Preview:

NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA

COURT OF APPEAL FIRST CIRCUIT 2006 CA 0312
LEO P GROS

VS
HEIDI THERIOT AND STATE FARM MUTUAL AUTOMOBILE

INSURANCE COMPANY

mDGMENT RENDERED

DECEMBER 28 2006

ON APPEAL FROM THE SEVENTEENTH JUDICIAL DISTRICT COURT DOCKET NUMBER 95942 DIVISION A
PARISH OF LAFOURCHE STATE OF LOUISIANA

HONORABLE JOHN E LEBLANC JUDGE

JOSEPH J

WEIGAND JR

COUNSEL FOR PLAINTIFF APPELLANT LEO P GROS

HOUMA LA

WILLIAM RYAN ACOMB NEW ORLEANS LA

COUNSEL FOR DEFENDANT APPELLEE STATE FARM MUTUAL AUTOMOBILE

INSURANCE COMPANY AND HEIDI THERIOT

BEFORE

CARTER C J WHIPPLE AND MCDONALD n

MCDONALD 1

The

plaintiff appellant

Leo

Gros

Gros

was

involved

in

an

automobile accident in July 2002 caused solely by the fault of Heidi Theriot Theriot issued
an

State Farm Mutual Automobile Insurance Company automobile liability Gros

State Farm
a

policy covering

Theriot and also

policy paid
was

covering
Theriot s

for uninsuredunderinsured motorists

State Farm

25 000 00

liability policy

limits to Gros

A formal demand

made to State Farm

on

June 21 2004 for the

50 000 00 limits

on

Gros UM

policy State

Farm declined to offer any additional It had

compensation for general
a

damages under the claim

agreed

as

evidenced by

letter of June 27

2003 to pay medical expenses from the UM

policy

and did pay the only in the amount of

claim for medical treatment submitted after June 2004 175 00
In October 2005

the matter

was

tried before 50 000

a

judge Gros having

stipulated
were

that

damages
as

did not exceed

Additionally stipulations

submitted

to

the fact of the accident the sole liability of Theriot the

existence and limits of the claim

liability policies

and the lack of
4 979 99 00

a

lost wages
to
a

State Farm submitted that it had paid

pursuant

UM

tender Joint exhibits of medical records and evidence at trial

depositions were

admitted into

Gros argued that the damages sustained in the accident of the
amounts

were

in

excess

he

received

from

State

Farm

which

amounted

to

approximately

19 000 00 in general damages and
over an

15 859 26 in medical

expenses incuned

approximately

two year

period
a

Gros further after

maintained that because State Farm had not offered submission of the McDill letter in June 2004 he

penny

was

entitled to attOlney fees

2

and penalties for

arbitrary
over

and capricious refusal to tender the amount of

additional damages

which reasonable minds could not disagree

State Farnl contended that because of Gros condition and
amounts

preexisting
the

medical the

a

subsequent slip

and fall
to

causing injury to

same area

paid

as

damages attributable

the July 2002 accident were fair and

sufficient compensation The trial court considered that it
was

evaluating

a

claim involving

aggravation of
treatment

a

preexisting condition with about
some

22 months of active

and

continuing

discomfort

affected
an

by

subsequent

intervening acts
damage award

It determined that

30 000 would be

appropriate general

The court denied the claim for
to

arbitrary and capricious
make
a

damages finding that the refusal by State Farm
was

tender in this

case

because there

was a

legal issue

as

to

what amount would be owed if

any

beyond the

scope of the

liability insurance
an

The determination that and

insurer

s

handling of

a

claim is arbitrary

capricious

is

a

factual finding which may not be disturbed uIlless An insurer
s

manifestly capricious
defense
or

enoneous

actions

are

described

as

arbitrary good

and

when its willful refusal of is unreasonable
or

a

claim is not based

on a

faith

without

probable

cause

However where the

insurer has legitimate doubts about coverage

the insurer has the right to
to

litigate these questionable claims without being subjected

damages and
19 1 00 753

penalties

Calogero

v

Safeway

Ins

Co of La

99 1625

La

So 2d 170 173 After thorough review of the record in this matter the part of the trial court this Therefore the judgment
we

find

no enor on

appealed is

affirmed and

opinion

issued in accordance with Uniform Rules Courts of

Appeal

3

Rule 2
P Gros

2 16 A

2

5

6

and 8

Costs

are

assessed to the

appellant

Leo

AFFIRMED

4



Download 2006CA0312Dec2006.Not.10.pdf

Louisiana Law