Kenneth K. Krygier VS Karen M. Vidrine, Progressive Casualty Insurance Company and Liberty Mutual Fire Insurance Company
Annotate this Case
Download PDF
NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2010CA0121 y KENNETH K KRYGIER yy j 1 I k VERSUS j i KAREN M VIDRINE PROGRESSIVE CASUALTY iNSIJRANCE COMPANY AND LIBERTY MUTUAL FIRE INSURANCE COMPANY DATEOFJUDGMENT SEP 10 2010 ON APPEAL FROM THE TWENTY 7UDICIAL DISTRICT COURT SECOND NUMBER 2007 DIVISION A PARISH OF ST TAMMANY 12327 STATE OF LOUISIANA HONORABLE RAYMOND S CHTLDRESS JUDGE Brent P Frederick Michael T Beckers Counsel for Plaintiff Appellee Kenneth K Krygier Kenneth H Hooks III M Sean Reid Baton Rouge Louisiana David 7 Schexnaydre Mary B Lard Mandeville Louisiana Counsel for Defendant Appellant Progressive Casualty Insurance Company BEFORE PARRO KIJfIN AND McDONALD JJ Disposition AFFIRMED Kuhn J On appeal we review a summary judgment that awarded penalties to appellee plaintiff Kenneth K Krygier far the failure of defendant appellant Progressive Casualty Company Insurance Progressive an underinsured uninsured motorist UM insurer to make a timely tender of its policy limits following a motor vehicle accident See La R 22 We affirm S 1892 I PROCEDURAL AND FACTUAL BACKGROUND On October 11 2006 Krygier was a passenger in a 2006 Chevrolet Cobalt operated by a co Billy Toon who had rented the vehicle in Louisiana worker Both Krygier Hornbeck and Toon warked for Hornbeck Offshore Services C L While Toon and Krygier were travelling to Hornbeck office in s Covington Louisiana the vehicle they occupied was rear by a 2005 Ford ended Explorer operated by Karen Vidrine and insured by Liberty Mutual Fire Insurance Company Liberty MutuaP Progressive had issued a policy to Toon that was in effect on the date of the accident and provided UM coverage to all occupants of an insured vehicle On May 14 2007 Krygier filed suit naming as defendants Vidrine Progressive and Liberty Mutual Krygier alleged that Vidrine negligence caused s the accident that he had sustained severe and permanent personal injuries and that Acts 2008 No 415 1 eff January 1 2009 renumbered former La R 22 to La R S 658 S 1892 22 without changing the substance of the provisions Although the accident occurred before this renumbering because the substance of the newly designated statute is the same we reference La R 22 throughout this opinion S 1892 2 When the accident occurred Krygier worked for Hornbeck as a mate on an offshore supply boat 3 Although the petition named both Liberty Mutual Fire Insurance Company and Liberty Mutual Insurance Company as defendants the policy at issue was issued by Liberty Mutual Fire Insurance Company We refer to these defendants collectively as Liberty Mutual 2 the policies issued by Progressive and Liberty Mutual provided coverage for the nature of the liability asserted in his petition In a first amended petition filed on June 25 2007 Krygier also named Hornbeck as a defendant Krygier asserted that the motor vehicle accident occurred while he was in the course and scope of his employment with Hornbeck for whom he alleged he was employed as a Jones Act seaman Krygier alleged that Hornbeck had initially paid maintenance and cure benefits for a period of time after the accident but had ceased providing wages in violation of the Admiralty law and Hornbeck sought reimbursement of all sums paid to him Based on these allegations Krygier sought to recover maintenance and cure benefits from Hornbeck Progressive answered the suit generally denying the allegations of Krygier s original and first amended petition and further denying coverage under its policy on the grounds that the rental vehicle in question was not a covered vehicle under s Toon policy Krygier was not apersod under the policy and Vidrine covered was not underinsured Liberty Mutual answered Krygier original petition generally denying the s allegations of the petition but admitting the existence of a liability policy Thereafter counsel for Liberty Mutual and Vidrine D Russell Holwadel answered s Krygier first amended petition on behalf of both Liberty Mutual and Vidrine generally denying its allegations Hornbeck likewise answered Krygier original s and first amended petition generally denying the allegations asserting affirmative defenses and asserting a cross against Vidrine and Liberty Mutual claim 3 In September 2007 Progressive filed a motion for summary judgment seeking a determination that Krygier was not affarded UM benefits under s Progressive policy on the basis that coverage did not extend to the rental vehicle driven by Toon Krygier also filed a motion for summary judgment on the same coverage issue urging that Progressive policy provided UM benefits to guest s passengers when Toon drove the rental vehicle On December 6 2007 the trial court granted Krygier motion for summary judgment and denied Progressive s s motion for summary judgment determining that coverage under Progressive s policy extended to Toon rental vehicle and to Krygier as a guest passenger s In August 2007 Hornbeck had submitted a request for production of documents to Liberty Mutual which requested inter alia a and all policies of ny insurance providing liability coverage to Vidrine for the October 11 2006 accident Holwadel in his capacity as counsel for Liberty Mutual responded to this particular request on January 15 2008 and therein referenced the attached Liberty Mutual policy that had been issued to Vidrine which provided liability coverage with a maximum limit for each accident involving the 2005 Ford 000 30 Explorer for the period of April 2 2006 to April 2 2007 It is undisputed that Liberty Mutual response was served on all counsel of recard s Nevertheless 4 The parties had disputed whether Tennessee or Louisiana law controlled this coverage issue since the Progressive policy had been purchased in Tennessee by a Tennessee resident although Toon had rented the vehicle in Louisiana the accident had occurred in Louisiana and Vidrine was a Louisiana resident 5 The first page of the Liberty Mutual policy declarations lists Jeffrey M Vicknair and Karen V Vicknair as named insureds and the second page of the policy declarations lists Jeffrey M Vicknair and Karen Vidrine as insured dxivers The parties do not contest that Kazen Vidrine and Kazen M Vicknair aze the same person 6 It is further undisputed that Krygier also provided a copy of the Liberty Mutual policy to Progressive on October 8 2008 4 Progressive took the position that it did not have sufficient documentarion establishing that Vidrine was underinsured at the time of the accident On January 29 2008 Progressive participated in Krygier sdeposition during which Krygier testified regarding the injuries he sustained in the accident his ongoing medical treatments and his pain and suffering related to the injuries sustained Krygier had also previously provided documentation regarding his employment lost earnings and medical treatment in response to Progressive s requests for productions of documents On March 4 2008 the trial court dismissed Vidrine and Liberty Mutual from the lawsuit with prejudice after Krygier settled his claims against them On May 27 2008 this court denied Progressive application for supervisory writs on the s issue of whether Progressive policy afforded coverage to the rental vehicle driven s by Toon Krygier u Vidrirae 08 La App 0145 st Cir 5unpublished writ 08 27 action and on September 26 2008 the supreme court denied Progressive s application for supervisory writs on this issue Krygier v Vidrine 08 La 1365 9i26ios 992 so 990 2a In Krygier second amended petition for damages filed on November 17 s 2008 he sought penalties attorneys fees and costs based on Progressive failure s to timely tender its policy limits upon receipt of satisfactory proofs of loss Krygier alleged that Liberry Mutual had paid him 15 in settlement of his claims 000 against it and Vidrine Krygier also averred that although he had sought maintenance and cure benefits from Hornbeck it had failed to pay such benefits Krygier aileged that when the supreme court denied Progressive writ application s on September 26 2008 Progressive was well aware that Vidrine did not have 5 sufficient insurance to cover the damages sustained in the accident by Krieger Krygier further alleged that although he had previously made demand on Progressive to tender its policy limits of 100 plus judicial interest in the 000 amount of 12 Progressive had failed to tender any amount to Krygier 52 378 despite Progressive receipt of satisfactoiy proofs of loss and clear liability under s the policy terms Krygier claimed that Progressive had violated La R S 1formerly La FZ 22 1892A 22 S 658A 1urging that its failure to tender its policy limits within thirty days after receipt of satis proofs of loss was actary arbitrary capricious and withoat pro cause able As such Krygier prayed for 000 50 in penalties together with rreasonable costs and attorneys fees dn December 2008 Fe generally denied the allegations of Krygier s second amended petitian and furrher answered that it was entitled to a credit for any payments which have been made entity whatsoever or rnay in the future be made by any other Pragressive further answered that it had acted nably reasc and in good faith at al times in connection with the handting of the matter and furkher averred that Krygier nad failed to provide satisfacto proofs y of loss The parties do not dispu ethat on Febraaiy 1 l 2C09 Progressive received an Affidavit af No t nsarance executed by Vidrine wherein shz attested Yo the ier fact t she had no other Iiability insurance in effect on the date of the accident and iat that on March 12 2009 Progressive uncor tendered 100 to Krygier ditionally 000 On March 30 2009 Krygier and Harnbeck fi ajoint motic i nand order for dismissal of all claims against Ho and on May I3 2009 Krygier claims nbeck s against Horn ere dismissed with prejudace On June 1 2009 Krygier filed a eck 6 motion far summary judgment urging that no genuine issue of material fact remained in dispute that Krygier had provided satisfactory proofs of loss to Progressive by September 26 2008 the date the s Progressive writ application on the coverage issue supreme court denied Krygier urged that Progressive failed to timely tender its policy benefits in accardance with La R S 1892 22 and that such conduct was arbitrary and capricious resulting in liability for penalties attorneys fees and costs On July 10 2009 Progressive opposed Krygier motion for summary s judgment and Progressive also filed a cross motion for summary judgment in which it urged that Krygier had not proven the underinsured status of Vidrine before February 11 2009 because Krygier had not established that Vidrine had no insurance other than the Liberty Mutual insurance coverage In opposing Krygier s motion Progressive did not contest that 1 Krygier was riding as a passenger in s Toon rental vehicle 2 Vidrine had negligently failed to stop her vehicle which ended rear the vehicle in which Krygier rode 3 Krygier was a covered insured under Progressive policy and 4 it had been provided with Krygier s s employment and tax records evidencing that he was earning approximately 80 000 per year at the time of the accident Krygier had been unable to return to work and he had sustained approximately 200 in lost wages 000 Further Progressive did not contest that t course of the litigation it had hroughout the been provided with Krygier medical records that evidenced he sustained s permanent and severe injuries that he was unable to return to work and that he will likely be unable to return to work for the remainder of his life Progressive also did not contest that approximately 22 of the 30 Liberty Mutual 000 000 7 policy limits was paid to satisfy claims other than those of Krygier Rather Progressive contested that it had not been provided with satisfactory proofs of loss that included information that Vidrine was underinsured when the supreme court issued its September 26 2008 denial of Progressive application for supervisory s review of the December 6 2007 summary judgment granted in Krygier favor on s the coverage issue Pursuant to a September 8 2009 judgment the trial court granted Krygier s motion for summary judgment denied Progressive motion for summary judgment s found Progressive was arbitrary and capricious in failing to promptly tender policy limits and awarded penalties in the amount of 50 to Krygier 000 The judgment further declared that Krygier was entitled to the remaining interest owed on the policy limits plus attorneys fees and costs Progressive has suspensively appealed urging that Krygier did not establish that it acted arbitrarily capriciously or without probable cause after receiving satisfactory proofs of loss Progressive contends that sufficient admissible proof of the underinsured status of Vidrine was not conclusively established until February 11 2009 when it received Vidrine affidavit of no other insurance and s that it tendered its policy limits within thirty days of receiving this affidavit Progressive urges that Krygier had the burden of proving Vidrine underinsured s status in order to establish a satisfactory proof of loss and it further contends that this burden was not shifted to it as a result of Liberty Mutual discovery responses s The September 8 2009 judgment further provided The amount due for attorneys fees costs and remaining interest will be determined by heazing upon m of counsel The trial court otion designated the judgment as a final appealable judgment based on its finding that there was no just reason for delay La C art 1915B We likewise find there is no just reason for delay see P J R Messinger Inc u Rosenblum 04 p 14 La 3 894 So l ll3 1122 and 1664 OS 2 2d 23 we find the trial court properly designaYed the judgment as final 8 Thus Progressive urges that Krygier had not established that Vidrine was underinsured as of September 26 2008 and the judgment in Krygier favor should s be reversed II ANALYSIS A motion for summary judgment shall be granted if the pleadings depositions answers to interrogatories and admissions on file together with the affidavits if any show that there is no genuine issue as to material fact and Yhat the mover is entitled to judgment as a matter of law La C art 966B P The summary judgment procedure is favared in Louisiana and is designed to secure the just speedy and inexpensive determination of actions La C art 966A P Z Summary judgments are reviewed on appeal de novo using the same criteria that govern the trial court consideration s of whether a summary judgment is appropriate and in the light most favorable to the non movant Yokum v 61 S Bourbon Street L 07 p 25 La 2 977 So 859 876 Thus C 1785 08 26 2d appellate courts must ask the same questions the trial court does in determining whether summary judgment is appropriate whether there is any genuine issue of material fact and whether the mover is entitled to judgment as a matter of law Hood v Cotter 08 p 9 12 5 So 819 824 A issue is 0215 La 2 3d 08 genuine triable a issue Smith v Our Lady of the Lake Hospital I 93 La zc 2512 94 5 7 639 So 730 751 2d An issue is genuine if reasonable persons could disagree If on the state of the evidence reasonable persons could reach only one conclusion there is no need for a trial on that issue Id A fact is material when its existence or nonexistence may be essential to plaintiff s cause of action under the applicable theory of recovery Jones v Estate of Santiago 03 p 6 1424 La 9 04 14 4 870 So 1002 1006 Summary judgment is usually not appropriate for 2d claims based on subjective facts of motive intent good faith lrnowledge and malice Id However an exception is recognized when no genuine issue of material fact exists concerning the relevant intent and the only issue to be decided is the ultimate conclusion to be drawn from the uncontested material facts 1424 Jones 03 at pp 6 2d 16 870 So at 1006 See 11 1010 The initial burden of proof remains with the mover to show that no genuine issue of material fact exists La C art 966C P 2Jones 03 1at p 5 870 142 2d So at 1006 If the mover has made a prima facie showing that the motion should be granted the burden shifts to the non party to present evidence moving demonstrating that a genuine issue of material fact remains Id The failure of the moving non party to produce evidence of a material factual dispute mandates the granting of the motion La C art 966C P 2Jones 03 at p 5 870 So 1424 2d at 1006 Louisiana Revised Statutes 22 provides in pertinent part 1892 A 1 All insurers issuing any type of contract shall pay the amount of any claim due any insured within thirty days after receipt of satisfactory proofs of loss from the insured ar any party in interest B 1 Failure to make such payment within thirty days after receipt of such satisfactory written proofs and demand therefar within thiriy after receipt of satisfactory proofs of loss of that claim when days such failure is found to be arbitrary capricious or without probable cause shall subject the insurer to a penalty in addition to the amount of the loss of fifty percent damages on the amount found to be due from the insurer to the insured or one thousand dollars whichever is greater payable to the insured or to any of said employees ar in the event a partial payment or tender has been made fifty percent of the difference between the amount paid or tendered and the amount found to be due as well as reasonable attorney fees and costs 10 Because Section 1892 is penal in nature it is strictly construed See Reed v State Farm Mut Auto Ins Co 03 p 13 La 10 857 So 1012 0107 03 21 2d 1020 A satisfactory proof of loss is a necessary predicate to a showing that the insurer was arbitrary capricious or without probable cause Id 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 Id 03 at p 14 857 So 0107 2d at 1021 Satisfactory proof of loss in a claim pursuant to UM coverage is receipt by the insurer of sufficient facts which fully apprise the insurer that 1 the owner or operator of the other vehicle involved in the accident was uninsured or underinsured Z that he or she was at fault 3 that such fault gave rise to damages and 4 establish the extent ofthose damages Id 03 at p 15 857 0107 2d So at 1022 In the instant appeal Progressive challenges Krygier proof as to only the s first of the four enumerated requirements necessary to establish satisfactory proof of loss arguing that Krygier failed to establish that Vidrine was underinsured as of September 26 2008 Progressive claims the underinsured status was not established until it obtained Vidrine saffidavit on February 11 2009 wherein she attested that she had no insurance other than the Liberty Mutual policy Progressive does not claim that it did not know of the Liberty Mutual policy and its limits as of September 26 2008 it asserts merely that knowledge of these facts was not sufficient to apprise it of Vidrine underinsured status s We reject Progressive scontention It is undisputed that Progressive had received Liberty Mutual policy and its policy declarations which established the s 000 30 limits of the available liability coverage and Progressive had been I1 provided with Krygier employment records and medica recards establishing s losses greater than 130 representing the limits of Liberty Mutual liability 000 s coverage and the limits of Progressive UM coverage prior to September 26 s 2008 No countervailing evidence was presented At this point the burden then shifted to Progressive to prove the existence of other applicable liability policies in order to defeat the application of its LJM coverage See Gillmer v Parish Sterling Stuckey 09 pp 8 La App lst Cir 12 30 So 782 788 Simon 0901 9 09 23 3d u Reel 03 p 6 App 3d Cir 3867 So 174 179 932 La 04 2d We likewise find no merit in Progressive assertion that Krygier pending s s maintenance and cure claim against Hornbeck had some bearing on the amount due to Krygier as of September 26 2008 Progressive spolicy provides The damages recoverable under the UM coverage shall be reduced by all sums paid or payable because of bodily injury under any of the following or similar law workers compensation law or b disability benefits law a General maritime or admiralty law pursuant to which Krygier sought maintenance and cure benefits is not similar to workers compensation law Sanders v Horrce Indemnity Ins Co 594 So 1345 1352 La App 3d Cir 1991 writ denied 598 So 377 La 2d 2d 1992 see Sampsell v B I Welding Services and Consultants Inc 93 p 2456 La 5 App 4th Cir 6 638 So 477 479 wrft denied 94 La 94 15 2d 2175 ft It was undisputed that Vidrine negligence had caused the accident and defendants did not s controvert the evidence submitted by Krygier prior to September 26 2008 which established that the accident had caused his resulting injuries 9 Progressive argues in brief that Krygier did not use the methods provided by La R S 6 1295D 22 to prove that Vidrine was underinsured However the methods of proving the UM status provided by that statute are not exclusive and such status can be proven by other evidence See GiUmer 09 at p 7 30 So3d at 787 Boudreaux v State Farm Mut Auto Ins Co 385 0901 2d So 480 484 La App 1 st Cir 1980 12 94 11 644 So 397 cer denied 514 U 1063 115 S 1692 131 L 2d S Ct 2d Ed 556 1995 This baseless defense was abandoned by Progressive before it even determined any amount that Krygier may have recovered as maintenance and cure benefits from Hornbeck Viewing the evidence in the record de novo we find reasonable persons could reach only one conclusion e i that Progressive acted arbitrarily capriciously or without probable cause in not tendering its policy limits within thirty days of September 26 2008 When a motion for summary judgment is made and supported the adverse party may not rest on the allegations or denials of his pleadings but must set forth specific facts showing that there is a genuine issue for trial La C art 967B Once Krygier made a prima facie showing that his P motion for summary judgment should be granted the burden shifted to Progressive to present evidence demonstrating there remained a genuine issue of material fact or that Krygier was otherwise not entitled to judgment as a matter of law It failed to meet this burden III CONCLUSION For these reasons we affirm the trial court September 8 2009 judgment s which granted Krygier motion for summary judgment and awarded penalties in s the amount of 50 Appeal costs are assessed against Progressive 000 AFFIRMED 13
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
