Dyna Mitte v. Progressive Security Ins. Co.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 10-1301

DYNA MITTE

VERSUS

PROGRESSIVE SECURITY INS. CO.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-20060803
HONORABLE KRISTIAN DENNIS EARLES, DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Elizabeth A. Pickett, Billy Howard Ezell, and Shannon J.
Gremillion, Judges.

AFFIRMED.

Bennett Boyd Anderson, Jr.
Anderson & Dozier
P. O. Box 82008
Lafayette, LA 70598-2008
(337) 233-3366
Counsel for Plaintiff/Appellant:
Dyna Mitte

Ian Alexander Macdonald
Jones Walker
P. O. Drawer 3408
Lafayette, LA 70502-3408
(337) 262-9000
Counsel for Defendant/Appellee:
Progressive Security Ins. Co.

EZELL, Judge.

Dyna Mitte appeals the decision of a jury finding that her uninsured motorist

insurer, Progressive Security Insurance Company, was not arbitrary and capricious

in failing to tender claims to her arising from an auto accident. For the following

reasons, we hereby affirm the decisions of the jury and trial court.

This suit arises from an April 20, 2004 auto accident in which Ms. Mitte was

struck by an underinsured driver and severely injured. Ms. Mitte had UM

insurance through Progressive. Progressive made pre-trial tenders to Ms. Mitte in

the amount of $393,624. She had already received $32,000 from the other driver‟s

insurance company. Ms. Mitte filed suit seeking penalties and attorney fees for

what she alleges were inadequate and untimely tenders. Liability and coverage

were not contested at trial. At the conclusion of trial, a jury found that the tenders

made by Progressive were not adequate and awarded Ms. Mitte over $1.6 million

dollars. However, the jury found that Progressive was not arbitrary or capricious

in its handling of Ms. Mitte‟s claim and refused to award her penalties and attorney

fees. Progressive did not appeal the jury‟s determination and paid the remainder of

its policy limits. Ms. Mitte, however, appeals.

On appeal, Ms. Mitte asserts three assignments of error. She claims the jury

erred in finding that Progressive was not arbitrary or capricious in its tenders to

her; that the trial court erred in failing to grant her motions for judgment

notwithstanding the verdict and/or for new trial; and that the trial court was in error

in allowing certain testimony from the Progressive claims adjuster handling her

claim.

Ms. Mitte first claims the jury erred in failing to find Progressive arbitrary or

capricious in its payment of tenders for her claim. In Guillory v. Lee, 09-75, pp.

30-32 (La. 6/26/09), 16 So.3d 1104, 1126-27, the supreme court discussed claims

for penalties and attorney fees arising from disputed tenders from insurance

companies, stating (case citations omitted) (footnote omitted) (alteration in

original):

In order to establish a cause of action for penalties and/or
attorney fees and costs under La. R.S. 22:658, a claimant must show
that (1) an insurer has received satisfactory proof of loss, (2) the
insurer failed to tender payment within thirty days of receipt thereof,
and (3) the insurer‟s failure to pay is arbitrary, capricious or without
probable cause. La. R.S. 22:658. Similarly, La. R.S. 22:1220
provides that an insurer owes to his insured a duty of good faith and
fair dealing, which includes 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. An insurer who breaches those duties
is liable for damages sustained as a result of that breach. The statute
further provides that a breach includes “[f]ailing to pay the amount of
any claim due any person insured by the contract within sixty (60)
days after receipt of satisfactory proof of loss from the claimant when
such failure is arbitrary, capricious, or without probable cause.” La.
R.S. 22:1220.

With regard to what constitutes “arbitrary, capricious, or
without probable cause,” this court has held that the phrase is
synonymous with “vexatious.” Furthermore, a “vexatious refusal to
pay” means “unjustified, without reasonable or probable cause or
excuse.” Both phrases describe an insurer whose willful refusal of a
claim is not based on a good-faith defense.

This court has also stated that penalties should be imposed only
when the facts “negate probable cause for nonpayment.” Moreover,
whether or not a refusal to pay is arbitrary, capricious, or without
probable cause depends on the facts known to the insurer at the time
of its action, and this court has declined to assess penalties “when the
insurer has a reasonable basis to defend the claim and acts in good-
faith reliance on that defense.” More specifically, not only are the
statutory penalties inappropriate when the insurer has a reasonable
basis to defend the claim and acts in good-faith reliance on that
defense, 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 doubt exists. An insurer who does not
tender unconditionally a reasonable payment, a figure over which
reasonable minds could not differ, will be subject to penalties and
attorney‟s fees. Finally, the question of arbitrary and capricious
behavior is essentially a factual issue, and the trial court‟s finding
should not be disturbed on appeal absent manifest error.

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Ms. Mitte claims that because the jury awarded a large amount compared to

the tenders made by Progressive, its actions were necessarily arbitrary or

capricious. However, Progressive did not need to meet some percentage of the

total claim awarded her to avoid penalties and attorney fees. Rather, Progressive

needed to tender only a figure over which reasonable minds could not differ.

Progressive‟s adjuster, William George, testified thoroughly about his

handling of the claim. He noted Ms. Mitte initially claimed that she was not

seeking lost earning capacity and her extensive travel with her actor son as reasons

for not tendering payment for any loss of earning capacity. The record reflected

the fact that Ms. Mitte spent four to six months a year in New Mexico and another

four to six months a year in Los Angeles with her son. Moreover, Ms. Mitte‟s

vocational rehabilitation specialists limited her to sedentary desk-type work, much

like she had done prior to the accident, meaning her earning capacity could have

been found by a jury to have not dropped. Likewise, Mr. George expressed

Progressive‟s doubt as to whether a gastric bypass surgery performed upon Ms.

Mitte was required as a result of the accident. The jury clearly chose to give

significant weight to the testimony of Mr. George and found these doubts to be

reasonable. The jury concluded that Progressive undervalued Ms. Mitte‟s general

damages by a fairly large extent. However, after hearing all the evidence presented

at trial, the jury was unanimous in its finding that Progressive was not arbitrary or

capricious in its handling of Ms. Mitte‟s claim. There is a reasonable factual basis

for this finding evident in the record. Therefore, that determination cannot be

found to be manifestly erroneous.

As her second assignment of error, Ms. Mitte claims that the trial court erred

in denying her motions for judgment notwithstanding the verdict and new trial.

Under Louisiana Code of Civil Procedure Article 1811,

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[A] JNOV is warranted when the facts and inferences point so
strongly and overwhelmingly in favor of one party that the trial court
believes that reasonable persons could not arrive at a contrary verdict.
The motion should be granted only when the evidence points so
strongly in favor of the moving party that reasonable persons could
not reach different conclusions, not merely when there is a
preponderance of evidence for the mover. The motion should be
denied if there is evidence opposed to the motion which is of such
quality and weight that reasonable and fair-minded persons in the
exercise of impartial judgment might reach different conclusions. In
making this determination, the trial court should not evaluate the
credibility of the witnesses, and all reasonable inferences or factual
questions should be resolved in favor of the non-moving party.

Joseph v. Broussard Rice Mill, Inc., 00-0628, pp. 4-5 (La.10/30/00), 772 So.2d 94,

99 (internal citations omitted). Upon review, the appellate court must determine

whether the trial court was clearly wrong in granting or denying a motion for

JNOV. Holt v. Cannon Express Corp., 31,271 (La.App. 2 Cir. 12/11/98), 722

So.2d 433, writ denied, 99-104 (La. 4/23/99), 742 So.2d 881.

Louisiana Code of Civil Procedure Article 1972(1) provides that a new trial

shall be granted “[w]hen the verdict or judgment appears clearly contrary to the

law and the evidence.” However, “[t]he jurisprudence recognizes the trial

judge‟s great discretion in deciding a motion for new trial and, on appeal, the

appellate court is limited to a determination of whether a trial judge abused his

„much discretion‟ in granting or denying a new trial.” In re New Orleans Train

Car Leakage Fire Litigation, 00-1919, p. 6 (La.App. 4 Cir. 4/20/05), 903 So.2d 9,

15, writ denied, 05-1297 (La. 2/3/06), 903 So.2d 9 (citing Zatarain v. WDSU-

Television, 95-2600 (La.App. 4 Cir. 4/24/96), 673 So.2d 1181).

Ms. Mitte‟s argument that the jury‟s verdict was contrary to the law and

evidence is rendered moot by our above finding that the jury‟s verdict is based

upon a reasonable interpretation of the evidence in the record. It cannot, therefore,

be said the trial court was clearly erroneous in failing to grant Ms. Mitte a JNOV.

Nor did the trial court abuse its discretion in denying her motion for new trial.

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However, Ms. Mitte further argues that the trial court erred in not accepting

Progressive‟s failure to pay its remaining policy limits until eighty-one days after

the jury rendered its verdict as new evidence of Progressive‟s alleged arbitrary

refusal to tender payment. Louisiana Code of Civil Procedure Article 1972(2) also

allows a new trial to be granted “[w]hen the party has discovered, since the trial,

evidence important to the cause, which he could not, with due diligence, have

obtained before or during the trial.”

Ms. Mitte conveniently ignores the fact that the judgment was not recorded

at the time the jury rendered its verdict, nor was notice of the judgment mailed

until some forty-eight days after the jury reached its decision. Notice of judgment

was recorded on May 12, 2010. Progressive had seven days in which it could have

filed a motion for new trial starting May 13 and ending on the 21st. La.Code Civ.P.

art. 1974. Progressive had thirty days from May 21, 2010, to file a motion for

suspensive appeal. La.Code Civ.P. art. 2123. Progressive did not appeal, and

instead paid its remaining policy limits on June 14, 2010. Progressive clearly paid

its outstanding obligation within the time limitations placed upon it to suspensively

appeal the jury‟s decision. Ms. Mitte‟s position would effectively eliminate

Progressive‟s right to appeal any verdict against it, or else it would be deemed

arbitrary in failing to tender its remaining policy limits. This position is

unsupported by statute, jurisprudence, or logic. Progressive‟s actions following

trial were in no way new evidence of arbitrary or capricious behavior in handling

Ms. Mitte‟s claim. This argument is utterly devoid of merit.

As her final assignment of error, Ms. Mitte claims that the trial court

committed legal error “when the trial court failed to preclude [Mr. George] from

stating legal opinions” she alleges were contrary to Louisiana law. Mainly, she

alleges the jury was confused as to the law concerning interest payments and post-

suit tenders. However, the testimony she asserts as confusing
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to the jury clearly shows that the trial court sustained the objections raised by Ms.

Mitte, instructed the jury that the adjuster was not an expert, and immediately

instructed the jury that the trial court alone would provide the law to be applied to

the case. Ms. Mitte has not challenged the jury instruction issued by the trial court

at trial below or on appeal, as it was in line with her views of the applicable law.

There is no evidence of even a harmless error on the part of the trial court

concerning this testimony. Ms. Mitte simply believes that the adjuster‟s view of

the law was taken and used by the jury, rather than the law set forth by the trial

court, because the jury found that Progressive was not arbitrary or capricious in its

behavior. We are unable to find that the sequence of events surrounding the

challenged testimony justifies a reversal of the finding made by the jury.

For the above reasons, the rulings of the trial court below are hereby

affirmed. Costs of this appeal are assessed against Dyna Mitte.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules-
Courts of Appeal. Rules 2-16.3

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