In a pair of cases decided on June 2, 2010, the Third Circuit Court of Appeal of Louisiana issued two remarkably similar decisions on totally different facts with entirely different results. In one case, a Policyholder's appeal was rejected in short order. In the other case, the Insurance Company's appeal was also rejected and the Insurance Company was ordered by the Appellate Court to pay all appellate costs to boot.
In Hope-Kidd v. Stewart, Download Hope-Kidd v. Stewart (La. Ct. App. 3d Cir. Case No. 10-141, Opinion Filed June 2, 2010) also published as 2010 WL 2178936 (La. Ct. App. 3d Cir. June 2, 2010)(Westlaw subscription required to access Westlaw; stated not released for permanent publication and until then subject to revision or withdrawal), a Trial Court's refusal to assess Statutory Penalties was affirmed. In that case the record facts displayed that the Uninsured/Underinsured Motorist Insurance Company did not "fail to pay a settlement within thirty days after an agreement is reduced to writing" within the meaning of Louisiana Revised Statutes § 22:1973(B)(2). The Appellate Court reviewed the record in reaching its decision, because all such determinations are questions of fact, the Court held. This is the Court's summary of what the record facts showed on this issue:
The facts show that Allstate paid 97% of Ms. Hope-Kidd's settlement funds within thirty days of the settlement being reduced to writing and that counsel for Allstate remitted the interest to Ms. Hope-Kidd within twenty-four hours after being notified that approximately $600.00 in interest was not included in the funds paid. Under these circumstances, we cannot say that the trial court abused its discretion in refusing to award Ms. Hope-Kidd penalties against Allstate.
Hope-Kidd v. Stewart, 2010 WL 2178936 at *2.
In the other case of this pair of cases decided on June 2nd, the same Louisiana Appellate Court (and a different panel of three Appellate Judges) reviewed the facts in the record of another appeal. A similar Good Faith-Bad Faith statutory penalties issue was presented, involving an allegedly late payment of an Uninsured/Underinsured Motorist Claim. Penalties were sought under Louisiana Revised Statutes § 22:1973(B)(5), for allegedly "failing to pay the amount of any claim due any person insured under the contract within sixty days after receipt of satisfactory proof of loss ...." The Louisiana Appellate Court again affirmed, this time affirming a Trial Court's assessment of penalties: Hudson v. AIG National Insurance Co., Download Hudson v. AIG National Insurance Co. (La. Ct. App. 3d Cir. Case No. 10-63, Opinon Filed June 2, 2010) also published as 2010 WL 2178803 (La. Ct. App. 3d Cir. June 2, 2010(Westlaw subscription required to access Westlaw; stated not released for permanent publication and until then subject to revision or withdrawal).
Again the Louisiana Appellate Court reviewed the record facts on which this Trial Court assessment of statutory penalties was based, and the Appellate Court found these facts in that record:
The trial court found that “satisfactory proof of loss” was received by AIG on December 9, 2008. AIG contends that this finding was in error. AIG bases its contention that there was not “satisfactory proof of loss” on December 9, 2008, on the fact that Hudson had not yet given it her recorded statement as required by the contract between them. While AIG is correct that the language of the policy between it and Hudson necessitated that Hudson give AIG her recorded statement, Hudson's lack of cooperation in this regard does not prohibit her from proving that AIG received “satisfactory proof of loss” without that statement.
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It is not disputed that AIG did not make an unconditional tender to Hudson until May 21, 2009. This is well in excess of the threshold “within sixty days after receipt of satisfactory proof of loss” as stated in La.R.S. 22:1973(B)(5).
Hudson v. AIG National Insurance Co., 2010 WL 2178803 at *4, *6. [Emphasis added.]
Express statutory Insurance Bad Faith causes of action like those at issue in the two Louisiana cases are examined from across the country in Section 9:14 of Dennis J. Wall, Litigation and Prevention of Insurer Bad Faith" (Shepard's/McGraw-Hill First Edition; West Publishing Company Second Edition and 2010 Supplement in process).
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