Montgomery v. State Farm Fire & Casualty Co.

103 So. 3d 1222, 12 La.App. 3 Cir. 320, 2012 La. App. LEXIS 1487, 2012 WL 5499842
CourtLouisiana Court of Appeal
DecidedNovember 14, 2012
DocketNo. 12-320
StatusPublished
Cited by7 cases

This text of 103 So. 3d 1222 (Montgomery v. State Farm Fire & Casualty 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
Montgomery v. State Farm Fire & Casualty Co., 103 So. 3d 1222, 12 La.App. 3 Cir. 320, 2012 La. App. LEXIS 1487, 2012 WL 5499842 (La. Ct. App. 2012).

Opinion

KEATY, Judge.

11 State Farm Fire & Casualty Company (State Farm) appeals from a judgment rendered in favor of its insureds, Galyn and James Montgomery (Plaintiffs), finding State Farm liable for damages done to Plaintiffs’ home by Hurricane Rita and its aftermath and awarding Plaintiffs damages, penalties, attorney fees, and costs. Plaintiffs answer the appeal, seeking an additional award of damages for mental anguish and an increase in their attorney fees award. For the following reasons, we affirm the judgment, deny Plaintiffs’ request for additional damages, and award Plaintiffs additional attorney fees for work necessitated by this appeal.

FACTS AND PROCEDURAL HISTORY

Plaintiffs own a home in Lake Charles, Louisiana, that was damaged as a result of Hurricane Rita (Rita) which struck the area on September 23 and 24, 2005. The home was covered by a policy of homeowner’s insurance issued by State Farm.1 In October of 2005, Plaintiffs provided State Farm with an estimate for the cost to repair damage to their home caused by Rita. The estimate included amounts for repairs to the roof, fireplace, stucco, gutters, and fence. It also called for electrical and plumbing repairs, mold treatment, sheetrock repair, and painting. State Farm paid Plaintiffs’ claim within thirty days of its receipt of the estimate2 and later advised them to contact their agent if they found any additional damage.

On March 12, 2007, Plaintiffs contacted State Farm regarding additional damages that they had recently discovered, most significantly damage to the home’s rafters [1225]*1225in the attic. State Farm sent an adjuster to inspect Plaintiffs’ home and thereafter paid them an additional $585.28 for damage to three windows. Plaintiffs were told that they needed to get an engineering opinion to support their [9claim that any additional payment was due from State Farm as the result of damages caused by Rita. After Plaintiffs submitted a report from an engineer that conflicted with the opinion of the State Farm adjuster who had inspected the home in March of 2007, State Farm hired its own engineer to reinspect the home.

Plaintiffs filed this suit against State Farm on August 20, 2007, when it became clear that State Farm was denying the remainder of their supplemental claim for damages. Although the matter was originally set as a jury trial, Plaintiffs stipulated that their damages, exclusive of penalties and attorney fees, did not exceed $50,000.00. As a result, the matter proceeded as a bench trial. By judgment dated July 8, 2011, the trial court rendered judgment in favor of Plaintiffs and against State Farm finding that Rita caused the rafter separation in Plaintiffs’ attic, thus making State Farm liable for the expense of repair of that damage. The trial court further determined that State Farm had violated La.R.S. 22:1892 by failing to pay Plaintiffs’ claim within thirty days of receiving satisfactory proof of loss. Plaintiffs were awarded $54,187.49 in damages along with $27,068.75 in penalties, $25,000.00 in attorney fees, and all costs associated with the proceeding. An amended judgment was signed on July 14, 2011, reducing the damage award to $50,000.00 and the penalty award to $25,000.00 to conform to the parties’ prior stipulation regarding the extent of Plaintiffs’ damages.

State Farm now appeals, asserting that the trial court erred: 1) in relying on the non-scientific testimony of a homebuilder regarding causation; 2) in relying on the estimate prepared by Cost Control Services (CCS) as a measure of damages; 8) in awarding damages for property damage that had already been paid; 4) in failing to reduce any award for property damage by the amounts that had already been paid; and 5) in awarding penalties. Plaintiffs answer the appeal, claiming that the judgment should be modified to award them damages for inconvenience and ^mental anguish. They also seek an increase in attorney fees to compensate them for the additional expense incurred in defending and answering this appeal.

DISCUSSION

It is well settled that a court of appeal may not set aside a trial court’s ... finding of fact in the absence of “manifest error” or unless it is “clearly wrong,” and where 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.... The appellate review of fact is not completed by reading only so much of the record as will reveal a reasonable factual basis for the finding in the trial court, but if the trial court ... findings are reasonable in light of the 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. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong....
When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong [1226]*1226standard demands great deference to the trier of fact’s findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said.

Rosell v. ESCO, 549 So.2d 840, 844 (La.1989) (citations omitted). “[T]he ultimate finder of fact is the judge or jury, [and] the record as a whole must furnish some rational basis for the decision of the factfin-der.” McCray v. Abraham, 550 So.2d 244, 247 (La.App. 4 Cir.1989). “An appellate court can only reverse a fact finder’s determinations when: (1) it finds from the record that a reasonable factual basis does not exist for the findings of the trial court, and (2) it further determines that the record establishes the findings are manifestly erroneous.” De La Cruz v. Riley, 04-607, p. 3 (La.App. 4 Cir. 2/2/05), 895 So.2d 589, 592, unit denied, 05-513 (La.4/22/05), 899 So.2d 581 (citing Stobart v. State through Dep’t of Transp. and Dev., 617 So.2d 880, 883 (La.1993)).

|State Farm’s Appeal

I. Causation

In rendering judgment in favor of Plaintiffs, the trial court determined that:

[T]he rafter separation was caused by hurricane force winds associated with Hurricane Rita in 2005. This is based primarily on the testimony of the builder Jason Mallett. It appears logical to the court that the wind also caused the various cracks in the brick veneer around the home and garage. The shifting of the home caused by the separation of the boards in the attic area led to the stress fractures in the dry wall in the various rooms of the house.

Jason Mallett was the contractor who built Plaintiffs’ home.3 According to the testimony of Mrs. Montgomery, she contacted Mr. Mallett after another contractor whom she had consulted about doing a renovation project informed her that there was damage to the home’s rafters that he had seen while touring the attic. Mr. Mal-lett agreed to inspect the rafters and to give his opinion regarding the rafter separation and sheetrock damage that Plaintiffs sought to attribute to Rita and its aftermath. Mr.

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103 So. 3d 1222, 12 La.App. 3 Cir. 320, 2012 La. App. LEXIS 1487, 2012 WL 5499842, Counsel Stack Legal Research, https://law.counselstack.com/opinion/montgomery-v-state-farm-fire-casualty-co-lactapp-2012.