Opinion
CIVIL ACTION NO: 09-444, SECTION: J(2).
February 22, 2010
ORDER
Before the Court is Plaintiffs' Motion for Summary Judgment (Rec. Doc. 28) and Defendant's Response Memorandum in Opposition (Rec. Doc. 41). Plaintiffs have filed the current motion, in which they request summary judgment on the following issues:
1. The applicable law regarding the burden shifting standard relating to segregating damages caused by covered and excluded perils;
2. Whether Defendant can assert that Plaintiffs' amount of recovery is limited to the pre-storm value of Plaintiffs' home and whether evidence of such value is relevant; and
3. Whether Defendant's actions constitute bad faith.
After reviewing the motion, applicable law, and the memoranda of the parties, this Court ORDERS as follows:
DISCUSSION
I. Burden Shifting Standard
Plaintiffs argue that they do not have the burden of segregating damages for covered and excluded perils. This Court has, on many occasions, stated the legal standard for the issue of segregating damages for covered and excluded perils. As stated in Lightell v. State Farm Fire and Casualty Co., No. 08-4393, 2009 WL 4505942 (E.D. La. Nov. 25, 2009), the applicable legal standard was clearly laid out by the United States Court of Appeals, Fifth Circuit in Dickerson v. Lexington Insurance Company, 556 F.3d 290 (5th Cir. 2009). In Dickerson, 556 F.3d 290, the Fifth Circuit stated,
[u]nder Louisiana law, the insured must prove that the claim asserted is covered by his policy. Once he has done this, the insurer has the burden of demonstrating that the damage at issue is excluded from coverage. Thus, once [the insured] proved his home was damaged by wind, the burden shifted to [the insurer] to prove that flooding caused the damage at issue, thereby excluding coverage under the homeowner's policy.Id. at 295; see also Smith v. American Family Life Assur. Co. of Columbus, 584 F.3d 212, 218 (5th Cir. 2009) (citing Doerr v. Mobil Oil Corp., 774 So.2d 119, 124 (La. 2000) for the notion that "the insurer bears the burden of proving the applicability of an exclusionary clause within a policy"); Imperial Trading Co., Inc. v. Travelers Property Cas. Co. Of America, 638 F. Supp. 2d 692, 694 (E.D. La. Jul 16, 2009) (holding that the burden is not on the plaintiff to prove segregable damages).
Therefore, Plaintiffs, in their motion for summary judgment, have asserted the correct standard. "Plaintiffs' burden at trial will be to prove that they are entitled to additional payments to damage to their property. Plaintiffs do not have the burden of segregating the damages based on covered and non-covered perils." Lightell, 2009 WL 4505942 at *3 (E.D. La. Nov. 25, 2009).
Accordingly, IT IS ORDERED that Plaintiffs' motion for summary judgment on the applicable law regarding the burden shifting standard for segregating damages caused by covered and excluded perils is hereby GRANTED.
II. Reference to the Pre-Storm Value of Plaintiffs' Home
III. Bad Faith Damages
IT IS ORDERED MOOT. IT IS ORDERED DENIED.