Tristian Kitts v. State Farm Mutual Automobile Insurance Co.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

21-566

TRISTIAN KITTS

VERSUS

STATE FARM MUTUAL AUTOMOBILE INSURANCE
COMPANY, ET AL.

************
APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, DOCKET NO. 2019-2118
HONORABLE DERRICK E. KEE, DISTRICT JUDGE

************
SYLVIA R. COOKS
CHIEF JUDGE
************

Court composed of Sylvia R. Cooks, Chief Judge, Shannon J. Gremillion and D.
Kent Savoie, Judges.

AFFIRMED.

Steven Broussard
Aaron Broussard
Michael Williamson
Broussard & Williamson, LLC
1301 Common Street
Lake Charles, LA 70601
(337) 439-2450
COUNSEL FOR PLAINTIFF/APPELLEE:
Tristian Kitts

John W. Penny, Jr.
C. Shannon Hardy
Penny & Hardy, APLC
P.O. Box 2187
Lafayette, LA 70502-2187
(337) 231-1955
COUNSEL FOR DEFENDANT/APPELLANT:
Allstate Property & Casualty Insurance Co.

COOKS, Chief Judge.

On May 8, 2018, Plaintiff, Tristian Kitts, was driving a pickup truck

westbound on Highway 90 in Sulphur, Louisiana. Without warning, a 2005

Chevrolet Silverado driven by Clarence Langley, while traveling eastbound on

Highway 90, suddenly turned left directly into the path of Plaintiff’s vehicle. The

resulting collision drove Plaintiff’s pickup truck into a nearby utility pole, where it

came to rest. The force of the collision caused the air bag in Plaintiff’s vehicle to

deploy, totaled Plaintiff’s vehicle and threw debris into the air, damaging two other

nearby vehicles.

Plaintiff was transported by ambulance from the crash scene to the emergency

room. He was experiencing headaches, neck pain, mid and lower back pain with

tingling down his left arm. Plaintiff also had cuts and abrasions from his seat belt

and the deployment of the air bag. He was prescribed medications for pain and

muscle spasms.

Two days following the accident, Plaintiff began treating with Fey

Chiropractic due to his neck and back pain. He had a total of thirty-eight treatments

from Fey Chiropractic over the next fifteen months, with the last visit occurring on

August 9, 2019. He was referred to Muscle Activation of Louisiana for core

strengthening and attended two sessions as recommended. Plaintiff also went to

fourteen sessions of physical therapy during the first seven months after the accident.

The records show Plaintiff consistently complained of significant pain during the

time period, which was exacerbated by his work as a welder.

In August of 2018, Plaintiff underwent a MRI of his lumbar spine. The MRI

revealed pars defect/fracture at the L5 level, as well as disc bulging at the L3-4, L4-

5 and L5-S1 levels. Plaintiff underwent an evaluation by Dr. Brian Kelley at the

Center for Orthopaedics. After an examination and review of the MRI, Dr. Kelley

confirmed that Plaintiff had bilateral pars defect/fracture at the L5 level and

2

protrusions pushing into his discs at L2, L3, L4 and L5 levels. Dr. Kelley could not

say unequivocally whether the pars defect was caused by the accident or existed

prior; however, he stated if it was there prior to the accident, it was made

symptomatic by the accident. Dr. Kelley opined that Plaintiff could suffer from

periodic bouts of pain due to the pars defect for the rest of his life.

Plaintiff filed a petition for damages in May of 2019. Named as defendants

were Clarence Langley and his insurer, State Farm Mutual Automobile Insurance

Company, and Allstate Property and Casualty Insurance Company, which provided

uninsured/underinsured motorist coverage to Plaintiff. Clarence Langley had

liability insurance through State Farm with $100,000 policy limits. On August 30,

2019, Plaintiff settled with Langley and State Farm for $90,000. On September 6,

2019, Plaintiff offered to settle his UM claim with Allstate for $10,000. Allstate did

not respond to the settlement offer.

Dr. Kelley, who had yet to be deposed, gave his deposition on July 28. 2020,

relating the pars defect to the subject crash and stating it was his opinion that plaintiff

would continue to suffer from the pars defect in the future. Allstate did not retain a

medical expert to counter Dr. Kelley’s conclusions or have Plaintiff undergo an

independent medical examination. With Allstate refusing Plaintiff’s offer to settle,

the matter proceeded to trial.

The parties stipulated that Langley was solely at fault in causing the accident

and that Plaintiff’s medical expenses totaled $17,255.75. Plaintiff testified at trial,

as did Plaintiff’s mother. Dr. Kelley’s deposition was introduced at trial. Allstate

called no witnesses at trial, nor did it offer any contrary medical testimony to Dr.

Kelly. Allstate’s primary argument was that Plaintiff’s agreement to settle for less

than State Farm’s policy limits of $100,000 was a strong indicator that the value of

Plaintiff’s claim was not such as to warrant underinsured motorist benefits in excess

of State Farm’s policy limits.

3

The trial court found in favor of Plaintiff, finding Allstate’s entire UM policy

limit of $15,000 was owed. The trial court also found Allstate was arbitrary and

capricious in refusing to make a tender after having received satisfactory proof of

loss. Allstate was assessed a 50% penalty of $7,500 and attorney fees in the amount

of $10,000. The trial court’s oral reasons for judgment indicate it concluded that

Plaintiff’s settlement with State Farm for less than its policy limits did not create any

presumption that Plaintiff’s damages did not exceed $100,000. The trial court found

there was “clear evidence that there was causation between the pars defect and –

fracture and it was related to this accident.” The trial court further concluded “after

the pars defect came into play, this was a policy limits case, period.”

Allstate appealed the trial court’s judgment, seeking a reversal of the entirety

of the judgment. Allstate maintains it was never provided satisfactory proof of loss

that warranted any tender, that the damages fell well below State Farm’s policy

limits of $100,000, and that there was no arbitrary and capricious behavior on its

part. Allstate also argues the trial court improperly handed over to Plaintiff’s counsel

portions of Allstate’s claims file that were irrelevant, privileged and not subject to

production.

Plaintiff answered the appeal and argues, pursuant to La.Code Civ.P. art.

2164, he is entitled to damages, costs and attorney fees for a frivolous appeal.

ANALYSIS

In its first assignment of error, Allstate maintains the trial court erred in

awarding Plaintiff Allstate’s policy limits of $15,000. Allstate largely bases this

argument on its contention that the pars defect was not causally related to this crash.

Allstate asserted in brief that Dr. Kelley was not able “to causally connect the pars

defect to the accident.” This contention is not supported by the record. Dr. Kelley’s

deposition testimony established his belief that the crash either caused the pars defect

or made the condition symptomatic. He further stated it was his opinion that plaintiff

4

would more likely than not continue to suffer from the pars defect in the future.

Allstate did not retain a medical expert or offer any medical testimony to counter Dr.

Kelley’s opinion as to the pars defect being causally related to the accident and the

likelihood Plaintiff would continue to suffer from it well into the future.

“The primary objective of general damages is to restore the party in as near a

fashion as possible to the state he was in at the time immediately preceding injury.”

Anderson v. State of Louisiana, 18-01, p. 20 (La.App. 3 Cir. 8/29/18), 258 So.3d

925, 938 (quoting Daigle v. U.S. Fidelity and Guar. Ins. Co., 94-304 (La. App. 1

Cir. 05/05/95), 655 So.2d 431, 437). As Plaintiff notes, the severity and duration of

pain and suffering are primary factors in considering and assessing quantum of

general damages. Guidry v. Allstate Ins. Co., 11-517 (La. App. 3 Cir. 12/21/11), 83

So.3d 91, writ denied, 12-225 (La. 3/30/12), 85 So.3d 121. In reviewing an award

of damages to determine whether it is inadequate or excessive, the appellate court

must first look to the individual circumstances of the case before it. Broussard v.

Peltier, 479 So.2d 679 (La.App. 3 Cir.1985). Only if an analysis of the facts reveals

an abuse of discretion can the appellate court disturb the award. Reck v. Stevens,

373 So.2d 498 (La.1979); Clark v. State Farm Ins. Co., 520 So.2d 860 (La.App. 3

Cir.1987).

Plaintiff’s vehicle was totaled as a result of the accident. He underwent a

significant period of chiropractic treatment, physical therapy and core strengthening

to cope with his back pain. The medical testimony also revealed Plaintiff suffered

from anxiety and depression, for which he was sent to counseling and prescribed

Lexapro. At the time of the accident, Plaintiff was only eighteen years old.

Plaintiff’s chosen profession was as a welder, the physical demands of which led to

flare-ups of lower back pain, which Dr. Kelley’s uncontroverted medical testimony

stated would last well into the future. After a thorough review of the record, we find

5

no basis to conclude the trial court abused its discretion in finding Plaintiff’s

damages entitled him to the $15,000 limits of the Allstate policy.

Allstate next argues the trial court erred in finding it acted in bad faith in

refusing to tender after receiving satisfactory proof of loss. Louisiana Revised

Statute 22:1892 provides for the imposition of a penalty and an award of attorney

fees against an insurer that fails to pay a claim due its insured within thirty days of

receipt of satisfactory proof of loss if said failure is arbitrary, capricious or without

probable cause. This statute has been found applicable to uninsured motorist claims.

Hart v. Allstate Insurance Co., 437 So.2d 823 (La.1983). In order to establish an

insured’s legal entitlement to recover under a UM policy, a plaintiff must be able to

establish that the insurer received satisfactory proof of loss that was sufficient to

fully apprise the insurer of the insured’s claim. Id.

Allstate maintains it never received satisfactory proof of loss in this case. It

further asserts Plaintiff’s UM claims were “not supported by any additional medical

treatment or evidence of any ongoing complaints or need for further treatment.” We

do not agree and find this argument ignores the fact that Dr. Kelley’s deposition

came after the settlement with State Farm. As was noted earlier in this opinion, Dr.

Kelley’s deposition confirmed that Plaintiff suffered from a bilateral pars defect

either caused by the accident or made symptomatic by the accident. He further stated

the pars defect would more likely than not cause symptoms for Plaintiff well into the

future. Allstate offered no contradictory medical opinion to counter Dr. Kelley’s

deposition testimony, leaving Plaintiff’s evidence undisputed. Therefore, we cannot

say the trial court manifestly erred in finding Allstate’s defense was arbitrary,

capricious and without probable cause in failing to tender after receipt of satisfactory

proof of loss.

Allstate’s final assignment of error asserts the trial court committed manifest

error in ordering the production of portions of Allstate’s claims file. On February 9,

6

2021, Plaintiff filed a Motion to Compel Allstate’s claims file, to which Allstate filed

an opposition. A hearing was held on the motion on April 21, 2021. During the

hearing, Plaintiff’s counsel notified the court he was dismissing his previously issued

subpoena to Allstate’s former trial counsel to testify at trial. The trial court granted

the motion and ordered Allstate to produce its entire file for an in camera inspection.

Recently, this court in Silvetti v. GEICO Cas. Co., 21-96 (La.App. 3 Cir.

7/14/21) (unpublished opinion), writ denied, 21-1201 (La. 11/10/21), 321 So.3d

1248, discussed the relevance and discoverability of a UM insurer’s claims file

requested by the insured who was pursuing a bad faith claim against the UM insurer.

The trial court granted the insurer’s motion for protective order shielding the

privileged log items from discovery after an in camera inspection. This court granted

writs and reversed the order of protection as to some of the items in the claims file.

This court cited the relevant law that in order to succeed on a claim of bad faith

against the insurer a claimant must show (1) the insurer received satisfactory proof

of loss, (2) the insurer failed to render payment within thirty or sixty days of receipt

thereof, and (3) the insurer’s failure to pay was arbitrary, capricious or without

probable cause. Thibodeaux v. Arbie, 17-625 (La.App. 3 Cir. 8/31/17), 226 So.3d

1229. The Silvetti court found “[a]ny document which reflects the knowledge of the

claim due and actions or inactions taken or discussed by [the insurer] or its attorney

during the pendency of the suit for damages would be relevant to the subject matter

of the action[.]” Silvetti, at p. 5 (quoting Cantrelle Fence & Supply Co. v. Allstate

Ins. Co., 550 So.2d 1306 (La.App. 1 Cir.1989), writ denied, 559 So.2d 123

(La.1990)). We do note the Silvetti concluded the trial court did not err in granting

protective orders as to certain exhibits, which included correspondence between the

insurer and attorney. Allstate argues the admission of the portions of Allstate’s

claims file violated the attorney-client privilege set forth in La.Code Civ.P. art.

1424(A), which states “the court shall not order the production or inspection of any

7

part of the writing, or electronically stored information, that reflects the mental

impressions, conclusions, opinions, or theories of an attorney.”

Allstate specifically complains the trial judge in this case, in discussions with

Plaintiff’s counsel, referenced certain statements made by Allstate’s prior counsel in

reference to the trial judge originally assigned this case that he deemed

“inappropriate.” Counsel for Allstate noted to the trial court that any reference to

the prior trial judge was totally irrelevant to the case presently before the court. The

trial court responded “[s]ubmitted respectfully and accepted.” We need not resolve

whether the attorney-client privilege was breached because a review of the trial

court’s reasons for judgment clearly reflect any “inappropriate” comments made as

to the prior district judge by Allstate’s former counsel had no bearing on the

judgment rendered. The trial court could not have been more adamant in his belief

that the amount of damages in this case was significantly more than the State Farm

policy limits and that the pars defect was caused by the accident. The trial court

stated:

But I will say that there was clear evidence that there was causation
between the pars defect and – fracture and it was related to this accident.
There’s no doubt about that.

...

Because the question is whether or not any good faith tender was made
after satisfactory proof of loss was shown and after the pars defect came
into play, this was a policy limits case, period.

...

we’re not going to be able to calculate when he’s going to hurt, or we
don’t know when he’s going to have to lift welding supplies, or we
don’t know if he’s whining and complaining to his boss or not everyday
and taking a chance of losing a job when clearly Allstate is not going
to pay him anything else out of their minimal $15,000 policy. That
they’re willing to pay $7,500 toward defense costs but not $10,000 to
resolve this case. It’s their decision.

...

8

And there hasn’t been a single penny tendered, not a dime, to a young
man who is 18 years old, now 21, who is sitting here saying I’m going
to be hurting for the rest of my life indefinitely, or maybe it will stop
three years from now because he said I will live with it.

It’s bad faith, and it’s arbitrary, and its capricious. And there’s
no way around it.

...

And we don’t know when he’s gonna be done hurting. And his insurer
Allstate did know. They had an obligation to simply pay him the
$15,000. This is a $200,000 case, easy. That’s my – not my
assessment, that’s what this case should – should have gone for.

Therefore, it is clear the trial court’s finding that Allstate was guilty of bad faith was

not influenced by any in camera examination of Allstate’s claims file.

Plaintiff answered the appeal and requests damages for a frivolous appeal

under La.Code Civ.P. art. 2164. “This provision is penal in nature and is to be

strictly construed.” Capdeville v. Winn Dixie Store # 1473, 07-1425 (La.App. 3 Cir.

4/9/08), 981 So.2d 121, 125. “An appeal will not be deemed frivolous unless it is

taken solely for delay, fails to raise a serious legal question, or counsel does not

seriously believe in the proposition of law he is advancing.” Id. at 125. Appeals are

favored and appellate courts are reluctant to impose damages for frivolous appeals.

Id.

Although Allstate did not prevail at the trial level nor on appeal, we cannot

say the appeal was taken solely for delay or that counsel for Allstate did not seriously

believe it was entitled to relief. Thus, an award of damages for frivolous appeal is

not warranted.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs

of this appeal are assessed against appellant, Allstate Property & Casualty Insurance

Company.

AFFIRMED.

9