Opinion
2022 CA 0831
05-25-2023
ALESHIA AND DAVID CAREY v. UNITED PROPERTY AND CASUALTY INSURANCE COMPANY
Kendall J. Krielow Thibodaux, Louisiana Counsel for Plaintiffs-Appellees Aleshia and David Mike Carey Richard C. Breaux Evan Michael Stark Houma, Louisiana Michael Edward Hill Jeanne Arceneaux New Orleans, Louisiana Counsel for Defendant-Appellant United Property &Casualty Insurance Company
ON APPEAL FROM THE SEVENTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFOURCHE, STATE OF LOUISIANA NUMBER 143802, DIVISION B HONORABLE STEVEN M. MILLER, JUDGE
Kendall J. Krielow
Thibodaux, Louisiana
Counsel for Plaintiffs-Appellees
Aleshia and David "Mike" Carey
Richard C. Breaux
Evan Michael Stark
Houma, Louisiana
Michael Edward Hill
Jeanne Arceneaux
New Orleans, Louisiana
Counsel for Defendant-Appellant
United Property &Casualty Insurance Company
BEFORE: THERIOT, CHUTZ, AND HESTER, JJ.
CHUTZ, J.
Defendant-appellant, United Property and Casualty Insurance Company (UPC), appeals the trial court's default judgment awarding to plaintiffs-appeliees, Aleshia and David "Mike" Carey, a total of $694,072.63 for outstanding sums allegedly due under a homeowners policy as well as penalties, attorney fees, and general damages. We reverse and remand.
FACTUAL AND PROCEDURAL BACKGROUND
On November 22, 2021, the Careys initiated this lawsuit, averring that UPC provided property insurance which was in effect on August 29, 2021, when Hurricane Ida caused damage to the premises of their home in Cut Off, Louisiana. According to the Careys' petition, despite proof showing they sustained damages demonstrating a major loss well above the amount of the deductible, UPC failed to timely send funds to complete adequate repairs to the premises. Thus, the Careys sought an application of statutory penalties, including amounts for general damages and attorney fees.
Although on December 9, 2021, service of the petition was made on the Louisiana Secretary of State, UPC's designated agent for service, UPC failed to file an answer. On March 23, 2022, the Careys filed a memorandum in support of a default judgment, asserting that although UPC inspected their property on September 19, 2021 and issued checks for losses for coverage under their policy to their dwelling (Coverage A) and the other structures located on their premises (Coverage B), UPC "shockingly" underestimated the costs of repairs.
On March 24, 2022, the trial court held a hearing, at which evidence was adduced, including the testimony of Aleshia, Mike, and their independent estimator. At the conclusion of the hearing, the trial court ruled in favor of the Careys and electronically signed a default judgment later that day, awarding the Careys the following: $172,512.43 for unpaid property damage under Coverage A; $70,929.29 for unpaid property damage under Coverage B; $9,907.56 for unpaid damage to personal property under Coverage C; $6,700.00 for unpaid loss of use under Coverage D, $150,345.01 in penalties; $50,000.00 to Aleshia and $50,000.00 to Mike in general damages; and attorney fees of $ 183,678.34. UPC appeals.
A motion to vacate the default judgment was filed by UPC on April 19, 2022. On appeal, it is undisputed the motion was untimely. See La. C.C.P. art. 1974 ("A party may file a motion for a new trial not later than seven days, exclusive of legal holidays after the clerk has mailed or the sheriff has served the notice of judgment."). See also Dutrey v. Plaquemine Manor Nursing Home, 2012-1295 (La.App. 1st Cir. 6/17/13), 205 So.3d 934, 938 n.l (the nature of a pleading captioned as a motion to vacate is determined by its substance, not its caption, and properly construed as a motion for new trial).
In brief, the Careys point out that while a suspensive appeal bond was posted, UPC's petition for a suspensive appeal was untimely. See La. C.C.P. art. 2123(A)(1) ("[A]n appeal that suspends the effect or the execution of an appealable order or judgment may be taken, and the security therefor furnished, only within thirty days of ... [t]he expiration of the delay for applying for a new trial ... as provided by [La. C.C.P. art.] 1974 ... if no application has been filed timely."). Notice of judgment was sent on March 30, 2022. The expiration of the delay to file a motion for new trial elapsed on April 8,2022. See La. C.C.P. art. 1974 ("A party may file a motion for a new trial not later than seven days, exclusive of legal holidays, after the clerk has mailed or the sheriff has served the notice of judgment."). UPC thereafter had 30 days to file its motion for a suspensive appeal. See La. C.C.P. art. 2123(A)(1). Thus, its petition for a suspensive appeal filed on May 18, 2022 was untimely. The Careys have not filed a motion to dismiss the appeal, and because the appeal was taken within 60 days of the expiration of the delay for applying for a new trial, UPC's appeal is properly before us as a devolutive appeal. See La. C.C.P. art. 2087(A)(1) ("[A]n appeal which does not suspend the effect or the execution of an appealable order or judgment may be taken within sixty days of ... [t]he expiration of the delay for applying for a new trial ... as provided by Article 1974 ... if no application has been filed timely."). See also Clement v. Graves, 2004-1831 (La.App. 1st Cir. 9/28/05), 924 So.2d 196, 201 (explaining that different courts of appeal use different language in addressing suspensive appeals with defects that are not jurisdictional, with some courts maintaining the appeal as a devolutive appeal and others converting the suspensive appeal to a devolutive appeal).
NOTICE OF INTENT TO OBTAIN DEFAULT JUDGMENT
UPC initially complains that the Careys failed to give notice of their intent to obtain a default judgment. Lacking notice, UPC asserts the default judgment is an absolute nullity, which should be vacated.
La. C.C.P. art. 1702(A) provides in relevant part:
(1) If a defendant in the principal or incidental demand fails to answer or file other pleadings within the time prescribed by law or by the court, and the plaintiff establishes a prima facie case by competent
and admissible evidence that is admitted on the record, a default judgment in favor of the plaintiff may be rendered, provided that notice that the plaintiff intends to obtain a default judgment is sent if required by this Paragraph, unless such notice is waived. ...
(2) If a party who fails to answer has made an appearance of record in the case, notice that the plaintiff intends to obtain a default judgment shall be sent by certified mail to counsel of record for the party, or if there is no counsel of record, to the party, at least seven days before a default judgment may be rendered.
(3) If an attorney for a party who fails to answer has contacted the plaintiff or the plaintiff's attorney in writing concerning the action after it has been filed, notice that the plaintiff intends to obtain a default judgment shall be sent by certified mail to the party's attorney at least seven days before a default judgment may be rendered.
(4) In cases involving delictual actions where neither Subparagraph (2) or (3) of this Paragraph applies, notice that the plaintiff intends to obtain a default judgment shall be sent by regular mail to the party who fails to answer at the address where service was obtained at least seven days before a default judgment may be rendered.
Reasoning that because a duty of good faith and fair dealing are statutorily imposed by the Insurance Code, see La. R.S. 22:1973, and the trial court awarded general damages, which are traditional recovery for delictual actions, UPC maintains that these claims by the Careys involve delictual actions and as such are subject to the notice provisions of Article 1702(A)(4). We disagree.
Whether a first-party bad faith claim against an insurer pursuant to La. R.S. 22:1973 for the alleged violation of an insurer's statutory duty to adjust claims fairly and promptly and to make a reasonable effort to settle claims is a delictual action or a contractual claim is an issue addressed by the Louisiana Supreme Court in Smith v. Citadel Insurance, 2019-00052 (La. 10/22/19), 285 So.3d 1062, 1067, in the context of the appropriate prescriptive period. The Smith tortfeasor in a 2010 automobile accident case assigned her rights against her insurer for her claim under La. R.S. 22:1973 to the tort victim. The tort victim thereafter filed suit in 2017 against the tortfeasor's insurer, asserting via subrogation the tortfeasor's La. R.S. 22:1973 claim for the insurer's bad faith failure to fairly and promptly settle the damage claim. See Wightman v. Ameritas Life Ins. Corp., 2022-00364 (La. 10/21/22), 351 So.3d 690, 695, citing Smith, 285 So.3d at 1064.
Noting that the classic distinction between damages ex contractu and damages ex delicto is that the former flow from the breach of a special obligation contractually assumed by the obligor, whereas the latter flow from the violation of a general duty owed to all persons, the Smith court pointed out that in the absence of the contractual obligations created between the Smith insurer and the tortfeasor, the duty of good faith would not have existed. See Wightman, 351 So.3d at 695, citing Smith, 285 So.3d at 1067. See also La. C.C. art. 1759 ("Good faith shall govern the conduct of the obligor and the obligee in whatever pertains to the obligation.") and La. C.C. art. 1983 ("Contracts have the effect of law for the parties.... Contracts must be performed in good faith."). Thus, the insurer's bad faith failure to settle was determined to have been a breach of its contractual obligation and interrelated fiduciary duty rather than a delictual obligation. See Wightman, 351 So.3d at 695-96, citing Smith, 285 So.3d at 1067
Therefore, in answering the certified question, "Are claims arising under the Louisiana's Preferred Provider Organization Act, La. R.S. 40:2203.1, delictual or contractual for prescriptive purposes," the Louisiana Supreme Court relied on the Smith court rationale to conclude that the performance in good faith of the parties' respective obligations under the preferred provider organization contract at issue was implied even if not directly stated such that the damages and other penalties set forth in La. R.S. 40:2203.1 arose out of the implied contractual obligation of good faith in the performance of the contract. Wightman, 351 So.3d at 696-97.
Applying this distinction created by the Louisiana Supreme Court in the context of prescription to the notice requirements of Article 1702 in the context of default judgments, we conclude that in the absence of the contractual obligations created between UPC and the Careys, the duty of good faith would not exist. The claim that UPC was in bad faith for failing to settle with the Careys within 30 days of receipt of satisfactory proof of loss constitutes an allegation of the breach of UPC's contractual obligation to settle and its interrelated fiduciary duty. The Careys' claims to general damages and penalties as set forth in La. R.S. 22:1973 arise from allegations of UPC's breach of its contractual obligations. Therefore, the notice requirements of La. C.C.P. art. 1702(A)(4) "[i]n cases involving delictual actions" are not implicated. As such, we turn to UPC's contentions challenging the trial court's conclusion that the Careys established a prima facie case.
PROPRIETY OF THE DEFAULT JUDGMENT
In reviewing default judgments, the appellate court is restricted to determining the sufficiency of the evidence offered in support of the judgment. This determination is a factual one governed by the manifest error standard of review. Arias v. Stolthaven New Orleans, L.L.C., 2008-1111 (La. 5/5/09), 9 So.3d 815, 818. A default judgment is properly rendered when plaintiffs establish a prima facie case by competent and admissible evidence that is admitted on the record. See La. C.C.P. art. 1702(A)(1). In other words, the plaintiff must present competent evidence that convinces the court that it is probable that they would prevail at trial on the merits. Plaintiffs must prove both the existence and the validity of their claim. See Arias, 9 So.3d at 820. A default judgment cannot be different in kind from what is demanded in the petition, and the amount of damages must be proven to be properly due. La. C.C.P. art. 1703. Although there is a presumption that a default judgment is supported by sufficient evidence, this presumption may be rebutted by the record upon which the judgment is rendered. Arias, 9 So.3d at 820.
An insurance policy is a contract between the parties and should be construed by using the general rules of interpretation of contracts set forth in the Civil Code. The judicial responsibility in interpreting insurance contracts is to determine the parties' common intent. See La. C.C. art. 2045. The parties' intent as reflected by the words in the policy determines the extent of coverage. Bosse v. Access Home Ins. Co., 2018-0482 (La.App. 1st Cir. 12/17/18), 267 So.3d 1142, 1146, citing Samuels v. State Farm Mut Auto. Ins. Co., 2006-0034 (La. 10/17/06), 939 So.2d 1235, 1240.
In ascertaining the parties' common intent, words and phrases in an insurance policy are to be construed using their plain, ordinary, and generally prevailing meaning, unless the words have acquired a technical meaning, in which case the words must be ascribed their technical meaning. See La. C.C. art. 2047. If the wording of the policy clearly and unambiguously expresses the parties' intent, the insurance contract must be enforced as written. See La. C.C. art. 2046. Bosse, 267 So.3datll46.
An insurance contract is construed as a whole, and each provision in the contract must be interpreted in light of the other provisions. One provision of the contract should not be construed separately at the expense of disregarding other provisions. See La. C.C. art. 2050. Absent a conflict with statutory provisions or public policy, insurers are entitled to limit their liability and to impose reasonable conditions on the obligations they contractually assume. Bosse, 267 So.3d at 1146, citing Marcus v. Hanover Ins. Co., Inc., 98-2040 (La. 6/4/99), 740 So.2d 603, 606.
Replacement cost insurance, such as that which the Careys secured to insure their Cut Off home, allows recovery for the actual value of the property at the time of loss, without deduction for deterioration, obsolescence, and similar depreciation of the property's value. Replacement cost insurance is designed to cover the difference between what property is actually worth and what it would cost to rebuild or repair that property. See Bosse, 267 So.3d at 1146, citing 12A Couch on Ins. § 176:56.
The most important limitation on replacement cost coverage is that the insurer has limited its liability to instances where the insured completes repairs or replacement. Without actual repair or replacement, the insurer intended no liability beyond the actual cash value of the loss. Thus, when actual repair or replacement is required, the insurer has no liability beyond the actual cash value loss until repair or replacement is accomplished. The typical replacement provisions contain no language as to when an insured must complete repair or replacement of the damaged property. The standard provision does, however, require the insured to make a claim within a certain number of days, usually 180, in order to recover for replacement cost coverage. Bosse, 267 So.3d at 1146, citing Leo John Jordan, What Price Rebuilding? A look at replacement cost policies, 19 Fall Brief 17, 21 &38 (Fall 1990).
On appeal, while conceding that the policy issued to the Careys was in effect when they sustained damages from Hurricane Ida, UPC maintains the trial court erred when it failed to apply the policy provisions as written. Therefore, we examine the conditions set forth in the UPC policy relative to each type of coverage.
Coverage A insured the property damages on the Careys' dwelling in the policy limits of $237,660.00, and Coverage B, applicable to property damages to the other structures located on the premises, had policy limits of $86,000.00. "SECTION I - CONDITIONS" of the homeowners policy contains the "coinsurance clause," which is set forth in the loss settlement section of the insurance policy. See 1 Couch on Ins. §1:3 (defining coinsurance as a "clause in property insurance requiring that the property be insured for a minimum percentage of its total value and making the insured a 'coinsurer' to the extent that the coverage falls below the specified minimum."). See also Johnny Parker, Replacement Cost Coverage: A Legal Primer, 34 Wake Forest L. Rev. 295, 301-303 (1999) ("The most logical starting point at which to begin a discussion of replacement cost coverage [is] the loss settlement provisions.... If the amount of insurance purchased does not at least equal the percentage specified in the coinsurance provision, the insured is viewed to be underinsured and retains a portion of the risk of loss. ... [These] loss settlement provision[s] ... are coinsurance provisions.").
While the amount of Coverage B for other structures on the premises set forth in the declarations page was $23,300.00, the Careys purchased an endorsement that increased Coverage B to $ 86,000.00.
In Subsection D., covered property losses are settled as follows:
2. Buildings covered under Coverage A or B at replacement cost without deduction for depreciation, subject to the following:
a. If, at the time of loss, the amount of insurance in this policy on the damaged building is 80% or more of the full replacement cost of the building immediately before the loss, we will pay the cost to repair or replace, without deduction for depreciation, but not more than the least of the following amounts:
(1) The limit of liability under this policy that applies to the building;
(2) The replacement cost of that part of the building damaged with material of like kind and quality; or
(3) The necessary amount actually spent to repair or replace the damaged building. ...
b. If, at the time of loss, the amount of insurance in this policy on the damaged building is less than 80% of the full replacement cost of the building immediately before the loss, we will pay the greater of the following amounts, but not more than the limit of liability under this policy that applies to the building:
(1) The actual cash value of that part of the building damaged; or
(2) That proportion of the cost to repair or replace, without deduction for depreciation, that part of the building damaged, which the total amount of insurance in this policy on the damaged building bears to 80% of the replacement cost of the building.
Additionally, in Subsection D., setting forth the conditions of loss settlement, paragraph 2.d. provides:
We will pay no more than the actual cash value of the damage until actual repair or replacement is complete. Once actual repair or replacement is complete, we will settle the loss as noted in 2.a. and b.
above.
Subsection D.2.e. of Section I - Conditions states:
You may disregard the replacement cost loss settlement provisions and make claim under this Policy for loss to buildings on an actual cash value basis. You may then make claim for any additional liability according to the provisions of this Condition D. Loss Settlement, provided you notify us, within 180 days after the date of loss, of your intent to repair or replace the damaged building. However, if the loss results from a catastrophic event for which a state of disaster or emergency was declared pursuant to law by civil officials, this 180-day period does not commence until the state of emergency or disaster has ended and you have access to your property.Besides the amounts determined by UPC and tendered to the Careys, the record contains no other estimates of the actual cash value of the damaged parts of the dwelling, Coverage A, or the other structures, Coverage B. Therefore, the Careys did not establish a prima facie case permitting a finding of entitlement to additional sums from UPC for the actual cash value of the losses to their dwelling or other structures on the premises under the provisions of Subsection D.2.e. of Section I - Conditions.
Thus, the UPC policy issued to the Careys provides for two alternative kinds of loss settlements. If insurance in the amount of 80% or more of the replacement cost of the building is purchased, the insured, upon completion of repair or replacement, is entitled to recover from the insurer the lesser of: (1) the limits of liability under the policy; (2) the replacement cost of that part of the building damaged with materials of like kind and quality; or (3) the necessary amount actually spent to repair or replace the damaged building. See Johnny Parker, Replacement Cost Coverage: A Legal Primer, 34 Wake Forest L. Rev. at 303-04.
But if the insureds purchased insurance in an amount less than 80% of full replacement cost value, they are entitled to recover the larger of the actual cash value of that part of the building damaged or the amount that the total amount of insurance carried bears to 80% of the replacement cost of the building. See Johnny Parker, Replacement Cost Coverage: A Legal Primer, 34 Wake Forest L. Rev. at 304.
Moreover, under the terms of the policy, UPC's obligation to pay replacement cost is clearly and unambiguously subject to two conditions: (I) the purchase of insurance in the amount of 80% or more of the replacement cost of the building; and (2) actual repair or replacement of the damaged property. Consequently, the intent to repair or replace the damaged property, in the absence of some countervailing conduct on the part of the insurer, does not trigger the insurer's obligation to pay replacement cost. See Johnny Parker, Replacement Cost Coverage: A Legal Primer, 34 Wake Forest L. Rev. at 304.
In fashioning its award under Coverage A of the UPC policy, the trial court relied on the testimony and report of the Careys' independent estimator, George Montgomery, of Gulf Coast Recovery. The trial court determined that the replacement cost of the damaged part of the Careys' dwelling was $314,615.65 as estimated by Montgomery. Because the replacement cost of the damaged part of the dwelling exceeded the Coverage A policy limits, the trial court apparently subtracted from the Coverage A policy limits ($237,660.00), the hurricane deductible ($6,990.00) and the amounts that UPC paid to the Careys based on its adjusters' assessments ($58,157.57) to award the Careys $172,512.43.
But nothing in the record establishes the Careys have completed repairs or replaced the damaged parts of their dwelling, so as to sustain a finding of entitlement to replacement cost under the loss settlement provisions of the UPC policy. Having offered no evidence of the actual cash value of the damaged parts of their dwelling in excess of the amounts that UPC paid, the Careys have failed to establish a prima facie case of unpaid property damages as required for a default judgment on the issue of the amounts due for Coverage A in the UPC homeowners policy. Accordingly, the award of $172,512.43 for the unpaid property damage under Coverage A is reversed.
Mike testified that the roof of the dwelling had been repaired using some of the money that UPC paid the Careys, but he did not state the specific amount spent for the repair. Although Montgomery estimated the replacement cost of the roof was $27,099.88, the Careys did not provide evidence of the actual cash value of the damaged roof. UPC estimated that the recoverable depreciation for the dwelling roof was $13,687.01 and its actual cash value was $8,147.09. Because the Careys did not provided evidence of the amount that they have actually spent on the roof repair, since UPC is obligated to pay the lesser of replacement cost or the amount actually spent, the Careys failed to establish a prima facie case of the amount of recovery to which they are entitled for repair of the dwelling roof under Section D.2.a. of the UPC policy.
Regarding Coverage B, Montgomery calculated the replacement cost of the damaged parts of the other structures on the Careys' premises to be $110,089.60. Because the amount of the replacement cost exceeded the policy limits, the trial court apparently subtracted the amounts UPC tendered to the Careys ($15,070.71) from the policy limits ($86,000.00) to award the Careys the amount of $70,929.29 for Coverage B.
This amount consisted of $17,740.98 for replacement costs of the workshop, $63,806.87 for replacement cost for the detached structures roofs, and $28,541.75 for profit and overhead.
Because nothing in the record establishes the Careys have completed the repairs or replaced the damaged parts of the other structures on their premises to sustain a finding of entitlement to replacement cost under the loss settlement provisions of the UPC policy, and having offered no evidence of the actual cash value of the damaged parts of the other structures in excess of the amounts that UPC paid, the Careys have failed to establish a prima facie case as required for a default judgment for unpaid property damage under Coverage B. Accordingly, the award of $70,929.29 under Coverage B is reversed.
Although Montgomery did not estimate the amount of the cost to repair or replace the Careys' personal property, in its December 15, 2021 letter, UPC estimated the cost was $52,437.84. In awarding the Careys the amount of $9,907.56 for their damaged personal property under Coverage C, the trial court apparently deducted $36,692.44, the amount UPC had paid to the Careys, from the policy limits they carried of $46,600.00.
The personal property replacement cost loss settlement provisions were set forth in an endorsement to the UPC policy. In Section C, the provisions state in relevant part:
The following loss settlement condition applies to all [eligible property]:
1. We will pay no more than the least of the following amounts:
a. Replacement cost at the time of loss without deduction for depreciation;
b. The full cost of repair at the time of loss;
c. The limit of liability that applies to Coverage C, if applicable. ...
2. If the cost to repair or replace [eligible property] is more than $500, we will pay no more than the actual cash value for the loss until the actual repair or replacement is complete.
Because the Careys failed to offer any evidence of what personal property they repaired or replaced or any costs associated with repair and replacement of their personal property, they failed to establish a prima facie case of entitlement to unpaid amounts as set forth in Section C.2. under the Coverage C endorsement of their UPC policy. Therefore, the award of $9,907.56 for unpaid damage to personal property under Coverage C is reversed.
For "Loss of Use under Coverage D," the trial court awarded the Careys $6,700.00. To fashion its award, the trial court apparently relied on Aleshia's testimony that UPC failed to pay her $5,700.00 in conjunction with receipts she had submitted for the rental of living space the Careys secured in Cut Off or $1,000.00 for receipts for meals and food consumed while away from the insured premises.
The declarations page designated that the policy issued to the Careys included $23,300.00 limits of liability for Loss of Use. Relevant to the Careys' claim, under the UPC policy, the provisions of Section I, "Coverage D- Loss Of Use," set forth:
The limit of liability for Coverage D is the total limit for coverages in 1. Additional Living Expense....
1. Additional Living Expense
If a loss covered under Section I makes that part of the "residence premises" where you reside not fit to live in, we cover any necessary increase in living expenses incurred by you so that your household can maintain its normal standard of living.
Payment will be for the shortest time required to repair or replace the damage or, if you permanently relocate, the shortest time required for your household to settle elsewhere.
An endorsement added the following provision to 1. Additional Living Expense section:
In either event, the Payments) will be limited to (12) consecutive months from the date of the covered loss.
According to policy's endorsement to "SECTION I-CONDITIONS" in "C. Duties After Loss," the parties agreed:
In case of a loss to covered property, you must comply with all of the duties in C. Duties After Loss. We have no duty to provide coverage under this policy if the failure to comply with die following duties is prejudicial to us. ...:
9. Send to us your signed, sworn proof of loss which sets forth, to the best of your knowledge and belief: ...
g. Receipts for additional living expenses incurred.
Although Aleshia testified that the Careys were unable to reside in the premises due to the hurricane damage, and that she "submitted" receipts to UPC, she did not produce copies of the Careys' "signed, sworn proof of loss." Thus, because the record is devoid of evidence to support a finding that the Careys complied with their duty to send a signed, sworn proof of loss setting forth the receipts for their additional living expenses, they failed to prove they were entitled to payments under Coverage D. Therefore, the award of $6,700.00 for additional living expenses for loss of use under Coverage D is reversed.
Mindful that the Careys offered no evidence of the actual cash value of the damaged parts of their dwelling or the other structures on their premises and failed to offer evidence of either completed repairs or replacements of any of the damaged property or amounts spent to repair or replace the property, the record is devoid of any evidence to support a finding that UPC failed to pay the amount of any claim due to the Careys within thirty days after receipt of satisfactory proofs of loss for Coverages A and B. And while the Careys offered evidence of the actual cash value of their personal property for Coverage C ($36,692.44) based on UPC's second adjustment estimate, UPC issued a check for that amount in December 2021. Although the Careys expected to have been paid the replacement cost value of their insured premises sooner since the first UPC adjuster inspected the premises on September 19, 2021, nothing in the record establishes that the Careys completed the actual repairs or replacements at any time. Furthermore, the Careys failed to establish compliance with the provisions which allow for recovery for additional living expenses associated with their loss of use as set forth in the UPC policy. Therefore, the Careys did not set forth a prima facie case establishing that UPC failed to pay the amount of any claim due to them within thirty days after the receipt of satisfactory proofs of loss as required under La. R.S. 22:1892 so as to warrant the imposition of penalties and attorney fees. Similarly, the Careys have failed to establish UPC violated its duty of good faith and fair dealing under La. R.S. 22:1973 so as to warrant the imposition of general damages. Accordingly, we reverse the awards of $150,345.01 in penalties, $50,000.00 in general damages to Mike, $50,000.00 in general damages to Aleshia, and $183,678.34 in attorney fees.
DECREE
For these reasons, we reverse the default judgment. Appeal costs are assessed against Aleshia and David "Mike" Carey. The matter is remanded for further proceedings.
REVERSED AND REMANDED.