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When an Insured Can Seek Statutory Damages from an Insurer

Many coastal Louisiana homeowners were affected by Hurricane Katrina. Too many of those affected are still dealing with the stressful experience of rebuilding their homes, communities, and lives. When natural disaster strikes, the importance of good, quality homeowners insurance becomes starkly evident, and can provide much needed relief for homeowners. Unfortunately, insurance companies do not always make the recovery of benefits easy on the afflicted homeowner. The insurance claims process can be overwhelming, and may be complicated by the often necessary instigation of litigation. Homeowners carrying insurance need to be aware that in some instances the actions of their insurance provider in hindering their expedient recovery can compel a court to award additional compensation to the homeowner.
Louisiana revised statute §22:1892 * governs the recovery of additional damages against an insurance provider. Under §22:1892, an insurance provider who fails to make a payment on a claim within 30 days of settlement or written agreement to pay could be subject to sanctions if the court finds that failure to disburse payment is “arbitrary, capricious, or without probable cause.” If an insurer fails to make a timely payment as per the statute, the court may “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.” This penalty, if awarded, is either paid out to the insured, or to a designated employee of the insured.

The Fifth Circuit Court of Appeals case French v. Allstate Indemnity Co., addresses §22:1892. Allstate appealed the lower court’s ruling that it was liable under §22:1892 for failing to timely pay an undisputed portion of a wind damage claim made by the French’s. Allstate did not attempt to argue that they did not owe the French’s some amount under the statute, but rather they argued that the penalty amount awarded to the French’s was incorrectly calculated using an outdated version of § 22:1892. The lower court “calculated penalties on the Plaintiff’s entire wind-damage claim, without discounting any amounts Allstate had timely paid.” The court in French held that the lower court incorrectly calculated the statutory penalty to Allstate by failing to subtract a portion of the claim which Allstate timely paid from the penalty calculation. The court reduced the French’s award by $2,500.

It is important to note that had Allstate simply argued that they should not be penalized under the statute they would almost certainly have been unsuccessful. In Louisiana Bag Co. v. Audubon Indemnity Co., the Louisiana Supreme Court ruled that mere failure to pay within the statutory time limit constitutes behavior that is “arbitrary, capricious, and without probable cause,” and the statutory penalty applies. In other words, simply failing to make a timely payment as required by the statute, and nothing more, is sufficient reason for a court to subject an insurer to penalties.

The calculation of damages to be paid out by insurance companies is an often complicated process. Understanding and knowledge of any additional statutory awards that may be available to a homeowner in need can make all the difference. If you or a loved one has been affected by Hurricane Katrina you need an experienced law firm to help you navigate negotiations with your insurance company and to represent you in court should it be necessary.

*Prior to 2009, § 22:1892 was designated § 22:658, and is cited in French v. Allstate Indemnity Co. as § 22:658.

The Berniard Law Firm has significant experience working with the victims of a variety of disasters, including Hurricane Katrina, and helping victims and their families. Call us at 1-866-574-8005 or visit laclaim.com and let us help you.