 22:1220 is contrary to the law and the evidence.

More specifically, ANPAC complains that the jury’s finding of bad faith was based

upon the trial court’s action of wrongly homologating and endorsing the appraisal

award. ANPAC argues that had the trial court set aside the umpire’s award, it would

have been able to present evidence to the jury of why it had requested reinspection

and why it had refused to participate in the appraisal process. In addition, ANPAC

12 asserts that the amount awarded “was apparently plucked out of thin air as

compensation for an unsupported and unrecognized mental anguish claim.”

As stated earlier, the trial court did not err in homologating the umpire’s

appraisal award. Once homologated, the award became the judgment of the court,

and the trial court properly submitted it to the jury for consideration. As a result, the

only issue remaining is whether the amount awarded by the jury was proper.

In Orellana v. Louisiana Citizens Property Insurance Corp., 07-1095 (La.App.

4 Cir. 12/5/07), 972 So.2d 1252, the fourth circuit determined that a homeowner’s

insurer’s bad faith failure to pay for damage caused by Hurricane Katrina permitted

an award of $125,000.00 under La.R.S. 22:1220 for mental anguish where the insured

witnessed his home sustain ongoing damage as a result of the insurer’s refusal to pay,

and the insured could have prevented further deterioration of the home or had the

home rebuilt if the insurer had not been so arbitrary and capricious in its failure to

pay. The testimony revealed that the plaintiff suffered emotional stress,

inconvenience, and strained personal relationships in the more than a year and

one-half since the storm had occurred. Moreover, the appellate court characterized

the insurer’s decision to not make insurance payments timely to its insured as

intentional acts. Noting that the trial court had observed the plaintiff’s testimony and

found him to be very credible, the appellate court found “nothing in the record to

indicate that the award of $125,000.00 was beyond the ‘great, even vast’ discretion

of a trier of fact in fixing such a damage award.” Id. at 1256. See also Justice Knoll’s

dissent in Sher, 988 So.2d 186, wherein she noted that the majority opinion, in

affirming the appellate court’s failure to correct the trial court’s refusal to instruct the

13 jury regarding general damages for mental anguish, had ignored both La.R.S. 22:1220

and Orellana, 972 So.2d 1252.

Here, the jury heard testimony from Mrs. Farber that she and her husband had

separated for five months as a result of the stress associated with dealing with the

insurance situation. Mr. Farber testified that he is an emotional person and that the

situation crushed him. He stated that his home was unlivable but that he and his

family have no choice but to live in it. The jury also heard from the Farbers’ expert

on insurance adjusting, who testified that if he had to recalculate the December 28,

2006 appraisal award using the current prices for labor and materials, the award

would have been approximately $30,000.00 higher.

Given the evidence supporting the Farbers’ claims for damages resulting from

ANPAC’s bad faith breach of the duties owed them under La.R.S. 22:1220, we find

no manifest error in the either the fact of or the amount of the award of $75,000.00

to the Farbers’ for general damages.

ANPAC’s Assignment of Error Number Eight

Finally, ANPAC contends that the trial court erred in awarding the Farbers

$150,000.00 in punitive damages pursuant to La.R.S. 22:1220.

Louisiana Revised Statutes 22:1220(C) provides that “[i]n 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.” The trial court determined that a penalty of two times the amount of

general damages awarded by the jury was appropriate in this case.

14 It took ANPAC nearly four months to send the Farbers $23,224.66, the amount

it considered due under their homeowner’s policy. ANPAC ignored the May 2006

estimates from R&D Insurance Consultants and Ave Maria General Contractors, as

well as the December 28, 2006 appraisal award of $181,929.05. The trial court

signed a judgment homologating the appraisal award on November 17, 2007. Trial

in this matter did not begin until February 25, 2008. Considering that the difference

between those two numbers amounts to $158,04.34, we cannot say the trial court’s

penalty award of twice the amount of damages was manifestly erroneous or clearly

wrong.

CONCLUSION

For the foregoing reasons, the judgment of the trial court in favor of the Farbers

and against ANPAC in the amount of $436,704.34 is affirmed in its entirety, as is the

earlier judgment granting summary judgment in favor of the Farbers and

homologating the appraisal award. The Farbers’ answer to appeal is stricken. All

costs of this appeal are assessed against ANPAC.