Opinion
No. 2021-C-01745
02-08-2022
ZYDECO'S II, LLC, Zydeco's Corp, Dustin Gainey and Rosemarie Gainey v. CERTAIN UNDERWRITERS AT LLOYD'S London Subscribing to Certificate/Policy No. D1180D15012-59633, David Breenan, Dave Breenan Insurance., Inc., and Braishfield Associates, Inc.
Writ application denied.
Crichton, J., would grant and assigns reasons.
Crichton, J., would grant and assigns reasons:
For reasons assigned by Judge Johnson's dissent in part, I would grant the plaintiffs’ writ application to examine whether the court of appeal erred in reducing - by two million dollars - the trial court's loss of business income damages award. The facts establishing bad faith by the insurer are overwhelming, their conduct egregious and shameful. As the trial court correctly held, Certain Underwriters at Lloyd's London set forth baseless allegations of fraud and deceit on the part of plaintiffs, closed the claims process a mere eleven days after a total fire loss in violation of La. R.S. 22:1973 (despite satisfactory proof of loss), rescinded a policy without any support to do so, accepted several faulty inspections of the insured property with knowledge of their deficiencies, and blatantly violated their duty of good faith and fair dealing by failing to adequately communicate with its insured, including withholding critical information from them regarding their claim.
It is abundantly clear that the trial judge meticulously considered the evidence, specifically the testimony of the expert witnesses on this issue, Dr. Wood and Mr. Litolff, and credited the testimony of Dr. Wood, assigning detailed reasons. "A court of appeal may not set aside a trial court's finding of fact in the absence of "manifest error" or unless it is "clearly wrong," and where there is conflict in testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable." Rosell v. ESCO , 549 So.2d 840, 844 (La. 9/12/89) (internal citations omitted). Moreover, "when findings are based on determinations regarding the credibility of witnesses, the manifest error – clearly wrong standard demands great deference to the trier of fact's findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said." Id. See also Hayes Fund for First United Methodist Church of Welsh, LLC v. Kerr-McGee Rocky Mountain, LLC, et al. , 14-2592 (La. 12/8/15), 193 So.3d 1110 (the court finding a reasonable basis existed for the district court's conclusion on causation, and thus, the court of appeal was incorrect in its analysis of the manifest error review standard); and Hall v. Folger Coffee Co., 03-1734 (La. 4/14/04), 874 So.2d 90 (noting the appropriate standard of review of factual determinations is the manifest error-clearly wrong standard, a reviewing court may not merely decide if it would have found the facts of the case differently.); and Cenac v. Public Access Water Rights Ass'n, 02-2660 (La. 6/27/03), 851 So.2d 1006, 1013 (internal citation omitted) (the factual findings of a trial court should not be set aside by a court unless they are manifestly erroneous or clearly wrong).
In my view, an examination of this particular evidence and application of the appropriate standard of review by this court is warranted and the case should be docketed accordingly.