STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
10-1005
RONNIE HAMILTON D/B/A HAMILTON TRUCKING
VERSUS
PROGRESSIVE SECURITY INS. CO., ET AL.
**********
APPEAL FROM THE TWENTY-EIGHTH JUDICIAL DISTRICT COURT PARISH OF LASALLE, NO. 35184 HONORABLE J. CHRISTOPHER PETERS, DISTRICT JUDGE
SHANNON J. GREMILLION JUDGE
Court composed of Marc T. Amy, Shannon J. Gremillion, and Phyllis M. Keaty, Judges.
AFFIRMED.
John Sturgeon Sturgeon & Boyd P. O. Drawer 1463 Ferriday, LA 71334 (318) 757-4151 Counsel for Plaintiff/Appellant: Ronnie Hamilton
Fred Williams Sartor, Jr. Nelson, Zentner, Sartor & Snel P. O. Box 14420 Monroe, LA 71307-4420 (318) 388-4454 Counsel for Defendant/Appellee: Progressive Security Ins. Co. GREMILLION, Judge.
The plaintiff/appellant, Ronnie Hamilton d/b/a Hamilton Trucking,
appeals the trial court’s judgment in favor of his insurer, the defendant/appellee,
Progressive Security Insurance Company. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Hamilton is the owner of a log hauling business that uses 18-wheelers
to transport logs. The 18-wheeler at issue was insured through Progressive. In
August 2005, one of Hamilton’s employees was operating the 18-wheeler when he
allegedly ran off of the road to avoid an accident with Mrs. Rose M. Allen. The 18-
wheeler hit a concrete culvert and a small tree. It sustained various damages. This
suit involves Progressive’s lack of payment due to engine failure, which it adduced
was not attributable to the accident. However, in October 2005, Progressive paid
$5,288.67 for body work and other damages, less Hamilton’s deductible of $1,000.
Hamilton filed suit in June 2006 against Progressive, Allen, and her
insurer, State Farm. Hamilton claimed in his petition that Progressive refused to
adjust the damages to the engine thereby resulting in the crippling of his business.
Progressive filed a Motion For Partial Summary Judgment in August 2007 and
attached Hamilton’s insurance policy which excludes coverage for “wear and tear.”1
PART II- DAMAGE TO YOUR AUTO ....
EXCLUSIONS-PLEASE READ THE FOLLOWING EXCLUSIONS CAREFULLY. IF AN EXCLUSION APPLIES COVERAGE FOR AN ACCIDENT OR LOSS WILL NOT BE AFFORDED UNDER THIS PART II - DAMAGE TO YOUR AUTO. ....
This coverage does not apply to loss:
4. Resulting from manufacturer’s defects, wear and tear, freezing, mechanical or electrical breakdown or failure. However, coverage does apply if the damage is the result of other loss covered by the policy.
1 It also attached the affidavit of Jeremy Hoffpauir, an engineer, who stated that he
evaluated the engine at Gary Byrd’s (Progressive’s Heavy Equipment Field
Specialist) request. In his affidavit, Hoffpauir stated that the engine failure was not
“caused or contributed to” by the August 19, 2005 accident.
An affidavit filed by Hamilton next appears in the record in September
2007 in which he recounts that Byrd indicated that he would recommend that
Progressive replace the engine.
In October 2008, the trial court’s “Judgment on Defendant Progressive
Security Insurance Company’s Louisiana Code of Evidence 104 Motions” appears
in the appeal record.2 The trial court denied Progressive’s motion to exclude
testimony and documentary evidence of Hamilton’s economic loss beyond sixty days
and granted Progressive’s motion to exclude testimony and documentary evidence of
alleged acts not previously plead by Hamilton and, in the alternative, Exception of No
Cause of Action. The trial court ordered Hamilton to amend his petition to “properly
plead breach of any of the enumerated items contained in R.S. 22:658 and/or 22:1220,
along with all facts which plaintiff contends supports each breach.” The trial court
further granted Progressive’s motion to exclude the testimony of Hamilton’s witness,
Doyle Watson, finding that he was not qualified to render an expert opinion regarding
whether the accident led to the engine failure. On October 24, 2008, Hamilton filed
a Second Amended Petition urging that Progressive failed to deal fairly and in good
faith in adjusting the damages to his truck and was arbitrary and capricious in dealing
with him, resulting in the loss of his family business. Hamilton urged that
Progressive should pay a penalty for this behavior.
2 Progressive’s La.Code Evid. art. 104 motion is not in the record.
2 In January 2010, Progressive again filed a Motion for Partial Summary
Judgment. In March 2010, Hamilton filed a brief in opposition to Progressive’s
motion for summary judgment. Progressive filed a Motion to Strike the Affidavit of
Doyle Watson, which was attached to Hamilton’s Opposition to Motion for Summary
Judgment.3 The trial court granted Progressive’s motion to strike and further granted
Progressive’s motion for summary judgment. It dismissed, with prejudice,
Hamilton’s claims against Progressive. Hamilton appealed in September 2010. In
October 2010, Hamilton filed a “Motion to File Statement of Points on Appeal.” In
November 2010, Progressive filed a motion to strike Watson’s affidavit from the
appellate record as it was not designated as part of the record nor was Watson
qualified to offer opinion testimony as to the cause of the engine damage.
ISSUES
Hamilton assigns as error:
1. The trial court’s dismissal of the entire case based on his inability to prove that the accident caused the damage to the engine of his 18-wheeler.
2. The trial court’s failure to recognize that Progressive had failed to consider the best interest of its insured; had failed to promptly and adequately notify him of its decisions; and had failed to release his truck so that he could repair it himself.
3. The trial court’s failure to recognize that Progressive, by filing the arbitrational proceeding for his deductible, had assumed a duty to recover his damages from the other insured, that Progressive failed to claim for Hamilton in the arbitration the damage to the engine.
DISCUSSION
MOTION TO FILE STATEMENT OF POINTS ON APPEAL
3 Progressive’s Motion to Strike is not in the record.
3 Hamilton’s Motion to File Statements of Points on Appeal is before us
on the merits. On appeal, we do not entertain evidence that was not properly
submitted into the record at trial:
Evidence not properly and officially offered and introduced cannot be considered, even if it is physically placed in the record. Documents attached to memoranda do not constitute evidence and cannot be considered as such on appeal.
Appellate courts are courts of record and may not review evidence that is not in the appellate record, or receive new evidence.
Denoux v. Vessel Mgmt. Servs, Inc., 07-2143, p.6 (La. 5/21/08), 983 So.2d 84, 88
(citations omitted). The motion makes a number of factual assertions including some
pertaining to the arbitration proceeding between Progressive and State Farm, Allen’s
insurer. This arbitration proceeding is not in the appellate record. Hamilton’s motion
is denied.
PROGRESSIVE’S MOTION TO STRIKE
Progressive filed a Motion to Strike the Affidavit of Doyle Watson from
Appellate Record. The trial court had previously granted Progressive’s Motion to
Strike Watson’s Affidavit because it found him unqualified to testify as an expert.
Hamilton does not assign as error the trial court’s finding that Watson was not
qualified to testify as an expert. Although Watson’s affidavit would be necessary for
Free access — add to your briefcase to read the full text and ask questions with AI
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
10-1005
RONNIE HAMILTON D/B/A HAMILTON TRUCKING
VERSUS
PROGRESSIVE SECURITY INS. CO., ET AL.
**********
APPEAL FROM THE TWENTY-EIGHTH JUDICIAL DISTRICT COURT PARISH OF LASALLE, NO. 35184 HONORABLE J. CHRISTOPHER PETERS, DISTRICT JUDGE
SHANNON J. GREMILLION JUDGE
Court composed of Marc T. Amy, Shannon J. Gremillion, and Phyllis M. Keaty, Judges.
AFFIRMED.
John Sturgeon Sturgeon & Boyd P. O. Drawer 1463 Ferriday, LA 71334 (318) 757-4151 Counsel for Plaintiff/Appellant: Ronnie Hamilton
Fred Williams Sartor, Jr. Nelson, Zentner, Sartor & Snel P. O. Box 14420 Monroe, LA 71307-4420 (318) 388-4454 Counsel for Defendant/Appellee: Progressive Security Ins. Co. GREMILLION, Judge.
The plaintiff/appellant, Ronnie Hamilton d/b/a Hamilton Trucking,
appeals the trial court’s judgment in favor of his insurer, the defendant/appellee,
Progressive Security Insurance Company. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Hamilton is the owner of a log hauling business that uses 18-wheelers
to transport logs. The 18-wheeler at issue was insured through Progressive. In
August 2005, one of Hamilton’s employees was operating the 18-wheeler when he
allegedly ran off of the road to avoid an accident with Mrs. Rose M. Allen. The 18-
wheeler hit a concrete culvert and a small tree. It sustained various damages. This
suit involves Progressive’s lack of payment due to engine failure, which it adduced
was not attributable to the accident. However, in October 2005, Progressive paid
$5,288.67 for body work and other damages, less Hamilton’s deductible of $1,000.
Hamilton filed suit in June 2006 against Progressive, Allen, and her
insurer, State Farm. Hamilton claimed in his petition that Progressive refused to
adjust the damages to the engine thereby resulting in the crippling of his business.
Progressive filed a Motion For Partial Summary Judgment in August 2007 and
attached Hamilton’s insurance policy which excludes coverage for “wear and tear.”1
PART II- DAMAGE TO YOUR AUTO ....
EXCLUSIONS-PLEASE READ THE FOLLOWING EXCLUSIONS CAREFULLY. IF AN EXCLUSION APPLIES COVERAGE FOR AN ACCIDENT OR LOSS WILL NOT BE AFFORDED UNDER THIS PART II - DAMAGE TO YOUR AUTO. ....
This coverage does not apply to loss:
4. Resulting from manufacturer’s defects, wear and tear, freezing, mechanical or electrical breakdown or failure. However, coverage does apply if the damage is the result of other loss covered by the policy.
1 It also attached the affidavit of Jeremy Hoffpauir, an engineer, who stated that he
evaluated the engine at Gary Byrd’s (Progressive’s Heavy Equipment Field
Specialist) request. In his affidavit, Hoffpauir stated that the engine failure was not
“caused or contributed to” by the August 19, 2005 accident.
An affidavit filed by Hamilton next appears in the record in September
2007 in which he recounts that Byrd indicated that he would recommend that
Progressive replace the engine.
In October 2008, the trial court’s “Judgment on Defendant Progressive
Security Insurance Company’s Louisiana Code of Evidence 104 Motions” appears
in the appeal record.2 The trial court denied Progressive’s motion to exclude
testimony and documentary evidence of Hamilton’s economic loss beyond sixty days
and granted Progressive’s motion to exclude testimony and documentary evidence of
alleged acts not previously plead by Hamilton and, in the alternative, Exception of No
Cause of Action. The trial court ordered Hamilton to amend his petition to “properly
plead breach of any of the enumerated items contained in R.S. 22:658 and/or 22:1220,
along with all facts which plaintiff contends supports each breach.” The trial court
further granted Progressive’s motion to exclude the testimony of Hamilton’s witness,
Doyle Watson, finding that he was not qualified to render an expert opinion regarding
whether the accident led to the engine failure. On October 24, 2008, Hamilton filed
a Second Amended Petition urging that Progressive failed to deal fairly and in good
faith in adjusting the damages to his truck and was arbitrary and capricious in dealing
with him, resulting in the loss of his family business. Hamilton urged that
Progressive should pay a penalty for this behavior.
2 Progressive’s La.Code Evid. art. 104 motion is not in the record.
2 In January 2010, Progressive again filed a Motion for Partial Summary
Judgment. In March 2010, Hamilton filed a brief in opposition to Progressive’s
motion for summary judgment. Progressive filed a Motion to Strike the Affidavit of
Doyle Watson, which was attached to Hamilton’s Opposition to Motion for Summary
Judgment.3 The trial court granted Progressive’s motion to strike and further granted
Progressive’s motion for summary judgment. It dismissed, with prejudice,
Hamilton’s claims against Progressive. Hamilton appealed in September 2010. In
October 2010, Hamilton filed a “Motion to File Statement of Points on Appeal.” In
November 2010, Progressive filed a motion to strike Watson’s affidavit from the
appellate record as it was not designated as part of the record nor was Watson
qualified to offer opinion testimony as to the cause of the engine damage.
ISSUES
Hamilton assigns as error:
1. The trial court’s dismissal of the entire case based on his inability to prove that the accident caused the damage to the engine of his 18-wheeler.
2. The trial court’s failure to recognize that Progressive had failed to consider the best interest of its insured; had failed to promptly and adequately notify him of its decisions; and had failed to release his truck so that he could repair it himself.
3. The trial court’s failure to recognize that Progressive, by filing the arbitrational proceeding for his deductible, had assumed a duty to recover his damages from the other insured, that Progressive failed to claim for Hamilton in the arbitration the damage to the engine.
DISCUSSION
MOTION TO FILE STATEMENT OF POINTS ON APPEAL
3 Progressive’s Motion to Strike is not in the record.
3 Hamilton’s Motion to File Statements of Points on Appeal is before us
on the merits. On appeal, we do not entertain evidence that was not properly
submitted into the record at trial:
Evidence not properly and officially offered and introduced cannot be considered, even if it is physically placed in the record. Documents attached to memoranda do not constitute evidence and cannot be considered as such on appeal.
Appellate courts are courts of record and may not review evidence that is not in the appellate record, or receive new evidence.
Denoux v. Vessel Mgmt. Servs, Inc., 07-2143, p.6 (La. 5/21/08), 983 So.2d 84, 88
(citations omitted). The motion makes a number of factual assertions including some
pertaining to the arbitration proceeding between Progressive and State Farm, Allen’s
insurer. This arbitration proceeding is not in the appellate record. Hamilton’s motion
is denied.
PROGRESSIVE’S MOTION TO STRIKE
Progressive filed a Motion to Strike the Affidavit of Doyle Watson from
Appellate Record. The trial court had previously granted Progressive’s Motion to
Strike Watson’s Affidavit because it found him unqualified to testify as an expert.
Hamilton does not assign as error the trial court’s finding that Watson was not
qualified to testify as an expert. Although Watson’s affidavit would be necessary for
a Daubert review on appeal, that issue is not before us. Thus, we strike the affidavit
from the appellate record. Progressive’s motion is granted.
MOTION FOR SUMMARY JUDGMENT
On appeal, summary judgments are reviewed de novo. Magnon v.
Collins, 98-2822 (La. 7/7/99), 739 So.2d 191. Thus, the appellate court asks the same
questions the trial court asks to determine whether summary judgment is appropriate.
4 Id. This inquiry seeks to determine whether any genuine issues of material fact exist
and whether the movant is entitled to judgment as a matter of law. La.Code Civ.P.
art. 966(B) and (C). This means that judgment should be rendered in favor of the
movant if the pleadings, depositions, answers to interrogatories, admissions on file,
and affidavits show a lack of factual support for an essential element of the opposing
party’s claim. Id. If the opposing party cannot produce any evidence to suggest that
he will be able to meet his evidentiary burden at trial, no genuine issues of material
fact exist. Id.
Material facts are those that determine the outcome of the legal dispute.
Soileau v. D & J Tire, Inc., 97-318 (La.App. 3 Cir. 10/8/97), 702 So.2d 818, writ
denied, 97-2737 (La. 1/16/98), 706 So.2d 979. In deciding whether certain facts are
material to an action, we look to the applicable substantive law. Id. Finally, summary
judgment procedure is favored and designed to secure the just, speedy, and
inexpensive determination of every action. La.Code Civ.P. art. 966(A)(2).
We note that, although Hamilton assigns three points of error, he does
not brief any of them. Pursuant to Uniform Rules—Courts of Appeal, Rule 2-12.4,
all assignments of error must be briefed. We “may consider as abandoned any
specification or assignment of error which has not been briefed.” Id. Hamilton
presents a summary of insurance law principles including that an insurer is required
to act in good faith in dealing with its insured. He further makes various claims about
Progressive’s timing in dealing with his claim. Finally, Hamilton goes on to discuss
the aforementioned arbitration proceedings between Progressive and State Farm that
are not relevant. Although we could summarily dismiss this entire appeal for failure
to brief the assignments, we will briefly address them.
5 The uncontroverted evidence in the record reveals that Sheila Hamilton,
Ronnie’s wife, notified Progressive of the accident on September 6, 2005.
Progressive sent out Gary Byrd, their Heavy Equipment Field Specialist, on
September 7, 2005 to perform an inspection. On September 8, 2005, a Progressive
adjuster authorized that the truck be moved to Watson Diesel shop so that the engine
could be torn down. On September 12, 2005, Progressive mailed a Reservation of
Rights letter to Hamilton. On September 20, 2005, Byrd reinspected the torn-down
engine in the Watson Diesel shop and determined the engine damage was not related
to the accident. On October 3, 2005, the adjuster mailed a settlement check to
Hamilton for $4,288.67 for various other damages not related to the engine minus
Hamilton’s $1,000 deductible. On October 6, 2005 Progressive mailed a Denial of
Coverage letter to Hamilton concluding that the engine damage was due to
mechanical failure rather than the accident.
ASSIGNMENT OF ERROR ONE
The entire issue in this case is whether or not the accident caused the
engine to fail. Hamilton offered no admissible evidence that the engine failure was
caused by the accident. Clearly, Hamilton can point to nothing that suggests he will
be able to meet his burden of proof regarding causation of the engine failure at trial.
This assignment of error is without merit.
ASSIGNMENT OF ERROR TWO
In this assignment, Hamilton argues that Progressive failed to consider
the interest of its insured, it failed to promptly and adequately notify him of its
decisions, and it failed to release his truck so that he could repair it himself. Hamilton
points to no evidence in the record to support these claims. On the contrary, the
6 record supports the conclusion that Progressive adjusted Hamilton’s claim in a timely
manner. This assignment of error is without merit.
ASSIGNMENT OF ERROR THREE
Hamilton claims that the trial court failed to recognize that Progressive,
by filing an arbitration proceeding to recover his deductible, assumed a duty to
“recover his damages from the other insured, that Progressive failed to claim for
Hamilton in the arbitration the damage to the engine.” There is no mention in the
record of any arbitration proceedings. This assignment of error is without merit.
CONCLUSION
Summary judgment in favor of the defendant-appellee, Progressive
Security Insurance Company, is affirmed. All costs of this appeal are assessed
against the plaintiff-appellant, Ronnie Hamilton d/b/a Hamilton Trucking.