Unfair Business Practices

Louisiana Supreme Court Settles Circuit Dispute Over Insurance Policy Renewal Issue

Published on: July 6, 2011 | By Berniard Law Firm

In a prior post, we reviewed the Johnson v. Louisiana Farm Bureau Casualty Insurance Co. case. The case concerned the undelivered notice from Farm Bureau to Janice Johnson that the company would not renew her homeowner’s insurance policy. The case centered around the state law that requires notice of the intent not to renew:

“An insurer that has issued a policy of homeowner’s insurance shall not fail to renew the policy unless it has mailed or delivered to the named insured, at the address shown in the policy, written notice of its intention not to renew. The notice of nonrenewal shall be mailed or delivered at least thirty days before the expiration date of the policy.” La. R.S. 22:1335, formerly La.R.S. 22:636.6.

In the Johnson case, the Third Circuit interpreted the “mailing or delivery” requirement to mean that the notice must actually be received by the homeowner. During the trial, the jury found that Farm Bureau had properly mailed the notice. But Johnson’s testimony that she always opened every piece of mail she received (except for bank statements) convinced the jury that she had not, in fact, received Farm Bureau’s letter. Since the Third Circuit regarded the conclusion about delivery to be a matter of “the credibility of the witnesses,” and could not find “manifest error in the jury’s credibility determination nor in their determination that the notice of non-renewal was not delivered,” it affirmed the trial court’s award of damages to Johnson.

Farm Bureau appealed this decision, which so happened to contrast directly with a recent decision from the Fourth Circuit. The Fourth Circuit case, which featured very similar facts, reached the following conclusion:

“[t]he mailing of a notice of nonrenewal to the insured’s address, as listed on the policy, at least thirty days before the expiration of the policy satisfies the burden placed upon the insurer.” Collins v. State Farm (La.App. 4 Cir. 1/26/11).

The Louisiana Supreme Court sided with the Fourth Circuit, finding that “the key is that the statute requires only mailing, not proof of receipt.” Because “the plain language of the statute requires only that such notice be mailed,” in the court’s view “any evidence of non-delivery is relevant only as far as it is evidence of non-mailing or improper mailing.” The court determined that the jury’s fact-finding duty extended no farther than determining that Farm Bureau had properly mailed the notice, which was “all that [Farm Bureau] was required to do under [the statute] in order to give notice of nonrenewal of [Johnson’s] insurance policy.” Accordingly, the Supreme Court reversed the Third Circuit and declared that “Farm Bureau did not provide homeowner’s coverage to [Johnson] at the time of the loss.” As a result, Johnson was denied the $296,500 payment she expected from Farm Bureau.

The purpose of the nonrenewal notice is to provide an insured homeowner sufficient time to obtain new insurance with another company before the existing policy expires. While the law placed a specific burden on insurance companies to send such a notice, customers in Louisiana are now clearly warned that the failed delivery of a properly mailed notice will not obligate an insurer to extend coverage, even if the consequences are catastrophic to the homeowner.

Insurance Policies and How They Affect Recovery After a Hurricane or Disaster

Published on: July 1, 2011 | By Berniard Law Firm

Nearly six years after Hurricane Katrina struck, Louisiana residents are still dealing with the traumatic and costly effects of the storm. The American Red Cross estimates that approximately 275,000 Louisiana homes were destroyed by the storm and thousands more were damaged. Even those homeowners with insurance can find the recovery of damages to be a difficult and definitely expensive process. This financial burden, regardless of the supposed
Many homeowners filing claims for damages were in for a nasty surprise: the “Named Storm Deductible.” Under Louisiana law, insurance companies can implement deductibles of as much as 5% of the value of the insured property for damage caused by “named storms,” including tropical storms and hurricanes such as Hurricane Gustav or Hurricane Katrina. Frequently these provisions have not appeared on the original policies, but were added during a policy renewal, meaning homeowners are unaware of its existence or don’t understand its implications.

Under a Named Storm Deductible of 5%, for example, damage caused to a home with an insured value of $100,000 would cost the homeowners a deductible of $5,000, rather than the standard $500 or $1,000 deductible ordinarily applied to such losses. Litigation arguing against and interpreting these deductibles can be complicated and frustrating.

Homeowners Mary Williams, Michael Manint, and Susan Manint ran into this problem firsthand when recovering from damage caused to their homes by Hurricane Katrina. While their policy from Republic Fire and Casualty Insurance Company includes a Named Storm Deductible of five percent (5%), it does not specifically designate what the 5% is to be taken from: the damage amount or the dwelling coverage limit. One year, when renewing their homeowners insurance, Republic sent them an Important Policyholder Notice explaining the application of the Named Storm Deductible. The Notice included an example of the Named Storm Deductible which showed that the deductible would be 5% of the dwelling coverage limit. This distinction, however, did not actually appear within the provisions of their policies.

After Hurricane Katrina struck Louisiana, Republic determined that Ms. Williams and the Manints would have to pay deductibles of $7,320 and $4,445, respectively, which were 5% of their dwelling coverage limits. Both homeowners, however, had expected to have to pay only 5% of the covered loss, which would have amounted to costs under $1,000.

Both homeowners filed suit against Republic, asserting that the company had miscalculated the Named Storm Deductible. They argued this on the theory that the Important Policyholder Notice, which showed that the 5% was to be taken from the dwelling coverage limit, could not be considered when interpreting the Named Storm Deductible. The district court however, disagreed and ruled in favor of Republic, confirming that the deductible had been calculated correctly.

On appeal, the court affirmed the district court’s ruling. Under Louisiana law, because the Important Policyholder Notice was physically attached to the renewal policies, it was made a part of them as well. This meant that the Notice’s interpretation showing that the 5% was to be taken from the dwelling coverage limit was part of the policy and thus enforceable against the homeowners.

If you find yourself in a similar predicament, consulting with a legal expert may be your best chance in receiving the justice you deserve.

Dispute Over Hurricane Katrina Home Repair Shows Role of Appraisal Process in Insurance Settlements.

Published on: June 18, 2011 | By Berniard Law Firm

If a homeowner insures his home and then suffers damage to the structure, the process of making a claim and being paid for the loss can be long and frustrating. Frequently, the insurance company will arrive at its value of the loss and attempt to persuade the homeowner to accept that value, even if it doesn’t reflect the homeowner’s actual costs of repair. In such a case, the homeowner should check his policy for an “appraisal clause.” This provision provides for an alternative method for setting the value of the property damage. An appraisal procedure requires the homeowner to obtain an independent appraiser to survey the damage and assign a value to the loss. Similarly, the insurance company must hire an independent appraiser to perform the same analysis. The two appraisers must petition the court for the appointment of an umpire who will then oversee the negotiation of the settlement based on the two appraisals. Once any two of the parties–the appraisers and/or the umpire–agree as to the value of the loss, the matter is settled.

In Louisiana, like other states, flood insurance policies are underwritten through the National Flood Insurance Program (NFIP) and administered by the Federal Emergency Management Agency (FEMA). The NFIP authorizes private insurance companies to issue policies and handle the claim settlement process. Claims are actually paid by the federal government. FEMA requires that all NFIP flood insurance policies include an appraisal clause.

After their was heavily damaged by flood in Hurricane Katrina, William and Cynthia Dwyer filed a claim with their flood insurer, Fidelity National Property and Casualty Insurance Company. The Fidelity policy was issued through the NFIP. The Dwyers disagreed with Fidelity’s offer of settlement and took the dispute to the District Court for the Eastern District of Louisiana. The court entered judgment for the Dwyers, and on appeal by Fidelity, the Fifth Circuit Court of Appeals vacated the judgment and ordered the parties to submit to the appraisal process as outlined in the policy. The Dwyers and Fidelity sought appointment of an umpire, who then submitted to the district court an appraisal that included the amount of actual damage to the Dwyer home as well as a “mark-up for overhead and profit” intended to cover the cost of a general contractor to make the repairs. Fidelity accepted the umpire’s figure on damages but objected to the addition of the mark-up because the Dwyers had already sold the house and would not have any role in the repair itself. The Fifth Circuit agreed with Fidelity that “the award of overhead and profit was erroneous” and noted that “Fidelity told the district court that absent the improper award of overhead and profit, it agreed with the umpire’s appraisal.” Thus, determining that Fidelity and the umpire were in agreement on the amount of the loss, the court entered judgment ordering Fidelity to pay the Dwyers $1,552.51. This amount represented the umpire’s appraisal amount less the erroneous overhead and profit, the policy deductible, and the amount Fidelity had already paid out to the Dwyers.

The appraisal process seeks to take the potentially emotional settlement of an insurance claim out of the hands of the homeowner and the insurance company and leave the decision to disinterested, expert third parties who have no connection to the outcome. Although the process is generally more cost-effective and expedient than litigation, a homeowner should consult with an experienced attorney to ensure the procedure is properly followed and his rights are protected.

Understanding Class Action Lawsuits in Louisiana

Published on: June 16, 2011 | By Berniard Law Firm

Class actions are a common and popular legal tool for cases involving a large group of people who share the same grievance against a defendant. Specifically, the plaintiffs have to have a real and actual interest in order to join a class action. An issue may arise however, if a plaintiff’s interest is called into question. In particular, whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted against a defendant. Essentially, the plaintiff’s have to share the same type of complaint and injury in order to form a proper class action. Many times, defendants will allege that the class action was improperly certified (allowed) in order to invalidate any complaints against them.

In a recent Second Circuit Court of Appeal Case in Louisiana, the court explored the certification of a class action in order to determine whether or not it was proper. The facts of the case include the plaintiff, representing a class of individuals, who all share a grievance against a funeral home, owners of the funeral home, and numerous banks. The gist of their complaint is that the funeral home sold prepaid funeral expenses to the plaintiffs and other putative class members. The owner of the funeral home then deposited their payments into certificates of deposit (COD) with one or more of the banks named as defendants. The bulk of COD’s were under names which included the Funeral Home, followed by either “payable on death,” or “for the benefit of” followed by the name of the individual whose prepaid funeral funds were being held on deposit. The issue became that without presentation of a death certificate as required by Louisiana statute, the law governing prepaid funeral services, and in breach of the banks’ contracts, namely, the certificates of deposit, the funeral home was allowed by the banks to withdraw the funds which they converted and appropriated for their own use. The plaintiffs argue that by accepting the deposits, the defendant banks became commonly liable with the funeral home. Yet, the appellate court is charged with the responsibility to determine whether the class action should be certified, despite the fact the trial court denied the class’s certification.

A class action must have certain definite characteristics. First, the class must be so large as to make individual suits impractical. Second, there must be a legal or factual claim in common between all the plaintiffs involved. Third, the claims or defenses must be typical of the plaintiffs or defendants. Fourth, the representative parties must adequately protect the interest of the class. Further, in many cases, the party seeking certification of a class must also show that common issues between the class and the defendants will predominate the proceedings, as opposed to individual fact-specific conflicts between class members and the defendants and that the class action, instead of individual litigation, is a superior vehicle for resolution of the disputes at hand. Here, the class certification, the plaintiffs sought to certify a class defined as “all individuals from whom the funeral home appropriated and converted funds collected by them for prepayment of funeral expenses.” Additionally, the motion asserted common questions of law and fact including:

Distinct Legal Consequences in a Legal Partnership

Published on: June 3, 2011 | By Berniard Law Firm

A partnership is a legal relationship that carries with it certain rights and obligations. Whether or not two or more persons have alegal partnership may become an issue. Our law defines a partnerhsip as a

“juridical person, distinct from its partners, created by a contract between two or more persons to combine their efforts or resources in determined proportions and to collaborate at mutual risk for their common profit or commercial benefit.”(La. C.C. Art. 2801).

However, a legal and valid partnership may be established without a written agreement or contract, circumstantial proof may be offered to maintain that there was indeed a partnership. All of the surrounding facts are taken into consideration and explored by the court in order to determine whether a partnership had been formed, and to what extent each partner was involved. Thus, the facts are extremely important when an alleged partnership is created without any written documentation to support that contention.

Playstation Network to Return: Legal Concerns Still Remain

Published on: June 1, 2011 | By Berniard Law Firm

Sony announced yesterday that the Playstation Network (PSN) is set to return by the end of this week. Reports indicate access began to be provided to users starting on May 15 with different regions being incrementally phased in worldwide. Questions remain, however, as to the extent of previous breaches of the gaming network’s security and just how safe gamers are from having the incidences of May occur again.

With its restoration of access to Playstation and Qriocity users in US, Europe and Asia, Sony is ending a month of outage that was first spurred by a breech of the networks’ security. As we explored previously, that Sony has admitted that the breech occurred due to the exploit of a known vulnerability opens a rather clear inquiry of just how negligent the electronics giant was in the matter. Down since April, the Playstation gaming network and Qriocity, a movie and music service, have been sorely missed by users that frequently accessed the services for their entertainment needs. However, with that access came the disclosure of information that is now likely in the open. What this information can be used for, and the subsequent ramifications for the users, remains to be seen but there is no doubt the courts will begin seeing discussion on the damages caused.

Sony has been adamant about the upgrades they have made to their system, stating they have “been conducting additional testing and further security verification of our commerce functions in order to bring the PlayStation Network completely back online so that [their] fans can again enjoy the first class entertainment experience they have come to love.” This statement, made by Sony Executive Deputy Vice President Kazuo Hirai, also came with an expression of gratitude for the patience and support offered by fans. The reality of the situation, however, is that those whose information was disclosed have zero patience for an invasion of their privacy.

Playstation Network Breeched Again in Late May

Published on: May 25, 2011 | By Berniard Law Firm

In what can only be considered a confusing lapse in digital security, Sony announced another breach of their network security in late May. This news comes on the heels of the major shutdown that aggravated a world of gamers. As the length of downtime nears a month, questions linger as to how much knowledge the electronics giant had regarding system vulnerabilities and why a breach was what it took to search for solutions.

Relating to a vulnerability regarding password resets, the most recent security breach is a major headache for Sony. The Playstation 3 Network, albeit free, is relied upon by millions of users for online gaming and, more importantly, includes a wealth of personal information for all of these users. Within the first security breach, this personal information, unfortunately, also includes billing details that could lead to vulnerability for customers who only wished to enjoy their games as sold.

Regarding the most recent breach, reports indicate that users will know their account has been compromised if they received an email indicating that their password had been changed. While the information made vulnerable in this act remains unclear, it is just yet another incident in a problematic series of events that raise significant questions about the protection being utilized by Sony and the amount of negligence that may be at play. Negligence claims involve an injured party suing a defendant for the damages suffered that were avoidable through the direct intervention of that party. In short, negligence claims deal with the ‘avoidable;’ news reports that have come out regarding this matter indicate that Sony was aware of the vulnerability.

Insurance Contract Interpretations and the Affect on Recovery of Damages

Published on: May 20, 2011 | By Berniard Law Firm

Homeowners across the Louisiana coast were affected by Hurricane Katrina. Many of those affected are still dealing with the stressful experience of rebuilding their homes, communities, and lives. Homeowners insurance is a boon to many when natural disaster strikes. Unfortunately, insurance companies do not always make recovery of benefits easy on the afflicted homeowner. The insurance recovery process can be overwhelming, and may be complicated by the often necessary instigation of litigation. Insurance negotiations can be complicated by differing interpretations of policy provisions. Many different provisions governing recovery are involved in insurance contracts. The interpretation of the language of the contract by the court plays a pivotal role in deciding the amount of damages an insured is entitled to recover.

The recent Fifth Circuit Court of Appeals case French v. Allstate Indemnity Co., illustrates that the recovery of damage benefits from an insurance company is not always a straight forward process. In French , homeowners in Slidell, Louisiana sued their homeowners insurance provider, Allstate Indemnity Co., to recover additional damages resulting from wind damage to their residence caused by Hurricane Katrina. The plaintiffs initially won a judgment in their favor in the United States District Court for the Eastern District of Louisiana , but they appealed, arguing that they were entitled to additional damages beyond the original award. The insurance company paid less than the full amount of the liability limit under the homeowners insurance policy. The District Court held that, since their repair costs would exceed their policy limit, they were entitled to at least the full limit and awarded them judgment accordingly.

On appeal, the plaintiffs argued that they were entitled to further damages under two provisions of their policy, an Extended Limits Endorsement provision and an Additional Living Expenses provision. They argued that the lower court erred in denying them recovery under these provisions. The court applied Louisiana case law which dictates that the language of the policy controls and “constitutes the law between the insured and insurer.” When an insurance contract is subject to interpretation “‘[w]ords and phrases … are to be construed using their plain, ordinary and generally prevailing meaning,’ unless the words have acquired a technical definition.” The appellate court reviewed the original award to determine if the lower court erred in their interpretation of these provisions and in denying recovery to the plaintiffs.

The Extended Limits Endorsement allowed for a certain amount of additional damages above and beyond the actual cash value of the insured’s home. The court found that the language of the provision indicated that, in order to recover under this provision, the insured had to show they had repaired or replaced their damaged property. They must also have insured their home to 100% of its value. The plaintiffs did not meet either of these requirements, and the court found the denial of an additional award under this provision was appropriate.

The Additional Living Expenses provision allowed for recovery of damages for “the reasonable increase in living expenses necessary to maintain [a] normal standard of living when a direct physical loss we cover . . . makes your residence premises uninhabitable.” The court determined that the plaintiffs had to show additional living expenses they had actually incurred. Since they had not yet begun repairs on their home, and continued to live in the residence, they were properly denied additional recovery under this provision.

Knowledge of the interpretation of insurance contract provisions is important when negotiating an insurance settlement or in litigation for recovery of damages. 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. If you are looking for legal representation, the Berniard Law Firm has experience working with the victims of Hurricane Katrina and their families as well as a variety of storm and general insurance dispute issues.

Single-Car Wreck in Lafayette Parish Involving Alcohol Leads to Dispute Over Life Insurance Policy

Published on: May 18, 2011 | By Berniard Law Firm

Previously on the Personal Injury blog, we have explored that auto insurance policies commonly include coverage exceptions for damage or injury that arises from intentional acts. Another typical limitation concerns criminal acts, whereby the insurer’s obligation to cover losses is limited or entirely avoided when the policyholder’s claim is related to his or her own illegal activity. Similarly, life insurance policies that contain accidental death benefits usually include a provision that reduces or eliminates the pay-out when the policyholder’s death occurs while he or she is engaging in illegal activity. This very provision was at the center of an unpublished opinion by the U.S. Court of Appeals for the Fifth Circuit following a one-car accident in Lafayette Parish, Louisiana.

In 2002, Bryan Redeaux was killed in a single-car accident. At the time of his death, he was covered by a life insurance policy issued by the Southern National Life Insurance Company, Inc. that named his mother, Connie Redeaux, as the beneficiary. Southern paid Connie Redeaux $10,000 in life insurance benefits but denied her claim for accidental death benefits based on a policy exclusion “for a loss which in any way results from … injury or death occurring as a result of the commission of a crime or the attempt to commit a crime.” The coroner reported that at the time of the accident, Bryan Redeaux’s blood alcohol concentration (“BAC”) registered 0.21 percent, which was twice the legal limit under Louisiana law. Connie Redeaux filed suit in state court seeking to recover the policy’s accidental death benefits. The action was removed to federal court due to the applicability of the Employee Retirement Income Security Act. The parties filed cross-motions for summary judgment, and the district court granted Connie Redeaux’s. Southern appealed.

The court, after reviewing the trial record, determined that it was “undisputed that the insured was operating a motor vehicle at the time of his death and that his BAC was 0.21 percent, more than twice the legal limit under Louisiana law.” It rejected Connie Redeaux’s argument that the policy exclusion did not apply because no criminal charges were filed against her son; it is well established in the Fifth Circuit that “[t]he failure of the state criminal justice system to prosecute an individual … by no means constitutes an affirmative finding that the individual is absolved of any crime.” Thus, the court held that “the insured committed the crime of operating a vehicle while intoxicated under Louisiana law,” and reversed the district court’s judgment.

Although Louisiana generally endorses the view that “exclusionary provisions are to be strictly construed against the insurer with any ambiguity construed in favor of the insured,” policy holders should ensure they understand all limitations and exclusions. While Connie Redeaux’s loss of her son was tragic and her attempt to maximize her recovery under the policy understandable, the application of standard contract principles could produce no other result given the clear langauge of the policy.

Third Circuit Explains Process for Court’s Interpretation of Insurance Policy in Vernon Parish Wreck

Published on: May 16, 2011 | By Berniard Law Firm

Previously on our personal injury blog, we have seen that an automobile liability insurance carrier’s coverage of a substitute vehicle is determined by the language of the insurance policy. Courts apply “ordinary contract principles” and interpret the policy’s language, and this interpretation “is usually a legal question that can be properly resolved in the framework of a motion for summary judgment.” Indeed, when the language of a policy is “clear and unambiguous a reasonable interpretation consistent with the obvious meaning and intent of the policy must be given.”

The court’s interpretation of an insurance policy’s language was central to the summary judgment in the recent case of Newman v. State Farm Mutual Auto Insurance Co., et al. In this case, the Third Circuit Court of Appeal for the State of Louisiana reviewed the Beauregard district court’s grant of the Clarendon American Insurance Company’s motion for summary judgment. On June 30, 2007, Ann Newman’s car was rear-ended by Leslie Roshong on Louisiana Highway 109 between Leesville and Vinton. Roshong was driving his personal vehicle, a 2006 Dodge Ram pickup truck, to a site in Vinton where he was to set up a mobile home that he moved from DeRidder as part of his business, Arrow Mobile Home Movers. Newman filed suit against Roshong and the insurer of his truck, State Farm. She later amended her complaint to add Clarendon, the provider of auto liability insurance for Arrow. Clarendon filed a motion for summary judgment, asserting that it did not cover Roshong’s personal truck. The trial court agreed and dismissed Newman’s claims against Clarendon. On appeal, Newman argued that two of the endorsements in Roshong’s policy with Clarendon which concerned interstate commerce extended coverage to the accident. The court found these endorsements inapplicable because Roshong’s truck did not carry a permit from the Interstate Commerce Commission (as required by one) and did not leave the state of Louisiana on the day in question (as required by the other). The court concluded that “there is no genuine issue of material fact as to coverage under the Clarendon policy, as under the clear language of the policy, neither [endorsement] provision provides coverage for the accident at issue.” Further, “the trial court committed no error in its interpretation of the Clarendon policy.” Thus, the court upheld the summary judgment in favor of Clarendon.

It is understandable that Newman would want to ensure to include in litigation all insurance companies who may be liable for her damages related to the accident. However, courts will not overlook the plain language of an insurance policy to invent ways for a litigant to recover from an insurer who had no contractual connection with the incident in question. This decision reflects Louisiana’s public policy concern that insurance companies must be permitted to limit their liability by contract in order to, for example, cover a driver’s personal vehicle without committing to cover other vehicles owned by the driver’s business. Without this ability to define coverage, insurance companies would face too much exposure and would likely withdraw from the market.