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PATRICK JOUVE AND ELIZABETH JOUVE VERSUS

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NO. 2010-CA-1522

COURT OF APPEAL * FOURTH CIRCUIT * STATE OF LOUISIANA *******

STATE FARM FIRE AND CASUALTY COMPANY, CARL W. MIXON AND MICHAIL WHITTLE

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2006-9445, DIVISION "K-5" HONORABLE HERBERT A. CADE, JUDGE ****** JUDGE MICHAEL E. KIRBY ****** (COURT COMPOSED OF JUDGE MICHAEL E. KIRBY, JUDGE EDWIN A. LOMBARD, JUDGE DANIEL L. DYSART)

JOSEPH S. PIACUN REID S. UZEE GENNUSA PIACUN & RULI 4405 NORTH I-10 SERVICE ROAD SUITE 200 METAIRIE, LA 70006--6564 COUNSEL FOR PLAINTIFFS/APPELLANTS

WM. RYAN ACOMB MICHELE L. TROWBRIDGE PORTEOUS HAINKEL & JOHNSON, LLP 704 CARONDELET STREET NEW ORLEANS, LA 70130-3774 COUNSEL FOR DEFENDANT/APPELLEE (STATE FARM FIRE AND CASUALTY COMPANY)

AMENDED AND AFFIRMED

This matter involves a disputed claim under a homeowners insurance policy for property damage that occurred during Hurricane Katrina. Plaintiffs, Patrick

and Elizabeth Jouve ("plaintiffs"), appeal the parts of the April 7, 2010 trial court judgment in favor of defendant, State Farm Fire and Casualty Company ("State Farm"), which granted a motion in limine to exclude the testimony and report of plaintiffs expert, A. Vincent Caracci; summarily dismissed plaintiffs bad faith claims against State Farm; and limited plaintiffs recovery to the actual cash value at the time of the loss of the wind damaged part of their property. Plaintiffs also appeal from the June 30, 2010 trial court judgment that denied their motion for new trial. For the reasons that follow, we affirm. In August 2005, plaintiffs owned a house located at 3822 Octavia Street in New Orleans, which was insured under two separate insurance policies: (1) a flood insurance policy issued under the National Flood Insurance Program ("NFIP"); and, (2) a homeowners policy issued by State Farm, which provided coverage in the amount of $151,400.00 for dwelling; $15,140.00 for dwelling

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extension; $113,550.00 for contents; and actual loss sustained for loss of use. On August 29, 2005, Hurricane Katrina hit Louisiana, causing levee breaches that resulted in flooding throughout the New Orleans area. As a result, plaintiffs Octavia Street home sustained catastrophic damages. Plaintiffs filed a flood claim with the NFIP, and were paid $145,000.00 for building loss under the flood policy.1 They also filed a property damage claim with State Farm under their homeowners policy. After adjusting the claim, State Farm paid plaintiffs $41,346.89 for wind- related damages under the homeowners policy. On August 26, 2006, plaintiffs filed a petition in the district court alleging that State Farm arbitrarily and capriciously failed to properly adjust their claim and pay the full amount due under their homeowners policy. 2 They allege that State Farm acted in bad faith and failed to timely satisfy the claim after receiving satisfactory proof of loss, entitling them to statutory penalties and attorney fees and costs pursuant to La. R.S. 22:6583 and La. R.S. 22:12204. State Farm answered the petition, and discovery commenced.

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Plaintiffs received two checks from the NFIP for their building loss: the first dated December 12, 2005 in the amount of $113,761.30 and the second dated June 12, 20006 in the amount of $31, 238.70. In addition to their building loss, plaintiffs received two payments, totaling $15,000.00, for contents loss under their flood policy. 2 In addition to State Farm, the plaintiffs sued Carl Mixon, their State Farm agent, and Michael Whittle, the State Farm claims adjuster, but subsequently dismissed their claims against them. 3 The version of La. R.S. 22:658 in effect at the time that plaintiffs property was damaged and when the claim was filed with State Farm provided for a twenty-five percent (25%) penalty in cases involving an insurers failure to make payment within thirty days of receiving satisfactory written proof of loss. The statute was amended by Acts 2006, No. 813,

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