Upscale Fashions, Inc. v. Underwriters at Lloyd's London

254 So. 3d 784
CourtLouisiana Court of Appeal
DecidedAugust 29, 2018
DocketNO. 2018-CA-0015
StatusPublished

This text of 254 So. 3d 784 (Upscale Fashions, Inc. v. Underwriters at Lloyd's London) 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
Upscale Fashions, Inc. v. Underwriters at Lloyd's London, 254 So. 3d 784 (La. Ct. App. 2018).

Opinion

Judge Edwin A. Lombard

The Appellant, Botsay Insurance Network, Inc. ("Botsay") seeks review of the September 5, 2017 judgment of the district court rendered in favor of Appellee, Upscale Fashions, Inc., d/b/a Upscale Men's Clothing ("Upscale") and awarding Upscale $59,907.96, less an offset amount of $11,421.78, totaling $48,486.18. Additionally, Upscale, in its Answer to Appeal, seeks review of that portion of the district court's judgment offsetting its award of damages. For the reasons that follow, we find that the Answer to Appeal of Upscale has merit. We vacate that portion of the district court's judgment offsetting the award of damages. Furthermore, we affirm the judgment of the district court in all other respects, finding no manifest error.

Facts and Procedural History

Established in 2001, Upscale is a retail clothing company operating out of a leased property in New Orleans. The president *787and owner of Upscale is Ahmed Sara ("Mr. Sara"). Mr. Sara's son, Qasem Sara ("Qasem"), serves as the treasurer and vice-president of Upscale. Qasem testified that he handled the day-to-day operations of Upscale.

In June 2004, Upscale purchased a property insurance policy, policy number # 65247 ("the Original Policy"), with Underwriters at Lloyd's of London ("Lloyd's") through Botsay. Insurance agent and Botsay employee Darlyn Prendegast handled Upscale's file. The Original Policy included wind and hail coverage. The Original Policy was renewed in June 2005 with the same coverage. However, at Botsay's request, the term of the June 2005 Original Policy was reduced to less than one year, ending on February 11, 2006.

Lloyd's broker, N-Surance Outlets, Inc., faxed a renewal offer to Botsay for Upscale's policy on January 24, 2006, noting the Original Policy "as expiring" on February 11, 2006.1 It is contested as to whether Botsay communicated to Upscale's officers that the Original Policy was up for renewal prior to February 11, 2006. The Original Policy lapsed on February 11, 2006. It is also contested as to whether Upscale's officers were informed by Botsay's employees that the Original Policy lapsed.

Botsay subsequently secured another property insurance policy with Lloyd's ("the Replacement Policy") for Upscale in May 2006, bearing policy # 66702; however, the Replacement Policy did not include wind and hail coverage. Qasem was contacted by a Botsay employee and informed that a premium for Upscale's property coverage was due. It is contested as to whether Botsay's employees explained to Upscale's officers that: 1) wind and hail coverage were not included in the Replacement Policy; and 2) the Replacement Policy was not a renewal of the Original Policy.

Thereafter, Mr. Sara arrived alone at Botsay's office on or about May 11, 2006, to tender payment for Upscale's property coverage. Mr. Sara's first language is Arabic. He is not an English speaker, nor does he read English. Mr. Sara was asked to sign a facsimile from N-Surance to Botsay underneath a "remarks" section which stated "note wind/hail excluded." Mr. Sara signed the facsimile as requested.2 Botsay bound the Replacement Policy for Upscale shortly thereafter.

On August 18, 2006, Upscale's leased premises sustained roof and water damage as a result of a windstorm. Upscale promptly notified Botsay of its loss in order to make a claim with Lloyd's. Botsay did not notify Lloyd's of the loss until January 2008, via facsimile of a Property Loss Notice form. Furthermore, Botsay did not inform Upscale that wind and hail coverage was excluded from the Replacement Policy when Upscale notified Botsay of the claim. Instead, Ms. Prendegast encouraged Upscale to seek relief through its landlord and the landlord's insurer. Ultimately, Botsay submitted the Property Loss Form to Lloyds, as stated above, 17 months after the damages were sustained to Upscale's property.

On August 18, 2008, Upscale filed a Petition for Damages against Lloyd's for failing to pay an insurance claim under policy *788number 66702, the Replacement Policy, for the damages Upscale sustained. Lloyd's was eventually dismissed from the lawsuit on summary judgment.

Upscale twice amended its petition for damages. Initially, it filed an Amended Petition for Damages on September 9, 2008, to add Ming Cheng Realty, Inc., as a defendant.3 Later, on February 11, 2009, it filed a Second Amended Petition to add Botsay as a defendant. Subsequently, Botsay filed an Exception of Prescription against Upscale, which was denied by the district court on April 8, 2013.

A bench trial was held on May 10, 2017, wherein Mr. Sara, Qasem and insurance agent expert Ronald L. Passons testified on behalf of Upscale.4 Additionally, Botsay's witnesses were employee Maria Matute Simmons ("Ms. Simmons") and the owner of Botsay, Barbara Botsay ("Ms. Botsay"). After taking the matter under advisement, the district court rendered judgment in favor of Upscale, finding that it established the following by a preponderance of the evidence:

• Botsay agreed to procure insurance for Upscale;
• Botsay failed to use reasonable diligence in attempting to place wind and hail coverage for Upscale; and
• Botsay's actions warranted an assumption by Upscale that it was properly insured.

The district court further determined that Botsay was liable to Upscale for the amount of the loss of $59,907.96, less an off-set amount of $11,421.78. Thus, Upscale was awarded $48,486.18 with interest.

Botsay timely filed the instant appeal. It raises three (3) assignments of error:

1. The district court erred in finding that Upscale established that Botsay was negligent and in awarding damages;
2. The district court erred in concluding that Botsay failed to use reasonable diligence; and
3. The district court erred in finding that this case was not prescribed.

Standard of Review

Appellate courts "may not set aside a trial court's or a jury's finding of fact in the absence of 'manifest error' or unless it is 'clearly wrong.' " Rosell v. ESCO , 549 So.2d 840, 844 (La. 1989). The Louisiana Supreme Court has established a two-part test for the reversal of a factfinder's determinations:

1) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and
2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous).

Stobart v. State through Dep't of Transp. & Dev ., 617 So.2d 880, 882 (La. 1993). Under a manifest error standard of review, appellate courts do not focus on whether the trier of fact was right or wrong, but on whether the fact-finder's conclusion was a reasonable one. Clay v. Our Lady of Lourdes Regional Medical Center, Inc ., 11-1797, p. 11 (La.

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Bluebook (online)
254 So. 3d 784, Counsel Stack Legal Research, https://law.counselstack.com/opinion/upscale-fashions-inc-v-underwriters-at-lloyds-london-lactapp-2018.