Latest Developments in Louisiana Hurricane Law
In a recent decision, the Western District Court helped clarify the qualifications needed for a public adjuster to testify at trial. In Credeur Tr. v. Liberty Mut. Ins. Co, the defendant insurance company, Liberty Mutual, argued that plaintiff’s public adjuster lacked the requisite qualifications to testify as to the cause of damage to the insured property. Liberty asserted that Barrilleaux's license as a public adjuster and background as a general contractor may qualify him to testify as to his estimate for repair at trial, but he had no specialized knowledge regarding forensic engineering and structural/architectural engineering that would qualify him to testify as an expert as to the cause of structural damage or water intrusion to the insured property. Liberty further argued that plaintiff’s public adjuster’s methodologies were unreliable, and his opinions were not based on sufficient facts or data. Credeur Tr. v. Liberty Mut. Ins. Co, No. 2:21-CV-00126, 2 (W.D. La. Apr. 12, 2022). The court disagreed with Liberty and found that plaintiff’s public adjuster did not need to have specialized knowledge in forensic, structural, or architectural engineering to render an opinion re structural damage or water intrusion. The court found that plaintiff’s expert’s experience as a public adjuster, appraiser, appraisal umpire, general contractor, and developer/builder qualified him as an expert in the field of contracting and was qualified to testify about structural damage and water intrusion. This decision was important in that insureds are not required to incur more expenses in retaining an engineering expert and can rely on their public adjuster to testify at trial in support of their claims.
In another favorable decision for insureds, the Western District Court in Seaberry v. Progressive Prop, held that an affidavit merely alleging non-delivery of a notice of cancellation is sufficient to raise a dispute of fact that is material to the question of whether the presumption of delivery has been rebutted. In Seaberry, the defendant insurance company, Progressive, mailed a notice of cancellation of insurance to the plaintiff at his listed residence under the policy and made a recorded call to plaintiff informing him of the cancellation. The Plaintiff attested that he never received the notice of cancellation for, or a refund of his premium. The plaintiff called Progressive after his home suffered damage in Hurricane Laura in August 2020 and was informed at that time of the policy cancellation. Progressive also informed him in October 2020 that it would reissue a check refunding his premium, but plaintiff stated that he had not received that refund as of March 28, 2022. Plaintiff filed suit against Progressive in this court on July 19, 2021, raising claims of breach of insurance contract and bad faith under Louisiana law. Seaberry v. Progressive Prop. Ins. Co., No. 2:21-CV-02087, 2022 WL 1073612, at *1 (W.D. La. Apr. 8, 2022). Progressive would go on to file a motion for summary judgment, asserting that plaintiff is owed no coverage because Progressive cancelled the policy in compliance with the notice requirements under Louisiana law before the date of loss. Plaintiff opposed the motion, arguing that issues of fact exist as to the efficacy of the cancellation.
The court would go on to find that Progressive did mail the notice of cancellation in compliance with Louisiana Revised Statute 22:887, through both its affidavit and proof of bulk mailing. However, the court also found that plaintiff's affidavit, stating he never received such notice, coupled with Progressive's failure to show that it ever provided the premium reimbursement under Louisiana law, was sufficient to create an issue of fact. The plaintiff would now have the chance to make his argument to the trier of fact. Seaberry v. Progressive Prop. Ins. Co., No. 2:21-CV-02087, (W.D. La. Apr. 8, 2022)