Brandy Ortego VS State Farm Mutual Automobile Insurance Company

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1VOT DESIGNAT DFOR PUBLICATION E STAT OF LOUISIA A tiIZT F AIL Cf PPE FIRST C IT CL I NO 2013 CA 0489 BRANDY ORTEGO VERSUS STATE FARM MUTUAL AUTOMOBII 1NSLJREINCE COMPANY E Judgment J C Rendered v N 0 1 ZQ 3 On Appeai from the Judicial 23rd District Court In and for the Parish of Ascension Stat of Louisiana Tria1 Court No 97 023 le uy ldridge Honorat C HJudge Presiding JIS SS 7 SLl Steve Adams Q rney AYce for Pdaintiff Appellant Baton Rouge Henry G Terhoev A L Brad M Boudreaux Baton S i 5 Rouge LA Brandy Uz ttarneys for Uefendant Appellant State Farm Mutual Automobile Insurance Company z BEFORE KLJHN iINBOTHAM HIGC AND THERIOT JJ HIGGINBOTHAM J Plaintiff Brandy Ortegc appea the trial c s s urt grant of summary judgment in favor of the defenda State k Mutual Automobile Insurance Y arm Company State Fann For the foliowing reasons we affirm BACKGROtiN D On July 14 2009 Ms rtego was involved n an automobile accident where she was hit from behind After the accident Ms Ortego quickly settled with State Farm as the insurer of the alleged tortfeasor for the policy limits of 1o 00 000 On August 5 2009 Ms Ortego through her counsel also presented a claim to State Farm as the insurer of the vehicle she was driving The State Farm policy provided for uninsured motorist UM coverage with limits of underinsured 00 000 10 per person and medical payments coverage with limits of 5 00 000 per person In response State Farm paid 2 to Ms Ortego on September 8 2009 00 300 and 2 on Septemb r 14 Z009 e the limits of the medical pay 00 700 iausting coverage Ms Meka Young the claizns reprzsentative for State Farm UM s coverage acknowledged that State Farm was tlie insurance carrier and requested additional information from Ms Ortega Connsel far Ms Ortego forwarded to Ms Young medical records surrimarizing the treatment received by Ms Ortego The medical records indicated that the medical expenses Yotaled 5and that Ms 72 473 Ortego suffered small disc herniations After receiving the medical recards Ms Young determined that no UM tender was due and sent a letter on September 10 2009 stating bjased upon the information we have received it appears the underlying primary Iiability limits are adequate to compensate your client at this time Ms Young letter also indicated that if additional documentation was s provided she would review it and take appropriate action Subsequently Ms Ortego counsel sent a letter requesting a tender of the s UM policy and attached additional medical records regarding Ms Ortego s 2 treatment which included records from Ms Ortego primary care physician Dr s Mary Thomas M and Allian D eTherapy eriices The records indicated that Ms Ortego complained of pack pain to Dr Thomas She also received physical and massage therapy from Alliance Therapy Services At therapy Ms Ortego complained of right azrn tenderness ccnstant hand dizziness I hes ada uring her evaluation of M Ortegd claim iVls Y a1so ra Bodily Injury Index un eeeived which indicated that Ms Ortego a previousiy involved in a car accident in 2007 with injuries listed as concussion jaw pain hip pain neck and shoulders After reviewing the additional infornnation Ms Young tendzred 2 to Ms 00 494 Ortego and again stated if additional documeutation is provided she would review the additional information and take appropriate action On July 14 2010 Ms Ortego fiied a for Damages against State Petition Farm seeking the balance of the UM poiicy ana damages for bad faith In response to discovery State Farm received additional medical records of Ms Ortego On December 28 2010 State Farm tendEred the balance of the LTM policy to Ms Ortego Therefore the bad faith claim was the only issue remaining On August 1S 2012 State Farm 1ed a motion for summary judgment contending that there were no genuine issues af material fact and they were entitled to judgment as a matter of law The matter wa heard on October 15 2012 and judgment was igned on Uctober 25 2 granting summary judgment 12 in favor of State Farm and dismissing vlr Gz ssuit with prejudice It is from ego this judgment that Ms Ortego timely appeals asserting that Yhe trial cou terred in granting summary judgment LAW Summary judgment is subject to de novo review on appeal using the same standards applicable Performance to the trial Physical Therap s court determination of the issues Peak Fitness LLC v Hibernia Corp 2007 2206 La App lst Cir 6 992 So 527 530 writ denied 2008 La 08 2d 1478 3 08 3 10 992 So 1018 The law governing summary judgment is well settled 2d Louisiana Code of Civil Procedure articles 96ti and 9ti7 set forth the guidelines Suminary judgment is appropriate if the pleadings depositions answers to interrogatories admissions and affidavits in the record show that there is no genuine issue as to mat fact an that the mover is entitled to judgment as a rial i matter of law La Code Civ P art 966 The initial burden is on the mover 2 Bj to show that there is no genuine issue of material fact in dispute See La Code Civ P art 966 If the moving party will not bear the burden of proof at trial 2 C on the subject matter of the motion he need only demonstrate the absence of factual support for one or more essential elements of his opponent claim action s or defense At that point the nonmoving party must produce factual support sufficient to satisfy his evidentiary burden at triaL La Code Civ P art 966 2 C If the mover has put forth supporting proof the party opposing summary judgment may not rely upon its pleadings and allegations To che contrary the nonmoving party must affirmatively come forward i ith evidence placing material facts in dispute La Code Civ P art 967 Bj Louisiana Revised Statute 22 formerly Louisiana Revised 1 A 1892 Statute 22 requires insurers to pay the amount of any claim due to any insured 658 within thirty days after receYpt of satisfactory proofs of loss Section B of this 1 statute provides in pertinent part Failure to make such payment within thir days after receipt of such y satisfactory written proofs and demand therefor when such failure is found to be arbitrary caprieious 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 or 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 fuund to be due as well as reasonable attorney fees and costs Louisiana Revised Statute 22 formerly Louisiana Revised Statute 1973 1220 22 imposes an obligation of good faith and fair dealing on an insurer 4 including the affirmative duty to adjust claims fairly and promptly and to make a reasonable effort to settle claims vith the nsured ar the claimant An insurer may be subject to penalties not to exceed two times the damages sustained or five thousand dollars whichever is greater if the insurer fails to pay a claim due to an insured within sixty days of receiving satisfactory proof of loss when such failure is arbitrary capricious or without probable cause La R 22 and C S 1973 5 B The conduct prohibited by Louisiana Revised Statute 22 is 1 A 1892 virtually identical to the conduct prohibited in Louisiana Revised Statute 5 B 1973 22 the failure to timely pay a claim after receiving satisfactory proof of loss when that failure to pay is arbitrary apricious or without probable cause Reed v State Farm Mut Auto Ins Co 2003 La 10 8S7 So 1007 03 21 2d 1012 1020 The primary difference is the time periods allowed for payment Both statutes are penal in nature and must be strictly Id construed The sanctions of penalties and attorney fees are not assessed unless a sproof is clear that the insurer was in fact arbitrary capricious or without plaintiff probable cause in refusing to pay Statutory penalties are inappropriate when the insurer has a reasonable basis to defend the elaim and acts in good reliance on faith thaY defense Bad faith should not be inferred from an insurer failure to pay s within the statutory limits hen there is reasonable and legirimate question a as to the extent and causation of a claim Reed 57 So at 102L 2d In those instances where there are substantial r legitimate questions as to the asonable and extent of an insurer liability or an insured loss failure to pay within the s s statutory time period is not arbitrary capricious or without probable cause Louisiana Bag Co Inc v Audubon Indem Co 2008 La 12 999 0453 08 2 2d So 1104 1ll4 The phrase arbitrary capricious or without probable cause is synonymous with bexatious and a refusal to pay means unjustified without vexatious reasonable or probable cause or excuse Louisiana Bag Co Ine 999 So at 2d 5 1 ll4 Whether a refusal to pay is arbitrary capricious or without probable cause depends on the facts known to the insurer at the tirr of its action Reed 857 e 2d So at 1021 The burden is on the ciairrzant to prove arbitrariness and capriciousness or lack of probable cause VIciyonald 1 American Family Life Assurance Company of Columbus 2010 La pp st ir 7 70 So 1086 73 Y ll 2 3d 1093 Also when a reasonable disagreement exists betweerz an insurer and an insured the insurer is not arbitrarv and capricious or without probable cause to deny payment on the claim that i in dispute Id DISCUSSION In support of its motion for summary judgment State Farm attached 1 Ms s Ortego petition for damages 2 an affidavit of claims adjuster Ms Young 3 an affidavit of litigation claims adjnster Chip Magee 4 discovery propounded by State Farm and 5 discovery responses by Ms Ortego In Ms Young affidavit she stated that the information she received s showed injury to Ms Ortego cervical and thoracic spine but the medical records s did not state whether the findings in the MRIs were caused by the accident in question Based on Yhe information she received Ms Young determined that the value ofMs Ortego claim did nc exceed thE amownt she had already been given s t Ms Young indicatec that the Body Injury Index report showing Ms Ortego s involvement in a prior accident made her furEher question medical causation of Ms Ortegds cerczcal and thoracic MRI findings Ms Young also received additional medical records from Ms Ortego s primary care physician and Alliance Physical Therapy In response Ms Young made an unconditional tender in the amount of 2which covered the total 00 494 billings for the physical and massage therapy Ms Young stated I determined that this was a reasonable and appropriate amount to tender based on the information provided In making that determination Ms Young noted that when Ms Ortego 6 initially went for therapy she attendec only six visits and was discharged for having met all goals and noncompliance Furiher when Ms Ortego went back for an additional initial evaluation she stated that pairz rerurned when she was cleaning house and she did not mentic the subject automobile accident in the second n evaluation Chip Magee stated in his affidavit that he was assigned Ms Ortegds claim when the lawsuit was filed on July 14 2U10 According to Mr Magee State Farm did not receive any additional medical information until December 9 2010 On that day State Farm received discovery responses from Ms Ortego that included for the first time records fronn Dr F Allen 7ohnston and Advanced Rehabilitation of Gonzales Mr Magee stated that given this additional information and in light of Dr 7ohnston sopinion as to causation State Farm xendered the balance of the UM coverage to the plaintiff on December 28 2010 According to the evidence submitted by State Farm in favor of its motion for summary judgment Ms Ortego had been involved in a prior accident and State Farm was concerned that the evidence present dbefare the suit was filed was insufficient to prove that the Ju1y 14 2009 accident was the cause of Ms Ortego s injuries specifically the findings in he MRIs Siate Farrzi concern appears to be s reasonable and legitimate considering ihe iriformation about 1 Ortegds prior 1s accident axid the lack of inedical documentation statFng that the subject accident caused all ofMs Urte documented injuries s o Because State Farm p out that its actions were not unjustified the inted burden shifted to Ms Ortego to produce factual support suf to satisfy her ient fie evidentiary burden at triaL In opposition to the motion for summary judgment Ms Ortego attached State Farm interrogatories and request for production as s well as Ms Ortego responses In the interrogatories a conversation between Ms s In the medical records Dr Johnston stated r egarding causation it appears that tha cervical disc hemiation and right arm shave occurced in the past and predated this accident but were asymptomatic az the time of the rznptoms accident thus re Her mid back and low back aggavated are new symptoms related tc his accident s Ortego counsel and Ms Youn is described in which Ms Young and Ms s Ortego counsel clearly disagreed on hether ttie informati nprovicied obviously demonstrated that the claim would exceed the value of the L coverage This Iv1 disagreement was reasonable and was nat arbitrai and capricio or without s probable cause As Ms OrtegU has noi provided suffic evrdence tv meet her burden of eni proving that State Farm acted arbitraxily or capriciously in its failure to timely pay IJM benefits there are no genuine issues of material fact and State Farm is entitled to judgment as a matter of law SION CONCLL For the above stated reasons we affirm the jttdgment of the trial court All costs of this appeal are assessed to plaintiff Ms Brandy Ortego AFFIRMED 8 FIRST CIRCUIT BRANDY ORTEGO COURT OF APPEAL VERSUS STATE OF LOUISIANA STATE FARM MUTUAL NO 2013 CA 0489 AUTOMOBILE INSURANCE CO HN L J dissenting There exist outstanding issues of material fact that bear on the reasonableness of State Farm tender of payment for the undisputed portions of s Ms Ortego claim See Louisiana Bag Co Irtc v Audubon Indem Co 2008 s 0453 La 12 08 2 inappropriate on the 999 2d So 1104 ll2L showing made Therefare Thus summary judgment is I dissent

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