Summary
affirming summary judgment dismissing bad-faith claim against insurer for lack of evidence that the insurer acted vexatiously or that there was no valid dispute as to coverage
Summary of this case from Michael Hingle & Assocs. v. Westchester Surplus Lines Ins. Co.Opinion
NO. 19-CA-170
12-04-2019
David C. BELL, III v. Marlene B. STECKLER, State Farm Mutual Automobile Insurance Company and Hartford Accident and Indemnity Company
COUNSEL FOR PLAINTIFF/APPELLANT, DAVID C. BELL, III, Gilbert V. Andry, IV, New Orleans COUNSEL FOR DEFENDANT/APPELLEE, HARTFORD ACCIDENT AND INDEMNITY COMPANY, Terrill W. Boykin, Kriste Talton Utley, New Orleans, Alexis R. Jani
COUNSEL FOR PLAINTIFF/APPELLANT, DAVID C. BELL, III, Gilbert V. Andry, IV, New Orleans
COUNSEL FOR DEFENDANT/APPELLEE, HARTFORD ACCIDENT AND INDEMNITY COMPANY, Terrill W. Boykin, Kriste Talton Utley, New Orleans, Alexis R. Jani
Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Hans J. Liljeberg
GRAVOIS, J.
Plaintiff, David C. Bell, III, appeals a summary judgment granted in favor of defendant, Hartford Accident and Indemnity Company, which judgment dismissed Mr. Bell's bad faith claims against Hartford with prejudice. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
This matter arises out of a motor vehicle accident that occurred on September 20, 2016 in Marrero, Louisiana. Plaintiff, David C. Bell, III, was traveling eastbound on U.S. 90B when a vehicle being driven by Marlene Steckler allegedly entered into his lane of travel and struck the front left quarter panel of his vehicle. On October 11, 2016, Mr. Bell filed a petition for damages, naming Ms. Steckler as a defendant, along with her insurer, State Farm Mutual Automobile Insurance Company, and his uninsured/underinsured liability carrier, Hartford Accident and Indemnity Company. Mr. Bell alleged that as a result of the accident, he suffered injuries to his neck, back, left side, left arm, and shoulder.
On January 4, 2017, Ms. Steckler and State Farm were dismissed from the suit with prejudice following a settlement with Mr. Bell. On February 17, 2017, Hartford tendered $19,238.00 in general damages and $8,238.00 in medical expense payments to Mr. Bell.
On October 16, 2017, Mr. Bell filed a supplemental and amended petition for damages, claiming that Hartford was in bad faith pursuant to La. R.S. 22:1892 and La. R.S. 22:1973 for failing to make a good-faith tender to him within 30 and/or 60 days of receiving satisfactory proof of loss. He also claimed that the tender Hartford finally did make was "arbitrarily low ignoring the serious objective injuries caused by defendant's negligence."
On July 19, 2018, Hartford filed a motion for partial summary judgment, asserting that the evidence showed that there are reasonable questions of liability and causation in the action, and thus, Hartford was justified in defending the claims brought by Mr. Bell and cannot be held to be in bad faith. Hartford asserted in its motion that Mr. Bell cannot meet his burden of proof that Hartford was arbitrary, capricious, or without probable cause in its actions and that it had received satisfactory proof of loss. Specifically, Hartford argued that there existed reasonable disagreements between the parties about (1) whether the subject accident actually occurred, and (2) whether Mr. Bell's injuries were causally related to the accident. First, Hartford argued that based on Ms. Steckler's deposition testimony, in which she stated that she did not feel the impact of the accident, and that Mr. Bell's car only had a scratch, it is unclear if the alleged accident actually occurred at all. Second, Hartford argued that there was a reasonable question about whether Mr. Bell's alleged injuries to his left shoulder, back, neck, and carpal tunnel are causally related to the accident. Specifically, Hartford claimed that the independent medical examination ("IME") report and deposition testimony of Dr. Robert Steiner suggested that Mr. Bell's shoulder, neck, and back issues were all degenerative pre-existing conditions. Though Mr. Bell's treating doctors' opinions differed, Hartford argued that Mr. Bell's doctors did not have a proper foundation on which to base their analysis of causation because (1) they were not told about the force of impact of the collision, (2) Mr. Bell was inconsistent in his statements to his doctors as to how his body moved in response to the accident, and (3) Mr. Bell did not provide a complete medical history to his doctors. Hartford argued that given the foregoing, it was not obligated to tender payment in this case, but nonetheless, it still tendered payment in an appropriate amount, and under the circumstances presented, cannot be held to be in bad faith.
Mr. Bell filed an opposition to the motion for partial summary judgment, arguing that genuine issues of material fact remain that preclude summary judgment. Mr. Bell claimed that Hartford received satisfactory proof of loss for longer than 60 days and failed to pay the claim. In particular, he argued that: (1) there is no dispute as to liability in this case since Ms. Steckler was cited for improper lane usage, pled guilty to said charge, paid the ticket, and her insurer, State Farm, tendered its policy limits; (2) he is afforded the presumption of liability; (3) Hartford's representative admitted in Hartford's corporate deposition to not remembering or having any evidence that Mr. Bell had a herniation of his cervical spine or a torn labrum of his left shoulder prior to the accident in question; (4) the tender made to him was in bad faith since his projected future medical expenses total at least $182,000; and (5) Hartford violated its duty of good faith and fair dealing as well as its own stated rules governing its customers.
In reply, Hartford asserted that it did not receive satisfactory proof of loss since it presented evidence that shows it had reasonable bases to dispute whether the subject accident actually occurred and whether Mr. Bell's alleged injuries are related to the accident. Hartford argued that Mr. Bell presented no countervailing evidence to Hartford's position in his opposition to the motion for partial summary judgment.
At the conclusion of a hearing conducted on September 10, 2018, the trial court orally granted the motion for partial summary judgment. On September 25, 2018, the trial court signed a written judgment which granted the motion for partial summary judgment and dismissed the bad faith claims brought by Mr. Bell against Hartford under La. R.S. 22:1973 and La. R.S. 22:1892. On October 29, 2018, the trial court signed a judgment designating the September 25, 2018 judgment as a final appealable judgment pursuant to La. C.C.P. art. 1915(B)(1), stating that there was no just reason for delay for the reasons stated at a hearing on October 10, 2018. On November 7, 2018, Mr. Bell filed a motion for a new trial, which was denied on December 29, 2018 following a hearing on the motion. This appeal followed. JURISDICTIONAL ISSUES
Appeal of Motion for a New Trial
On January 4, 2019, Mr. Bell filed a notice of intention to file a suspensive appeal noting that he intended to file a suspensive appeal of the December 29, 2018 judgment which denied his motion for a new trial. The denial of a motion for a new trial is an interlocutory judgment which is not appealable. Burns v. Sedgwick Claims Mgmt. Servs. , 14-421 (La. App. 5 Cir. 11/25/14), 165 So.3d 147, 151. Rather, the denial of a motion for a new trial is reviewable only under the appellate court's supervisory jurisdiction for abuse of discretion. Id. However, Louisiana courts have held that appeals are favored in law, must be maintained whenever possible, and will not be dismissed for mere technicalities. Any doubt concerning the validity of an appeal should be resolved in favor of the appellant to the end that an appeal can be sustained. Id. Thus, an appeal from the order denying a motion for a new trial, rather than from the judgment from which the new trial is sought, is improper. Pignona v. Farber , 13-192 (La. App. 5 Cir. 10/9/13), 128 So.3d 390, 396. However, when the motion for appeal refers to a specific judgment denying a motion for a new trial, yet the appellant exhibits a clear intention to appeal instead the judgment on the merits, then the appeal should be considered. Id. This view conforms to the mandate of La. C.C.P. art. 865 to construe every pleading so "as to do substantial justice." Id.
In reviewing Mr. Bell's motion for appeal as well as his appellate brief, it is clear that Mr. Bell intended to appeal the substance of the judgment on the merits. Accordingly, we construe Mr. Bell's motion for appeal as an appeal of the merits of the grant of the motion for partial summary judgment.
Certification of Judgment as Final Pursuant to La. C.C.P. art. 1915(B)
On appeal, Mr. Bell argues that the trial court erred in designating this partial summary judgment as a final, appealable judgment. A partial judgment may be a final judgment even if it does not grant the successful party all of the relief prayed for or adjudicate all of the issues in the case. La. C.C.P. art. 1915(A). La. C.C.P. art. 1915(A) lists partial judgments that are final. That list includes a trial court grant of "a motion for summary judgment, as provided by La. C.C.P. arts. 966 through 969, but not including a summary judgment granted pursuant to La. C.C.P. art. 966(E)." La. C.C.P. art. 1915(A)(3). La. C.C.P. art. 966(E) provides for the grant of summary judgments in favor of any one or more of the parties to the litigation that are "dispositive of a particular issue, theory of recovery, cause of action, or defense" even if the grant of "the summary judgment does not dispose of the entire case."
Nevertheless, even if a partial summary judgment does not qualify as a final judgment under La. C.C.P. art. 1915(A)(3), it may still constitute a final judgment for the purpose of an immediate appeal if it is designated as a final judgment by the trial court after an express determination that there is no just reason for delay. La. C.C.P. art. 1915(B)(1). However, in the absence of such a designation, such a judgment "shall not constitute a final judgment for the purpose of an immediate appeal." La. C.C.P. art. 1915(B)(2) ; see also Matherne v. Lemoine Indus. Grp., LLC , 14-572 (La. App. 5 Cir. 10/15/14), 182 So.3d 979, 981 ; Pontchartrain Tavern, Inc. v. Johnson , 07-115 (La. App. 5 Cir. 8/28/07), 966 So.2d 1062, 1064.
The partial summary judgment at issue in the present case does not dispose of the entire litigation; however, the trial court designated the partial summary judgment as final pursuant to La. C.C.P. art. 1915(B) after finding no just reason for delay.
To assist the appellate court in its review of designated final judgments, the trial court should give explicit reasons, either oral or written, for its determination that there is no just reason for delay. If such reasons are given, the appellate court should review the certification by applying the abuse of discretion standard. R.J. Messinger, Inc. v. Rosenblum , 04-1664 (La. 3/2/05), 894 So.2d 1113, 1122. Historically, our courts have had a policy against multiple appeals and piecemeal litigation. La. C.C.P. art. 1915(B) attempts to strike a balance between the undesirability of piecemeal appeals and the need for making review available at a time that best serves the needs of the parties. Id. In conducting our review of the trial court's designation, we consider the "overriding inquiry" of "whether there is no just reason for delay," as well as the other nonexclusive criteria trial courts should use in making the determination of whether certification is appropriate, including the relationship between the adjudicated and the unadjudicated claims; the possibility the need for review might or might not be mooted by future developments in the trial court; the possibility the reviewing court might be obliged to consider the same issue a second time; and miscellaneous factors such as delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense, and the like. Id. at 1122-23.
On October 10, 2018, a hearing was held as to the designation of the September 25, 2018 judgment as a final appealable judgment. At the hearing, the trial court noted that designating this judgment as final would allow for complete appellate review and resolution of the bad faith claims without the possibility of having to readdress the claims following the jury trial on the issues of damages and liability. The trial court explained that this would allow for not having to address these issues "twice" and would allow this Court to look at the whole record when reviewing the claims.
Upon review, we find no abuse of discretion in the trial court's determination that there is no just reason for delay and in certifying the partial summary judgment as immediately appealable pursuant to La. C.C.P. art. 1915(B).
LAW AND ANALYSIS
On appeal, Mr. Bell argues that the trial court erroneously granted partial summary judgment in favor of Hartford. He argues that jurisprudence has consistently held that bad faith conduct is an issue for the trier of fact. He claims that the trial court erred here by making credibility determinations, evaluating testimony, and weighing evidence. He argues that Hartford is attacking Mr. Bell's character using irrelevant information and further misinformed the court about Mr. Bell's previous injuries.
Appellate courts review a judgment granting a motion for summary judgment de novo under the same criteria governing the trial court's consideration of whether summary judgment is appropriate: whether there is a genuine issue as to material fact and whether the mover is entitled to judgment as a matter of law. Richthofen v. Medina , 14-294 (La. App. 5 Cir. 10/29/14), 164 So.3d 231, 234, writ denied , 14-2514 (La. 3/13/15), 161 So.3d 639. The motion for summary judgment is granted if, after an opportunity for adequate discovery, 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 initial burden is on the mover to show that no genuine issue of material fact exists. Pouncy v. Winn-Dixie La., Inc. , 15-189 (La. App. 5 Cir. 10/28/15), 178 So.3d 603, 605. If the moving party will not bear the burden of proof at trial, the moving party must only point out that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Id. The adverse party must then produce factual support to establish that he will be able to satisfy his evidentiary burden of proof at trial. Id. If the adverse party fails to do so, there is no genuine issue of material fact, and summary judgment should be granted. Id.
Louisiana law authorizes the recovery of bad faith penalties from insurers under two provisions. Under La. R.S. 22:1892(A)(1), "all insurers ... shall pay the amount of any claim due any insured within thirty days after receipt of satisfactory proofs of loss from the insured." If an insurer refuses to pay a claim within thirty days of receiving satisfactory proof of loss, then La. R.S. 22:1892(B)(1) provides that the insurer is subject to penalties if its conduct is "found to be arbitrary, capricious, or without probable cause." Additionally, La. R.S. 22:1973(B)(5) requires insurers to act in good faith and provides for penalties if an insurer fails to pay a claim within sixty days after receipt of satisfactory proof of loss when "such failure is arbitrary, capricious, or without probable cause."
The conduct prohibited by La. R.S. 22:1892(A)(1) is virtually identical to the conduct prohibited by La. R.S. 22:1973(B)(5) : 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. Reed v. State Farm Mutual Automobile Insurance Company , 03-107 (La. 10/21/03), 857 So.2d 1012, 1020. The primary difference is the time periods allowed for payment. Id. Both statutes are penal in nature and must be strictly construed. Id.
In order to establish a cause of action for penalties and/or attorney's fees and costs under La. R.S. 22:1892 (formerly La. R.S. 22:658 ), a claimant must show that (1) an insurer has received satisfactory proof of loss, (2) the insurer failed to tender payment within thirty days of receipt thereof, and (3) the insurer's failure to pay is arbitrary, capricious or without probable cause. See Louisiana Bag Co., Inc. v. Audubon Indent. Co. , 08-453 (La. 12/2/08), 999 So.2d 1104, 1112-1113. "Satisfactory proof of loss" in a claim pursuant to UM coverage is receipt by the insurer of sufficient facts which fully apprise the insurer that: (1) the owner or operator of the other vehicle involved in the accident was uninsured or under insured; (2) that he [or she] was at fault; (3) that such fault gave rise to damages; and (4) establish the extent of those damages. McDill v. Utica Mutual Insurance Company , 475 So.2d 1085, 1089 (La. 1985).
As set forth above, the mover in a motion for summary judgment must show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. In bad faith claims of this type, however, where one of the issues is whether the insurer has received "satisfactory proof of loss" in a claim pursuant to UM coverage, the mover must show that reasonable questions exist as to whether the claimant can carry his burden of proving the McDill factors. Then, the burden shifts and the nonmoving party, who would bear the burden of proof at trial, must provide some evidence in support of his bad faith claims.
With regard to what constitutes "arbitrary, capricious, or without probable cause," this Court has held that the phrase is synonymous with "vexatious." Reed , 857 So.2d at 1021. Furthermore, a "vexatious refusal to pay" means "unjustified, without reasonable or probable cause or excuse." Id. Both phrases describe an insurer whose willful refusal of a claim is not based on a good-faith defense. Id.
Moreover, whether or not a refusal to pay is arbitrary, capricious, or without probable cause depends on the facts known to the insurer at the time of its action, and the court has declined to assess penalties when the insurer has a reasonable basis to defend the claim and acts in good-faith reliance on that defense. Louisiana Bag Co. , 999 So.2d at 1115. Especially when there is a reasonable and legitimate question as to the extent and causation of a claim, bad faith should not be inferred from an insurer's failure to pay within the statutory time limits when such reasonable doubt exists. Reed , 857 So.2d at 1021. An insurer who does not tender unconditionally a reasonable payment, a figure over which reasonable minds could not differ, will be subject to penalties and attorney's fees. McDill , supra .
The burden is on the claimant to prove arbitrariness and capaciousness or lack of probable cause. McDonald v. American Family Life Assurance Company of Columbus , 10-1873 (La. App. 1 Cir. 7/27/11), 70 So.3d 1086, 1093. Also, when a reasonable disagreement exists between an insurer and an insured, the insurer is not arbitrary and capricious or without probable cause to deny payment on the claim that is in dispute. Id.
Whether an insurer's action was arbitrary, capricious, or without probable cause is essentially a fact issue to be determined by the trial court. Reed , 857 So.2d at 1021. However, summary judgment has been found to be appropriate when there is no evidence of an insurer's bad faith conduct. See, for example , Duhon v. State Farm Mut. Auto. Ins. Co. , 06-1413 (La. App. 3 Cir. 3/7/07), 952 So.2d 908, and Jouve v. State Farm Fire & Cas. Co. , 10-1522 (La. App. 4 Cir. 8/17/11), 74 So.3d 220, 225-28, writ denied , 11-2250 (La. 11/23/11), 76 So.3d 1157. In the present case, Hartford argues that, based on the evidence submitted with its motion for partial summary judgment, Mr. Bell cannot prove that Hartford received satisfactory proof of loss or that Hartford's actions were arbitrary and capricious. Hartford argues that it submitted evidence in support of its motion for partial summary judgment to show that there exist reasonable questions regarding whether the accident actually occurred and whether plaintiff's injuries were causally related to the accident. Particularly, Hartford included portions of Mr. Bell's deposition testimony in which he described the impact of the accident as being hard enough to cause him to slam against the driver's side door and quantified it as a 6.5-7.5 out of 10. Mr. Bell also stated in his deposition that the impact was hard enough to knock items off of his passenger seat. He also admitted, however, that no property damage claim was paid as a result of this accident. Attached to the deposition were two pictures of Mr. Bell's car after the accident that appear to show very minimal damage thereto.
In Duhon , the plaintiff filed an insurance claim with State Farm after reporting that his pick-up truck had been stolen while he was inside a restaurant. Duhon , 952 So.2d at 909. After receiving tips about the plaintiff's possible involvement, State Farm conducted an investigation that revealed a number of discrepancies in the plaintiff's account of events surrounding the alleged theft. Id. at 909-10. The trial court partially granted State Farm's motion for summary judgment, finding that State Farm had not acted in bad faith in choosing to investigate the validity of the plaintiff's claims, rather than "simply pay it without question." Id. at 911-12. On appeal, the Third Circuit affirmed the trial court's judgment after analyzing whether there was any genuine issue of material fact regarding whether State Farm had a reasonable basis for challenging the plaintiff's claim. Id. The court found that the evidence showed that State Farm conducted an investigation of the claim which revealed several inconsistencies in the plaintiff's story. Id. at 912. Further, the plaintiff presented no evidence to show that State Farm was arbitrary and capricious in not paying the claim. Id.
In Jouve , the plaintiffs brought a bad faith action against State Farm, their homeowner's insurer, for property damages. Jouve , 74 So.3d at 222. The trial court granted State Farm's motion for summary judgment and dismissed the plaintiffs' bad faith claims, and the Fourth Circuit affirmed. Id. at 222-23. The court found that the evidence submitted showed that State Farm timely initiated the inspections of the plaintiffs' property and made timely unconditional tenders. The court noted that the plaintiffs offered no evidence in opposition to State Farm's motion to show that State Farm acted arbitrarily, capriciously, or without probable case in adjusting the homeowner's claim. Id. at 227. Given that the plaintiffs will have the burden of proof and offered no evidence of bad faith to create a genuine issue of material fact, the court found no error in the trial court's dismissal of the plaintiffs' bad faith claims on summary judgment. Id. at 227-28.
In contrast to Mr. Bell's deposition testimony, Hartford also submitted the deposition testimony of Ms. Steckler in which she testified that she did not feel the impact of the accident. After the alleged collision, she was stopped at a red light and was alerted by Mr. Bell that she had hit his car. When asked if she hit Mr. Bell or if he hit her, she stated "I don't think I hit him because when you hit somebody you can feel it." When she viewed Mr. Bell's car after the accident, she said that he "just had a little scratch on his car."
Hartford additionally submitted Dr. Steiner's IME report and deposition testimony. Dr. Steiner's IME report dated March 6, 2017 stated that in his opinion, Mr. Bell's injuries pre-existed the incident in question. In his deposition, he expanded, noting that he attributed Mr. Bell's disc herniation to degeneration.
The deposition testimony of two of Mr. Bell's treating physicians, Dr. Thomas Lyons and Dr. Donald Dietze, were also included by Hartford in support of its motion for partial summary judgment. Both of these doctors opined that Mr. Bell's injuries were related to the accident. Neither doctor, however, had any information about the amount of force involved in the accident, and Dr. Lyons stated that if he was to be given a different medical history on Mr. Bell, his opinion as to causation could change.
Finally, in his deposition, Mr. Bell testified that he never had any problems with his neck, back ("outside of maybe an occasional muscle ache"), or left shoulder prior to the subject accident and never saw any doctors for treatment of those areas. In contrast, Hartford submitted excerpts of Mr. Bell's medical records from before the accident in which he complained of back and shoulder pain.
Mr. Bell, who will bear the burden of proof at trial, offered no competent evidence in response to the motion for partial summary judgment in support of his bad faith claims. He submitted no evidence towards raising an issue of material fact that Hartford acted arbitrarily, capriciously, or without probable cause. Upon de novo review, we find that the above-described evidence submitted by Hartford in support of its motion for partial summary judgment establishes that a valid reasonable dispute existed between the parties as to whether the subject accident actually occurred, and if so, the nature and particular facts with respect thereto, and whether Mr. Bell's injuries were causally related to the accident. Hartford thus showed that based on the facts known to it at the time of its action, there was a reasonable disagreement between the insurer and the insured. In response to the motion, Mr. Bell failed to present any evidence that Hartford acted vexatiously. Accordingly, we find that Hartford had reasonable bases to defend Mr. Bell's claim and acted in good-faith reliance on those defenses. As there is no genuine issue as to material fact and Hartford is entitled to judgment as a matter of law on its motion for partial summary judgment, we affirm the trial court's judgment which granted partial summary judgment in favor of Hartford and dismissed Mr. Bell's bad faith claims against Hartford.
In briefing and at oral argument, Mr. Bell referenced Hartford's corporate deposition, contending that Hartford's representative admitted in the corporate deposition to not remembering or having any evidence that Mr. Bell had a herniation of his cervical spine or a torn labrum of his left shoulder prior to the accident. Although Hartford's corporate deposition is included in the appellate record and was discussed at the hearing on the motion for summary judgment, we find that it is not properly before us on our de novo review of this appeal, since it was not attached to Hartford's motion for partial summary judgment or to Mr. Bell's opposition to the motion for partial summary judgment. See La. C.C.P. art. 966(D)(2) which provides that "[t]he court may consider only those documents filed in support of or in opposition to the motion for summary judgment ...."
CONCLUSION
For the foregoing reasons, the trial court's judgment which granted partial summary judgment in favor of Hartford and dismissed Mr. Bell's bad faith claims against Hartford is affirmed.