Monika Unique Chisholm VS State Farm Insurance Companies
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT L JIrr NUMBER 2007 CA 1132 MONIKA UNIQUE CHISHOLM VERSUS STATE FARM INSURANCE COMPANIES Judgment Rendered Appealed November 2 2007 from the Nineteenth Judicial District Court in and for the Parish of East Baton Rouge State of Louisiana Docket Number 519 491 Honorable Kay Bates Judge Presiding Winston G DeCuir Jr Counsel for Plaintiff Appellant Suchitra J Monika Chisholm Baton Satpathi Rouge LA Henry G Terhoeve Baton Rouge Counsel for Defendant LA Appellee State Farm Mutual Automobile Insurance Company BEFORE J J WHIPPLE GUIDRY AND HUGHES JJ t 9 I f1 CO C v I JJ WHIPPLE J Plaintiff Monika dismissing her claims Company State Farm demand For the Chisholm Unique against and trial a court judgment defendant State Farm Mutual Automobile Insurance State Farm awarding that follow reasons appeals we damages on its reconventional affirm BACKGROUND On the evemng of December 6 Mercedes Benz E320 stolen from the Louisiana The vehicle where it had been made Ms a set was on 2001 Ms parking lot found that same fire with the aid of a Chisholm at her reported Cortana Mall in Baton evening liquid Ms Chisholm claim for her loss with her automobile insurer State Fann which Chisholm with circumstances Ms Chisholm a rental surrounding was authorizations asked to the incident provide however Ms Chisholm refused s claim to on During the to obtain course access to of this investigation 2002 including her financial records sign these authorizations March 28 provided investigation into the an certain documentation to State Farm State Farm allowing denied Ms Chisholm while it conducted car Rouge Zachary Louisiana near flammable 1999 State Fann contending ultimately that Ms Chisholm had made false statements with the intent to deceive in connection with the claim State Farm also alleged that the meaning of the Ms Chisholm s loss was not an accidental loss within policy Upon the denial of her claim Ms Chisholm initially filed suit against State Farm in the United States District Court for the Middle District however that suit ultimately was dismissed for lack of subject 2004 Ms Chisholm reinstituted her claim 19th Judicial District Court for the subsequently filed a policy benefits paid parish Chisholm as 2 jurisdiction by filing suit against of East Baton reconventional demand to Ms matter On April 22 State Farm in the Rouge State Farm seeking reimbursement for certain a result of her claim the cost of investigating the claim including attorney by filing alleging a s and the fees costs Ms Chisholm court was set the federal and defending responded to s no reconventional demand had denied the objections raised state suits the reconventional demand peremptory exception pleading the objection of in part that State Farm trial of cause of action prescribed The by the peremptory exception and the matter for trial At trial Ms Chisholm contended that State Farm had breached its contract with her and that it had been defense to these claims as arbitrary well was evidence arson to means of her vehicle In State Farm established that Ms security system that the vehicle As a somehow involved in the was support of this assertion State Farm offered demonstrate that Ms Chisholm had and that she retained of her claim uncooperative in its investigation of her State Farm also contended that Ms Chisholm theft and her capricious in denying in support of its reconventional demand State as Farm asserted that Ms Chisholm claim and a proven possession of both keys Chisholm was s history of living beyond to the vehicle vehicle had such particularly difficult a if not FUliher sophisticated impossible to steal After the trial the court issued written Farm Specifically the court indirectly in the claim with prejudice arson s vehicle and concluded that Ms Chisholm of her vehicle and for judgment in favor of State found that Ms Chisholm highly suspicious circumstances least reasons awarded was was stolen under involved The court dismissed Ms Chisholm damages to State Farm III at s the of amount court 1 5 620 87 A costs September along judgment with interest from the date of judicial demand and in accordance with these reasons was signed on 2 appeal by Ms Chisholm followed 14 2006 and this DISCUSSION In her first elTed in met assignment of considering her financial infonnation its burden of to Ms According proving that she its to prove specifically questioning how this The intelTogatory Please assessing was in at issue not since it information was of her vehicle have been allowed objected to arson be used to her to use her interrogatories by State Farm provided whether state case whether State Farm determining involved in the Chisholm State Farm should financial information in Ms Chisholm contends that the trial court elTor or not consumer credit information is used claim by policy holder of State Farm If so describe in how the credit information of a State Fann policy holder is used in issuing the policy setting the premium and adjusting a claim detail State Farm ambiguous a a to objected vague this to intelTogatory by plaintiff contending ilTelevant not reasonably calculated As was a preliminary of discretion when shall R B not be ruling disturbed on on to we the appeal 10 note discovery that the trial absent a of admissible evidence is granted of evidence and a writs denied 2000 3270 2000 3311 La State Farm asserted as an App broad range evidentiary rulings clear abuse of that discretion La was unduly burdensome and court 99 2597 p 8 In this matter IThis lead to the overbroad admissibility Ammon and Associates Inc So 2d 1 1027 matter immaterial that it 1st Cir 126 01 Grayson 11 3 00 782 So v 778 2d 1026 affirmative defense that Ms total included the following charges 1 1 600 00 paid to Enterprise for the car paid to Randy Callison and The ProNet Group Inc for an of the vehicle and a formal repOli 3 488 00 paid to Copilli Salvage where Ms inspection Chisholm s vehicle was towed and stored the investigation 4 772 00 paid to POlieous during Hainkel Johnson LLP for the preparation and taking of an eXillnination under oath of Ms Chisholm and 5 375 10 paid to On The Record Inc for the transcription of Ms Chisholm s rental for Ms Chisholm 2 2 385 77 exmnination under oath 2Ms Chisholm also filed a motion for new 4 trial which was denied by the trial court Chisholm Ms involved in the theft and was Chisholm financial condition s financial motive for destroying Insurance 36 539 1143 we Company no As an State Farm s allowed to objection rely to the was an produce would be detrimental Chisholm was of filing s dissatisfied with the a motion for an to option the trial of applying introducing to comply to case cany with such for an 1471 of arson that the fire was proceedings below incendiary orig An insurer need not prove its evidence thF preponderates in case not have been Farm State Fann If Ms she had the LSA C C P 1469 art State Farm from However Ms Chisholm did Thus s we find no error in the financial condition eyond a that she was By raising the affirmative establishing by convincing proof and that the plaintiff was responsible for it reasonable doubt it suffices that the favor df the defense 5 that Ms Chisholm contends that State Fann burden of n appeal the interrogatory establishing by convincing proof the insurer has of to prohibiting responsible for the theft and destruction of her vehicle defense of on order Ms Chisholm then had the order assignment of error its burden asserts disagree provided by admission of the evidence of Ms Chisholm s Accordingly Ms Chisholm further case We LSA C C P art certain evidence In her second failed its 2d judicial admission that the a compelling discovery court 833 So presumption that the evidence State an take any such action in the court 2d 539 essentially proving its to a court amounts to answers order that she had 12 11 02 840 So merely noted its objection response Had State Farm failed trial adverse evidence of State Farm General v App 2nd Cir the part of the trial interrogatory to prove See Evans La 3 21 03 such information in on State Farm option on La Clearly irrelevant and that State Farm should suggests that there should be failed to admissible additional argument Ms Chisholm financial infonnation not 6 8 pp abuse of discretion was of her vehicle her vehicle 1147 writ denied 2003 0125 find arson Rist v Commercial Union Insurance 376 Company So establishment of the incendiary evidence is sufficient States 2d 792 addition its case responsible the manifest review of a every other reasonable The 1120 is finding La court may set aside entirety Stobart 882 appellate court to reverse La a trial court no additional if s a 1993 a errors In plaintiff is deference 844 La to of law test for the whether the 2 appellate Mart v record fmiher Hill 505 So 2d reasonable factual basis in the record inquiry court s error a factual findings is governed by part erroneous the trial absent a reasonable factual basis in the is necessary to conclude there if after finding was and court finding s appellate an reviewing the clearly findings of manifest record wrong Development standard of review See 617 So obligates an of fact We will error Rosell v 1989 Chisholm contends that this comi should conduct because certain 2d 436 defense is arson two finding only The manifest give great 2d 840 7 4 95 the insurer need Again reasonable factual basis exists factual factual detenninations ESCO 549 So 3Ms However and manifestly Thus if there is no The through Department of Transportation 2d 880 not not it determines that the trial State v 3 of the trial court finding error 660 So than that the hypothesis whether there is 1 finding is 1987 s 1st Cir App 95 review of factual s finding manifest in its comi appellate factual 1127 16 6 La proven the wrong standard for the trial court was adequately clearly establishes that the La United v Id error record for the 4 Miley arson reasonable doubt Rather such circumstantial evidence a Whether the insurer has Id 94 1204 p 95 1101 plus in the absence of credible rebuttal proved by circumstantial evidence for the fire determination Proof of motive sustain the affirmative defense of beyond only exclude 1979 origin of the fire writ denied may be arson not prove 794 La 113 Fidelity and Guaranty Company 659 So need to 2d allegedly committed finding by a de novo review of the record the trial court have interdicted the fact Because we find no elTor in the trial comi s evidentiary lUling challenged process Ms Chisholm s first assigmnent of enor a de novo review is not appropriate in this matter 6 by The trial found that the fire court concluded that Ms Chisholm vehicle Ms Chisholm does was not involved Fire 30 p m and that she had both Department Chisholm was on keys repOlied the which Ms Chisholm found the bmning windows finding as a as stolen car at was the mall of was incendiary involved in parked her vehicle s vehicle Callison the stated that the or Moreover steering wheel was no was on was no these 4Ms or a tow Ms five minutes one glass in the testified that the the vehicle and cause locked at until origin of testimony as Mr Callison testified and anti theft features of Ms in the vehicle According to He further signs of having been tampered evidence of mechanical findings they blew of vehicle fires the time of the fire no in of the witnesses who department saw area compromise to Mr Callison concluded that the one area of town to another the only was by truck Chisholm testified that she shOlily after purchasing the broken security systems way the vehicle could have been moved from key Zachary Barnette Road State Farm introduced the wheel lock bolt showed Based s on the m approximately twenty particularly the steering column defeated and that there using the vehicle At 8 20 p In addition expert in the field of the steering steering system 4 bmning vehicle and notified the fire result of the fire an at Cortana Mall reported in the theft of vehicles and vehicle Chisholm it that she of her arson She testified that she locked the extensively about the sophisticated security system with was parked her vehicle intact and closed when he first were Randy Callison Mr in the that the fire the vehicle with her to The record fuliher indicates that there well s December 6 2001 notified that the vehicle after the fire had been out indirectly court OrIgm and further arson approximately 7 car least at At trial Ms Chisholm testified that she at incendiary dispute the finding origin however she does dispute the trial the of was originally vehicle 7 had a third key to the vehicle but that she lost Ms Chisholm offered evidence no to contradict this testimony suggested that perhaps the vehicle had been towed from the However mall their did of the presence of any tow trucks in the notice any tow Callison testified that vehicle trucks record of a car alarm The trial condition the of the night at was over also court 1 000 00 at as to After a the on amount thorough court alleged theft was also by using tow truck a Mr the security did of Ms not Chisholm monthly payment her 2001 and Furthermore have any however consistency of the of the trial court clearly wrong we find no elTor financial s on but that she the vehicle s monthly reported only She contended that her fiancé and tax return review of the record findings was 1 000 00 over she unable was to provide any help she received we find that there is In addition we are Clearly the evidence financial condition demonstrates that she had vehicle they The record indicates that Ms Chisholm 51 859 03 and that her her pay her bills factual basis for the that the trial considered evidence that time helped notify Notably The record further indicates that Ms Chisholm 20 774 00 in income her mother to sounding on the night of the alleged theft the time of the house payment parking lot and that theft alleged if the vehicle had been stolen even purchased the vehicle for specifics on parking lot alarm still would have sounded However mall s mall security officers testified that their duties required them supervisors not Instead she a s reasonable unable to find of Ms Chisholm financial motive in the trial court a to destroy implicit finding s her that the evidence in the record eliminates all reasonable alternatives but that Ms Chisholm was involved in the arson of her vehicle Therefore this assignment of elTor is without merit In her final assignment of reconventional demand petition was was elTor Ms Chisholm contends that State Fann filed outside the prescriptive period filed in the 19th Judicial District Court 8 on April Ms Chisholm 22 2004 s s State Farm did file its reconventional demand until not that State Farm the one 3492 year reconventional demand is s prescriptive period provided State Farm argues that its claim Article 3492 because its claim is delictual action by LSA C C personal 3499 mi is which to governed by Article Article 3492 contract and is filed outside by LSA C a ten year C art governed by therefore not a governed prescriptive period for resolve this issue however because not period stated w prescription does Where the cause begin of the damages prescription Louisiana a itself in this persisted Farm has continued to sustain matter or as one Accordingly arising out governed by 1982 when the resulting damages continue the damage giving rise one is abated to successive wrongful conduct causing damage as whether State Farm 9 La in her claim and of contract the claim is continuing tort theory 533 causing dates from cessation of the the Court in South Central Bell 2d 531 continuous of clearly has been matter under the and until the conduct injury is run Supreme 418 So Thus while Ms Chisholm against it State to hen the tortious conduct not State Farm suggests as If however the yet begun Texaco Inc v If regardless the claim has been proceeds 3499 the reconventional demand ten year prescription has Telephone Company delictual was Ms Chisholm is not grounded in provides for theory was recognized by the damage against applicable prescriptive period filed within the allotted court for delictual actions under which the reconventional demand filed within the This prescribed because it actions theory matter Ms Chisholm contends Thus State Farm contends its reconventional demand is We find it unnecessary the July 28 2005 was subsequent the suit it was s action is classified timely required filed to defend as CONCLUSION F or the costs of this foregoing appeal are reasons assessed to we affirm the plaintiff AFFIRMED 10 judgment Monika Unique of the trial Chisholm court All
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