Calvin Guidry and Denise Guidry v. USAgencies Casualty Insurance Company, Inc., Patricia Mousseau, Glenn Mousseau, Venture Transport Logistics, L.L.C. and Zurich American Insurance Company

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT
U

NO. 2019 CA 0602

CALVIN GUIDRY AND DENISE GUIDRY

VERSUS

USAGENCIES CASUALTY INSURANCE COMPANY, INC.,
PATRICIA MOUSSEAU, GLENN MOUSSEAU, VENTURE
TRANSPORT LOGISTICS, L.L.C., AND ZURICH AMERICAN
INSURANCE COMPANY

Judgment Rendered: DEC 2 7 2019

On Appeal from the
17th Judicial District Court
In and for the Parish of Lafourche
State of Louisiana
Trial Court No. 106901

Honorable Christopher J. Boudreaux, Judge Presiding

J. Patrick Connick Attorney for Plaintiffs -Appellants,
Marrero, LA Calvin Guidry and Denise Guidry

Leigh Ann Schell Attorneys for Defendant -Appellee,
Alexandra Roselli Hudson Insurance Company
Edwin C. Laizer
Christopher A. D' Amour
New Orleans, LA

BEFORE: HIGGINBOTHAM, PENZATO, AND LANIER, JJ.

HIGGINBOTHAM, J.

In this suit against an uninsured/ underinsured motorist (UM) insurer, Hudson

Insurance Company, the plaintiffs, Calvin Guidry and his wife, Denise Guidry,

appeal a judgment in their favor. The Guidrys are seeking an additional award for

penalties and attorney fees due to Hudson' s alleged bad faith in handling their claim.

FACTUAL AND PROCEDURAL HISTORY

This case has a long thirteen -year history that began on July 14, 2006, when

the Guidrys were involved in a motor vehicle accident on Highway 90 in Lafourche

Parish. At the time of the accident, the Guidrys were transport " hotshot" delivery

drivers for Venture Transport Logistics, LLC, and they were returning from a

delivery made in their leased pickup truck. Mr. Guidry was driving and Mrs. Guidry

was riding in the passenger seat; she sustained head and whiplash and concussion -

type injuries in the accident, immediately feeling dazed and confused, pain in her

neck, right shoulder, knee, and head. The Guidrys filed suit for personal injury

damages on July 12, 2007, against numerous defendants, including the other driver,

Patricia Mousseau, her husband, Glenn Mousseau, and their liability insurer,

USAgencies Casualty Insurance Company, Inc. The Guidrys also sued Venture and

its trucking liability insurer, Zurich American Insurance Company.

In August 2008, the Guidrys settled and dismissed their claims against the

Mousseaus and USAgencies, reserving their rights to pursue claims against other

parties and to continue to litigate their claims against Venture and Zurich. On

December 11, 2009, the Guidrys amended their petition to assert a UM claim against

Hudson, the insurer from whom Venture' s required " bobtail" personal coverage for

the Guidrys' leased truck was obtained. The Guidrys amended their petition against

Hudson primarily because Mrs. Guidry was still experiencing headaches and neck

pain three years after the accident. Unrelated to the 2006 accident, however, Mrs.

Guidry sustained a back injury approximately one month before Hudson was

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brought into the litigation. Mrs. Guidry suffered a second unrelated back injury a

few months later in early 2010, which necessitated back surgery in March 2010.

Mrs. Guidry was not able to return to work after her back surgery.

In December 2010, Hudson moved for summary judgment, maintaining that

the Hudson policy did not provide coverage to the Guidrys, because they were acting

in " the business of their employment with Venture at the time of the accident and

therefore, Hudson argued that Zurich' s liability policy was primary. The trial court

denied Hudson' s motion on February 24, 2011, noting that Hudson' s policy

exclusion did not apply. This court denied supervisory review. Guidry v.

USAgencies, 2011- 0764 ( La. App. 1st Cir. 10/ 14/ 11) ( unpublished writ action).

Thereafter, on December 22, 2011, even though the parties had very differing views

on the extent and duration of Mrs. Guidry' s injuries and whether they were all related

to the 2006 accident, Hudson unconditionally tendered the undisputed amount of

100, 000. 00 to the Guidrys, who had demanded Hudson' s $ 1, 000, 000.00 policy

limits. The unconditional tender was documented and pursuant to discussions

between counsel. In March 2012, Venture and Zurich moved for summary

judgment, seeking dismissal of all of the Guidrys' claims against them and arguing

that the Hudson UM policy provided the primary coverage for the Guidrys'

damages. The trial court granted summary judgment in favor of Venture and Zurich

on October 23, 2012. No appeal was taken from that final judgment.

The Guidrys then amended their petition again, to add claims against Hudson

for bad faith damages and penalties. In January 2013, Hudson filed a motion for

partial summary judgment, seeking dismissal of the bad faith claims. That motion

was granted; however, this court reversed and the Louisiana Supreme Court denied

supervisory review. Guidry v. USAgencies, 2013- 0780 ( La. App. 1st Cir. 8/ 29/ 13)

unpublished writ action), writ denied, 2013- 2317 ( La. 12/ 2/ 13), 126 So. 3d 1288.

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In February 2014, Hudson filed an exception raising the objection of

prescription, asserting that regardless of UM coverage under its policy, the Guidrys'

claims against Hudson had prescribed. Hudson maintained that the Guidrys' suit

against the Mousseaus and USAgencies could not serve to interrupt prescription as

to Hudson, because the Guidrys had voluntarily dismissed those defendants.

Additionally, Hudson argued that the Guidrys' suit against Venture and Zurich did

not interrupt prescription against it since the trial court had found that neither

Venture nor Zurich furnished UM coverage to the Guidrys, which meant that neither

Venture nor Zurich were solidary obligors with Hudson. The trial court denied

Hudson' s prescription exception and this court denied Hudson' s writ application.

Guidry v. USAgencies, 2014- 1348 ( La. App. 1st Cir. 12/ 23/ 14) ( unpublished writ

action).

A year later, in February 2015, Hudson filed yet another motion for summary

judgment, again asserting no UM coverage based upon new facts and evidence that

had been discovered revealing that the Guidrys were in fact in the business of

Venture at the time of the accident and thus, the Zurich policy actually afforded

coverage for the Guidrys' claims. The Guidrys filed an opposition and cross- motion

for summary judgment to preclude further litigation of coverage issues. The trial

court eventually denied Hudson' s motion, granted the Guidrys' motion, and ordered

Hudson to provide UM coverage. That judgment was signed on February 10, 2016.

Hudson appealed the summary judgment ruling, partially arguing that the Guidrys'

claims against Hudson were prescribed. In another appeal heard by a different panel,

this court affirmed the trial court' s judgment ruling that Hudson' s policy provided

UM coverage to the Guidrys and additionally finding no merit to Hudson' s argument

that the Guidrys' UM claims are prescribed. Guidry v. USAgencies, 2016- 0562

La. App. 1st Cir. 2/ 16/ 17), 213 So. 3d 406, 422, writ denied, 2017- 0601 ( La.

5/ 26/ 17), 221 So. 3d 81. When the supreme court denied Hudson' s application for

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supervisory review as to the prescription issue on May 26, 2017, Hudson

unconditionally tendered another undisputed amount of $200, 000.00 to the Guidrys

on June 23, 2017, even though the parties continued to contest the duration and cause

of Mrs. Guidry' s injuries and her extensive medical treatment.

The matter proceeded to a jury trial on the merits of damages and bad faith

held on July 30 to August 8, 2018. 1 During the eight-day trial, the jury heard

evidence that Mrs. Guidry was initially treated for concussion and whiplash/ soft-

tissue type injuries involving her neck, shoulder, and head after the 2006 accident.

Shortly after the accident, Mrs. Guidry continued to suffer from daily headaches,

and she continued to receive medical treatment for neck and head pain between 2006

and the time of trial. Mrs. Guidry was also treated for severe depression, anxiety,

and insomnia related to her debilitating headaches. The medical treatment consisted

of multiple facet joint injections, trigger point injections, cervical epidural steroid

injections, nerve block injections, and botox injections in her neck and head, and in

2012, she ultimately opted to have a controversial occipital nerve stimulator placed

in her head in an attempt to alleviate her headaches. Unfortunately, none of the

treatments ever completely resolved Mrs. Guidry' s headaches.

The jury also heard that in November 2009, Mrs. Guidry suffered an unrelated

back injury and a second unrelated back injury in February 2010. It was at that point,

that Mrs. Guidry was no longer able to continue working at her clerical position and

she had the first of three back surgeries, all of which failed. The jury heard evidence

that Mrs. Guidry' s medical condition continued to drastically decline after the

unrelated back injuries and failed back surgeries. Eventually, she successfully

applied for and received disability benefits. Mrs. Guidry continued to see many

doctors for her back pain and daily headaches up until the time of trial. In 2013, she

Before trial, Hudson filed a motion to bifurcate the issues of bad faith and damages, primarily to
avoid jury confusion. The Guidrys opposed bifurcation, and the trial court denied the motion.
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was hospitalized several times for complications due to taking multiple prescription

medications.

Almost all of Mrs. Guidry' s treating physicians testified at trial live or by

deposition. Prior to the trial on the merits, several doctors had expressed concern

that some of Mrs. Guidry' s ongoing medical problems were related to

overmedication issues. The jury heard the overmedication concerns from several of

Mrs. Guidry' s own treating physicians, as well as Hudson' s single medical witness.

The jury also heard testimony from Hudson' s corporate representative that Hudson' s

position was that Mrs. Guidry' s medical records and the Guidrys' demands revealed

that her injuries from the 2006 accident did not include her back injuries and

surgeries. However, the jury also heard testimony from some doctors that related all

of her problems to the 2006 accident, and that Mrs. Guidry is not the same person

she was before the 2006 accident.

At the end of the trial, the jury awarded the Guidrys a total of $2, 014, 500. 00

in damages, but denied the Guidrys' bad faith claims against Hudson. The trial court

signed a judgment in accordance with the jury verdict on October 5, 2018. The final

judgment reflected that Hudson had unconditionally tendered the remaining balance

of its $ 1, 000, 000. 00 policy limit, less the pre- trial unconditional tenders totaling

300, 000. 00, plus prejudgment interest. The Guidrys moved for a judgment

notwithstanding the jury' s verdict ( JNOV), or in the alternative a motion for new

trial on the bad faith issues. The trial court denied both the JNOV and motion for

new trial on November 30, 2018. The Guidrys appealed both judgments. On appeal,

the Guidrys assert that the jury manifestly erred in not finding that Hudson acted

arbitrarily, capriciously, and without probable cause in failing to timely pay the

Guidrys' claims after receiving satisfactory proof of loss. Additionally, the Guidrys

claim that Hudson' s actions constituted a breach of its duty of good faith and fair

dealing. The Guidrys further argue that the trial court abused its discretion in not

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granting a JNOV or new trial on the bad faith issue, as well as the exclusion of

evidence concerning Hudson' s alleged collusion with third parties. 2

LAW AND ARGUMENT

Standard of Review

It is well- settled that an appellate court may not disturb a jury' s factual

findings in the absence of manifest error. Rosell v. ESCO, 549 So. 2d 840, 844 ( La.

1989). On review, the appellate court does not decide whether the jury was right or

wrong; rather it must consider the entire record to determine whether a reasonable

factual basis exists for the finding, and whether the finding is manifestly erroneous

or clearly wrong. Stobart v. State through Dept. of Transp. and Development,

617 So. 2d 880, 882 ( La. 1993). Reasonable evaluations of credibility and inferences

of fact should not be disturbed, even if the appellate court feels that its own

evaluations and inferences are as reasonable. Rosell, 549 So. 2d at 844. Thus, where

there are two permissible views of the evidence, the jury' s choice between them

cannot be manifestly erroneous or clearly wrong. Id. In conducting its review, the

appellate court must be cautious not to re -weigh the evidence or substitute its own

factual findings just because it would have decided the case differently. Guillory v.

Lee, 2009- 0075 ( La. 6/ 26/ 09), 16 So. 3d 1104, 1117.

Bad Faith Claim

In their first two assignments of error, the Guidrys assert that the jury

committed manifest error in failing to award penalties and attorney fees based upon

Hudson' s alleged failure to make a good faith unconditional tender under the UM

2 The collusion issue is also the subject of Hudson' s pending motion to strike certain portions of
the Guidrys' appellate brief. Hudson contends that the Guidrys have urged unfounded arguments
regarding Hudson' s counsel obtaining information from Venture to use in Hudson' s coverage
defense. Conversely, the Guidrys aver that the trial court improperly excluded collusion evidence
for presentation to the jury that was relevant to Hudson' s bad faith handling of the UM claim. The
Guidrys proffered the excluded evidence. We have reviewed the briefs and the entire record from
the previous appeal and this appeal, as well as the proffered evidence, and we conclude that the
Guidrys have sufficiently tied the collusion argument to the bad faith issue. For this reason,

Hudson' s motion to strike is hereby denied.
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policy. Louisiana Revised Statutes 22: 1892( A)( 1) and ( B)( 1) subject an insurer,

when it is arbitrary or capricious in failing to unconditionally tender the undisputed

amount within thirty days of satisfactory proof of loss, to the mandatory imposition

of penalties and attorney fees for the collection of such amount. Griffin v. State

Farm Mut. Auto. Ins. Co., 2015- 0025 ( La. App. 1st Cir. 9/ 18/ 15), 2015 WL

55152351 * 3 ( unpublished), writ denied, 2015- 2187 ( La. 1/ 25/ 16), 185 So. 3d 750.

Additionally, La. R.S. 22: 1973 imposes an obligation of good faith and fair dealing

on an insurer, including the affirmative duty to adjust claims fairly and promptly and

to make a reasonable effort to settle claims with the insured. An insurer may be

subject to penalties if the insurer fails to pay a claim due an insured within sixty days

of receiving satisfactory proof of loss when such failure is arbitrary, capricious, or

without probable cause. The prohibited conduct in each statute is virtually identical,

with the primary difference being the time periods allowed for payment. Reed v.

State Farm Mut. Auto. Ins. Co., 2003- 0107 ( La. 10/ 21/ 03), 857 So. 2d 1012, 1020.

Both statutes are penal in nature and must be strictly construed. Id.

One who claims entitlement to penalties and attorney fees has the burden of

proving the insurer received satisfactory proof of loss as a predicate to a showing

that the insurer was arbitrary, capricious, or without probable cause. Reed, 857

So. 2d at 1020. A " satisfactory proof of loss" is that which is sufficient to fully

apprise the insurer of the insured' s claim. Louisiana Bag Co., Inc. v. Audubon

Indem. Co., 2008- 0453 ( La. 12/ 2/ 08), 999 So. 2d 1104, 1119; WWI v. Utica Mut.

Ins. Co., 475 So. 2d 1085, 1089 ( La. 1985). To establish a " satisfactory proof of

loss," the insured must show that the insurer received sufficient facts which fully

apprise the insurer that ( 1) the owner or operator of the other vehicle involved in the

accident was uninsured or underinsured, ( 2) that he was at fault, ( 3) that such fault

gave rise to damages, and ( 4) establish the extent of those damages. McDill, 475

So. 2d at 1089. The sanctions of penalties and attorney fees are not assessed unless

a plaintiff' s proof is clear that the insurer was in fact arbitrary, capricious, or without

probable cause in refusing to pay. Reed, 857 So. 2d at 1021. The phrase " arbitrary,

capricious, or without probable cause" is synonymous with " vexatious," and a

vexatious refusal to pay" means " unjustified, without reasonable or probable cause

or excuse." Louisiana Bag, 999 So. 2d at 1114.

An insurer' s conduct depends on the facts known to the insurer or the time of

its action. Penalties should not be assessed when the insurer has a reasonable basis

to defend the claim and acts in good -faith reliance on that defense. Louisiana Bag,

999 So. 2d at 1114. Especially when there is a reasonable and legitimate question as

to the extent and causation of a claim, bad faith should not be inferred from an

insurer' s failure to pay within the statutory time limits when such reasonable doubts

exist. Reed, 857 So.2d at 1021. In those instances where there are substantial,

reasonable, and legitimate questions as to the extent of an insurer' s liability or an

insured' s loss, failure to pay within the statutory time period is not arbitrary,

capricious or without probable cause. Louisiana Bag, 999 So. 2d at 1114. Because

the question of what the insurer knew at the time of its alleged arbitrary and

capricious action/behavior is essentially a factual issue, the jury' s or trial court' s

finding should not be disturbed on appeal absent manifest error. Louisiana Bag,

999 So. 2d at 1120; Reed, 857 So. 2d at 1021.

Hudson contends that the Guidrys did not provide satisfactory proof of the

extent and duration of Mrs. Guidry' s injuries/ loss connected specifically to the 2006

accident. Our review of the record reveals that, at the time that the Guidrys asserted

a UM claim against Hudson in December 2009, Mrs. Guidry had just sustained her

first back injury one month prior to making that UM claim. Two months after

bringing the UM claim against Hudson, Mrs. Guidry sustained a second back injury

and soon underwent the first of three failed back surgeries. Mrs. Guidry eventually

returned to work after the 2006 accident, and worked up until the time of her first

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back surgery in 2010. Thus, Hudson maintains that it had a reasonable basis to

conclude that Mrs. Guidry' s back injuries and surgeries, along with her lost wages

claim, were not related to the 2006 accident. In addition, Hudson points out that it

was vigorously litigating the question of insurance coverage and prescription after it

was first brought into the lawsuit. The Guidrys made demand for $ 1. 1 million

dollars, an amount that was in excess of Hudson' s policy limits. The various

demands of the Guidrys fluctuated, with the amount of past medical expenses

sometimes including the treatment for Mrs. Guidry' s back injuries and sometimes

not including those expenses. Consequently, Hudson constantly questioned the

duration and extent, as well as causation, of all of Mrs. Guidry' s injuries. Eventually,

counsel for the Guidrys requested that Hudson make an unconditional good faith

tender, and Hudson tendered $ 100, 000.00 before the trial court made any ruling

involving the coverage issue.

After the coverage issue was resolved against Hudson, and Venture and

Zurich were both dismissed from the litigation, the Guidrys added bad faith claims

against Hudson. The trial court granted Hudson' s summary judgment dismissal of

the bad faith claims, but this court overturned that judgment in August 2013. In

October 2013, Mrs. Guidry was hospitalized several times for apparent

complications of medication overuse and/ or interactions. At this point in time, Mrs.

Guidry was taking high doses of pain medicines daily for her back pain and daily

headaches, along with other medications for anxiety and depression. Her cognitive

functioning was declining. Some doctors reported that Mrs. Guidry' s cognitive

difficulties and constant headaches were due to overmedication. Other doctors

related all of Mrs. Guidry' s problems to her initial head and neck injuries from the

2006 accident. Hudson eventually made another unconditional tender of

200, 000.00 to the Guidrys in June 2017, within thirty days of the supreme court' s

denial of supervisory review of the coverage and prescription issues.

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While the Guidrys make much of the timing of the second unconditional

tender being close in time to the supreme court ruling, Hudson contends that the

more critical component of its assessment of Mrs. Guidry' s loss was the evaluation

of what injuries were related to the 2006 accident and the extent and duration of

those injuries. Hudson also contests that Mrs. Guidry' s lost -wages claim was not

reasonably related to the 2006 accident, but rather was a factor only after Mrs.

Guidry' s unrelated back injuries occurred. Considering all of the evidence presented

to the jury in connection with the bad faith claim, we find that the jury did not

commit manifest error in finding that Hudson had not acted arbitrarily or

capriciously in handling the Guidrys' UM claim or in the timing or amount of the

unconditional tenders of the undisputed amounts due. The record reasonably

supports the determination that Hudson had substantial, reasonable, and legitimate

questions as to the extent of its liability and causation of the Guidrys' losses. Hudson

possessed a good faith defense that there was a reasonable dispute concerning the

extent and causation of the Guidrys' losses arising out of the 2006 accident, and its

decision to tender only undisputed amounts of the UM claim were not solely tied to

a dispute over the coverage and prescription issues. See Guillory, 16 So -3d at 1127;

Louisiana Bag, 999 So. 2d at 1117. Accordingly, we find that the jury could have

reasonably concluded that Hudson was justified in relying on this good -faith belief

in defending the claim, and the jury did not err in denying recovery for penalties and

attorney fees under La. R.S. 22: 1892 and La. R.S. 22: 1973.

Motions for JNOV or alternatively New Trial

The Guidrys' third and fourth assignments of error assert that the trial court

abused its discretion in failing to grant a JNOV or new trial on the bad faith issue.

In ruling on a JNOV under La. Code Civ. P. art. 1811, the trial court is required to

employ the following legal standard: A JNOV should be granted only if the trial

court, after considering the evidence in the light most favorable to the party opposed

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to the motion finds it points so strongly and overwhelmingly in favor of the moving

party, that reasonable persons could not arrive at a contrary verdict on that issue.

See Davis v. Wal- Mart Stores, Inc., 2000- 0445 ( La. 11/ 28/ 00), 774 So. 2d 84, 89;

Broussard v. Stack, 95- 2508 ( La. App. 1 st Cir. 9/ 27/ 96), 680 So. 2d 771, 779- 780.

In applying this standard, the trial court cannot weigh the evidence, pass on the

credibility of witnesses, or substitute its judgment of the facts for that of the jury.

Broussard, 680 So. 2d at 780. If there is substantial evidence opposed to the motion

of such quality and weight that reasonable and fair-minded people in the exercise of

impartial judgment might reach different conclusions, the motion for JNOV must be

denied. Id. Thus, in reviewing a JNOV ruling, the appellate court must first

determine if the trial court erred in granting or denying the JNOV using the outlined

criteria. Then the appellate court must determine if the trial court' s findings in

rendering the JNOV ruling were manifestly erroneous. See Davis, 774 So. 2d at 89.

Considering all of the evidence and the reasonable inferences to be made in

favor of Hudson on the issue of bad faith, we cannot say that the trial court was

manifestly erroneous in denying the Guidrys' motion for JNOV. The trial court

could not pass on the credibility of witnesses or substitute its judgment of the facts

for that of the jury. Reasonable jurors in the exercise of impartial judgment could

have arrived at the same verdict given the evidence presented. Therefore, the motion

for JNOV was correctly denied.

As for the Guidrys' alternative motion for new trial, the test is much less

stringent than for a JNOV, because the determination does not deprive the parties of

their right to have all of the disputed issues resolved by a jury. Broussard, 680

So. 2d at 781. In considering a motion for new trial, the trial court is free to evaluate

the evidence without favoring either party. The trial court may draw its own

inferences and conclusions and may evaluate the credibility of the witnesses to

determine if the jury has erred in giving too much credence to an unreliable witness.

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Id. In such a posture, a trial court may deny a motion for JNOV but grant a motion

for new trial, because the verdict is contrary to the law and the evidence. Id.; La.

Code Civ. P. art. 1972. When considering a motion for new trial, the trial judge has

wide discretion. La. Code Civ. P. arts. 1971 and 1973; Broussard, 680 So. 2d at

781. However, that does not imply that the trial court can freely interfere with any

verdict with which it disagrees. Broussard, 680 So. 2d at 781. Additionally, the

denial of a motion for new trial should not be reversed, unless there has been an

abuse of the trial court' s great discretion. Id. Moreover, jurisprudence does not

favor new trials, especially when the judgment is supported by the record. Id.

With the aforementioned principles in mind, based upon our thorough review

of the evidence in the record, it cannot be said that the trial court abused its discretion

denying the motion for new trial. The trial court noted that the jury was entitled to

its own fair interpretation of the evidence, and to accept Hudson' s defense on the

extent, duration, and causation of all of Mrs. Guidry' s injuries, including the defense

of medication overuse for some of Mrs. Guidry' s problems. While we are mindful

of the balance with which an appellate court is faced by giving the jury deference in

its fact-finding role and discretion to the trial court in deciding whether to grant a

new trial, we find that the jury' s verdict was not clearly contrary to the law and

evidence. We also conclude that the trial court was correct in finding that no

miscarriage of justice resulted from the jury' s verdict. The jury' s verdict was

supportable by a fair interpretation of the evidence as to Hudson' s good faith.

Exclusion of Evidence

In their final assignment of error, the Guidrys argue that the trial court abused

its discretion by excluding evidence of Hudson' s alleged collusion with Venture and

Zurich to the prejudice of the Guidrys' bad faith claims against Hudson. The

Guidrys proffered evidence that they claim would have shown the jury that Hudson' s

failure to pay was not based on a good -faith defense. Hudson counters that the

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alleged collusion or conversations with representatives of Venture and Zurich were

not relevant to the issue of bad faith, and instead centered on the contested liability

and coverage issues. Hudson further argues that it was entitled to a good -faith

defense on the basis of medical causation that was separate from the coverage issues.

Except as otherwise provided by law, all relevant evidence is admissible. La.

Code Evid. art. 402. Relevant evidence is that having any tendency to make the

existence of any fact that is of consequence to the determination of the action more

or less probable than it would be without the evidence. La. Code Evid. art. 401.

Whether evidence is relevant is within the broad discretion of the trial court, and its

ruling will not be disturbed on appeal in the absence of a clear abuse of that

discretion. Gaspard v. Southern Farm Bureau Cas. Ins. Co., 2013- 0800 ( La.

App. 1st Cir. 9/ 24/ 14), 155 So. 3d 24, 31. Furthermore, error may not be predicated

upon a ruling that admits or excludes evidence unless a substantial right of the party

is affected. Additionally, the harmless error analysis applies to erroneous

evidentiary rulings on appeal. See La. Code Evid. art. 103( A); Travis v. Spitale' s

Bar, Inc., 2012- 1366 ( La. App. 1st Cir. 8/ 14/ 13), 122 So. 3d 1118, 1127, writs

denied, 2013- 2409, 2013- 2447 ( La. 1/ 10/ 14), 130 So. 3d 327, 329.

Our review of the proffered evidence reveals discussions and discovery

pertaining to the coverage defense that was eventually resolved against Hudson

before trial. Also, there was evidence of the amount of medical expenses paid by

the Guidrys' healthcare insurance plan. We agree with the trial court' s exclusion of

this evidence, as none of it is relevant to the Guidrys' bad faith claims against

Hudson or Hudson' s receipt of a satisfactory proof of the Guidrys' loss specifically

related to the 2006 accident. The jury received other evidence indicating that

Hudson had vigorously pursued a coverage defense, as well as a causation defense,

before making the second unconditional tender of undisputed funds. We find that

the admission of the proffered evidence would not have changed the jury' s verdict,

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and as such, did not result in unfair prejudice to the Guidrys. Therefore, we conclude

the trial court did not err in excluding the evidence.

CONCLUSION

Finding no merit to the assignments of error, we affirm the trial court' s

judgment rendered in accordance with the jury' s verdict. We also find no error in

the trial court' s denial of Calvin and Denise Guidry' s motion for judgment

notwithstanding the verdict and alternatively, motion for new trial. Calvin and

Denise Guidry are cast for all appellate costs.

MOTION TO STRIKE DENIED; TRIAL COURT JUDGMENTS
AFFIRMED.

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