Williams v. Security Plan Fire Insurance Co.

222 So. 3d 200, 16 La.App. 5 Cir. 714, 2017 WL 2350378, 2017 La. App. LEXIS 1004
CourtLouisiana Court of Appeal
DecidedMay 31, 2017
DocketNO. 16-CA-714
StatusPublished
Cited by1 cases

This text of 222 So. 3d 200 (Williams v. Security Plan Fire Insurance 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
Williams v. Security Plan Fire Insurance Co., 222 So. 3d 200, 16 La.App. 5 Cir. 714, 2017 WL 2350378, 2017 La. App. LEXIS 1004 (La. Ct. App. 2017).

Opinion

WICKER, J.

| defendant, Security Plan Fire Insurance Company, appeals the trial court’s calculation of penalties and attorneys’ fees in a judgment against it arising out of plaintiffs’ Hurricane Isaac claim. For the following reasons, we amend the trial court’s award of statutory penalties, vacate that portion of the trial court judgment awarding attorneys’ fees, and remand this matter to the trial court for an evidentiary hearing consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff, Mary Williams, filed suit against defendant-insurer, Security, alleging that her Security insurance policy provided coverage for property damages she alleged her home sustained during Hurricane Isaac in August 2012. Plaintiff further pled that Security handled her claim in bad faith and should be subject to penalties and attorney fees under La. R.S. 22:1973 and La. R.S. 22:1892, as well as consequential damages including mental anguish resulting from Security’s breach of its duty to handle her claim in good faith.

The matter proceeded to a bench trial on May 20, 2016. At trial, plaintiff testified that her home sustained roof damage as a result of Hurricane Isaac, which caused roof leaks into the interior of her home and required her to use pots and pans to collect the leaked water during any rainstorm.1- She stated that her Security insurance agent inspected the home, soon after Hurricane Isaac, and informed her that her property damage did not exceed her policy deductible. Plaintiff, an elderly woman, testified that she called Security thereafter and discussed the matter with customer service, indicating that she did not understand the deductible concept, She further testified that she intermittently reported her dissatisfaction concerning |2her claim to the insurance agents who came to her home to collect her monthly premium.2

Anthony Odeh, a licensed public insurance adjuster and general contractor, testified that he performed repair work on plaintiffs .home following a residential fire in the rear of the home less than two years after Hurricane Isaac. Upon his inspection, he noticed what appeared to be storm damage on her roof and asked plaintiff whether her home sustained storm damage. After plaintiffs, daughter informed him that plaintiff did in fact make a roof claim following Hurricane Isaac that was denied, Mr. Odeh contacted Security and offered to let them come and re-inspect plaintiffs roof before he made any repairs, which it refused.

Mr. Odeh testified that he has completely replaced plaintiffs roof and has not received any payment from plaintiff for his work performed. He testified that the roof replacement was at a total cost of $10,800.00 in addition to $8,681.23 for replacement of the fascia, soffit, siding, and metal. Mr. Odeh testified that the roof replacement work that he performed was a [202]*202result of Hurricane Isaac in 2012.3

Concerning depreciation, Mr. Odeh testified that there is no set formula or schedule to calculate depreciation in the insurance industry and that he has on numerous occasions negotiated with insurance companies to reach an agreeable or acceptable depreciation calculation. He testified that plaintiffs roof prior to Hurricane Isaac was protected by a large oak tree that shaded it from the sun and other elements regularly. However, according to plaintiff, that tree fell during Hurricane Isaac. He testified that he would depreciate the roof by approximately $2,000.00, and further stated that he would not depreciate the soffit and fascia because it is plastic and, thus, lasts indefinitely without exterior forces.

IsMichael DeAgano, a Security home service agent, testified that Security issued to plaintiff an Actual Cash Value insurance policy with a $20,000.00 policy limit and a $1,000.00 hurricane deductible. He testified that he is not a licensed adjuster but that Security sent him to inspect plaintiffs home following Hurricane Isaac. He took photographs of the damage that he observed, completed a “Proof of Loss” form that plaintiff signed following his inspection, and submitted the photographs and documentation to Security. He further testified that, after he submitted the documentation to Security, no one from Security contacted him to discuss his photographs or his opinion as to the extent of the home’s damage.

Concerning his inspection, Mr. DeAgano acknowledged that he did not bring a ladder to inspect plaintiffs home nor did he go on to the roof to inspect for roof damage. However, he testified that he could see the top of the roof from the ground and that it was not necessary to actually go onto the roof of the home. Mr. DeAgano confirmed that plaintiff reported to him that she was unhappy about Security’s decision that her damage did not exceed her deductible and that he advised plaintiff to call customer service.

Jamie Louque, a licensed adjuster and claims supervisor for Security, testified as to Security’s practice of sending out an insurance agent or staff member to document proof of loss at insureds’ homes following a claim. She testified that Diane Theriot, a licensed adjuster with 20 years’ experience who is no longer with the company, reviewed the documentation submitted by Mr. DeAgano and adjusted plaintiffs claim. She testified that she did not review plaintiffs claim at the time it was filed but has reviewed the claim since that time. She testified that she agrees with Ms. Theriot’s decision that the damage to plaintiffs home did not exceed the policy’s deductible. She further testified, concerning depreciation of the roof, that Security depreciates at a 5 to 7 percent depreciation per year, with a maximum depreciation of 70%. She stated that plaintiffs claim, based upon the Lage and condition of the home’s roof, would have resulted in the maximum 70% depreciation deduction.

Ms. Louque spoke with plaintiff on the phone a few days after plaintiff received Security’s letter indicating that her damages did not exceed her policy deductible. Ms. Louque did not independently recall the conversation with plaintiff, but testified that her records documented that plaintiff called customer service and indicated that she did not understand the concept of the deductible, which Ms. Louque stated she explained to plaintiff by phone. She testified that Security does not have any further communication from plaintiff docu-[203]*203merited. She confirmed that no licensed adjuster did an on-site inspection of plaintiffs home and that, after plaintiffs counsel requested a second inspection, Security declined to do so.4

The trial judge left the matter open and accepted post-trial memoranda. On August 9, 2016, the trial judge issued a judgment, awarding plaintiff $16,081.23 “for damages under the insurance contract;” statutory penalties double the amount of the damages, in the amount of $32,162.46; and $12,864.98 in attorney fees.5 The trial judge issued reasons for judgment, finding that plaintiff sustained damage to her home as a result of Hurricane Isaac in August 2012, sufficient to warrant roof replacement. The trial judge further found that Security’s failure to properly inspect and adjust her claim was arbitrary and capricious. The trial court further found that plaintiff failed to put forth “sufficient evidence of mental distress or inconvenience to warrant general damages” and denied that portion of plaintiffs claim.

DISCUSSION

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222 So. 3d 200, 16 La.App. 5 Cir. 714, 2017 WL 2350378, 2017 La. App. LEXIS 1004, Counsel Stack Legal Research, https://law.counselstack.com/opinion/williams-v-security-plan-fire-insurance-co-lactapp-2017.