Summary
noting that a deposition is proper summary judgment evidence under La. C.C.P. art. 966, and documents not included in La. C.C.P. art. 966's exclusive list may be filed, if properly authenticated by an affidavit or deposition to which they are attached
Summary of this case from Robinson v. Cheng LLCOpinion
2021 CA 1401.
12-22-2022
Melinda Lerai LUCAS v. MAISON INSURANCE COMPANY.
Ryan D. Kelley , Metairie, Louisiana, Daphne P. McNutt , Stephen Robert Barry , New Orleans, Louisiana, Attorneys for Defendant/Appellant Maison Insurance Company. Corbett L. Ourso, Jr. , Brenda Braud , Hammond, Louisiana, Roy E. Lambert , Covington, Louisiana, Attorneys for Plaintiff/Appellee Melinda Lerai Lucas.
Ryan D. Kelley , Metairie, Louisiana, Daphne P. McNutt , Stephen Robert Barry , New Orleans, Louisiana, Attorneys for Defendant/Appellant Maison Insurance Company.
Corbett L. Ourso, Jr. , Brenda Braud , Hammond, Louisiana, Roy E. Lambert , Covington, Louisiana, Attorneys for Plaintiff/Appellee Melinda Lerai Lucas.
HOLDRIDGE, J.
This is an appeal by the defendant insurance company from the granting of a motion for summary judgment filed by the plaintiff insured, awarding her insurance proceeds, penalties, and attorney's fees arising from the destruction of a mobile home by fire. Finding error, we reverse and remand.
FACTS AND PROCEDURAL HISTORY
Melinda Lerai Lucas owned a mobile home located at 15562 East Hoffman Road in Ponchatoula, Louisiana (hereinafter referred to as "the mobile home"). On June 30, 2017, Ms. Lucas entered into a bond for deed contract with Crystal Frederick for Ms. Frederick to purchase the mobile home for $100,000, together with the land and other structures. Ms. Frederick began residing in the mobile home, but failed to timely make the August payment. The mobile home was heavily damaged by fire on August 15, 2017. Ms. Frederick had obtained an insurance policy issued by Maison Insurance Company (hereinafter referred to as "Maison") for the mobile home with herself as the insured and Ms. Lucas as an additional insured. After the fire, Ms. Lucas made demand for the insurance proceeds from Maison, but it did not tender them. On September 13, 2018, Ms. Lucas cancelled the bond for deed contract.
A bond for deed contract is "a contract to sell real property, in which the purchase price is to be paid by the buyer to the seller in installments and in which the seller after payment of a stipulated sum agrees to deliver title to the buyer." La. R.S. 9:2941.
Ms. Lucas filed suit against Maison on December 21, 2018, seeking to recover the insurance proceeds and penalties, attorney's fees, and costs for Maison's allegedly arbitrary and capricious refusal to pay her claim. Maison answered the petition, admitting that Ms. Lucas owned the mobile home, alleging that investigations by it and the fire marshal were pending, and alleging as an affirmative defense that significant evidence showed that the fire was intentionally set.
Ms. Lucas filed a motion for summary judgment wherein she alleged that Maison issued a homeowner's insurance policy covering the loss of the mobile home due to fire and that, as "the owner" of the mobile home, she was entitled to the insurance proceeds, penalties, attorney's fees, and costs based on her timely demand for payment and proof of loss and Maison's allegedly arbitrary and capricious behavior. On September 21, 2020, the trial court signed a judgment granting Ms. Lucas's motion for summary judgment, stating that there were no genuine issues of material fact as to Maison's liability, damages, penalties, and attorney's fees. The court awarded Ms. Lucas $180,900 for the damages to the mobile home (which included $100,000 for the structure, $50,000 for the contents, $7,500 for debris removal, and $23,400 for the loss of rental value), $361,800 in penalties, and $217,080 in attorney's fees, which totaled $759,780, along with legal interest and costs. Maison filed a motion for a new trial, which was denied.
Maison appeals from the judgment granting Ms. Lucas's motion for summary judgment, urging the following assignments of error. Maison contends that the trial court erred in (1) dismissing the arson defense where the record contains disputed material facts as to that issue; (2) applying the wrong burden of proof to the arson defense; (3) failing to exclude inadmissible evidence submitted in support of Ms. Lucas's summary judgment motion; (4) granting the summary judgment motion as to bad faith where there was no evidence that Maison's actions were arbitrary or capricious and there was admissible evidence supporting a prima facie defense of arson; (5) awarding Ms. Lucas the policy limits under coverages for contents, loss of use, and debris removal to which she was not entitled under the policy; (6) awarding bad faith penalties and calculating them at twice the amount of the contractual sums; and (7) awarding attorney's fees and calculating them at 40% of the damages and penalties awarded to Ms. Lucas.
DISCUSSION
Summary Judgment
Appellate courts review the granting of a summary judgment de novo using the same criteria governing the trial court's consideration of whether summary judgment is appropriate, i.e., whether there is any genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. See La. C.C.P. art. 966(A)(3); Turner v. Rabalais, 2017-0741 (La. App. 1 Cir. 12/21/17), 240 So.3d 251, 255, writ denied, 2018-0123 (La. 3/9/18), 237 So.3d 1193.
The summary judgment procedure is expressly favored in the law and is designed to secure the just, speedy, and inexpensive determination of non-domestic civil actions. See La. C.C.P. art. 966(A)(2). The purpose of a motion for summary judgment is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial. Hines v. Garrett, 2004-0806 (La. 6/25/04), 876 So.2d 764, 769 (per curiam). After an adequate opportunity for discovery, 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). The only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions. La. C.C.P. art. 966(A)(4).
On a motion for summary judgment, the burden of proof is on the mover. If, however, the mover will not bear the burden of proof at trial on the matter that is before the court on the motion, the mover's burden on the motion does not require that all essential elements of the adverse party's claim, action, or defense be negated. Instead, after meeting its initial burden of showing that there are no genuine issues of material fact, the mover may point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, summary judgment shall be granted unless the adverse party can produce factual evidence sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. See La. C.C.P. art. 966(D)(1).
The court may consider only those documents filed in support of or in opposition to the motion for summary judgment and shall consider any documents to which no objection is made. Any objection to a document shall be raised in a timely filed opposition or reply memorandum. The court shall consider all objections prior to rendering judgment. The court shall specifically state on the record or in writing which documents, if any, it held to be inadmissible or declined to consider. See La. C.C.P. art. 966(D)(2).
In ruling on a motion for summary judgment, the court's role is not to evaluate the weight of the evidence or to make a credibility determination, but instead to determine whether there is a genuine issue of material fact. Collins v. Franciscan Missionaries of Our Lady Health System, Inc., 2019-0577 (La. App. 1 Cir. 2/21/20), 298 So.3d 191, 194, writ denied, 2020-00480 (La. 6/22/20), 297 So.3d 773. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, summary judgment is appropriate. Id. at 194-95. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of a trial on the merits. Id. at 195.
Summary judgment is seldom appropriate for determinations based on the subjective facts of intent, motive, malice, good faith, or knowledge. See Jones v. Estate of Santiago, 2003-1424 (La. 4/14/04), 870 So.2d 1002, 1006. These subjective facts call for credibility evaluations and the weighing of testimony. Berthelot v. Indovina, 2021-1546 (La. App. 1 Cir. 6/3/22), 343 So.3d 209, 215. A trial court cannot make credibility decisions on a motion for summary judgment. Monterrey Center, LLC v. Education Partners, Inc., 2008-0734 (La. App 1 Cir. 12/23/08), 5 So.3d 225, 232. Furthermore, the circumstantial evidence usually necessary for proof of motive or intent requires the trier-of-fact to choose from competing inferences, a task not appropriate for a summary judgment ruling. Irving v. Katie Santo, Inc., 2018-1619 (La. App. 1 Cir. 6/13/19), 2019 WL 2609035 at *5 (unpublished opinion); Louisiana AG Credit, PCA v. Livestock Producers, Inc., 42,072 (La. App. 2 Cir. 4/4/07), 954 So.2d 883, 891, writ denied, 2007-1146 (La. 9/14/07), 963 So.2d 1001.
Insurer's duties and arson defense
Ms. Lucas sought recovery under several different coverages in the Maison policy. In determining whether a policy affords coverage for an incident, the insured (or the plaintiff) bears the burden of proving his or her entitlement to coverage within the policy's terms. See Tate v. Kristina's Transportation, LLC, 2018-0955 (La. App. 1 Cir. 12/21/18), 2018 WL 6716972 at *4. Maison has asserted arson as an affirmative defense to preclude coverage in this case. By raising the affirmative defense of arson, the insurer has the burden of establishing, by a clear preponderance, that the fire was of incendiary origin and that the insured was responsible for it. Perkins v. Allstate Insurance Co., 2007-1122 (La. App. 1 Cir. 5/2/08), 2008 WL 2439879 at *2, writ denied, 2008-1176 (La. 9/19/08), 992 So.2d 945. An insurer need not prove its case beyond a reasonable doubt, but must show that the evidence preponderates in favor of the defense. Rist v. Commercial Union Insurance Co., 376 So.2d 113, 113 (La. 1979); Perkins, 2008 WL 2439879 at *2. Proof may be and invariably is entirely circumstantial. Rist, 376 So.2d at 113; Perkins, 2008 WL 2439879 at *2. The fact finder must usually rely heavily on circumstantial evidence because the very act of arson requires an environment where there are no witnesses and little direct evidence points to the arsonist. Perkins, 2008 WL 2439879 at *2.
Proof of motive and of an incendiary origin of the fire is, in the absence of believable rebuttal evidence, sufficient to sustain the affirmative defense of arson. Perkins, 2008 WL 2439879 at *3; Sumrall v. Providence Washington Insurance Co., 221 La. 633, 641, 60 So.2d 68, 70 (La. 1952); Chisholm v. State Farm Fire & Casualty Co., 618 So.2d 1059, 1062 (La. App. 1 Cir. 1993). In addressing the issue of whether an insured has been shown to be responsible for a fire, the courts have at times looked to opportunity in addition to motive. Perkins, 2008 WL 2439879 at *6 n. 10. Most of the jurisprudence from this court and the other appellate courts of this state where arson was raised as a defense involved matters that have been tried on the merits, not summary judgments. See Albert v. State Farm Mutual Automobile Insurance Co., 2009-1551 (La. App. 1 Cir. 4/30/10), 38 So.3d 1004, 1006; Morris v. Safeway Insurance Co. of Louisiana, 2003-1361 (La. App. 1 Cir. 9/17/04), 897 So.2d 616, 617, writ denied, 2004-2572 (La. 12/17/04), 888 So.2d 872; Perkins, 2008 WL 2439879 at *1; Miley v. United States Fidelity and Guaranty Co., 94-1204 (La. App. 1 Cir. 4/7/95), 659 So.2d 792, 793, writ denied, 95-1101 (La. 6/16/95), 660 So.2d 436; Chisholm, 618 So.2d at 1060. Whether the insurer has adequately proven the arson defense when the matter has been tried on the merits is a factual determination subject to the manifest error standard of review. Perkins, 2008 WL 2439879 at *3. In this case, all parties agree that the fire was intentionally set; however, there is a dispute as to whether Ms. Lucas had a motive to set the fire. Therefore, the possible motive of Ms. Lucas is the key issue in dispute. As stated previously, determinations based on motive are seldom appropriate in a summary judgment proceeding. See Jones, 870 So.2d at 1006.
The jurisprudence from other appellate courts involves cases where the arson defense was considered at trials on the merits. See Evans v. State Farm General Insurance Co., 36,539 (La. App. 2 Cir. 12/11/02), 833 So.2d 1143, 1145, writ denied , 2003-0125 (La. 3/21/03), 840 So.2d 539; U.S. Fidelity & Guaranty Co. v. Hussain, 99-2515 (La. App. 4 Cir. 8/2/00), 775 So.2d 27, 28, writs denied , 2000-2552, 2000-2567 (La. 11/13/00), 774 So.2d 14, 149; B. Bennett Manufacturing Co., Inc. v. South Carolina Insurance Co., 96-731 (La. App. 5 Cir. 3/25/97), 692 So.2d 1258, 1260.
As to Ms. Lucas's claim for damages, penalties, and attorney's fees, she alleged in her petition that she sought them under the insurance contract and statutory law, without referring to a specific statute. In her memorandum in support of her summary judgment motion, she alleged that she had submitted her proof of loss within sixty days as required by La. R.S. 22:1973. The law pertaining to insurance bad faith claims in Louisiana is codified in La. R.S. 22:1892 (formerly La. R.S. 22:658) and La. R.S. 22:1973 (formerly La. R.S. 22;1220). Bourg v. Safeway Insurance Co. of Louisiana, 2019-0270 (La. App. 1 Cir. 3/5/20), 300 So.3d 881, 888.
In 2008 La. Acts No. 415, § 1 (effective January 1, 2009), the Louisiana legislature renumbered these statutes without making any substantive changes.
As to the statute specifically referred to by Ms. Lucas, La. R.S. 22:1973 states, in pertinent part:
A. An insurer ... owes to his insured a duty of good faith and fair dealing. The insurer has an affirmative duty to adjust claims fairly and promptly and to make a reasonable effort to settle claims with the insured or the claimant, or both. Any insurer who breaches these duties shall be liable for any damages sustained as a result of the breach.
B. Any one of the following acts, if knowingly committed or performed by an insurer, constitutes a breach of the insurer's duties imposed in Subsection A of this Section:
...
(5) Failing to pay the amount of any claim due any person insured by the contract within sixty days after receipt of satisfactory proof of loss from the claimant when such failure is arbitrary, capricious, or without probable cause.
C. In addition to any general or special damages to which a claimant is entitled for breach of the imposed duty, the claimant may be awarded penalties assessed against the insurer in an amount not to exceed two times the damages sustained or five thousand dollars, whichever is greater.
Louisiana Revised Statutes 22:1892(A)(1) requires all insurers to pay the amount of any claim due any insured "within thirty days after receipt of satisfactory proofs of loss from the insured...." The statute mandates the imposition of penalties and attorney's fees when an insurer fails to pay a claimant or make a written offer to settle a property damage claim in accord with the statutory provisions when such failure is found to be arbitrary, capricious, or without probable cause. See Bourg, 300 So.3d at 890. This statute must be strictly construed because it is penal in nature. 8 Id.
Louisiana Revised Statutes 22:1892(B)(1) provides, in pertinent part:
B. (1) [F]ailure to make such payment within thirty days after receipt of such satisfactory written proofs and demand therefor or failure to make a written offer to settle any property damage claim, including a third-party claim, within thirty days after receipt of satisfactory proofs of loss of that claim, as provided in Paragraphs (A)(1) and (4) of this Section, respectively, or failure to make such payment within thirty days after written agreement or settlement as provided in Paragraph (A)(2) of this Section when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of fifty percent damages on the amount found to be due from the insurer to the insured, or one thousand dollars, whichever is greater, payable to the insured, or to any of said employees, or in the event a partial payment or tender has been made, fifty percent of the difference between the amount paid or tendered and the amount found to be due as well as reasonable attorney's fees and costs.
The conduct described in La. R.S. 22:1892(B)(1) and the conduct described in La. R.S. 22:1973(B)(5) is virtually identical, i.e., the failure to timely pay a claim after receiving satisfactory proof of loss when that failure to pay is arbitrary, capricious, or without probable cause. Bourg, 300 So.3d at 888 n.7. The primary difference between the two statutes is that under La. R.S. 22:1892(A)(1) and (B)(1), the insurer must pay the claim within thirty days of receiving satisfactory proof of loss, rather than the longer sixty-day period under La. R.S. 22:1973(B)(5). Id. Furthermore, unlike La. R.S. 22:1892, the penalty provision of La. R.S. 22:1973 is applicable only after a showing is made of actual damages resulting from the breach of the insurer's duties. Id. Where La. R.S. 22:1973 provides the greater penalty, it supersedes La. R.S. 22:1892, such that the insured cannot recover penalties under both statutes. Id. However, because La. R.S. 22:1973 does not provide for attorney's fees, the insured is entitled to recover the greater penalties under its provisions and attorney's fees under La. R.S. 22:1892 for an insurer's arbitrary or capricious failure to timely pay his claim after receiving satisfactory proof of loss. Id.
We also note that La. R.S. 22:1892(B)(2) provides as to payment of losses from fire as follows:
The period set herein for payment of losses resulting from fire and the penalty provisions for nonpayment within the period shall not apply where the loss from fire was arson related and the state fire marshal or other state or local investigative bodies have the loss under active arson investigation. The provisions relative to time of payment and penalties shall commence to run upon certification of the investigating authority that there is no evidence of arson or that there is insufficient evidence to warrant further proceedings.
(Emphasis added.)
A satisfactory proof of loss is that which is sufficient to fully apprise the insurer of the insured's claim. Bourg, 300 So.3d at 890. To prevail under La. R.S. 22:1892, a claimant must establish (1) that the insurer received satisfactory proof of loss; (2) failed to pay the claim within the applicable statutory period, or failed to make a written offer to settle the claim; and (3) that the failure to timely tender a reasonable amount was arbitrary, capricious, or without probable cause. Id. at 891, The phrase "arbitrary, capricious, or without probable cause" is synonymous with vexatious. Id. A vexatious refusal means one that is unjustified, without reasonable cause or excuse. Id. Both phrases describe an insurer whose willful refusal of a claim is not based on a good faith defense. Id. In Young v. State Farm Fire & Casualty Insurance Co., 426 So.2d 636, 645 (La. App. 1 Cir. 1982), this court recognized that where there were admittedly suspicious circumstances surrounding the fire, the insurer was within its rights in refusing to pay the claim and in litigating the matter based upon the arson defense. This court found that the insurer's failure to pay based on a good faith belief of arson was not arbitrary and capricious such that the insured was not entitled to penalties and attorney's fees under former La. R.S. 22:658 (presently La. R.S. 22:1892). The determination of whether an insurer's handling of a claim is arbitrary and capricious is one of fact. See Bourg, 300 So.3d at 891.
The trial court's conclusion with respect to the assessment of penalties and attorney's fees under former La. R.S. 22:658 (presently La. R.S. 22:1892) is, in part, a factual determination and should not be disturbed in the absence of a finding that it was manifestly erroneous. DeSoto v. Balbeisi, 2002-0169 (La. App. 1 Cir. 12/20/02), 837 So.2d 48, 51, writ denied, 2003-0672 (La. 5/9/03), 843 So.2d 399. The trial court's determination as to the amount of attorney's fees is reviewed under the abuse of discretion standard. Id. at 53. In determining an award of attorney's fees to be assessed under La. R.S. 22:658 (presently La. R.S. 22:1892), the trial court should consider the services needed to effect recovery, the degree of professional skill and ability exercised, the volume of work performed, the time devoted to the case, the result obtained, the amount in controversy, the novelty and difficulty of the questions involved, and the percentage fixed for attorney's fees in the plaintiff's contract. Khaled v. Windham, 94-2171 (La. App. 1 Cir. 6/23/95), 657 So.2d 672, 680. The trial court must base its award of attorney's fees on the attorney's efforts expended for "the prosecution and collection of' the loss, that being the amount of any claim due the insured, rather than on the total recovery awarded. Dixon v. First Premium Insurance Group, 2005-0988 (La. App. 1 Cir. 3/29/06), 934 So.2d 134, 145, writ denied, 2006-0978 (La. 6/16/06), 929 So.2d 1291. Regardless of the language of the statutory authorization for an award of attorney's fees or the method employed by a district court in making an award of attorney's fees, this court may inquire as to the reasonableness of attorney's fees as part of its prevailing, inherent authority to regulate the practice of law. See Thomas v. A. Wilbert & Sons, LLC, 2015-0928 (La. App. 1 Cir. 2/10/17), 217 So.3d 368, 402, writs denied, 2017-0952 (La. 11/13/17), 229 So.3d 478, and 2017-0967 (La. 11/13/17), 230 So.3d 204.
Summary judgment evidence
Ms. Lucas submitted the following evidence attached to her memorandum in support of her motion for summary judgment: her affidavit; the bond for deed contract with a default notice and an eviction notice; the Maison insurance policy; the fire marshal incident report; a list of the mobile home's contents and renovation estimates; a letter with Turner Industries' letterhead; Ms. Lucas's depositions; letters to Maison from Ms. Lucas's counsel; the 911 dispatch log; an appraisal of the damage; an estimate for debris removal; and Maison's answers to interrogatories, responses to requests for production, and answers to requests for admissions.
In reviewing the evidence submitted by Ms. Lucas in support of her summary judgment motion, we will consider Maison's third assignment of error wherein it argues that the trial court erred in failing to exclude inadmissible evidence to which it objected. The abuse of discretion standard is applicable to the trial court's rulings on objections to documents filed in support of or in opposition to a summary judgment motion that are raised by a party in a timely filed opposition or reply memorandum in accordance with La. C.C.P. art. 966(D)(2). See Pottinger v. Price, 2019-0183 (La. App. 1 Cir. 10/23/19), 289 So.3d 1047, 1053.
In its memorandum in opposition to the summary judgment motion, Maison raised objections to all of the exhibits except for Ms. Lucas's depositions, her affidavit, and its answers to interrogatories and requests for admissions. Maison's objections all stated that the items were "not in proper form of Art. 966," and in its memorandum, it contended that these items were not part of the exclusive list of proper summary judgment evidence under La. C.C.P. art. 966(A)(4). Maison also stated in its memorandum that unsworn and unverified documents do not warrant consideration in determining a summary judgment motion. Additionally, Maison raised other objections to some of the items, such as that they were unauthenticated, unsworn or inadmissible hearsay, incomplete, not based on personal knowledge, or unsworn arguments of counsel.
At the hearing on the summary judgment motion, counsel for Maison raised the issue of its objections and the trial court heard argument on them. However, the trial court did not specifically rule on the objections as required by La. C.C.P. art. 966(D)(2), which provides that the court shall specifically state on the record or in writing which documents, if any, it held to be inadmissible or declined to consider prior to rendering judgment. When the objecting party seeks supervisory writs as to the trial court's failure to rule on objections, this court has remanded those cases to the trial court for compliance with La, C.C.P. art. 966(D)(2), that is, a ruling on the summary judgment motion after the determination of any evidentiary issues pursuant to La. C.C.P. art. 966(C)(b)(4). See Reney v. Shelton Restaurant Group, LLC, 2021-1148 (La. App. 1 Cir. 12/20/21), 2021 WL 6010835 (unpublished writ action). However, in this case, Maison did not seek supervisory writs, but it has raised the issue on appeal.
In its oral reasons for judgment, the trial court stated that it reviewed "the pleadings, memorandum, and affidavits filed in this matter," items to which Maison did not object, and it also referred to items to which Maison had objected, such as the fire marshal's report and the proof of loss. Where an appellant has raised the issue of the objected-to evidence on appeal when the trial court did not rule upon the objections to the summary judgment evidence and appeared to have considered the objected-to evidence, this court has deemed the trial court's silence as a denial or rejection of the objection. See Dynamic Environmental Services, LLC v. Marioneaux, 2020-1172 (La. App. 1 Cir. 4/16/21), 324 So.3d 130, 138 n.2, writ denied, 2021-00672 (La. 9/27/21), 324 So.3d 94. In this case, we will consider the trial court's failure to rule and its reference to the fire marshal's report and the proof of loss in its reasons for judgment as a denial or rejection of Maison's objections.
Unsworn or unverified documents, such as letters, reports, or contracts, annexed to motions for summary judgment are not self-proving and will not be considered; attaching such documents to a motion for summary judgment does not transform them into competent summary judgment evidence, if objected to. See Jackson v. St. Mary Parish Government, 2021-1317 (La. App. 1 Cir. 8/10/22), 349 So.3d 69, 75 n.5, writ denied, 2022-01380 (La. 11/16/22), 349 So.3d 1004. All of the exhibits that Maison objected to, other than the insurance policy, were submitted as evidence at Ms. Lucas's second deposition; however, in the record, they are not attached to the deposition, but are attached to the memorandum in support of the summary judgment motion. Ms. Lucas was deposed on October 3, 2019, and then again on November 5, 2019. A deposition is proper summary judgment evidence under La. C.C.P. art. 966(A)(4), and documents that are not included in the exclusive list set forth in La. C.C.P. art. 966(A)(4) are allowed to be filed if they are properly authenticated by an affidavit or deposition to which they are attached. See La. C.C.P. art. 966-Comments-2015-comment (c); Hooper v. Lopez, 2021-1442 (La. App. 1 Cir. 6/22/22), 344 So.3d 656, 663-64. While Ms. Lucas attached the documents to her memorandum in support of her summary judgment motion for the court's convenience in referring to them, because they were originally attached to the deposition that was attached to the summary judgment motion, we find no merit in Maison's objection on the basis that these particular exhibits were not properly authenticated because they were not attached to an affidavit or deposition.
We note that proper authentication of these unsworn and unverified exhibits is based on their attachment to Ms. Lucas's deposition. See May v. Carson , 2021-1156 (La. App. 1 Cir. 8/2/22), 348 So.3d 88, 92-93, writ denied , 2022-01394 (La. 11/22/22), 350 So.3d 497. Where a deposition was not signed by the deponent and did not contain a properly executed court reporter certification because it lacked the court reporter's signature, this court found that the trial court abused its discretion in overruling the defendant's objections to the deposition submitted in support of the plaintiffs summary judgment motion. Id. Likewise, in the case before us, Ms. Lucas's depositions were not signed by her, and the certifications were not signed by the court reporters. We pretermit discussion of whether the depositions and attachments are proper in this case pursuant to May since Maison failed to raise the lack of signatures or signed court reporter certifications as error.
As to the insurance policy that Ms. Lucas submitted without authentication, we agree that it is improper summary judgment evidence. However, since Maison attached the certified copy of the policy to its opposition to the summary judgment motion, without any objection from Ms. Lucas, we will therefore consider the policy. See Tennie v. Farm Bureau Property Insurance Co., 2020-1297 (La. App. 1 Cir. 6/4/21), 327 So.3d 1020, 1027 n.6, writ denied, 2021-00949 (La. 10/19/21), 326 So.3d 231. Aside from the lack of certification, the insurance policy submitted by Ms. Lucas differs from the insurance policy submitted by Maison in one respect. The copy of the policy Ms. Lucas submitted bears the language "1st Additional Insured Copy" on the declarations page with her name set forth. (The copy of the policy that Maison submitted bears the language "Insured Copy" on the declarations pages with Ms. Frederick's name set forth and also includes the language "1st Additional Insured" with Ms. Lucas's name under "MORTGAGEE(S)/ADDITIONAL INTEREST(S)." Other than the declarations pages, both policies in the record are identical.
We note that Ms. Frederick's name is misspelled in the insurance policy as "Fredrick."
Ms. Lucas argues in her brief that she was unable to obtain a certified copy of the policy from Maison through discovery, despite Maison's answers to interrogatories stating that the policy was attached to its responses, Ms. Lucas contends she submitted the only policy she had; however, at the summary judgment hearing, counsel for Maison disputed that Maison failed to provide a certified copy.
Similar to the insurance policy, while Maison objected to the bond for deed contract that Ms. Lucas submitted in support of her motion, it also submitted the bond for deed contract in its opposition to the summary judgment motion without any objection from Ms. Lucas, who was a signatory to the bond for deed contract. Therefore, we will consider the bond for deed contract. Ms. Lucas attached the eviction notice to her copy of the bond for deed contract. In her deposition, she testified that she prepared the eviction notice herself. Thus, we will also consider the eviction notice. Lastly, Ms. Lucas attached the notice of default on the bond for deed contract addressed to Ms. Frederick with a copy of a certified mail receipt. Maison also attached the notice of default to its opposition to the summary judgment motion, albeit without the copy of the certified mail receipt. Accordingly, we will consider the notice of default.
Another item of evidence, the 911 dispatch log from the date of the fire, was specifically referred to by Ms. Lucas in her affidavit and also attached as an exhibit to her deposition like the other exhibits. Ms. Lucas relied on the dispatch log to establish that a call was made about the fire at 3:52 p.m. and that the fire department arrived at the mobile home at 3:58 p.m. Maison raised a hearsay objection to the dispatch log along with the authentication objection. Under La. C.C.P. art. 967(A), an affidavit offered in support of a motion for summary judgment shall be based on personal knowledge, shall set forth facts that would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Hearsay is defined as a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted. La. C.E. art. 801(C). Hearsay is not admissible except as otherwise provided by the Code of Evidence or other legislation. La. C.E. art. 802. Records, reports, statements, or data compilations of regularly conducted and recorded activities of a public office or agency are excepted from the hearsay rule. See La. C.E. art. 803(8)(a)(i). Pretermitting whether the 911 dispatch log is excepted from the hearsay rule, we note that Ms. Lucas is not the proper person who can authenticate the 911 dispatch log, as she was not qualified to identify it or competent to testify to the matters stated therein. See Durand v. Graham, 2019-1312 (La. App. 1 Cir. 6/12/20), 306 So.3d 437, 442-43. Therefore, the trial court abused its discretion in considering the 911 dispatch log.
Maison objected to the fire marshal report, the letter on Turner Industries' letterhead, and the estimate for debris removal as inadmissible hearsay. These items are inadmissible hearsay and the trial court abused its discretion in considering them. See Hernandez v. Livingston Parish School Board, 2021-0764 (La. App. 1 Cir. 3/30/22), 341 So.3d 680, 684 n.2 (this court determined that an accident report and a letter from risk management submitted in opposition to the motion for summary judgment contained inadmissible hearsay); Hickman ex rel. Hamlin v. Chevron U.S.A., Inc., 2007-0080 (La. App. 1 Cir. 12/21/07), 2007 WL 4465694 at *4 n.1 (this court stated that investigative police reports are inadmissible hearsay).
Ms. Lucas in brief contends that the fire marshal's report and the 911 dispatch log are admissible pursuant to La. C.E. art. 201 because they are public records generated by law enforcement. Louisiana Code of Evidence article 201(B) states: " Kinds of facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either: (1) Generally known within the territorial jurisdiction of the trial court; or (2) Capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." However, Ms. Lucas offers no authority for treating the report or dispatch log as evidence subject to judicial notice.
Maison objected to Ms. Lucas's list of the mobile home contents and the documents showing the renovations she did to the mobile home before she sold it to Ms. Frederick. Ms. Lucas testified in her deposition that she prepared the list of mobile home contents and submitted the documents that composed the renovations list, which included bank statements, cancelled checks, invoices, proposals, and cash register receipts. We will consider Ms. Lucas's list of the mobile home contents, but we will not consider the various documents regarding the renovations. As to the damage appraisal Ms. Lucas submitted, Ms. Lucas attached it to her summary judgment motion, but in her deposition she simply stated that she had "the adjusting report," without further identifying it or testifying as to its contents in her deposition so as to properly authenticate it. We note that the report is also incomplete. Therefore, we will not consider the appraisal. As to the letters from Ms. Lucas's counsel to Maison, Maison objected that they were not authenticated, were unsworn, and were improper argument of counsel. We will not consider these items. Lastly, Maison objected to the responses to the request for production because those items are not listed as proper summary judgment evidence under La. C.C.P. art. 966(A)(4). We agree that the responses to the requests for production should not be considered.
For the reasons discussed above, Maison's third assignment of error has merit. In reviewing the summary judgment motion on appeal, the evidence submitted in support of and in opposition to the motion falls into three categories: evidence properly objected to which should not be considered; evidence not objected to which shall be considered but which is inadmissible or which contains inadmissible portions, such that the evidence or the portions thereof have no evidentiary value; and evidence not objected to or improperly objected to which is proper. After reviewing Maison's objections along with items it did not object to, we will consider Ms. Lucas's affidavit and depositions, the insurance policy, the bond for deed contract, the eviction notice, the notice of default, the list of contents in the mobile home, and the answers to interrogatories and admissions submitted by Ms. Lucas in support of her summary judgment motion in reviewing the matter on appeal.
We note that even if all of the items submitted by Ms. Lucas are considered on her motion for summary judgment, genuine issues of material fact exist in this case as a matter of law such that the trial court erred in granting Ms. Lucas's motion, for the reasons discussed in this opinion. See Bates v. Progressive Tractor and Implement Co., L.L.C., 2021-0338 (La. App. 1 Cir. 12/22/21), 340 So.3d 71, 75 (this court found that any error of the trial court in considering an affidavit where it did not rule on the objection to the affidavit was "of no moment" because even if considered, the affidavit did not defeat the motion for summary judgment.)
In her affidavit, Ms. Lucas stated that she owned the mobile home and her personal home, unencumbered by any liens or mortgages. She then stated she was an insured under the policy issued by Maison that was effective from June 19, 2017, until June 19, 2018. She attested that:
7. On the date of the fire, [Ms. Lucas] was working in her position as administrative assistant for Turner Industries in its satellite office located in Laplace, Louisiana, approximately thirty miles from [the mobile home], where she earns an annual salary near or exceeding six figures.
8. On the date of the fire, [Ms. Lucas] left work at 3:30 p.m.
9. After leaving work, [Ms. Lucas] was bound for the [mobile home] to post an eviction notice to begin the process of
removing [Ms. Frederick] from the premises.
10. [Ms. Frederick] had entered into a bond for deed contract with [Ms. Lucas] to live in and eventually purchase [the mobile home], but had failed to make timely payments.
...
13. [Ms. Lucas] arrived at [the mobile home] just as the fire department was arriving.
According to Ms. Lucas, she fully cooperated with the fire marshal's investigation into the fire. Ms. Lucas stated that Ms. Frederick had made no claim under the policy and that "[i]t appears that [Ms. Frederick] moved all her contents out of [the mobile home] before the fire." Ms. Lucas attested, "Affiant did not set the fire, did not conspire with anyone to set the fire, and did not participate in any way with the setting of the fire."
In her affidavit, Ms. Lucas related the state fire marshal's conclusions in his report and referred to the 911 dispatch log. Maison did not object to this part of the affidavit.
Ms. Lucas stated that in late August or September of 2017 and again on October 4, 2018, she and her counsel sent Maison a listing of the contents of the mobile home and receipts showing renovations made to the mobile home. Ms. Lucas's list of contents in the mobile home consisted of each item's description, its age, and a valuation, with the total value stated as $30,650.80. This list was followed by documents purporting to show the costs of renovations to Ms. Lucas's mobile home, which apparently made up the rest of her claim for the $50,000 in contents coverage. She said that the value of the mobile home and the replacement value of the contents exceeded the insurance policy limits. According to Ms. Lucas, the rental value of the mobile home was $650 monthly and she had lost that revenue from the date of the fire through the date of the affidavit. Ms. Lucas said that she had to hire counsel and file suit due to Maison's refusal to tender any proceeds from the insurance policy. She stated that she had entered into a contingency contract providing that she would pay forty percent of the amount recovered as attorney's fees.
Ms. Lucas's depositions were submitted in support of the motion for summary judgment. Ms. Lucas testified that after the bond for deed was signed in June, she still had a lot of personal belongings in the mobile home because she was in the process of moving from the mobile home to her new home. Ms. Lucas testified that she and her son had a key to the mobile home, but that after the bond for deed contract was signed, Ms. Frederick told her she installed an alarm system with cameras. Ms. Lucas also stated that the locks were changed. According to Ms. Lucas, Ms. Frederick failed to make a July payment for the property.
On the day of the fire, Ms. Lucas testified that when she pulled into the driveway, the mobile home was on fire, she called 911, and the fire department "pulled in approximately a minute after I had." Ms. Lucas testified that she thought that Ms. Frederick or Ms. Frederick's cousin, Chad Falcone, started the fire because she had been told by two people that a red truck matching the description of Mr. Falcone's truck was seen leaving the mobile home minutes before the fire. She also testified that Ms. Frederick's ex-husband told her that Ms. Frederick was at Mr. Falcone's house the day of the fire, but she admitted that Mr. Frederick had heard this information from someone else. We note that although Maison did not object to these statements, they are inadmissible hearsay and have no evidentiary value in our review of the summary judgment motion. See Hernandez, 341 So.3d at 684 n.2. When asked what Ms. Frederick would gain by starting a fire in the mobile home, Ms. Lucas stated that she would gain "[c]ontents on the policy." However, she also testified that the mobile home was "stripped of [Ms. Frederick's] belongings" before the fire.
Ms. Lucas testified that she had a copy of the letter she received from Maison before the fire stating it was going to cancel the insurance policy. According to Ms. Lucas, she took a picture of the letter, sent it to Ms. Frederick before the fire, and asked Ms. Frederick about it. Ms. Lucas stated that she had not arranged to obtain other insurance before the fire. Ms. Lucas testified that when she went into the mobile home after the fire, the cameras for the alarm system were unplugged.
When asked if she had tried to sell the property, Ms. Lucas testified that she had had offers on it from $5,000 to $50,000. She said she did not want to sell it, but she wanted to use it for rental property such as apartments. According to Ms. Lucas, she decided she wanted to cancel the bond for deed contract before the fire when Ms. Frederick "started missing payments and I started getting complaints" about overgrown grass on the property. Ms. Lucas testified that when she sold the property to Ms. Frederick, she sold it at a discount to help a friend and knew that she had undervalued it.
In its answers to interrogatories submitted by Ms. Lucas in support of her motion, Maison stated that it issued a homeowner's policy to Ms. Frederick on the mobile home, that the policy was attached, and that the declarations page listed Ms. Lucas as an additional insured. Maison stated that the policy was subject to a pending notice of cancellation at the time of the loss because it was determined that the risk was not eligible for coverage. It also stated that Ms. Lucas had provided some information voluntarily to it, but the information provided to different sources was inconsistent and "supports [a] prima [facie] application of policy exclusions thus far." Maison stated that it had the right to question its coverage of an intentionally set fire and to pursue further investigation. It also stated that Ms. Lucas had demanded payment, including for coverages which were not available to her as an additional insured.
In responses to the requests for admissions, Maison admitted that it issued an insurance policy which was in effect as of the date of the fire and that as of the time of the answers to the requests, Ms. Frederick had made no claim under the policy.
According to the Maison policy, Ms. Lucas was not the named insured on the policy declaration page but was the "1st Additional Insured." The policy defined "you" and "your" as referring to the "`named insured' shown in the Declarations and the spouse if a resident of the same household." "Insured" was defined, in pertinent part, as "a. You and residents of your household who are: (1) Your relatives; or (2) Other persons under the age of 21 and in the care of any person named above; ..."
The policy provided property coverage for the dwelling (Coverage A), other structures (Coverage B), and personal property (Coverage C). Coverage C for personal property provided, in pertinent part: "We cover personal property owned or used by an `insured' while it is anywhere in the world. After a loss and at your request, we will cover personal property owned by: a. Others while the property is on the part of the `residence premises' occupied by an `insured; ..." The policy provided debris removal coverage to the named insured, not to the additional insured. An endorsement to the policy entitled "ADDITIONAL INSURED RESIDENCE PREMISES" stated, "Definition 5, which defines `insured', is extended to include the person or organization named in the Schedule above, but only with respect to: 1. Coverage A — Dwelling and Coverage B — Other Structures; and Coverage E — Personal Liability...." As to the loss of rental income (Coverage D), the provisions for loss of use in the main policy form were deleted or replaced by the mandatory Louisiana policy provisions attached to the policy, which did not include loss of rental income.
The box in the endorsement for the name and address of a person or that person's interest was empty, but language beneath the box stated, "*Entries may be left blank if shown elsewhere in this policy for this coverage."
The exclusions provision of the policy concerning "Intentional Loss" stated:
a. We do not provide coverage for any loss because of or origination from or in connection with any act committed by or at the direction of the "insured" with the intent to cause a loss.
b. We do not provide coverage for any loss because of or originating from or in connection with Criminal or Illegal Activity, meaning any and all criminal or illegal acts performed by or at the direction of the "insured" that result in damage to your structures or personal property.
c. However, with regard to loss by fire, the wrongful or malicious actions of a named insured that are determined to be the cause of the loss to the insured property shall not be imputed to any other insured such that the innocent insured would be deprived of coverage provided by the policy. In case of a fire that is set intentionally, the policy proceeds may only be reduced by the proper interest attributable to the insured that set the fire or otherwise participated in the cause of the loss. In the case of multiple named insured[s], an innocent insured shall receive his proportionate share of the policy proceeds provided the innocent insured making the claim:
(1) Did not cooperate in or contribute to the creation of the loss; and
(2) Cooperates in any investigation relating to the loss.
We may apply reasonable standards of proof for such claims.
In opposition to the summary judgment motion, Maison submitted the affidavit of Carla Barber, a senior claims examiner for Maison, to which was attached a certified copy of the Maison insurance policy; the deposition of Valerie L. Smith, an independent insurance producer for Insurance and Financial Services; the affidavit of Ben Schwartz, an employee of Escrow Services, Inc. (ESI), the servicing company for the bond for deed contract; Ms. Frederick's affidavit; the affidavit of Matthew Guffey, a certified fire investigator employed by U.S. Forensic, to which was attached U.S. Forensic's Building Fire Investigation report. We note that Ms. Lucas did not raise any objections to the evidence submitted by Maison.
Ms. Barber stated in her affidavit that a certified copy of the Maison policy was attached, and that she conducted a telephone interview with Ms. Lucas on August 16, 2017, wherein Ms. Lucas said she left work at approximately 3:00 p.m. on the date of the fire.
In Ms. Frederick's affidavit, she stated that she and Ms. Lucas had been friends, and that she began living in Ms. Lucas's mobile home on April 14, 2017, when Ms. Lucas moved to a new home. Ms. Frederick stated that Ms. Lucas's son, Colby Kinchen, and his fiance had also been living in the mobile home before she moved in because Mr. Kinchen was waiting to close on a home he had purchased. Ms. Frederick said that Ms. Lucas moved some of her belongings out of the mobile home, but she left some furniture behind. According to Ms. Frederick, Ms. Lucas told her she could have the bedroom set, and Ms. Lucas was giving away the other items. When Ms. Frederick moved in, she brought her living room set, dining room set, two bedroom sets (double bunk and queen set with matching dressers), a full-sized mirror, three televisions, and other belongings of hers and her daughters. According to Ms. Frederick, she moved Ms. Lucas's dining room set into the shed on the property to make room for her own set. Ms. Frederick stated that Ms. Lucas, Mr. Kinchen, and Ms. Lucas's mother kept keys to the mobile home and "often came by to pick up certain items whenever they wanted to" and she "was not home on many of the occasions."
In August of 2017, Ms. Frederick stayed at the mobile home and also at her boyfriend's home in Ponchatoula or his camp on Bedico Creek. Ms. Frederick said that although there were multiple texts and phone conversations between her and Ms. Lucas between August 1, 2017, and the date of the fire, Ms. Lucas never mentioned that a payment was late or that Ms. Lucas wanted to evict her or to cancel the bond for deed. Ms. Frederick stated that she did not receive any certified mail or have any knowledge that she was in default until after the fire.
According to Ms. Frederick, Ms. Lucas contacted her on August 11, 2017, and on August 14, 2017. Ms. Frederick attested that Ms. Lucas said she was going to the mobile home to get stuff out of the shed and to pick up the boys' bunk beds Ms. Lucas had left behind. Ms. Frederick agreed to Ms. Lucas's first request but did not respond to the second request. According to Ms. Frederick, on August 15, 2017, the day of the fire, she was on a "working" job interview in Covington, Louisiana, until she left to pick up her daughter from school, which dismissed at 2:55 p.m. Afterwards, she went to her boyfriend's house. She stated that she did not hear from Ms. Lucas at any time that day. Ms. Frederick was confused because she had no knowledge of any conflict. After the fire, when she was allowed into the mobile home on August 17, 2017, she noticed that a lot of her belongings that were present the day of the fire were no longer there. She stated, "I did NOT ever move any of my belongings or personal possessions nor any of my [children's] things out of the [mobile home] prior to the fire."
Ms. Frederick concluded her affidavit by stating:
I had absolutely nothing to do with this fire nor did I have anything to gain. I furthermore had everything to [lose] yet again. Since the day of the fire, I have been wrongly accused by [Ms. Lucas] herself on multiple occasions and [she has] bullied me to the point of me being scared to [assert] my legal right to the home and my belongings.
In Mr. Guffey's affidavit, he stated that he investigated the fire on August 21, 2017. He concluded that it was his professional opinion that the mobile home contained two separate unconnected fires, which were both incendiary in nature and origin. His report detailing his investigation was attached to his affidavit.
In his affidavit, Mr. Schwartz set forth some of the provisions of the bond for deed contract, which was attached to his affidavit. Based on the bond for deed contract, Ms. Frederick as the purchaser was to pay Ms. Lucas, the seller, $872.73 monthly. The initial payment of $2,172.73 included the first month's payment for July of 2017, and the next payment was due on August 1, 2017. The contract provided that the purchaser had a ten-day grace period to make a timely payment before late fees began accruing. After the grace period, the purchaser could be placed on notice of impending default if payment had not been received. The notification of default was required to be sent to the purchaser in writing via certified mail and was required to state that she had forty-five days to bring the account current, after which the bond for deed contract could be cancelled.
As to insurance, the bond for deed contract provided that the seller (Ms. Lucas) was required to obtain insurance for the mobile home and would be reimbursed by the purchaser (Ms. Frederick). According to the bond for deed contract, each party was responsible for her own insurance coverage for her personal belongings. The purchaser's monthly payments included an extra allocation for property tax and insurance to reimburse the seller for the seller's obligation to pay these items. Ms. Frederick's first payment included amounts for insurance and taxes.
The bond for deed contract specifically states, "All necessary insurance policies will be issued with a loss payee clause in favor of all lien holder(s), and Purchaser listed as an additional insured.... Purchaser will pay for all property insurance under this provision."
Mr. Schwartz in his affidavit stated that at Ms. Lucas's instruction, ESI sent a certified letter to Ms. Frederick notifying her that she was in default for her failure to submit payment on August 1, 2017. A copy of the letter dated August 11, 2017, was attached to the affidavit. The letter informed Ms. Frederick that the amount due was $947.73, and that she had until September 25, 2017 to bring her account current (within forty-five days from the date of mailing the notice). Mr. Schwartz stated that he was not aware of any effort by Ms. Lucas to evict Ms. Frederick and that the seller did not have any grounds to evict the purchaser or interfere with her right to possession under the bond for deed contract during the forty-five day window.
Mr. Schwartz stated that ESI was aware that the insurance policy on the property was set for cancellation on August 24, 2017, because the risk insured was not eligible for coverage. The notice of cancellation was attached to Mr. Schwarz's affidavit.
Mr. Schwartz stated that on August 23, 2017, Ms. Frederick submitted a personal money order in the amount of $875 to ESI in an effort to bring her account current. According to Mr. Schwartz, she owed a total of $1,034.99. Mr. Schwartz said that on August 29, 2017, Ms. Lucas informed ESI that she did not wish to accept partial payment on the account and wished to cancel the bond for deed. Mr. Schwartz stated that ESI sent notice to Ms. Frederick via certified mail on August 29, 2017, that Ms. Lucas did not want to accept partial payment and that she had until September 25, 2017, to bring her account current. On September 25, 2017, Mr. Schwartz said that Ms. Lucas asked ESI to prepare a bond for deed cancellation, which was prepared on September 29, 2017, and picked up by Ms. Lucas on that day. In its reasons for judgment, the trial court concluded that there was no genuine issue of material fact regarding Maison's liability, stating that it found "Ms. Lucas's structure was insured by [Maison]; the structure was destroyed by a fire; and proof of loss was timely provided by [Ms. Lucas] to [Maison]. The Court further finds that [Maison] has been arbitrary and capricious in its refusal to pay the claim in a timely manner...." The trial court specifically stated that it rejected Maison's defense that as an "additional insured" Ms. Lucas did not have coverages for all of her claims. The trial court also noted that the Louisiana State Fire Marshal investigated the fire after its occurrence and had not pursued charges against anyone.
Pursuant to the provisions of La. R.S. 9:2945, the proper method of canceling a bond for deed contract, upon nonpayment in accordance with its terms and conditions, is by initially serving proper notice on the buyer that unless payment is made as provided in the bond for deed within forty-five days from the mailing date of the notice, the bond for deed shall be cancelled. According to the jurisprudence, the provisions respecting the forty-five day notice are mandatory. Seals v. Sumrall, 2003-0873 (La. App. 1 Cir. 9/17/04), 887 So.2d 91, 97.
In its first and second assignments of error, Maison contends that the trial court erred in dismissing the arson defense where there are genuine issues of material fact giving rise to a prima facie case of arson and where the trial court applied the wrong burden of proof to the arson defense. In assignment of error number four, Maison contends that the trial court erred in granting Ms. Lucas's motion for summary judgment on the issue of its alleged bad faith where its actions were not arbitrary and capricious based on its arson defense. We conclude that genuine issues of material fact as to the arson defense and as to Maison's bad faith in asserting this defense preclude summary judgment in favor of Ms. Lucas.
Because Maison asserted the affirmative defense of arson, it had the burden of proving that there were genuine issues of material fact as to whether the fire was of incendiary origin and that Ms. Lucas had a motive to set the fire. See Rist, 376 So.2d at 113; Perkins, 2008 WL 2439879 at *2, As stated earlier, the parties do not dispute the fact that the fire was of an incendiary origin, leaving only the issue on the motion for summary judgment of whether Maison met its burden of proof that Ms. Lucas had a motive to set the fire. We initially note that summary judgment is seldom appropriate for a determination based on the subjective fact of motive. See Monterrey Center, LLC, 5 So.3d at 232.
The evidence submitted on the motion for summary judgment showed that at the time of the fire, Ms. Frederick, who had the exclusive right to be in the mobile home, was not there. She was out of town earlier in the day, then she picked up her daughter from school, and then she went to her boyfriend's house. Ms. Lucas had been known to enter the mobile home without Ms. Frederick's permission, and, on the day of the fire, Ms. Lucas was on the property with an invalid notice to evict Ms. Frederick before the fire department arrived. Ms. Lucas's statements as to the time she arrived at the mobile home were contradictory, and her stated reason for her presence there, that she was posting a notice to evict, had no legal basis as she had no right to evict Ms. Frederick under the bond for deed contract. Ms. Lucas's contradictory statements give rise to credibility issues which should not be resolved on a motion for summary judgment. See Monterrey Center, LLC, 5 So.3d at 232. Ms. Frederick in her affidavit stated that she was unaware that Ms. Lucas wanted to evict her.
While Ms. Lucas could not establish that Ms. Frederick had a motive to set the fire, the summary judgment evidence presented by Maison established that there is a genuine issue of fact as to whether Ms. Lucas had a motive to start the fire. Ms. Lucas sold the mobile home and the property for $100,000 to Ms. Frederick, yet she submitted an insurance claim for $150,000. The fact that Ms. Lucas submitted claims for coverages she was not entitled to under the policy adds to the question of whether Ms. Lucas had a motive to start the fire by profiting from the insurance proceeds. There is also a genuine issue of material fact as to what contents were in the mobile home when the fire occurred and to whom those items belonged. Ms. Lucas claimed she sold the property at a discount to help a friend and knew that $100,000 undervalued the property when it was sold. She also testified in her deposition that she did not want to sell the property but wanted to use it for rental property. Ms. Lucas was aware that Maison was going to cancel the insurance policy on August 24, 2017. The fact that the insurance policy was to be cancelled days after the mobile home was destroyed by arson creates another possible motive for Ms. Lucas to set the fire.
Moreover, the trial court applied the wrong burden of proof in dismissing Maison's arson defense, which was the basis of its finding that Maison's failure to pay was arbitrary and capricious. Simply because Ms. Lucas was not criminally charged with arson does not mean that the affirmative defense of arson by an insurer in a civil case must fail; the burden of proof in the civil suit is a preponderance of the evidence, not beyond a reasonable doubt, the burden of proof in a criminal case. See Rist, 376 So.2d at 113-14; Perkins, 2008 WL 2439879 at *2. The evidence on the motion for summary judgment shows there were genuine issues of material fact as to whether Maison's failure to tender the policy proceeds was arbitrary and capricious.
Maison contends in assignment of error number five that the trial court erred in awarding Ms. Lucas full policy limits for coverages which were not available to her as an additional insured. As an additional insured, she did not demonstrate that she was entitled to coverage for loss of contents and debris removal. Coverage for loss of rental income was not available to the named insured or the additional insured. Despite the fact that these coverages were not available, Ms. Lucas sought recovery for these items.
In its sixth assignment of error, Maison contends that the trial court erred in awarding bad faith penalties calculated at twice the amount of the policy awards. Maison contends that this calculation is improper based on the supreme court's interpretation of the predecessor to La. R.S. 22:1973(C), La. R.S. 22:1220, in Durio v. Horace Mann Insurance Co., 2011-84 (La. 10/25/11), 74 So.3d 1159, 1170-71. When discussing the penalty provision of La. R.S. 22:1220, the predecessor to La. R.S. 22:1973, the supreme court stated that a proper interpretation "mandates a finding that contractual damages due or awarded under the insurance contract should not be used to calculate penalties under the statute." Durio, 74 So.3d at 1170-71. Instead, "penalties are calculated by doubling the amount of damages attributable to the insurer's breach of duties imposed under the statute." Id. Because we have determined that the trial court erred in finding there were no genuine issues of material fact as to Ms. Lucas's entitlement to penalties, we pretermit this assignment of error.
Lastly, regarding Maison's seventh assignment of error as to Ms. Lucas's claim for attorney's fees, Ms. Lucas presented no evidence as to the hours her counsel worked, the fees expended, or the contingency contract itself. See Khaled, 657 So.2d at 680. Therefore, she did not demonstrate that as a matter of law, she was entitled to such an award even had the trial court correctly determined that Maison was arbitrary and capricious in its refusal to pay Ms. Lucas's claims. Maison has demonstrated in its assignments of errors that the trial court erred in granting Ms. Lucas's motion for summary judgment on all of its awards of damages, penalties, and attorney's fees because numerous genuine issues of material fact remain and Ms. Lucas did not demonstrate that she was entitled to a judgment in her favor as a matter of law.
CONCLUSION
For the above reasons, the September 21, 2020 judgment of the trial court granting the motion for summary judgment filed by Melinda Lerai Lucas against Maison Insurance Company is reversed and this matter is remanded. Costs of this appeal are to be paid by Melinda Lerai Lucas.
REVERSED AND REMANDED.
McDonald, J. concurs.
McClendon, J. concurs.