Durio v. Horace Mann Insurance Co.
2011 La. LEXIS 2596
| La. | 2011Background
- Ms. Durio owned a home insured by Horace Mann; policy limits covered structure, other structures, contents, and ALE.
- Hurricane Rita damaged the home and attached garage; damage estimates varied and expert opinions conflicted on total loss vs. repair.
- Horace Mann issued multiple payments and conducted inspections; some checks were never negotiated and later reissued.
- Durio provided sworn proofs of loss with engineering reports alleging total destruction and livable-unfit conditions; Horace Mann conducted its own engineering review.
- Trial court found Horace Mann acted in bad faith, awarded 22:658 penalties, 22:1220 penalties, and doubled damages under 22:1220; amended statute for attorney fees was applied.
- Appellate courts affirmed, then Louisiana Supreme Court granted writ to reconsider penalties under 22:1220 and the amended 22:658 attorney-fee provision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| How are 22:1220 penalties computed? | Durio argues penalties apply to all damages sustained, including contract damages. | Horace Mann contends penalties must be calculated only on damages arising from the breach of statutory duties, excluding contract damages. | Penalties are based on damages sustained from the breach of 22:1220, excluding contractual damages. |
| Can the amended 22:658 apply to attorney fees in this case? | Durio argues amendments allow attorney fees for post-amendment conduct or newly discovered damages. | Horace Mann argues amendments are not retroactive and do not apply to pre-amendment conduct. | Amendments to 22:658 do not apply retroactively; attorney fees were not awardable under the amended provision. |
Key Cases Cited
- Neal Auction Co. v. Lafayette Ins. Co., 13 So. 3d 1135 (La. App. 4 Cir. 2009) (penalties under 22:1220 can be based on total damages per later authority)
- Wegener v. Lafayette Ins. Co., 60 So. 3d 1220 (La. 2011) (penalties under 22:1220 may double damages for breach of statute)
- Sher v. Lafayette Ins. Co., 988 So. 2d 186 (La. 2008) (amendments to 22:658 not retroactive; continuing obligation considerations)
- Sultana Corp. v. Jewelers Mutual Ins. Co., 860 So. 2d 1112 (La. 2003) (statutory interpretation guiding plain-meaning and legislative intent)
- Durio v. Horace Mann Ins. Co., 64 So. 3d 234 (La. 2011) (Louisiana Supreme Court decision resolving penalties and attorney-fee issues)