Barbara Ann Thibodeaux Rando VS Troy D. Furr and State Farm Mutual Automobile Insurance Company and Progressive Security Insurance Company
Annotate this Case
Download PDF
NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA Ii I COURT OF APPEAL FIRST CIRCUIT 2012 CA 0537 BARBARA ANN THIBODEAUX RANDO VERSUS TROY D FURR AND STATE FARM MUTUAL i AUTOMOBILE INSURANCE COMPANY AND PROGRESSIVE SECURITY INSURANCE COMPANY On Appeal from the 19th Judicial District Court Parish of East Baton Rouge Louisiana Docket No 556 Section 24 756 Honorable R Michael Caldwell udge Presiding Dennis R Whalen Attomeys for Baton Appellant Plaintiff Rouge LA Barbara Ann Thibodeaux Rando and Richard E Chaffin Baton Rouge LA Amber D Lorio Aaron Attorneys for Lawler Casler Bordelon Baton Rouge LA Lawler Appellee Defendant Progressive Security Insurance Company BEFORE PARRO HUGHES AND WELCH JJ udgment rendered N 1 4 2 PARRO J Barbara Ann Thibodeaux Rando Barbara appeals a judgment dismissing her claims of bad faith in the handling of her uninsured motorist UM underinsured insurance claims against Progressive Security Insurance Company Progressive For the following reasons we affirm the judgment FACTUAL AND PROCEDURAL BACKGROUND This litigation stems from a motorcycle collision that occurred on July 3 vehicle 2006 Randy William Rando was riding his 2002 Harley Davidson motorcycle in an easterly direction on Louisiana Highway 3034 Wax Road in Central Louisiana As he passed the private driveway accessing a Wal store his motorcycle was struck by a Mart Toyota Four Runner exiting the driveway driven by Troy D Furr The collision knocked the motorcycle across the opposite lane of Wax Road and Mr Rando was dislodged from the motorcycle suffering serious injuries He died several hours after the accident Mr Furr vehicle was insured by State Farm Mutual Automobile Insurance s Company State Farm Mr Rando motorcycle was insured by Progressive under a s policy that his wife Barbara had purchased in January 1999 about a year before their marriage The Progressive policy covered her motorcycle and his and had liability limits of 50 per person per accident When she obtained this policy Barbara 000 000 100 signed a rejection form indicating she did not want UM coverage All subsequent renewals including the one adding her husband as an insured showed UM coverage as Rejected Shortly after the accident Progressive was verbally informed about Mr sdeath On uly 6 2006 Progressive paid her 2 representing the medical Rando 500 payments limit of the policy In a subsequent telephone call the following month Progressive informed her that there was no UM coverage on her policy due to the rejection form she had signed when she first purchased it On June 28 2007 Barbara filed suit against Mr Furr State Farm and 2 Progressive On July 2 2007 Mr Rando son Daniel also filed a petition in this s lawsuit naming the same parties as defendants In later amendments by both plaintiffs the State through the Department of Transportation and Development DOTD was added as a defendant for aliegedly partially blocking Mr Furr line of s sight at the intersection In August 2008 two months after being served Progressive tendered 50 to Barbara learning a day later about Daniel petition Progressive 000 s modified its tender to make the offer to both plaintiffs leaving it to them to determine how to split this amount The tender was conditioned on their dismissal of all claims against Progressive including accrued interest costs and bad faith damages and After Barbara and Daniel returned the check to Progressive a status penalties conference was held with the judge a proposed division of the funds was discussed and a concursus proceeding was suggested as a possible solution if the parties failed to agree They still could not agree on how to divide the funds so on February 5 2009 Progressive filed a petition for concursus and deposited 50 into the registry of the 000 court The concursus petition was later amended to deposit accrued interest of 77 828 7 In June 2009 Progressive filed a motion for partial summary judgment regarding the amount of UM coverage available to the plaintiffs In a judgment signed October 2 2009 the court granted that motion stating that the per person limit of 50 as 000 opposed to the per accident limit of 100 was the applicable limit of UM 000 coverage available to the plaintiffs In April 2010 Progressive filed a second motion for summary judgment seeking dismissal of s Barbara claims under S R LSA 1 B 1973 22 for knowingly misrepresenting insurance policy provisions and under SB R1973 LSA 22 for bad faith refusal to make a timely and unconditional tender 5 Service on Progressive Insurance Company was requested through the Secretary of State but could not be made because there were too many insurance companies with the name Progressive The letter advising her attorney of this was misplaced and Progressive was not served until une 24 2008 z Barbara contended that the per accident limit of 100 was applicable to her UM claims which 000 included wrongful death and survivorship claims She also asserted that Daniel who was not an insured on the Progressive contract had no claim to the UM benefits Daniel claimed that as his father heir he s was entitled to 50 of the UM benefits 3 of the UM limits to her The court granted summary judgment dismissing her claim under Subsection B but denied it for the claim under Subsection B finding 1 5 there was a genuine issue of material fact concerning those claims While Progressive was litigating these matters with the plaintiffs State Farm was consistently responding to all pleadings denying liability on the part of Mr Furr or in the alternative denying that he was solely at fault in causing the accident or that the limits under its policy issued to Mr Furr were insufficient to compensate the plaintiffs for their loss DOTD also continued to deny any liability to the plaintiffs Eventually the matter was scheduled for a trial on August 15 2011 on all issues of liability among the parties and on the remaining bad faith claims against Progressive Because the division of the funds on deposit with the registry of the court was dependent on the trial results as to liability and damages the concursus proceeding was continued until after the trial On the morning of the scheduled trial Daniel filed pleadings that indicated he had settled his claims against Mr Furr State Farm and DOTD Barbara informed the court that she had also reached settlements with those parties and that she and Daniel had resolved the issue of the allocation of the funds in the registry of the court Thus only her bad faith claim against Progressive was left to be tried At the conclusion of the plaintiffs case the attorney for Progressive moved for an involuntary dismissal on the grounds that Barbara had failed to establish several necessary elements of her claim Following arguments the court granted the motion and dismissed all claims Louisiana Revised Statute 22 formerly LSA 22 states in pertinent part 1973 S R 1200 A An insurer owes to his insured a duty of good faith and fair dealing The insurer has an affirmative duty to adjust claims fairly and promptly and to make a reasonable effort to settle claims with the insured or the claimant or both Any insurer who breaches these duties shall be liable for any damages sustained as a result of the breach B Any o of the following acts if knowingly committed or performed by an insurer e constitutes a breach of the insurer sduties imposed in Subsection A 1 Misrepresenting pertinent facts or insurance policy provisions relating to any coverages at issue 5 Failing to pay the amount of any claim due any person insured by the contract within sixty days after receipt of satisfactory proof of loss from the claimant when such failure is arbitrary capricious or without probable cause 4 against Progressive except those involving the funds in the concursus proceeding In oral reasons for judgment the court stated There is no testimony about who was responsible for causing this accident There has been no proof offered during the many years that this case has been pending concerning liability p U until last Friday liability was still being questioned by State Farm Mr Furr and DOTD Progressive as the uninsured motorist carrier would only have exposure and liability if someone other than Mr Rando was found to be at fault and if the damages exceeded what those other at defendants could fault pay There has been no evidence here today as to what the underlying State Farm policy was That has never been introduced into evidence and I am not aware of any evidence or even know what the underlying State Farm policy was There has been no testimony or evidence offered today concerning damages The court can assume a wrongful death claim brought by a widow may have certain value but that is subject to the evidence that is presented and no evidence has been presented court has no evidence concerning liability no evidence So the concerning damages no evidence that a p written satisfactory proof of claim oper was ever submitted to Progressive A judgment dismissing her claims against Progressive was signed August 30 20114 Barbara filed an appeal of this judgment and the judgment rendered October 2 2009 which declared that the 50 per person limit of Progressive UM coverage 000 s applied to this case At oral arguments before this court Barbara sattorney stated that the concursus matter had been resolved and that all the funds on deposit in the registry of the court had been disbursed to Barbara and Daniel in accordance with their agreement as to the allocation of the funds between them ANALYSIS Barbara assigns the following as error 1 The court holding that there was no proof that Progressive was properly s notified in writing of her claims 2 The court failure to find that Progressive had not made a timely good s faith unconditional tender 3 The court holding that Progressive would incur liability if it unilaterally s paid one claimant to the detriment of another 4 The court dismissal after trial of her claim under LSA 22 s S B R 1973 5 and 4 The judgment also stated The concursus proceeding related to this matter is not affected by this judgment 5 5 The court failure to award her 50 plus interest from September 4 s 000 2006 sixty days after the adjuster call on July 6 2006 until paid damages s in the amount of 50 damages for mental pain and anguish over 000 threatened foreclosure on her home double the damages for penalties and attorney fees Progressive respond that none of these issues need to be addressed because as the trial court stated thQre was no evidence at trial of the basic elements required to prove s Barbara entitlement to any UM payment Therefore it could not be found liable for faith bad handling of the claim for such a payment s Barbara attorney introduced the entire record in this case as evidence at the trial After examining that record we conclude that the trial court was correct certified copy of the Progressive policy issued to the Randos is in the record In Part III the policy states the following in pertinent part regarding UM coverage UNDERINSURED UNINSURED MOTORIST BODILY INJURY COVERAGE INSURING AGREEMENT Subject to the Limits of Liability if you pay the premium for Underinsured Uninsured Motorist Bodily Injury Coverage we will pay for damages which an insured person is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury 1 sustained by an insured person 2 caused by an accident and 3 arising out of the ownership maintenance or use of an uninsured motor vehicle ADDITIONAL DEFINITIONS When used in this Part III 4 Uninsured motor vehicle means a land motor vehicle or trailer of any type e to which a liability bond or policy applies at the time of the accident but the total automobile liability insurance coverage on the vehicle is less than the damages which an insured person is entitled to recover from the owner or operator of the vehicle LIMITS OF LIABILITY If your Declarations Page shows a split limit 1 the amount shown for each person is the most we will pay for all damages due to a bodily injury to one person 5 Barbara sbrief to this court contains no mention of the per person limit 6 A similar provision provides property damage coverage to a covered vehicle under the policy 6 A The each person limit of liability includes the total of all claims made for bodily injury to an insured person and all claims of others derived from such bodily injury including but not limited to emotional injury or mental anguish resulting from the bodily injury of another or from witnessing the bodily injury to another loss of society loss of companionship loss of services loss of consortium and wrongful death Emphasis in the original Based on these policy provisions UM coverage will only be paid if the insured person is legally entitled to recover some amount from the owner or operator of an uninsured or underinsured vehicle Therefore the first element that must be established is the liability of the other driver Absent that there is no showing that the insured person is legally entitled to recover anything from accident The record of the trial did not include any evidence the other party l to the I concerning the liability of Mr Furr and DOTD in causing the accident that resulted in Mr Rando death or s Examining the record as a whole there is simply no evidence as to the liability of any of the defendants Secondly the insured person must establish the amount of damages attributable to bodily injury caused by the accident and that those damages exceed the amount of the total liability insurance coverage available from the other party or parties liable for the damages In this case there was no evidence as to the amount of damages caused by the accident For example there were no invoices showing the medical expenses incurred in treating Mr Rando during the few hours that he iived following the accident Also although Barbara testified that she was threatened with foreclosure for failure to keep up with her mortgage payments as well as getting behind on various other bills she did not establish how these problems were causaliy related to the accident Nor was there any evidence concerning the liability limits on Mr Furr policy with State s I Farm The State Farm policy is not in the record and there was no testimony or other evidence showing that the liability insurance coverage available from Mr Furr was insufficient to cover the amount of damages attributable to the accident There was also no evidence concerning any amounts that might have been paid by Mr Furr State Farm or DOTD to Barbara from which the court could have determined whether those 7 I payments were or were not su to cover the damages caused by the accident cient Finally although the briefs to this court did not address the issue decided in the October 2 2009 judgment concerning the per person limit we note that the policy is very clear that the 50 each person limit of liabiliry includes the total of all claims 000 made for bodily injury to the insured person including all derivative claims of other persons Therefore Barbara sclaims for mental anguish loss of support etc that were attributable to and derived from her husband sdeath were subsumed within the each person limit of liability and did not trigger the per accident limits of 100 000 Since the evidence at trial did not establish the basic elements needed to fall within the UM provisions of Progressive policy Barbara did not show that she was s entitled to any UM coverage under the policy Therefore the trial court did not err in dismissing Barbara claims of bad faith or arbitrary or capricious handling of her UM s claims by Progressive CONCLUSION For the above reasons we affirm the judgments of October 2 2009 and August 30 2011 All costs of this appeal are assessed to Barbara Rando AFFIRM ED 8
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.
