Bosley v. Great Northern Insurance , 202 F. App'x 702 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
October 13, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 06-30391
Summary Calendar
J. HOUSTON BOSLEY; DEBORAH BOSLEY,
Plaintiffs-Appellants,
v.
GREAT NORTHERN INSURANCE CO.,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Louisiana
(05-CV-554)
Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
J. Houston Bosley and Deborah Bosley appeal the district
court’s grant of summary judgment in favor of appellee Great
Northern Insurance Company. The court determined that the Bosleys’
suit for damages was untimely filed because of a clause in their
insurance policy imposing a one-year limitation on all legal action
against Great Northern. Because we find that there is a genuine
*
Pursuant to 5th Cir. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5th Cir. R. 47.5.4.
issue of material fact as to whether Great Northern waived the
protection of the limitation clause, we REVERSE the district
court’s grant of summary judgment.
We review the district court’s grant of summary judgment de
novo, applying the same standard as did the district court.
Terrebonne Parish Sch. Bd. v. Mobile Oil Corp., 310 F.3d 870, 877
(5th Cir. 2002). Summary judgment is proper if the materials
before the court show that there is no genuine issue as to any
material fact, and that the moving party is entitled to judgment as
a matter of law. See FED. R. CIV. P. 56(C). On appeal, we construe
all facts and inferences in the light most favorable to the
nonmoving party. Cooper Tire & Rubber Co. v. Farese, 423 F.3d 446,
454 (5th Cir. 2005).
The Bosleys believe that they are entitled to additional
payment from their insurance company for damages occasioned by a
storm on September 1, 2001. They do not challenge the validity of
the limitations clause in their insurance policy, but they argue
that Great Northern effectively waived the protection of that
clause by lulling the Bosleys into believing that their claims
would be settled without the need for suit.
Under Louisiana law, an insurer can waive a time limitation
contained in its policy. Smith v. Metro. Prop. & Cas. Ins. Co.,
868 So.2d 57, 59 (La. Ct. App. 2003). The waiver “can be express
or tacit, as evidenced by the conduct on the part of the insurer.”
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Id. Tacit waiver may be found where, for example, the insurer
continues negotiations with the insured and thereby induces the
insured to believe the claim will be settled, or where the insurer
makes an unconditional offer of payment. Id. (citing Lima v.
Schmidt, 595 So.2d 624, 634 (La. 1992); Griffin v. Audobon Insur.
Co., 649 So.2d 72, 74 (La. Ct. App. 1994)).
The district court believed that the theory of waiver was
simply not supported by the authority cited, see Memorandum Ruling
of March 3, 2006, but it is clear to us that Smith and the other
cases presented to this court plainly hold that where an insurer
“lulled [the insured] into believing that the claims she filed were
not going to be contested or would be settled without the need for
suit,” the insurer has waived the protection of the limitation
clause. Smith, 868 So.2d at 60.
To demonstrate that Great Northern tacitly waived this
protection, the Bosleys presented a check they received from Great
Northern on November 13, 2001, which reads: “IN SETTLEMENT OF STORM
DAMAGE LESS $1,000 DED. PARTIAL.” They contend that this language
indicates that the check was only a partial payment, with
additional payment to follow. They also presented to the district
court the Affidavit of J. Houston Bosley himself, in which Mr.
Bosley alleges that he and his wife had “numerous communications”
with Mr. Andy Tippett, an adjuster from Great Northern, who
acknowledged that the insurer still owed the Bosleys additional
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money. This affidavit is made somewhat more credible in light of
additional evidence, including deposition testimony and internal
reports from Great Northern, which suggest that Mr. Tippett did
indeed believe that the company intended to pay the Bosleys
additional money.
Great Northern does not disagree that an insurer can, by its
actions, tacitly waive the protection of a limitations clause.
Instead, it tries to distinguish the case law on its facts, and
illustrate why no waiver occurred in this instance. In our view,
the parties’ conflicting summary judgment evidence only illustrates
that there is indeed a genuine issue of material fact as to whether
waiver occurred. For this reason, summary judgment was
inappropriate. Accordingly, we REVERSE the district court’s grant
of summary judgment and REMAND for further action consistent with
this opinion.
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