Wallace v. Louisiana Citizens Property Insurance Corp.

53 So. 3d 514, 2010 La.App. 4 Cir. 0647, 2010 La. App. LEXIS 1639, 2010 WL 4942801
CourtLouisiana Court of Appeal
DecidedDecember 6, 2010
Docket2010-CA-0647
StatusPublished
Cited by5 cases

This text of 53 So. 3d 514 (Wallace v. Louisiana Citizens Property Insurance Corp.) 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
Wallace v. Louisiana Citizens Property Insurance Corp., 53 So. 3d 514, 2010 La.App. 4 Cir. 0647, 2010 La. App. LEXIS 1639, 2010 WL 4942801 (La. Ct. App. 2010).

Opinions

MAX N. TOBIAS, JR., Judge.

It One of the plaintiffs, Dianne Orgeron, appeals the trial court’s denial of class certification. Finding no abuse of discretion or manifest error in the judgment of the trial court, we affirm for the following reasons.

The plaintiffs filed this matter in the Twenty-Fifth Judicial District Court for the Parish of Plaquemines as a putative class action on behalf of an alleged class of Louisiana homeowner insurance policyholders in the parishes of Jefferson, Orleans, Plaquemines, St. Bernard, St. Tammany, Terrebonne, and Washington. A number of domestic homeowner’s insurers were originally named as parties-defendants, but at the time of the trial court’s judgment only American National Property and Casualty Company (“ANPAC”) remained a defendant. Dianne Orgeron remained as the sole putative ANPAC class representative.

The class certification hearing took place on 17 and 19 September 2007 before Judge William A. Roe and was concluded on 3 December 2009 before Judge Kevin D. Conner. On 14 January 2010, Judge Conner. rendered a judgment denying class certification, finding a lack of predominance under La. C.C.P. art. 591 B(3). It is [517]*517from this judgment that the plaintiff devol-utively appeals.

[ gANPAC had approximately ten thousand homeowner’s policies in effect in the region on 29 August 2005, the date Hurricane Katrina struck Louisiana. One of those policyholders was Dianne Orgeron, the class’ proposed putative representative for the ANPAC policyholders.

Ms. Orgeron testified that before Hurricane Katrina, she and her husband, Raphael Orgeron, resided at 7925 Dalton Street in Metairie (Jefferson Parish) and that them home was insured by a fire and extended coverage insurance policy with ANPAC that provided for $152,200.00 in coverage for the main dwelling and “other structures” coverage in the amount of $15,200.00. Ms. Orgeron claimed that her home suffered catastrophic damage from Hurricane Katrina, including damage from wind, wind-driven rain, and flood, thereby rendering her home a total loss. She initially asserted that prior to 29 August 2005 her home had no structural damage. In August of 2006, the Army Corps of Engineers razed her Dalton Street property. Ms. Orgeron asserted that the demolition was at the behest of the Jefferson Parish Inspection and Code Enforcement Department. She later admitted that the Department had recommended demolition but did not actually require or mandate that the structure be razed. During the course of her testimony Ms. Orgeron also recanted her previous assertion that the home did not have pre-existing structural damage. Prior to Hurricane Katrina she had obtained a quote from Cable Lock Foundation Repair for foundation repairs.

The sole issue in the appeal is whether the trial court abused its discretion in denying class certification and finding that the predominance requirement of La. C.C.P. art. 591 B(3) was not satisfied.

The crux of the underlying claim in the case sub judice is the Louisiana Valued Policy Law (“VPL”), La. R.S. 22:1318, formerly La. R.S. 22:695, which [.¡may apply to total losses sustained by the plaintiff class as a result of covered (wind) and uncovered (flood) damages caused by Hurricane Katrina. The plaintiffs contend that the VPL statute mandates payment of policy limits in the event of a total loss when a property is destroyed by either an insured peril or by a combination of insured and non-insured peril.

Prior to the trial court’s decision on the class certification issue, ANPAC filed a motion for summary judgment challenging the plaintiffs interpretation of the statute. The motion was denied by the trial court on 1 December 2009, and writs were denied by this court (Wallace v. Louisiana Citizens Property Ins. Co., 09-1650, un-pub. (La.App. 4 Cir. 1/28/10)), and by the Louisiana Supreme Court (Wallace v. Louisiana Citizens Property Ins. Co., 10-0450 (La.5/21/10), 36 So.3d 231).

In making its decision, the trial court cited Terrebonne v. Allstate Ins. Co., 251 F.R.D. 208 (E.D. La. Jul 31.2007). The trial court noted the similarity between the case at bar and Terrebonne, where the court dismissed a VPL class action, holding that:

... plaintiffs’ claims still require highly individualized inquiries into the cause of each plaintiffs loss and the amount of damages sustained at each of the plaintiffs properties.... [A] VPL case still required proof by someone of the proximate cause of each plaintiffs total loss.... Other district courts have likewise rejected Katrina-related class certifications under Rule 23(b)(3) because of the highly individualized and varied nature of the respective plaintiffs’ claims. See Aguilar [v. Allstate Fire & Cas. Inc. Co.], 2007 WL 734809 [E.D. La. Mar. 6, [518]*5182007]; Spiers v. Liberty Mut. Fire Ins. Co., No. 06-4493, 2006 WL 4764430 (E.D.La. Nov.21, 2006); Guice v. State Farm Fire & Cas. Co., 2006 WL 2359474 (S.D.Miss. Aug.14, 2006). The Court therefore concludes that certification of plaintiffs’ proposed class is inappropriate under Rule 23(b)(3), as the different factual 14circumstances pertaining to each claim outweigh the common legal issues. [Footnote omitted.]

In the case at bar, the proposed class was to be:

All owners of immovable property located in the State of Louisiana and in the parishes affected by Hurricane Katrina, who had in place on August 29, 2005 a fire (homeowner’s) insurance policy with one of the named Louisiana defendants, who sustained a covered loss of, or damage to, such property, and such property was rendered a total loss as a result of Hurricane Katrina.

The trial court based its judgment primarily on the predominance requirement of La. C.C.P. art. 591 B(3), an essential component of class certification. Because it is not relevant to our decision in this case, we pretermit any discussion of the VPL issue as the resolution the class certification issue is dispositive of the whole.

The standard of review for class certification is bifurcated: factual findings are reviewed under the manifest error/clearly wrong standard, but the trial court’s judgment on whether to certify the class is reviewed under the abuse of discretion standard. Dupree v. Lafayette Ins. Co., 09-2602, p. 7 (La.11/30/10), 51 So.3d 673, 676; Brooks v. Union Pacific R. Co., 08-2035, p. 10 (La.5/22/09), 13 So.3d 546, 554; Chalona v. Louisiana Citizens Property Ins. Corp., 08-0257, pp. 4-5 (La.App. 4 Cir. 6/11/08), 3 So.3d 494, 500.

These two standards of review correspond with the two-step process for determining whether to certify a class action. First, a trial court must find a factual basis exists to certify an action as a class action. Second, the court must exercise its discretion in deciding if certification is appropriate. Galjour v. Bank One Equity Investors-Bidco, Inc., 05-1360, p. 7 (La.App. 4 Cir. 6/21/06), 935 So.2d 716, 722, citing Singleton v. Northfield Ins. Co., 01-0447, p. 7 (La.App. 1 Cir. 5/15/02), 826 So.2d 55, 61.

The Louisiana Supreme Court has mandated that errors to be made in deciding class action issues should be in favor of and not against the maintenance of the class action, because a class certification may be modification or the class decerti-fied if subsequent developments during the course of the litigation so warrant. Dupree, supra, p. 7, 51 So.3d at 676. Further, La. C.C.P. art.

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53 So. 3d 514, 2010 La.App. 4 Cir. 0647, 2010 La. App. LEXIS 1639, 2010 WL 4942801, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wallace-v-louisiana-citizens-property-insurance-corp-lactapp-2010.