Kelly Arnold v. ANPAC Louisiana Insurance Company

Judgment rendered February 28, 2024.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 55,381-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

KELLY ARNOLD Plaintiff-Appellant

versus

ANPAC LOUISIANA Defendants-Appellees
INSURANCE COMPANY, ET AL

*****
Appealed from the
Fourth Judicial District Court for the
Parish of Ouachita, Louisiana
Trial Court No. 20212475

Honorable C. Wendell Manning, Judge

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ANTHONY J. BRUSCATO Counsel for Appellant

Counsel for Appellee,
DAVENPORT, FILES, & KELLY, LLP ANPAC Louisiana
By: Grant M. Tolbird Insurance Company

Counsel for Appellee,
LUGENBUHL, WHEATON, PECK, JNT Home
RANKIN & HUBBARD Improvements, LLC
By: Gregory P. Aycock

*****

Before STEPHENS, MARCOTTE, and ELLENDER, JJ.

STEPHENS, J.,

This appeal arises from the Fourth Judicial District, Parish of

Ouachita, the Honorable Wendell Manning, J., presiding. Plaintiff, Kelly

Arnold, urges that the trial court erred in granting the motion for summary

judgment filed by defendant, ANPAC Louisiana Insurance Company

(“ANPAC”), as well as granting part of ANPAC’s motion to strike hearsay

statements made by Ms. Arnold in her affidavit. For the following reasons,

we affirm.

FACTS/PROCEDURAL HISTORY

Ms. Arnold owns a home on Pinewood Drive in West Monroe,

Louisiana, and her home is insured by ANPAC. Mr. and Mrs. LeBrun (“the

LeBruns”) live next door to Ms. Arnold, and the Lebruns’ home is insured

by Republic Group LA. During Hurricane Laura on August 27, 2020, a

large pine tree located on the LeBruns’ property fell on Ms. Arnold’s home,

causing severe damage. According to Ms. Arnold’s deposition, the fallen

tree covered half of her roof, including the area over her bedroom,

washroom, and sitting room. Following the hurricane, Ms. Arnold contacted

ANPAC to report the incident, and the insurer reimbursed Ms. Arnold for

the cost to remove the tree from her roof.

Shortly after the storm, ANPAC sent Frank Kennedy, a senior field

claims specialist, to inspect the property and prepare an estimate of the

damages to Ms. Arnold’s property. After providing Ms. Arnold with the

estimate, ANPAC issued payment in the amount of $23,255.95 to Ms.

Arnold, representing the actual cash value of the repairs to her dwelling and

a shed that had been damaged. Ms. Arnold then contracted with JNT Home

Improvement (“JNT”) to complete the repairs on her home. After JNT

began making repairs, Ms. Arnold requested that Mr. Kennedy return to re-

inspect the property. Following the re-inspection, Mr. Kennedy prepared a

revised estimate which included some non-roof related damage to the house.

This information was provided to Ms. Arnold, and ANPAC provided

additional payment to her in the amount of $3,723.26. This amount

represented the increase in the actual cash value of the repairs. The total Ms.

Arnold received following both of Mr. Kennedy’s inspections was

$26,979.21.

As JNT made repairs to Ms. Arnold’s roof, she became dissatisfied

with the work that was being done. In her deposition, Ms. Arnold

complained that portions of the roof were uneven. Ms. Arnold alleged that

she found screws all over her yard, and she felt there were discrepancies in

the square footage that JNT replaced versus what the insurance would cover.

Similarly, Ms. Arnold stated that the repairs did not match the color or

thickness of the roof, and she noticed that parts of her roof were not flush,

resulting in the roof looking as though it was leaning. Because of her

dissatisfaction with JNT’s performance, Ms. Arnold terminated her contract

with JNT before the repairs were completed. Although the repairs to Ms.

Arnold’s home stalled and have yet to be completed, ANPAC provided an

additional $6,535.39 in payment to Ms. Arnold, resulting in her receiving the

full amount of the recoverable depreciation.

On August 18, 2021, Ms. Arnold filed a petition against the LeBruns,

Republic Group, ANPAC, and JNT. In her petition, Ms. Arnold alleged that

the LeBruns knew or should have known of the risk that the tree posed to

Ms. Arnold’s property and were negligent in failing to have the tree

inspected/removed. Next, Ms. Arnold claimed that ANPAC should have
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paid the full amount necessary to repair the damage to her home but instead

only tendered partial payment. Lastly, Ms. Arnold claimed that JNT’s work

was defective, deficient, and incomplete.

Answers were filed by the various defendants, with JNT also filing a

reconventional demand against Ms. Arnold. An answer to the

reconventional demand was filed by Ms. Arnold, and a motion and order for

a pretrial conference was filed on August 24, 2022. On September 30, 2022,

the LeBruns and Republic Group filed a motion for summary judgment.

ANPAC also filed a motion for summary judgment on October 27, 2022.

Ms. Arnold filed oppositions to both motions.

On November 29, 2022, the trial court held a hearing on the two

motions. The first summary judgment motion, filed by the LeBruns and

Republic Group, asserted that Ms. Arnold had no evidence that the tree that

fell on her home exhibited a ruin, vice, or defect that the LeBurns knew or

should have known about. The trial court granted the motion and rendered

judgment on December 12, 2022, dismissing with prejudice the claims

against the LeBruns and Republic Group. Along with ANPAC’s summary

judgment motion, ANPAC filed a motion to strike Ms. Arnold’s affidavit.

The hearing on the motion for summary judgment was ultimately

continued so Ms. Arnold could address the legal arguments raised in

ANPAC’S motion, including the applicability of McKoin v. State Farm Fire

& Cas. Co., 36,429 (La. App. 2 Cir. 10/23/02), 830 So. 2d 437. The court

also directed Ms. Arnold to fully supplement her responses to discovery.

The court granted in part and denied in part ANPAC’s motion to strike,

reasoning that the following statements were considered hearsay:

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1. “After the second estimate and second payment from the
insurance company, I called the insurance company adjustor
and spoke with him to see about getting an estimate to
include the omitted items and an increase on the items that
hadn’t been fully paid. He said the insurance company had
paid an amount sufficient to cover the cost of repairing my
house and the company would not make any further
payment.”

2. “An expert who examined the house at my attorney’s
request said that he is concerned about the integrity of the
moisture barriers which are supposed to be in place to
prevent water intrusion because the type of damage the
house sustained is likely to include damage to the moisture
barriers. … The expert tells me that there’s no way to know
at this point whether the moisture barriers are intact or not.
The basic problem, from my point of view, is that according
to the expert, the moisture barriers were probably damaged
and since the insurance company estimates did not include
any money to pay for replacing the moisture barriers, I am
pretty sure the moisture barriers were not replaced. The
insurance company has not made any attempt to assess the
situation.”

3. “I called several a/c companies to try to get this repair done,
but all of them told me the same thing: the cage or casing
cannot be replaced, the only thing to do is replace the entire
unit.”

On January 17, 2023, the court heard arguments on ANPAC’s motion

for summary judgment. Although counsel for Ms. Arnold failed to appear,

the court considered the briefs submitted by both parties as well as

arguments made by ANPAC at the hearing. ANPAC articulated that it had

paid Ms. Arnold for the repairs to her roof, and she did not dispute the

amount she received from ANPAC. Furthermore, ANPAC asserted that Ms.

Arnold was not entitled to loss of use coverage under the policy because she

continuously had lived in the home after the damage occurred. Lastly,

ANPAC stated that Ms. Arnold failed to comply with the policy provisions

so as to be able to seek compensation for her loss of personal property.

ANPAC also re-urged its motion to strike Ms. Arnold’s affidavit, and the

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trial court struck another statement in Ms. Arnold affidavit. The trial court

reasoned the following statement was hearsay:

“I’ve been told verbally that the cost of repairing the deck
would run around six thousand dollars.”

Ultimately, the trial court concluded that no genuine issues of material fact

existed as to ANPAC and its application of the policy to Ms. Arnold and her

home, and the court granted ANPAC’s motion for summary judgment. Ms.

Arnold filed the instant appeal. On October 24, 2023, the LeBruns and

Republic Group were dismissed from this appeal. Thus, this appeal is

limited to Ms. Arnold’s assignments of error as they pertain to ANPAC.

DISCUSSION

Ms. Arnold first asserts that the trial court erred in granting ANPAC’s

motion to strike statements made in her affidavit as hearsay. Ms. Arnold

also urges that the trial court erred in granting ANPAC’s motion for

summary judgment because ANPAC failed to reimburse her for the loss of

personal property and for other structural damage not considered in Mr.

Kennedy’s inspection and estimates.

In response, ANPAC argues that the statements in Ms. Arnold’s

affidavit were correctly stricken as hearsay because the alleged statements

were made by unidentified individuals. Similarly, ANPAC suggests that the

trial court properly granted its summary judgment motion because ANPAC

met its obligations under its policy contract with Ms. Arnold, who failed to

show otherwise.

A motion for summary judgment is a procedural device used when

there is no genuine issue of material fact for all or part of the relief prayed

for by a litigant. Samaha v. Rau, 07-1726 (La. 2/26/08), 977 So. 2d

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880; Driver Pipeline Co. v. Cadeville Gas Storage, LLC, 49,375 (La. App. 2

Cir. 10/1/14), 150 So. 3d 492, writ denied, 14-2304 (La. 1/23/15), 159 So.

3d 1058. Summary judgment procedure is designed to secure the just,

speedy, and inexpensive determination of every action, except those

disallowed by La. C.C.P. art. 966(A)(2). The procedure is favored and shall

be construed to accomplish those ends. Id.

A motion for summary judgment shall be granted if the motion,

memorandum, and supporting documents show there is no genuine issue as

to material fact and the mover is entitled to judgment as a matter of law. La.

C.C.P. art. 966(A)(3). If the mover will not bear the burden of proof at trial

on the issue that is before the court on the motion for summary judgment,

the mover’s burden on the motion does not require him to negate all

essential elements of the adverse party’s claim, action, or defense, but rather

to point out to the court the absence of factual support for one or more

elements essential to the adverse party’s claim, action, or defense. La.

C.C.P. art. 966(D)(1). The burden is on the adverse party to produce factual

support sufficient to establish the existence of a genuine issue of material

fact or that the mover is not entitled to judgment as a matter of law. Id.

A genuine issue is one about which reasonable persons could

disagree. Suire v. Lafayette City-Parish Consol. Gov’t, 04-1459 (La.

4/12/05), 907 So. 2d 37, citing Smith v. Our Lady of the Lake Hosp., Inc.,

93-2512 (La. 7/5/94), 639 So. 2d 730; Franklin v. Dick, 51,479 (La. App. 2

Cir. 6/21/17), 224 So. 3d 1130. In determining whether an issue is genuine,

a court should not consider the merits, make credibility determinations,

evaluate testimony, or weigh evidence. Suire, supra; Chanler v. Jamestown

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Ins. Co., 51,320 (La. App. 2 Cir. 5/17/17), 223 So. 3d 614, writ denied, 17-

01251 (La. 10/27/17), 228 So. 3d 1230.

A material fact is one that potentially ensures or precludes recovery,

affects the ultimate success of the litigant, or determines the outcome of the

dispute. Because it is the applicable substantive law that determines

materiality, whether a particular fact in dispute is material for summary

judgment purposes can be seen only in light of the substantive law

applicable to the case. Jackson v. City of New Orleans, 12-2742 (La.

1/28/14), 144 So. 3d 876; Richard v. Hall, 03-1488 (La. 4/23/04), 874 So. 2d

131.

Appellate courts review motions for summary judgment de novo,

using the same criteria that govern the trial court’s consideration of whether

summary judgment is appropriate. Leisure Recreation & Ent., Inc. v. First

Guaranty Bank, 21-00838 (La. 3/25/22), 339 So. 3d 508; Peironnet v.

Matador Res. Co., 12-2292 (La. 6/28/13), 144 So. 3d 791; Elliott v.

Continental Cas. Co., 06-1505 (La. 2/22/07), 949 So. 2d 1247; Reynolds v.

Select Props., Ltd., 93-1480 (La. 4/11/94), 634 So. 2d 1180; Davis v.

Whitaker, 53,850 (La. App. 2 Cir. 4/28/21), 315 So. 3d 979.

We find that the trial court properly struck hearsay statements from

Ms. Arnold’s affidavit. Supporting and opposing affidavits shall be made on

personal knowledge, shall set forth such facts as would be admissible in

evidence, and shall show affirmatively that the affiant is competent to testify

to the matters stated therein. La. C.C.P. art. 967(A). “Hearsay” is a

statement, other than one made by the declarant while testifying at the

present trial or hearing, offered in evidence to prove the truth of the matter

asserted. La. C.C.P. art. 801(C). The statements made in Ms. Arnold’s
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affidavit were not made based on her personal knowledge, as she relayed

information that was told to her by other individuals. As such, we cannot

say that the trial court abused its discretion in striking those statements from

Ms. Arnold’s affidavit.

An insurance policy is a contract, and, as with all other contracts, it

constitutes the law between the parties. If the policy wording at issue is clear

and expresses the intent of the parties, the agreement must be enforced as

written. Bossier Plaza Associates v. National Union Fire Ins. Co. of

Pittsburgh, 35,741 (La. App. 2 Cir. 04/03/02), 813 So. 2d 1114, citing Pareti

v. Sentry Indemnity Co., 536 So. 2d 417 (La. 1988); McKoin, supra.

Section I – Property Coverages under ANPAC’s policy provides:

Until actual repair or replacement is completed on the property,
we will limit our payment to the actual cash value of the
damaged property. For loss to roofs damaged by windstorm or
hail, the initial payment will be 80 percent of the cost to repair
or replace the damaged roof…. You will have 365 days, from
the date of payment of the actual cash value or initial payment
amount, to provide proof of the actual cost incurred to repair or
replace the damaged property.

Similarly, ANPAC’s “Loss of Use” coverage requires the residence’s

premises to be uninhabitable. Section I – Exclusions also states, in pertinent

part:

....

6. We do not cover loss caused by:

a. wear and tear, marring, deterioration, erosion;

....

f. settling, cracking, shrinking, bulging, or expansion of
pavements, patios, foundations, slabs, walls, floors, roofs,
or ceilings, regardless of whether such loss ensures from
any loss which is covered under this policy.

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ANPAC’s policy further explains, in pertinent part:

Duties After Loss. In case of a loss to which this insurance may
apply, the insured shall perform the following duties that apply.
Your claim may be denied if your failure to perform any of
these applicable duties prejudices our investigation of the claim.
The following duties may apply:

....

d. [The duty to] protect the property from further
damage. This includes making reasonable and necessary
repairs, and keeping an accurate record of those repair
costs;

....

e. [The duty to] make a list of damaged personal property
showing in detail, the quantity, description, actual cash
value, and amount of loss for each time Attach to this list
all bills, receipts, and related documents that substantiate
the ownership of the property and the figures in the
inventory

In McKoin, supra, the plaintiff’s home sustained damage from a fire,

and the homeowner’s insurance policy provided for fire damage and loss.

After entering into an agreement with a contractor for the repairs, the

insurance company revised its original estimates from the damaged property,

increasing the estimate after additional damage was discovered. Id. at 438.

After the work began repairing the home, the plaintiff became unhappy with

the contractor and prevented the contractor from completing the repairs. Id.

In her lawsuit, the plaintiff claimed that she was forced to pay a new

contractor an additional amount of money for the completion of the work

begun by the first contractor. Id. The insurance company filed a motion for

summary judgment, and the trial court granted its motion. Id.

This Court in McKoin upheld the trial court’s ruling because the

record made clear that the defendant abided by the terms of its policy

agreement by sending an experienced adjuster to appraise the damage and
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calculate the amount of loss the plaintiff suffered. Id. at 439-40. Likewise,

the plaintiff did not dispute the amount of loss that was calculated on her

home, she accepted the insurance proceeds from the defendant, and she

entered into an agreement with a contractor to perform the work that was

needed. Id. Because the policy stated that the insurance company did not

guarantee the quality of a contractor’s workmanship, this Court concluded

that no genuine issues of material fact existed and affirmed the lower court’s

grant of summary judgment in favor of the insurance company. Id.

Our review of the record shows that summary judgment was properly

granted in this matter. Following Mr. Kennedy’s evaluation and inspection

of the property, ANPAC paid Ms. Arnold $23,255.95, the actual cash value

of the repairs that needed to be made. Ms. Arnold then contracted with JNT

to make the repairs to her home, and Mr. Kennedy thereafter performed

another inspection of the home. This second inspection resulted in ANPAC

paying $3,723.26 for the increased actual cash value estimate to repair the

property. Despite Ms. Arnold terminating JNT before the repairs were

completed, ANPAC paid Ms. Arnold an additional $6,535.39 which

represented the full amount of the recoverable depreciation. ANPAC

provided Ms. Arnold the replacement cost value, totaling $33,514.60, for her

home despite ANPAC’s policy with Ms. Arnold which states that ANPAC

limits payment to the actual cash value of the damaged property until actual

repair or replacement is completed on the property. In addition to ANPAC’s

$33,514.60 payment, ANPAC also issued payments for the cost of the tree

removal from the home ($5,625.00) and for water mitigation services

performed on the home ($2,486.17). According to the record, Ms. Arnold

received $41,625.77 from ANPAC to cover the damages to her home.
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The record reflects that ANPAC properly compensated Ms. Arnold

for the damages to her home, and Ms. Arnold failed to show that she is owed

more than ANPAC produced. In fact, ANPAC surpassed the standard

required of them by providing the full replacement cost value to Ms. Arnold

even though the repairs to her home are incomplete. As a result, we cannot

say that any genuine issues of material fact exist as to ANPAC’s obligations

under the policy for costs of repairs for Ms. Arnold’s roof.

Like the plaintiff in McKoin, Ms. Arnold was unsatisfied with the

work performed on her home by the contractor, JNT. While Ms. Arnold

may have been unhappy with the work performed to repair her roof, ANPAC

satisfied its obligations under its agreement with Ms. Arnold by sending Mr.

Kennedy to inspect the home, providing an estimate and a revised estimate

for the repairs needed to be made on the home, and compensating Ms.

Arnold for the damages she sustained to her roof.

As to Ms. Arnold’s personal property, she alleges that ANPAC failed

to reimburse her for the loss of her personal property. More specifically, she

states that ANPAC failed to consider a number of items of her personal

property when assessing the damage, including two mattresses, two rugs,

dressers, blankets, pictures, sweaters, and photographs. In response,

ANPAC urges that Ms. Arnold failed to comply with its policy provisions

which instructed her to give ANPAC a list of the personal items damaged.

Ms. Arnold, however, alleges that she provided ANPAC a flash drive with

pictures of the personal items that were damaged.

According to the record, the insurance policy required Ms. Arnold to

provide a list of the damaged personal property showing the quantity,

description, actual cash value, and amount of loss for each item. Ms. Arnold
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failed to comply with the policy by not producing a list of her personal

property she allegedly lost as a result of the fallen tree. Because no list was

provided, ANPAC was not required to reimburse Ms. Arnold for her alleged

personal property damage.

Lastly, Ms. Arnold asserts that ANPAC failed to provide her

compensation for the loss of use of her home. However, ANPAC’s policy

requires that to qualify for loss of use coverage, the home must be

uninhabitable. Ms. Arnold continued to live in her home after the tree fell

on her roof. As a result, Ms. Arnold is not entitled to loss of use of her

home. Similarly, Ms. Arnold’s other claims, including damage to a window

in her daughter’s bedroom, removing and replacing a bathroom vanity to

repair water damage, and cracked bricks and foundation, are not covered

under the insurance policy with ANPAC. Because the policy language is

clear and unambiguous, we conclude that Ms. Arnold was not owed more

than what she received from ANPAC.

Considering the record before us, we find no error in the trial court’s

determination that there were no genuine issues of material fact exist and

that ANPAC is entitled to judgment as a matter of law.

CONCLUSION

The judgment of the trial court granting the motion for summary

judgment filed by the defendant, ANPAC Louisiana Insurance Company,

dismissing the claims of plaintiff, Kelly Arnold, against defendant, ANPAC

Louisiana Insurance Company, with prejudice is affirmed. Costs are

assessed to the plaintiff, Kelly Arnold.

AFFIRMED.

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