L. Kevin Coleman v. State Farm Fire and Casualty Company ( 2023 )

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NO. 2023 CA 0226
L. KEVIN COLEMAN
VERSUS
STATE FARM FIRE AND CASUALTY COMPANY
Judgment Rendered: OCT 112023
On Appeal from the
22nd Judicial District Court
t C In and for the Parish of St. Tammany
State of Louisiana
Trial Court No. 2022- 10502
Honorable Richard A. Swartz, .fudge Presiding
L. Kevin Coleman Plaintiff A
- ppellant,
Mandeville, LA Pro Se
Jeffrey E. Richardson Attorneys for Defendant -Appellee,
David A. Strauss State Farm Fire and Casualty
Jacques P. Jandrieu Company
New Orleans, LA
MEMEM
BEFORE: McCLENDON, RESTER, AND MILLER, JJ.
HESTER, J.
In this appeal involving the interpretation of an insurance contract, plaintiff,
L. Kevin Coleman, appeals a judgment denying his motion for summary judgment
and granting a motion for summary judgment in favor of defendant, State Farm Fire
and Casualty Company on the grounds that Coleman' s damages did not exceed the
applicable hurricane deductible. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
On August 29, 2021, Hurricane Ida made landfall in South Louisiana causing
damage to Coleman' s residence premises located at 111 Chinchuba Gardens Drive
in Mandeville, Louisiana. At all relevant times, Coleman' s home was covered by a
homeowner' s insurance policy issued to Coleman by State Farm. On September 16,
2021, Coleman reported a claim outlining his damages to State Farm, including
damage from trees that fell on his fences, driveway, and a wooden pier in the back
of his property.
Thereafter, State Farm inspected the property and, in its estimate, concluded
that the damages incurred by Coleman totaled $ 5, 578. 13', and did not exceed the
12, 160. 002 hurricane deductible in the policy. As part of its estimate, State Farm
determined $ 500. 60 as the cost for the removal of tree debris. Coleman responded
by letter rejecting the estimate presented by State Farm. He attached to the letter an
estimate from Ziegler Tree and Timber Co. estimating that the removal for all the
fallen trees and stumps from Coleman' s property would cost $32, 500.00. State Farm
replied, pointing to Section I - Additional Coverages in the policy, contending that
regardless of which estimate for tree debris removal was used, the policy provided a
I State Farm' s estimate concluded that the value of the damaged part of Coleman' s property at the
time of the loss, calculated as the estimated cost to repair or replace such property less a deduction
to account for pre -loss depreciation, was $ 3, 477. 78 for the pier, $417.46 for the fence, $ 856. 30 for
tree removal, $ 500. 60 for removal of tree debris, $ 141. 26 for hauling away debris in a pickup truck
including dump fees), and $ 184. 73 for concrete labor, for a total of $5, 578. 13.
2 $ 12, 160. 00 is 5% of the Coverage A policy limit.
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1, 000. 00 limit for the removal of tree debris and stumps, and even if State Farm
acknowledged that Coleman met the $ 1, 000. 00 limit, the coverage would not exceed
the policy' s hurricane deductible.
In response, Coleman filed a " Petition for Declaratory Judgment, Damages,
Statutory Penalties and Attorney Fees" seeking a judgment declaring that " debris"
as used in the policy includes trees and any parts thereof. Coleman also sought
damages due under the policy, statutory penalties pursuant to La. R.S. 22: 1892, and
attorney fees. The district court, in accordance with Act 318, issued a case
management order directing that all Hurricane Ida related claims to be submitted for
mediation before a specially appointed master. 4n June 2, 2022, Coleman filed a
Motion for Summary Judgment for Part of the Relief Prayed for" stating that while
the case is pending and subject to the case management order, the present motion
will greatly assist in streamlining the process set forth in the order. In his motion,
Coleman sought summary judgment declaring that:
A. " debris" as used in provision 1, entitled " Debris Removal" under
Section I —Additional Coverages ( the " debris clause") of the policy
includes trees and any parts thereof and that same are not otherwise
excluded as " debris;"
B. when a tree is " debris" of damaged covered property the policy
requires that the entire felled tree be removed and properly disposed
of, and not just a selected piece thereof,
C. provision 1( b) of the debris clause which begins " We will also
pay..." is not a limitation upon the amount of [money] recoverable
under the debris clause but is instead an addition thereto;
D. no other policy provision limits the amount available under the
debris clause to pay for the removal of debris of covered property;
and
E. defendant' s failure and/ or refusal to pay for debris removal was
arbitrary and capricious.
State Farm opposed Coleman' s motion for summary judgment and filed
State Farm' s Cross -Motion for Partial Summary Judgment," contending that
Coleman' s damages do not exceed the hurricane deductible in the policy. In so
arguing, State Farm contends that the policy contains a $ 1, 000. 00 limit for the
removal of tree debris and stumps.
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The parties' motions for summary judgment came were heard on September
15, 2022. Thereafter, the district court issued written reasons for judgment and
signed a judgment on November 22, 2022, denying Coleman' s motion for summary
judgment, granting State Farm' s motion for summary judgment, and dismissing
Coleman' s petition with prejudice. It is from this judgment that Coleman appeals,
contending that the district court erred in failing to interpret the policy broadly in
favor of coverage and in failing to find provision ( 1)( b) was an addition to coverage,
not a limitation. Coleman further contends that the district court erred in failing to
find State Farm' s failure to pay for the tree debris removal was arbitrary and
capricious in violation of La. R.S. 22: 1892.
STANDARD OF REVIEW
A motion for summary judgment shall be granted only if the motion,
memorandum, and supporting documents admitted for purposes of the motion show
there is no genuine issue as to material fact and the mover is entitled to judgment as
a matter of law. See La. Code Civ. P. art. 966( A)( 3). In determining whether
summary judgment is appropriate, appellate courts review evidence de novo under
the same criteria that govern the district court' s determination. See Huggins v.
Amtrust Ins. Co. of Kansas, Inc., 2020- 0516 ( La. App. 1 st Cir. 12/ 30/ 20), 319
So. 3d 362, 366. We may only consider evidence that is admissible under the express
provisions of La. Code Civ. P. arts. 966 & 967. Huggins, 319 So. 3d at 365.
Summary judgment is appropriate for determining issues relating to insurance
coverage, which is a question of law. See La. Code Civ. P. art. 966( E). See also
Bosse v. Access Home Insurance Company, 2018- 0482 ( La. App. l st Cir.
12117118), 267 So. 3d 1142, 1145, and Doiron v. Louisiana Farm Bureau Mut.
Insurance Company, 98- 2818 ( La. App. 1st Cir. 2118/ 00), 753 So. 2d 357, 362 n.2.
Summary judgment declaring a lack of coverage under an insurance policy may not
be rendered unless there is no reasonable interpretation of the policy under which
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coverage could be afforded. Reynolds v. Select Properties, Ltd., 93- 1480 ( La.
4111194), 634 So. 2d 1180, 1183.
LAW AND ANALYSIS
An insurance policy is a contract between the parties and is subject to the basic
rules of contract interpretation found in La. Civ. Code arts. 2045, et seq.
Interpretation of a contract is the determination of the parties' common intent, as
reflected by the policy' s wording, and it is the parties' intent that determines the
extent of coverage. La. Civ. Code art. 2045; Bosse, 267 So. 3d at 1146. When the
policy' s wording is clear, no further interpretation may be made in search of the
parties' intent, and the policy must be enforced as written. La. Civ. Code art. 2046;
Bosse, 267 So. 3d at 1145- 46. If, after applying the other general rules of
construction, an ambiguity remains, the ambiguous contractual provision is to be
construed against the insurer who issued the policy and in favor of coverage for the
insured. See La. Civ. Code art. 2056. Under this rule of " strict construction,"
equivocal provisions seeking to narrow an insurer' s obligation are strictly construed
against the insurer. For the rule of strict construction to apply, the policy must be
susceptible to two or more interpretations, and the alternative interpretations must
be reasonable. Bonin v. Westport Insurance Corporation, 2005- 0886 ( La.
5/ 17/ 06), 930 So. 2d 906, 911. The determination of whether a contract is clear or
ambiguous is a question of law. McMath Construction Company, Inc. v. Dupuy,
2003- 1413 ( La. App. 1st Cir. 11/ 17/ 04), 897 So. 2d 677, 681, writ denied, 2004- 3085
La. 2/ 18/ 05), 896 So. 2d 40. An insurance contract must be construed according to
the entirety of its terms and conditions as set forth in the policy and as modified by
any endorsement made a part of the policy. La. R.S. 22: 881. An insurance policy
should not be interpreted in an unreasonable or a strained manner so as to enlarge or
to restrict its provisions beyond what is reasonably contemplated by its terms or so
as to achieve an absurd conclusion. Pecoraro v. Louisiana Citizens Insurance
R
Corporation, 2018- 161 ( La. App. 5th Cir. 10/ 17/ 18), 258 So. 3d 212, 215. Absent
a conflict with statutory provisions or public policy, insurers are entitled to limit their
liability and to impose reasonable conditions upon the obligations they contractually
assume. Louisiana Insurance Guaranty Association v. Interstate Fire &
Casualty Co., 93- 0911 ( La. 1114194), 630 So. 2d 759, 763.
The sole issue herein is the interpretation of the insurance policy to determine
to what extent the policy covers expenses incurred for the removal of tree debris.
Section I of the policy is titled " Property Coverages" and within Section I there are
three main types of coverage: Coverage A addresses " DWELLING," Coverage B
addresses " PERSONAL PROPERTY," and Coverage C addresses " LOSS OF
USE." In addition to Coverages A, B, and C, Section I also provides for additional
coverages related to the insured' s own property. The relevant provision regarding
debris removal is contained in the Section I- Additional Coverages section of the
policy and provides:
1. Debris Removal. We will pay the reasonable expenses you incur in the
removal of debris of covered property damaged by a loss insured. This
expense is included in the limit applying to the damaged property. The
following coverages and limits also apply:
a. When the amount payable for the property damage plus the debris removal
exceeds the limit for damaged property, an additional 5% of that limit is
available for debris removal expense. This additional amount of insurance
does not apply to SECTION I —ADDITIONAL COVERAGES, Trees,
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Shrubs, and Landscaping.
3 The section under Additional Coverages for Trees, Shrubs, and Landscaping provides coverage
for specific perils not associated with this specific claim, i.e., trees felled by a windstorm. This
section provides:
Trees, Shrubs, and Landscaping. We will pay for accidental direct physical loss to
outdoor:
a. trees, shrubs, live or artificial plants, and lawns;
b. artificial grass, and
c. hardscape property used for aesthetic purposes not permanently affixed to realty;
on the residence premises, caused by the following perils: Fire or lightning,
Explosion, Riot or civil commotion, Aircraft, Vehicles... Vandalism or malicious
mischief, or Theft.
The limit for this coverage, including the removal of debris, will not exceed 5% of
the amount shown in the Declarations for COVERAGE A- DWELLING. We will
not pay more than $ 750 for any one outdoor tree, shrub, plant, or hardscape item,
n
b. We will also pay up to $ 1, 000 total for each loss to cover the reasonable
expenses you incur in the removal of tree debris and stumps from the
residence premises, unless otherwise excluded. This coverage applies when:
1) the tree has caused a loss insured to Coverage A property; or
2) the tree debris felled by windstorm, hail, or weight of snow or ice
blocks:
a) the driveway, on the residence premises, and prevents land motor
vehicle access to or from the dwelling; or
b) a ramp designed to assist persons with disabilities, on the residence
premises, and prevents access to or from a building structure.
Coleman argues that State Farm made a judicial admission that a fallen tree is
a type of debris covered by Section 1, and the district court erred in its conclusion
that " the debris itself must be comprised of covered property. In this case[,] the trees
were not covered property damaged by a loss insured." In the alternative, Coleman
argues that subsection 1( b) was ambiguous per se and should have been interpreted
in his favor as the plaintiff/policy holder. Specifically, Coleman contends that 1( b)
cannot be interpreted to create a specific limitation for a specific type of debris
removal and is instead an addition thereto as the subsection begins with " We will
also pay."
An " ambiguity" in an insurance policy is said to exist when the pertinent
provision can be reasonably construed in two different ways. McCarthy v.
Berman, 95- 1456 ( La. 2/ 28/ 96), 668 So. 2d 721, 726. Our review of the policy
reveals no ambiguity. While the policy provides coverage for expenses related to
the removal of tree debris, it is subject to specific conditions and limitations, and the
maximum amount of coverage for each loss is $ 1, 000. 00. Under the introductory
paragraph in the Additional Coverages section of the policy titled "Debris Removal"
the policy states that "[ t] he following coverages and limits also apply." ( Emphasis
including debris removal expense. This coverage may increase the limit otherwise
applicable. We will not pay for any loss to property grown for business purposes.
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added). Subsection 1( b) directly addresses the scope of coverage for the removal of
tree debris and stumps and provides coverage up to $ 1, 000.00 total for each loss to
cover the reasonable expenses incurred in the removal of tree debris and stumps from
the residence premises. The policy then gives the two circumstances' when it covers
the removal of tree debris, but limits the coverage to $ 1, 000. 00 regardless of which
circumstance occurs. Furthermore, the declarations page of the policy lists a liability
limit of $1, 000. 00 for tree debris removal.
It is well established that, in contract interpretation, the more specific
provision controls the general. Aikman v. Thomas, 2003- 2241 ( La. App. Ist Cir.
9117104), 887 So. 2d 86, 90. The tree debris removal provision falls within the
broader paragraph dealing with general debris removal. Subsection 1( b) then
provides a specific provision for a specific type of debris removal, namely tree debris
and stumps. " We will also pay" refers to an additional payment beyond the amount
paid for debris removal that does not consist of trees and stumps. As the coverage
for the removal of tree debris and stumps is unambiguously limited to $ 1, 000. 00,
there is no reasonable interpretation of the policy under which coverage could be
afforded beyond $ 1, 000. 00 for the removal of tree debris and stumps.' Additionally,
because the policy limits the coverage of tree removal to $ 1, 000. 00, regardless of
which estimate is used by State Farm, Coleman' s recoverable damages do not
exceed the applicable hurricane deductible. Therefore, we find no error in the district
court' s grant of summary judgment dismissing Coleman' s claims.
a The two circumstances are: 1. the tree has caused a loss insured to Coverage A property or 2.
the tree felled by windstorm, hail or weight of snow or ice blocks the driveway or a ramp
designated to assist persons with a disability access to a building.
s
Considering our conclusion that the policy unambiguously limits the coverage for the removal
of tree debris to $ 1, 000. 00, we pretermit discussion of Coleman' s judicial admission argument and
find no merit to Coleman' s second assignment of error contending that State Farm was arbitrary
and capricious in its failure to pay for the tree debris removal.
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CONCLUSION
For the foregoing reasons, the November 22, 2022 judgment of the district
court is affirmed. All costs of the appeal are assessed to plaintiff-appellant, L. Kevin
Coleman.
AFFIRMED.
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L. KEVIN COLEMAN STATE OF LOUISIANA
COURT OF APPEAL
VERSUS
FIRST CIRCUIT
STATE FARM FIRE AND NUMBER 2023 CA 0226
CASUALTY COMPANY
MILLER, J., concurring.
While I agree with the majority' s interpretation of the policy — that the
removal of tree debris and stumps is capped at $ 1, 000. 00 for each loss — I write
separately to emphasize that Mr. Coleman failed to attach competent summary
judgment evidence to genuinely place at issue the amount of covered damages. State
Farm values the claim at $ 5, 578. 13 as evidenced by its repair estimate. This amount
is well below the hurricane deductible of $12, 160. 00. Because Mr. Coleman failed
to set forth any evidence countering this amount, either in support of his own motion
or in opposition to State Farm' s motion for summary judgment, we are unable to
conclude that the deductible has been met and payment is due under the policy.