Judge Edwin A. Lombard

Vincent J. Glorioso, Jr., Vincent J. Glorioso, III, THE GLORIOSO LAW FIRM, 2716 Athania Parkway Metairie, LA 70002 -AND- Stephanie A. Fratello-Adams, ATTORNEY AT LAW, 3017 21st Street, Suite 211, Metairie, LA 70002, COUNSEL FOR PLAINTIFF/APPELLANT

Matthew W. Bailey, McDonald G. Provosty, IRWIN FRITCHIE URQUHART & MOORE, LLC, 400 Poydras Street, Suite 2700, New Orleans, LA 70130, COUNSEL FOR DEFENDANT/APPELLEE, LOUISIANA INSURANCE GUARANTY ASSOCIATION

(Court composed of Judge Edwin A. Lombard, Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins )

Judge Edwin A. Lombard

A review of the record in this appeal filed by the plaintiff/appellant, Gerald Calogero, reveals that it was not timely filed and, consequently, this Court is without jurisdiction to consider it on the merits.

Relevant Facts and Procedural History

The litigation underlying this appeals stems from a February 7, 2014 automobile accident, wherein the plaintiff's vehicle was struck by the vehicle of an at-fault driver, Michael Klying, who was insured by USAgencies Casualty Insurance Company, Inc. (USAgencies). After the accident, the plaintiff submitted a claim to USAgencies and notified his own insurer, USAA Casualty Insurance Company (USAA), of the accident. USAgencies issued a check to the plaintiff for the damage to his vehicle on February 11, 2014, but then stopped payment of he check. The plaintiff's insurer (USAA) issued a check to him for his property damage on February 25, 2014, and then initiated a subrogation claim against USAgencies.

This lawsuit was filed on March 13, 2014, alleging that (1) under Louisiana bad faith statutes, USAgencies is liable for penalties and attorney's fees; and (2) USAgencies is liable for property damage, lost wages, and rental vehicle expenses. Subsequently, USAgencies was renamed Affirmative Casualty Insurance Company (Affirmative) and then, on April 11, 2016, declared insolvent. On July 12, 2017, based on Affirmative's insolvency, the Louisiana Insurance Guaranty Association (LIGA) filed a petition for intervention, asserting all of Affirmative's rights and duties pursuant to the LIGA law, La. Rev. Stat. 22:2051, et seq.

LIGA filed a motion for partial summary judgment which was granted on April 19, 2018, claiming a dollar-for-dollar credit for all sums that USAA paid Mr. Calogero and arguing that LIGA has no liability for the plaintiff's bad faith claims against USAgencies. In opposition to the motion, the plaintiff argued that LIGA is not entitled to immunity from attorney's fees arising from a bad faith claim. The district court granted partial summary judgment in favor of LIGA on April 19, 2018, dismissing the plaintiff's bad faith claims for penalties and attorney fees against LIGA and finding that he had already been compensated by USAA for his property damage and, therefore, had no further property damage claim against LIGA.

The plaintiff's motion for reconsideration was denied on August 1, 2018. After a trial on September 12, 2018, the district court rendered judgment on September 28, 2018, finding: (1) USAgencies was liable to the plaintiff for $3,105.81 plus court costs, interest, penalties, and attorney's fees due to bad faith; and (2) LIGA was found liable to the plaintiff for rental car expenses in the amount of $275.88 plus interest.

On October 5, 2018, the plaintiff filed a motion to amend judgment and/or motion for new trial seeking to amend certain phraseology in the decretal language and a new trial on the issues of calculation of attorney's fees, court costs, and rental car expenses. On November 16, 2018, the district court denied the motion for new trial and a notice of signing judgment was issued by the clerk of court on the same date.

The plaintiff filed a motion for devolutive appeal on January 11, 2019.

Applicable Law

The delay for appeal from First City Court of New Orleans is governed by La. Code Civ. Proc. art. 5002, which provides, in pertinent part, that "[a]n appeal from a judgment rendered by a city court or a parish court may be taken only within ten days from the date of the judgment or from the service of notice of judgment, when such notice is necessary." Although "the 10-day appeal delay provided for in La. Code Civ. Proc. art. 5002 commences to run upon receipt of notice of judgment rather than upon the mere mailing of said notice," Myles v. Turner , 612 So.2d 32, 35 (La. 1993) (emphasis in original), Rule 6, § 7 of the Rules of First City Court of the City of New Orleans specifically provides:

Section 7: When an attorney whose name is shown on any pleading as provided in Section 6 hereof moves his office from one location to another, he must change his address on all pleadings which he has previously filed an on which the former address has been shown. The failure to do so will bar such attorney from pleading the nonreceipt of notice mailed by the Court to his address originally shown on the pleadings .

(emphasis added); see also , Rule 9.7, Rules of Louisiana District Court ("The correct mailing address, street address, phone number, facsimile number, and e-mail address, if any, of the person signing the pleading, an in the case of an attorney, the Louisiana Bar Identification Number, shall appear below the signature.").

Relevant Facts

On April 16, 2019, this Court ordered the plaintiff to show cause in writing why the appeal should not be dismissed as untimely, considering that the motion for appeal was filed fifty-four days after the mailing of the notice of signing of judgment, well beyond the ten day delay for an appeal from a judgment rendered by a city court. In response, the plaintiff/appellant submitted the affidavit of his attorney, who attested that she never received the November 16, 2018, notice of signing of judgment from First City Court, and, moreover, that on November 1, 2018, she had moved her law office from 3900 North Causeway Blvd., Suite 1200, Metairie, Louisiana, to 3017 21st Street, Suite 211, Metairie, Louisiana. As acknowledged by the plaintiff's counsel, the record reflects that the November 16, 2018, notice of signing of judgment from First City Court was mailed to plaintiff through counsel at the address of 3900 North Causeway Blvd., Suite 1200. The record further reflects that throughout November 2018 and into January 2019, the counsel continued to use the 3900 North Causeway Blvd. address on pleadings and e-mail correspondence with both opposing counsel and the law clerk for the First City Court trial judge.

Conclusion

In light of the relevant statutory requirements for filing a timely appeal and the Rules of Court regarding signed pleadings, the instant appeal is untimely and this Court is without jurisdiction to consider its merits. Accordingly, this appeal is dismissed with prejudice.

APPEAL DISMISSED.

LOBRANO, J., DISSENTS AND ASSIGNS REASONS

I respectfully dissent. Upon review of the record and applicable law, I find the appeal untimely. For the following reasons, I would dismiss the appeal.

As noted by the majority, this Court ordered appellant to show cause in writing why the appeal should not be dismissed as untimely, considering that the motion for appeal was filed fifty-four days after the mailing of the notice of signing of judgment, well beyond the ten day delay for an appeal from a judgment rendered by a city court, pursuant to La. C.C.P. art. 5002. In response, appellant submitted the affidavit of his attorney, who attested that she never received the November 16, 2018 notice of signing of judgment from First City Court, and, moreover, she had moved her law office from 3900 North Causeway Blvd., Suite 1200, Metairie, Louisiana, to 3017 21st Street, Suite 211, Metairie, Louisiana, on November 1, 2018. As acknowledged by appellant's counsel, the record reflects that the November 16, 2018 notice of signing of judgment from First City Court was mailed to appellant through counsel at the address of 3900 North Causeway Blvd., Suite 1200. The record further reflects that appellant's counsel continued through November, 2018, and into January, 2019, to use the 3900 North Causeway Blvd. address on pleadings and e-mail correspondence with both opposing counsel and the law clerk for the First City Court trial judge.

Louisiana Rules of Court require an attorney of record to state a current address on every pleading and inform the court of any change of address; Rule 6, Sections 6 and 7, Rules of First City Court of the City of New Orleans, provide as follows:

Section 6: Every pleading of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address, telephone number and zip code shall be stated.

Section 7: When an attorney whose name is shown on any pleading as provided in Section 6 hereof moves his office from one location to another, he must change his address on all pleadings which he has previously filed an on which the former address has been shown. The failure to do so will bar such attorney from pleading the nonreceipt of notice mailed by the Court to his address originally shown on the pleadings .

(emphasis added); see also , Rule 9.7, Rules of Louisiana District Court ("The correct mailing address, street address, phone number, facsimile number, and e-mail address, if any, of the person signing the pleading, an in the case of an attorney, the Louisiana Bar Identification Number, shall appear below the signature.").

From my review of the record before this Court, in light of the relevant statutory requirements for filing a timely appeal and the Rules of Court regarding signed pleadings, I find the instant appeal untimely and, consequently, that this Court is without jurisdiction to consider the merits of the appeal. Accordingly, I would dismiss the appeal with prejudice.

LOBRANO, J., DISSENTS AND ASSIGNS REASONS.

I respectfully dissent from the majority's dismissal of this appeal. I would maintain the appeal as timely filed, as the record contains no evidence that Calogero's counsel received the notice of signing of judgment. I would, thus, decide the merits of the appeal, and for the reasons set forth in this dissent, I would affirm the April 19, 2018 judgment, amend the September 28, 2018 judgment and affirm as amended, and vacate the November 16, 2018 judgment.

Timeliness of Appeal

This case arises out of First City Court of New Orleans. The Supreme Court has made plain that the 10-day deadline, provided by La. C.C.P. art. 5002¹ within which to appeal a city court judgment, does not commence to run until "receipt of notice of judgment rather than upon the mere mailing of said notice." Myles v. Turner , 612 So.2d 32, 35 (La. 1993) (emphasis in original). The Fifth Circuit Court of Appeal for the State of Louisiana has held that where the record contains no evidence of the date on which the judgment or notice of signing was received, the appeal should be maintained. See, e.g., Morice v. Alan Yedor Roofing & Constr. , 2016-0532, pp. 9-10 (La. App. 5 Cir. 2/8/17), 216 So.3d 1072, 1079 ; Kaye v. Karp , 2017-0397, p. 3, n. 5 (La. App. 5 Cir. 12/27/17), 237 So.3d 614, 619, writ denied , 2018-0136 (La. 3/9/18), 237 So.3d 1193 (citing Hacienda Const., Inc. v. Newman , 2010-0018, pp. 4-5 (La. App. 5 Cir. 6/29/10), 44 So.3d 333, 336 ). I find these cases persuasive and adopt their holding.

The following dates are relevant to this Court's inquiry. On November 16, 2018, the city court rendered the judgment ruling on the motion for new trial, and a notice of signing was issued by the clerk of court on the same date. Calogero did not file a motion for appeal until January 11, 2019, 54 days later.

No party filed a motion to dismiss this appeal as untimely. Nevertheless, "[a]ppellate courts have a duty to determine, sua sponte , whether the court has proper jurisdiction to consider the merits of an appeal filed in the court." Schwarzenberger v. Louisiana State Univ. Health Scis. Ctr.-New Orleans , 2018-0812, p. 2 (La. App. 4 Cir. 1/9/19), 263 So.3d 449, 451-52. "Absent a timely motion for appeal, the appellate court lacks jurisdiction over the appeal." Tennebaum v. LeCompte , 2015-0008, p. 2 (La. App. 4 Cir. 8/12/15), 173 So.3d 1185, 1185 (citation omitted).

Accordingly, this Court, on its own motion, issued an order to show cause why the appeal should not be dismissed as untimely. In response, Calogero submitted the affidavit of his attorney, who attested under oath that she never received the judgment or notice of signing from the city court. She also attested that the judgment was sent to a law office where she no longer practiced. The record contains conflicting information as to where counsel's office was located in November 2018. Calogero's counsel did not file anything in the lower court record advising of her law office's change of address during this period. Notably, according to the notice of signing, the judgment was actually not mailed to LIGA ; rather it was mailed to: (1) Calogero's counsel's address of record, and (2) an address where Calogero, also an attorney, has a law office. Nevertheless, nothing in the record informs this Court when or if Calogero's attorney received the judgment or notice of signing from the city court.

The majority's premise for dismissing this appeal is Local Rule 6 § 7 of the First City Court of New Orleans, a city court procedural rule that requires counsel of record who moves his office to "change his address on all pleadings which he has previously filed and on which the former address has been shown." This local rule also states that "failure to do so will bar such attorney from pleading the nonreceipt of notice mailed by the Court to his address originally shown on the pleadings." The majority reads this local rule to conclusively bar this Court from finding no evidence of Calogero's counsel's receipt of the notice of signing. Under the majority's analysis, this Court is forced to assume that Calogero's counsel received the notice of signing on an unspecified date, but failed to file a motion for appeal within 10 days. The majority cites to no code article, statute, or reported jurisprudence that supports its position. I disagree with such a reading, and I find that it runs afoul of the Supreme Court's holding that the 10-day appeal delay under La. C.C.P. art. 5002 commences upon receipt of the notice of signing of judgment. See Myles , 612 So.2d at 35.

The Supreme Court has explicitly held that "local rules of court cannot conflict with legislation." Rodrigue v. Rodrigue , 591 So.2d 1171, 1171 (La. 1992). See also Clark v. Dep't of Police , 2012-1274, p. 7 (La. App. 4 Cir. 2/20/13), 155 So.3d 531, 536. A court's authority to enact local procedural rules arises from La. C.C.P. art. 193, which allows such court to "adopt rules for the conduct of judicial business before it, including those governing matters of practice and procedure which are not contrary to the rules provided by law ." (Emphasis added.) Even so, "the primary objective of all procedural rules should be to secure to parties the full measure of their substantive rights." Unwired Telecom Corp. v. Par. of Calcasieu , 2003-0732, p. 10 (La. 1/19/05), 903 So.2d 392, 401 (citations omitted). "It bears remembering that rules of procedure exist for the sake of substantive law and to implement substantive rights, not as an end in and of itself." Id.

"Local rules of court are intended solely to aid in the orderly and efficient conduct of litigation and are not to be construed so literally as to defeat their intended purpose." Vincent v. Vincent , 2011-1822, p. 12 (La. App. 4 Cir. 5/30/12), 95 So.3d 1152, 1161 (citations omitted). "Further, the trial court has great discretion in the construction, interpretation, application and enforcement of its own rules." Id. , 2011-1822, pp. 12-13, 95 So.3d at 1161.

The record does not show that the city court applied this local rule in this litigation, and the majority gives no reason why this Court is bound by the city court's local rule on appeal. No party complained of either the timeliness of this appeal or application of this local rule, and the parties have now waived these arguments. See Lingo v. Lingo , 52,105, p. 10 (La. App. 2 Cir. 4/11/18), 249 So.3d 932, 938 ("A local court rule cannot deprive a litigant of his right to access to the court ... the parties, hearing officer, and original judge operated as if there had been a tacit waiver of the local court provision" setting deadline for filing written objections). Moreover, the record has never been supplemented with any evidence of Calogero's counsel's receipt of the judgment or the notice of signing. Rather, Calogero's counsel, an officer of the court, attests under oath that she never received the judgment or notice of signing, and this Court has no evidence to the contrary.

In sum, I simply find no authority for the proposition that counsel's failure to lodge in the lower court notice of her change of address creates a jurisdictional defect imputable to her client, which in turn deprives this Court of appellate jurisdiction over this case. Rather, I would follow Myles ' and the Fifth Circuit's interpretation of La. C.C.P. art. 5002. Because the date of receipt of the notice of signing of judgment cannot be "firmly established," I would maintain the appeal as timely, "as appeals are favored under the law, and any doubt as to the timeliness of an appeal shall be resolved in favor of maintaining, rather than dismissing an appeal." Kaye , 2017-0397, p. 3, n. 5, 237 So.3d at 619 (citing Hacienda Const., Inc. , 2010-0018, pp. 4-5, 44 So.3d at 336 ).

Merits of Appeal

Factual and Procedural History

This is a bad faith action for failure to pay an automobile insurance claim. This litigation stems from a February 7, 2014 automobile accident, wherein Calogero's vehicle was struck by the vehicle of an at-fault driver, Michael Klying. At the time of the accident, USAgencies provided automobile insurance coverage to Klying, and USAA provided coverage to Calogero. Following the accident, Calogero submitted a claim to USAgencies and notified USAA of the accident. USAgencies did not contest its liability for the accident.

On February 11, 2014, USAgencies issued a check to Calogero in the amount of $3,105.81 for the damage to his vehicle. Calogero deposited said check. On February 17, 2014, however, USAgencies stopped payment on its check, and Calogero's account was debited $3,105.81 plus $12.00 for a deposit item returned fee. USAgencies did not reissue any payment to Calogero for his property damage. On February 25, 2014, USAA issued a check to Calogero in the amount of $5,922.31, which Calogero deposited. USAA then initiated a subrogation claim against USAgencies for $4,427.56.

On March 13, 2014, Calogero filed a petition for damages alleging that USAgencies failed to pay his property damage claim within thirty (30) days after receiving satisfactory proof of loss and is liable for penalties and attorney's fees under Louisiana's bad faith statutes. Calogero also alleged that USAgencies is liable for property damage, lost wages, and rental vehicle expenses. USAgencies was subsequently renamed Affirmative Casualty Insurance Company. Thereafter, on April 11, 2016, Affirmative was declared insolvent. Pursuant to Affirmative's insolvency, on July 12, 2017, LIGA filed a petition for intervention, asserting all of Affirmative's rights and duties pursuant to the LIGA law, La. R.S. 22:2051, et seq.

On December 1, 2017, LIGA filed a motion for partial summary judgment, claiming a dollar-for-dollar credit for all sums that USAA paid Calogero and arguing that LIGA has no liability for Calogero's bad faith claims against USAgencies. Calogero opposed the motion, contending that LIGA is not entitled to immunity from attorney's fees arising from a bad faith claim. On April 19, 2018, the city court granted partial summary judgment in favor of LIGA, and held, in pertinent part:

The Court finds that while LIGA is the statutory successor of Affirmative Insurance, formerly known as, USAgencies, LIGA is not an "insurer" and thus cannot be held liable for statutory penalties and attorney's fees for the bad faith of the insurer to which it succeeds....

... Plaintiff's bad faith claim for penalties, and attorney's fees against LIGA is therefore dismissed....

... As the plaintiff was already compensated by his own insurance company, for his property damage, he has no further property damage claim against LIGA.... LIGA is entitled to a dollar for dollar credit for all sums paid to the Plaintiff by USAA for his property damage claim.

THEREFORE, IT IS ORDERED ADJUDGED AND DECREED that LIGA's Motion for Partial Summary Judgment is hereby GRANTED.

JUDGMENT READ, RENDERED AND SIGNED at New Orleans, Louisiana on this 19th day of April, 2018.

On April 27, 2018, Calogero filed a motion for reconsideration, which was denied on August 1, 2018. The case then proceeded to trial on September 12, 2018. On September 28, 2018, the city court rendered judgment as follows: (1) USAgencies was found liable to Calogero for $3,105.81 plus court costs, interest, penalties, and attorney's fees due to bad faith; (2) LIGA was found liable to Calogero for rental car expenses in the amount of $275.88 plus interest; and (3) no damages were awarded for lost wages.

On October 5, 2018, Calogero filed a motion to amend judgment and/or motion for new trial. In this motion, Calogero sought: first, to amend certain phraseology in the decretal language he argued was confusing, and second, a new trial on the issues of calculation of attorney's fees, court costs, and rental car expenses. The city court held a hearing on November 13, 2018.

On November 15, 2018, the city court's staff circulated to counsel for the parties via email an unsigned proposed judgment. Counsel for LIGA responded via email, copying opposing counsel and the court, advising that on November 15, 2018, Calogero's counsel sent him a demand letter taking the position that LIGA was responsible for the $3,105.81 judgment against USAgencies plus interest. In this email communication, LIGA's counsel asked that the court include language in the amended judgment that LIGA "has no statutory duty or obligation to pay this judgment on behalf of USAgencies..." LIGA did not file any motion in the city court concerning this request. In response, Calogero filed in the city court a written opposition to LIGA's email request, arguing that LIGA's request was untimely and made in an ex parte communication.

On November 16, 2018, the city court rendered an amended judgment, which revised the decretal language as Calogero requested, but otherwise denied all other relief. The amended judgment also contained new language that "Louisiana Insurance Guaranty Association has no statutory duty or obligation to pay on behalf of USAgencies Casualty Insurance Company's bad faith." This appeal followed.

Law and Analysis

Calogero raises four assignments of error on appeal, contending that the city court erred in:

1. improperly amending the judgment in response to LIGA's counsel's email request;

2. rendering judgment for property damage against USAgencies only and not LIGA;

3. excluding evidence of attorney's fees incurred by Calogero; and

4. granting LIGA's motion for partial summary judgment dismissing Calogero's claim for attorney's fees and failing to award attorney's fees at trial.

Amendment of Judgment

Turning to Calogero's first assignment of error, I consider whether the city court erred by amending its judgment to add language that LIGA "has no statutory duty or obligation to pay on behalf of USAgencies['] ... bad faith." Calogero complains that the city court improperly amended the judgment in response to an untimely ex parte communication from LIGA's counsel after the hearing on Calogero's motion for new trial. It is evident from the record that Calogero opposed this amendment. Thus, I find that the city court erred by amending the judgment without a new contradictory hearing on the issue.

"It is well settled under our jurisprudence that a judgment which has been signed cannot be altered, amended, or revised by the judge who rendered the same, except in the manner provided by law." Bourgeois v. Kost , 2002-2785, p. 7 (La. 5/20/03), 846 So.2d 692, 696. La. C.C.P. art. 1951 permits a court – either on motion of a party or on its own motion – to amend a final judgment "at any time to alter the phraseology of the judgment, but not its substance." Nevertheless, the "judgment may be amended only after a hearing with notice to all parties, except that a hearing is not required if all parties consent or if the court or the party submitting the amended judgment certifies that it was provided to all parties at least five days before the amendment and that no opposition has been received." Id. This requirement for a "hearing" or "consent" applies "irrespective of whether the amendment involves non-substantive changes to the judgment." Cmty. Assocs., Inc. v. Taylor , 2019-0242, p. 5 (La. App. 4 Cir. 7/31/19), ––– So.3d ––––, ––––, 2019 WL 3470941, *3.

The "usual remedy of the appellate court" where a final judgment has been amended in violation of La. C.C.P. art. 1951 "is to vacate the amended judgment and reinstate the original judgment..." Tunstall v. Stierwald , 2001-1765, p. 6 (La. 2/26/02), 809 So.2d 916, 920. The Louisiana Supreme Court has recognized, however, in a case which "will not be resolved by such a remedy," La. C.C.P. art. 2164 permits the appellate court to "render any judgment which is just, legal and proper upon the record on appeal." Id. , 2001-1765, p. 6, 809 So.2d at 920-21. I would utilize that authority in this matter as follows.

First, I would vacate the November 16, 2018 judgment. Next, I would reinstate and amend the September 28, 2018 judgment to clarify certain decretal language that was at issue in Calogero's motion to amend and/or motion for new trial. That language read, as rendered:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that US Agencies is cast in judgment against plaintiff, Gerald J. Calogero in the amount of $3,105.81 plus court costs, judicial interest from the date of judicial

demand, penalties, and attorney's fees due to bad faith.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that LIGA is cast in judgment against plaintiff, Gerald J. Calogero in the amount of $275.88 plus judicial interest from the date of judicial demand for plaintiff's rental car expenses.

I would amend the September 28, 2018 judgment to delete the above-quoted paragraphs and replace them with the following:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that judgment is rendered in favor of plaintiff, Gerald J. Calogero, and against defendant, USAgencies Casualty Insurance Company, Inc., in the amount of $3,105.81 plus court costs, judicial interest from the date of judicial demand, penalties and attorney's fees due to USAgencies' bad faith.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that judgment is rendered in favor of plaintiff, Gerald J. Calogero, and against Intervenor, Louisiana Insurance Guaranty Association, in the amount of $275.88 plus judicial interest from the date of judicial demand for the plaintiff's rental car expenses.

Then, for the reasons that follow, I would affirm the September 28, 2018 judgment as amended.

I now discuss the remaining assignments of error in reverse order.

Bad Faith Attorney's Fees

Calogero's fourth assignment addresses whether LIGA is liable for attorney's fees arising from an insolvent insurer's pre-insolvency bad faith. The city court held that LIGA cannot be liable for attorney's fees in this bad faith claim because LIGA is not an "insurer." Calogero argues that, under recent amendments to the LIGA law, attorney's fees qualify as "covered claims" for which LIGA is responsible.

This issue implicates two judgments: (1) the April 19, 2018 partial summary judgment dismissing the bad faith penalty and attorney fee claims against LIGA; and (2) the September 28, 2018 judgment, which likewise assessed no penalties or attorney's fees against LIGA.

Whether attorney's fees are due under the insurance code or LIGA law involves a question of statutory interpretation, which is a question of law subject to de novo review. Benjamin v. Zeichner , 2012-1763, p. 5 (La. 4/5/13), 113 So.3d 197, 201. This Court likewise reviews de novo lower court rulings granting or denying summary judgment, using the same criteria that govern the lower court's consideration of whether summary judgment is appropriate. Billeaudeau v. Opelousas Gen. Hosp. Auth. , 2016-0846, p. 9 (La. 10/19/16), 218 So.3d 513, 520. "[A] motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." La. C.C.P. art. 966(A)(3). "When summary judgment is granted in the context of statutory interpretation, there are no material issues of fact in dispute, and the sole issue before the reviewing court is a question of law as to the correct interpretation of the statute at issue." Billeaudeau , 2016-0846, pp. 9-10, 218 So.3d at 520.

Calogero's claim for attorney's fees arises from La. R.S. 22:1892, a "bad faith" statute within the insurance code, which imposes attorney's fees against an "insurer" who arbitrarily fails to timely pay a property damage claim due to a bona fide third party claimant. "The bad faith statutes are penal in nature and should be strictly construed." Feingerts v. Louisiana Citizens Prop. Ins. Corp. , 2018-0381, p. 5 (La. App. 4 Cir. 2/13/19), 265 So.3d 62, 66, writ denied , 2019-00436 (La. 9/6/19), 278 So.3d 364 (citations omitted).

In Bowens v. Gen. Motors Corp. , 608 So.2d 999, 1005 (La. 1992), the Louisiana Supreme Court held that LIGA is not liable for statutory penalties or attorney's fees. In particular, the Court found that "LIGA is not an insurer," but is an "association" created under the LIGA law. Id. The Court also found that "an obligation arising out of a penalty statute ‘is separate and distinct from the obligation arising out of the contractual relationship under the insurance policy.’ " Id. at 1004 (quoting Cantrelle Fence and Supply Co. v. Allstate Ins. Co. , 515 So.2d 1074, 1079 (La. 1987) ). "It follows, therefore, that any obligation imposed on the insolvent insurer for penalties and attorney fees is separate from its contractual obligations arising out of the policy, and this obligation falls outside of the definition of covered claims for which LIGA is liable, as set forth in" the LIGA law. Id. (citing Williams v. Champion Ins. Co. , 590 So.2d 736 (La. App. 3rd Cir.1991) ; Breaux v. Klein , 572 So.2d 656 (La. App. 5th Cir. 1990), writ denied , 573 So.2d 1140 (La. 1991) ).

At the time Bowens was decided, the LIGA law was codified at La. R.S. 22:1377 et seq. Citing the statutes in effect at the time of Bowens' accident, the Court stated:

La. R.S. 22:1382(1)(a) & (b) provide[d] that LIGA shall "be obligated to the extent of covered claims" and be "deemed the insurer to the extent of its obligations on the covered claims ...."

[emphasis added]. At the time of this case, [ La. R.S. 22:1379(3) ] defined "covered claims" as "an unpaid claim, including one for unearned premiums, which arises out of and is within the coverage and not excess of the applicable limits of an insurance policy to which this Part applies...."

Bowens , 608 So.2d at 1004.

Currently, La. R.S. 22:2058(A)(1)(a) provides that the "association [LIGA] shall: Be obliged to pay covered claims pursuant to an order as provided in R.S. 22:2008(C), existing prior to the determination of the insurer's insolvency..." "To the extent of its obligation on the covered claims," LIGA shall "have all rights, duties, and obligations of the insolvent insurer as if the insurer had not become insolvent..." La. R.S. 22:2058(A)(2). At all times relevant to this litigation, the definition of "covered claim" was provided in La. R.S. 22:2055(6) as follows:

(6) "Covered claim" means the following:

(a) An unpaid claim, including one for unearned premiums that arises out of and is within the coverage and not in excess of the applicable limits of an insurance policy to which this Part applies issued by an insurer, if such insurer becomes an insolvent insurer after September 1, 1970, and the policy was issued by such insurer and any of the following:

(i) The claimant or insured is a resident of this state at the time of the insured event, provided that, for entities, the residence of a claimant or insured is the state in which its principal place of business is located at the time of the insured event.

(ii) The claimant is a self-insurer, including an arrangement or trust formed under R.S. 23:1191 et seq., and is principally domiciled in this state at the time of the insured event.

(iii) The claim is a first party claim for damage to property with a permanent location in this state.

(b) "Covered claim" shall not include:

(i) Any amount awarded as penalties, punitive or exemplary damages...

Calogero argues that the current version of La. R.S. 22:2055(6) permits an award of attorney's fees in a bad faith claim because attorney's fees are not specifically excluded by La. R.S. 22:2055(6)(b)(i). He contends that in 2009, prior to the events at issue in this litigation, La. R.S. 22:2055(6)(d) provided that:

"Covered claim" shall not include any claim based on or arising from a pre-insolvency obligation of an insolvent insurer, including but not limited to contractual attorneys' fees and expenses, statutory penalties and attorneys' fees, court costs, interest and bond premiums, or any other expenses incurred prior to the determination of insolvency.

According to Calogero's argument, because the 2009 version of this subsection specifically excluded statutory attorney's fees and this subsection has been amended, an award of statutory attorney's fees against LIGA is now permissible.

I disagree. I also find no reason to conclude that Bowens is legislatively overruled. With respect to the issues on appeal, the definition of covered claim is substantially the same now as it was when Bowens was decided. At no time relevant to this litigation has the LIGA law ever defined LIGA as an "insurer." LIGA remains a statutorily created "association."

I find, as did the Louisiana Supreme Court, that LIGA is not liable for statutory attorney's fees because LIGA is not an "insurer." Bowens , 608 So.2d at 1005. Moreover, an insolvent insurer's obligation for statutory attorney fees is "separate from its contractual obligations arising out of the policy" and "falls outside of the definition of covered claims for which LIGA is liable." Id. at 1004. I find no error in the city court's dismissal of Calogero's bad faith claim for attorney's fees.

Evidence of Attorney's Fees

In Calogero's third assignment of error, he argues that the city court erred in excluding evidence of the amount of attorney's fees he incurred. Because of our conclusion that LIGA is not responsible for attorney's fees in this case, I find it unnecessary to address this issue, and I pretermit this assignment.

Liability for Property Damage

Lastly, in Calogero's second assignment of error, he contends that the city court erred in rendering judgment against USAgencies, but not LIGA, for property damage. He argues that property damage is a covered claim such that LIGA is responsible for paying the $3,105.81 judgment – representing property damage – rendered against USAgencies.

In its April 19, 2018 judgment, the city court granted partial summary judgment in favor of LIGA finding, in pertinent part, that LIGA was entitled to a dollar-for-dollar credit for all sums that USAA paid to Calogero for his property damage claim. La. R.S. 22:2062(A)(1) requires that any person having a claim against an insurer must first exhaust all coverage provided by any other insurance policy. Once the claimant has done this, La. R.S. 22:2062(A)(2) provides that:

Any amount payable on a covered claim under this Part shall be reduced by the full applicable limits stated in the other insurance policy, or by the amount of the recovery under the other insurance policy as provided herein. The association [LIGA] and the insured shall receive a full credit for the stated limits... (Emphasis added).

The record contains no dispute that USAA paid Calogero for his property damage in the amount of $5,922.31, which exceeds the $3,105.81 property damage award against USAgencies. As LIGA is statutorily entitled to a dollar-for-dollar credit for all sums that USAA paid to Calogero herein, LIGA has no remaining liability to Calogero for property damage. I find no error in the city court's ruling awarding no amount in property damage against LIGA. This assignment lacks merit.

Conclusion

Accordingly, for these reasons, I dissent from the majority's dismissal of this appeal. I would affirm the April 19, 2018 judgment, amend the September 28, 2018 judgment and affirm as amended, and vacate the November 16, 2018 judgment.