Warren Dudenhefer v. Louisiana Citizens Property Insurance Corporation

WARREN DUDENHEFER * NO. 2019-CA-0387

VERSUS *
COURT OF APPEAL
LOUISIANA CITIZENS *
PROPERTY INSURANCE FOURTH CIRCUIT
CORPORATION, ET AL *
STATE OF LOUISIANA
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APPEAL FROM
ST. BERNARD 34TH JUDICIAL DISTRICT COURT
NO. 13-0977, DIVISION “E”
Honorable Jacques A. Sanborn, Judge
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Judge Roland L. Belsome
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(Court composed of Judge Roland L. Belsome, Judge Paula A. Brown, Judge
Tiffany G. Chase)

Michael C. Ginart, Jr.
Joyce D. Young
Nicholas N.S. Cusimano
John C. Ginart
LAW OFFICES OF MICHAEL C. GINART, JR. & ASSOCIATES
2114 Paris Road
Chalmette, LA 70043

COUNSEL FOR PLAINTIFF/APPELLEE

Paul A. Tabary, III
Elizabeth Borne
TABARY AND BORNE, LLC
Three Courthouse Square
Chalmette, LA 70043

COUNSEL FOR DEFENDANT/APPELLANT

AFFIRMED IN PART; AMENDED IN PART; REVERSED IN PART AND
RENDERED

SEPTEMBER 25, 2019

This appeal is taken from the trial court’s ruling in favor of the appellee,

Warren Dudenhefer, for damages caused to his property due to Hurricane Isaac.

Facts

Mr. Dudenhefer owns property located at 4601 Hopedale Hwy. in St.

Bernard, Louisiana. Louisiana Citizens Property Insurance Corporation

(“LCPIC”) issued a homeowner policy of insurance for the property with a

hurricane deductible of $14,008.00.

In August of 2012, Hurricane Isaac struck parts of Louisiana producing

excessive wind and rain. Mr. Dudenhefer’s property sustained extensive damage

as a result of those weather conditions. Following the hurricane, Mr. Dudenhefer

contacted LCPIC to initiate a claim. An adjuster was sent to Mr. Dudenhefer’s

property on September 4, 2012, to assess the damages and to estimate the loss.

After the adjuster inspected the property, Mr. Dudenhefer waited for a report

from LCPIC. During that time, he continued to send pictures of his damages and

repeatedly requested a written report. LCPIC denied his claim stating that the

covered damages did not exceed the deductible on the policy and other damages

were excluded. Mr. Dudenhefer filed suit against LCPIC to recover for his

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damages. In his petition he alleged that LCPIC was arbitrary and capricious in the

handling of his claim.

Procedural History

Following a bench trial, the original final judgment was rendered and signed

on May 23, 2018. Thereafter, in response to motions for new trial, additional

judgments were rendered on August 31, 2018, October 14, 2018, November 19,

2018, and December 6, 2018. The final judgment awarded Mr. Dudenheffer

$99,022.50, which was inclusive of general damages, penalties and attorney’s fees.

LCPIC filed this appeal challenging the trial court’s judgment.1

On appeal, LCPIC argues that the trial court erred in its award of damages

and penalties. 2

Damages

LCPIC maintains that its denial of the claim was based on the policy

provision excluding loss caused by water whether driven by wind or not, unless the

insured property first sustains actual damage by direct force of wind, and water

enters the property through openings made by direct action of the wind. LCPIC

asserts that Mr. Dudenhefer did not meet his burden of proof to overcome the

water damage exclusion. Therefore, the trial court erred in awarding damages

under the policy.

On appellate review, the trial court’s findings of fact are reviewed under a

manifest error clearly or clearly wrong standard. Hall v. Folger Coffee Co., 2003-

1734, p. 9 (La. 4/14/04), 874 So.2d 90, 98. Under that standard, this Court cannot

1
The judgment also included legal interest and court costs.
2
In Mr. Dudenhefer’s brief, he assigned as error the trial court’s failure to award 10% profit and
10% overhead in the judgment. However, he did not file an answer to the appeal. Accordingly,
Mr. Dudenhefer’s request for an increase in the judgment is not properly before this Court. See,
La. C.C.P. art. 2133(A).

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reweigh the evidence or substitute the factual findings to decide the case

differently. Id. Further, as factfinder, the trial court can accept or reject, in whole

or in part, any witness’s testimony including expert witnesses. Levine v. Allstate

Ins. Co., 2017-0896, p. 3 (La.App. 4 Cir. 4/18/18), 243 So.3d 1286, 1288.

The pertinent policy language relied upon by LCPIC states:

SECTION I- PERILS INSURED AGAINST

We insure for direct physical loss to the property described in Coverages A,
B and C caused by any of the following perils unless the loss is excluded
under Section I - Exclusions.
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2. Windstorm or Hail

This peril does not Include loss to the inside of a building or the property
contained in a building caused by rain, snow, sleet, sand or dust unless the
direct force of wind or hail damages the building causing an opening in a
roof or wall and the rain snow, sleet, sand or dust enters through this
opening.

Therefore, ‘“both wind-created openings and the passage of rain through those

openings into the damaged property are conditions precedent to recovery”’ under

the policy. Best v. State Farm Fire & Cas. Co., 2007-0573, p.5 (La. App. 4 Cir.

10/10/07), 969 So.2d 671, 675 (quoting Couch on Insurance 3d, §153:17). Further,

this Court has acknowledged that under these type of water damage exclusions, the

insured does not have to prove that the wind created a hole in the structure for the

water to enter. Id. Rather, the insured just needs to demonstrate that the wind

created an opening that allowed the water to enter. Id.

In this case, Mr. Dudenhefer contacted LCPIC shortly after the occurrence

of Hurricane Isaac, and an adjuster was assigned to evaluate the loss. The adjuster

inspected the property on September 4, 2012. Following the inspection, Mr.

Dudenhefer submitted additional pictures and an itemized list of his damages along

with estimates. When inquiring about the status of his claim, he was informed that

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LCPIC had mailed a report and notification of denial to the uninhabited Hopedale

address. Mr. Dudenhefer testified that he did not receive that correspondence.

Eventually, Mr. Dudenhefer received correspondence dated September 13,

September 19, and December 5, 2012. Those letters indicated that, based on the

field adjuster’s report and the wind driven rain exclusion, approximately $6,000.00

of damage were covered losses under the LCPIC policy. Since that amount did not

exceed the $14,008.00 hurricane deductible, LCPIC denied the claim.

To establish that their claims adjusting and denial of the vast majority of the

damage to the property was reasonable, LCPIC had a desk adjuster, Marsha Smith,

testify at trial. At trial, Ms. Smith reviewed and interpreted the report prepared by

the actual field adjuster, Shannon Donley. Ms. Smith explained that a third-party

administrator, Bankers Insurance Company, hired Mr. Donley’s employer, Elite

Claims Service, LLC to adjust the claim. Ms. Smith acknowledged that the report

submitted by Mr. Donley contained incorrect assessments as it related to alleged

flood water levels that caused damage on the second floor of the structure. The

policy excludes any damages due to flood. Mr. Donley’s report did identify

significant drywall, carpet, and floor damage caused by wind driven rain. The

report described points of entries for the wind driven water as being near windows

and doors. Yet, it was clear that there was no evaluation of the doors, windows, or

roof to indicate whether the hurricane had created any openings in these areas for

the rain to enter. The report was silent as to the condition of the doors, windows,

and roof.

The trial testimony of Mr. Dudenhefer’s experts described the extent of the

damages and their opinion on how the damage occurred. It was undisputed that the

bulk of the interior damage was caused by wind driven rain. Robert Allen Harris,

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Jr., an expert in civil engineering, and Roy J. Gross, III, an expert in Louisiana

residential and commercial construction testified as to how the wind driven rain

infiltrated the home. Mr. Harris testified that the property had succumbed to wind

pressure that created openings by the doors and the windows and on the roof which

allowed for wind driven rain to enter the dwelling. He concluded that the

structure had shifted based on the drywall cracking on both the walls and the

ceiling in vertical, horizontal, and diagonal paths. He also found it consistent with

what he described as a cyclical action of the wind, which occurs when wind speeds

increase and decrease.

Mr. Harris’ observations were further supported by Mr. Gross’ findings. He

testified that the wind had caused the windows to fail and he had also observed

areas where the flashing was compromised. He concluded that those conditions,

which were created by Hurricane Isaac, provided entry points for wind driven rain.

Mr. Gross assessed all the damage and estimated the repair cost would be

$50,092.00.

In contradiction to Mr. Dudenhefer’s experts, LCPIC’s expert, an engineer,

testified that the openings were probably caused by aging or ineffective caulking,

weather stripping, and thresholds that allowed the rain to enter the home.

After considering the evidence presented, the trial court found that

$40,414.00 in property damage, less the hurricane deductible, was covered under

the policy. Upon a review of the record, in its entirety, this Court cannot find that

the trial court was manifestly erroneous or clearly wrong in its award of damages

under the policy. That finding is affirmed.

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Turning to the penalties award, LCPIC supports its contention that the trial

court erred in awarding penalties under La. R.S. 22:1973(C) by arguing that it was

not arbitrary and capricious in its claims handling, because it had a valid policy

provision under which to deny and then challenge the claim. Alternatively, LCPIC

claims that the trial court committed legal error in its application of the statute’s

penalty provision.

Statutory interpretation is a legal issue. It is well settled that appellate

court’s review questions of law de novo giving “no special weight to the findings

of the trial court, but exercises its constitutional duty to review questions of law

and renders judgment on the record.” Banks v. New Orleans Police Dep’t, 2001-

0859, p. 3 (La. App. 4 Cir. 9/25/02), 829 So.2d 511, 514 (citations omitted). La.

R.S. 22:1973 reads in pertinent part:

A. An insurer, including but not limited to a foreign line and surplus line
insurer, owes to his insured a duty of good faith and fair dealing. The insurer
has an affirmative duty to adjust claims fairly and promptly and to make a
reasonable effort to settle claims with the insured or the claimant, or both.
Any insurer who breaches these duties shall be liable for any damages
sustained as a result of the breach.

B. Any one of the following acts, if knowingly committed or performed by
an insurer, constitutes a breach of the insurer's duties imposed in Subsection
A of this Section:

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(5) Failing to pay the amount of any claim due any person insured by the
contract within sixty days after receipt of satisfactory proof of loss from the
claimant when such failure is arbitrary, capricious, or without probable
cause.
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C. In addition to any general or special damages to which a claimant is
entitled for breach of the imposed duty, the claimant may be awarded
penalties assessed against the insurer in an amount not to exceed two times
the damages sustained or five thousand dollars, whichever is greater. Such
penalties, if awarded, shall not be used by the insurer in computing either

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past or prospective loss experience for the purpose of setting rates or making
rate filings.

La. R.S. 22:1973.

Arbitrary and Capricious

Louisiana jurisprudence has established that in order for an insured to be

entitled to penalties and attorney fees for bad faith claims handling, the insured

must prove: 1) the insurer received satisfactory proof of loss; (2) the insurer failed

to pay the claim within the applicable statutory period; and, (3) the insurer’s failure

to pay was arbitrary, capricious and without probable cause. Aghighi v. Louisana

Citizens Property Ins. Corp., 2012-1096, p. 4 (La.App. 4 Cir. 6/19/13), 119 So.3d

930, 933 (citing Louisiana Bag Co., Inc. v. Audubon Indem. Co., 2008-0453, pp.

11-12 (La. 12/2/08), 999 So.2d 1104, 1112-13). An insurer’s actions are found to

be arbitrary, capricious, or without probable cause when it’s refusal to pay is

unjustified. See Sher v. Lafayette Ins. Co., 2007-2441, p. 27 (La. 4/8/08), 988

So.2d 186, 206. In order to establish that the insurer acted in an arbitrary and

capricious manner, the insured must first prove that satisfactory proof of loss was

provided. Iteld v. Four Corners Const., L.P., 2013-0692, p. 16 (La. App. 4 Cir.

1/30/14), 133 So.3d 312, 322. There is no requirement that the proof of loss needs

to be in any particular format, but it must consist of sufficient facts which fully

apprise the insurer of the extent of the damages sought. Louisiana Bag Co., 2008-

0453, p.16, 999 So.2d at 1115.

As previously discussed, this is a claim that was intricately documented by

Mr. Dudenhefer beginning in September of 2012. Unfortunately, the insurer failed

to exhibit the same diligence in the claims process. The initial report relied upon

by LCPIC was woefully undeveloped, inaccurate in some respects, and lacking in

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crucial details. Relying on that report, which was created by a third-party’s

contract employee, LCPIC denied any coverage outside of the $14,008.00

deductible for approximately six (6) years.

On the stand, Mr. Dudenhefer expressed the frustration and mental anguish

he experienced during the six (6) year period that he had been trying to have his

claim properly adjusted. He suffered loss of use, financial burdens, and the

inconvenience of having to live in a storm damaged dwelling. The evidence

established that it was some time before he was able to return to his home. When

he did return he had cracked walls, water stains, and cabinetry that was rotting.

The evidence further showed that he had to do repairs on his own and pay for other

repairs in order to continue living in the home and to mitigate further damage.

Based on the evidence presented at trial, the trial court found that LCPIC

breached their contractual duty to Mr. Dudenhefer and acted arbitrary and

capricious in denying his claim for such an extended period after repeatedly being

presented with adequate proof of loss. This Court finds the record in this case

supports the trial court’s factual findings on LCIP’s conduct. That finding will not

be disturbed on appeal.

La. R.S. 22:1973(C) Penalties

Because the trial court found that LCPIC was arbitrary and capricious in its

claims adjusting, the judgment awarded penalties under La. R.S. 22:1973(C). In

the trial court’s original judgment, penalties were awarded in the amount of

$25,000.00. Mr. Dudenhefer filed a motion for new trial seeking an amended

judgment that would correctly reflect the general damages and penalties pursuant

to La. R.S. 22:1973(C), together with an award of attorney’s fees under La. R.S.

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1983.3 Thereafter, the trial court issued an amended judgment awarding a total of

$99,020.50, “inclusive of general damages, penalties and attorney’s fees.” The

judgment allotted $52,812.00 to “penalties under La. R.S. 22:1973(C)” and

$19,804.50 for attorney’s fees.4 LCPIC’s appeal maintains that no penalties are

due, but if penalties were warranted, the trial court’s calculation was legally

incorrect.

The Louisiana Supreme Court, in Durio v. Horace Mann Ins. Co., 2011-

0084 (La. 10/25/11), 74 So.3d 1159, has clearly enunciated the proper method to

calculate penalties under La. R.S. 22:1973. When discussing the penalty provision

of the statute, the Durio court stated that a proper interpretation “mandates a

finding that contractual damages due or awarded under the insurance contract

should not be used to calculate penalties under the statute.” Id. 2011-0084, p. 18,

74 So.3d at 1171. Instead, “penalties are calculated by doubling the amount of

damages attributable to the insurer’s breach of duties imposed under the statute.”

Id.

In this case, the trial court’s penalties, pursuant to La. R.S. 22:1973, were

precisely two times the damages awarded under the insurance policy ($26,406.00 x

2 = $52,812.00). It is clear that the trial court erroneously used the contractual

damages to calculate the penalties. For that reason, we find that the trial court

incorrectly interpreted the statute when calculating the penalties awarded to Mr.

Dudenhefer.

It is a legal error when a trial court applies the incorrect principles of law

and such errors are prejudicial. Moore v. Dept. of Police, 2006-1217, p. 3 (La.App.

3
The motion for new trial also sought an increase in contractual damages to include 10%
overhead and 10% profit. That request was denied.
4
Attorney’s fees were calculated at 25% of the total award.

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4 Cir. 1/17/07), 950 So.2d 96, 98. When an error of law occurs, the appellate court

is required to render judgment on the record by applying the correct law and

determining the essential material facts de novo.

In affirming the trial court’s finding that LCPIC was arbitrary and capricious

in its claims handling, this Court finds that penalties are warranted under La. R.S.

22:1973(C). In adherence to Durio, we must first determine if there were general

or special damages sustained by Mr. Dudenhefer due to LCPIC’s breach of its

claims handling duties. Weighing the entirety of the record, especially Mr.

Dudenhefer’s account of his claims adjusting experience, this case supports an

award of $12,500.00 in general damages for his mental anguish, aggravation, and

inconvenience. Further, in accordance with La. R.S. 22:1973(C), we find the

penalties due Mr. Dudenhefer are $25,000.00, two (2) times his general damages.

Since our rendering of judgment reduces the total award Mr. Dudenhefer is entitled

to, the award of attorney’s fees must be adjusted to $15,976.50.5

Conclusion

To summarize, the trial court’s judgment is affirmed as to $40,414.00 in

policy covered damages, subject to the $14,008.00 deductible. Further, the

judgment is amended to correctly reflect attorney’s fees, and reversed as to

penalties. This Court renders judgment on general damages in the amount of

$12,500.00, penalties of $25,000.00, and attorney’s fees in the amount of

$15,976.50.

AFFIRMED IN PART; AMENDED IN PART; REVERSED IN PART AND
RENDERED

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The total amount of damages awarded by this Court is $63,906.00. This Court relied on the
trial court’s determination that the case warranted attorney’s fees of twenty-five percent (25%) of
the total judgment, which amounts to $15,976.50.

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