286 So.3d 586
La. Ct. App.2019Background
- February 7, 2014 car wreck: at-fault driver insured by USAgencies; plaintiff Calogero insured by USAA. USAgencies issued $3,105.81 to Calogero, stopped payment, and never reissued; USAA paid Calogero $5,922.31 and sought subrogation against USAgencies.
- Calogero sued USAgencies for property damage and bad-faith penalties/attorney’s fees; Affirmative Casualty (formerly USAgencies) was later declared insolvent and LIGA intervened as statutory successor.
- April 19, 2018: city court granted LIGA partial summary judgment, holding LIGA is not an "insurer" and is not liable for statutory penalties/attorney’s fees; LIGA entitled to dollar-for-dollar credit for amounts USAA paid Calogero.
- September 28, 2018: trial judgment found USAgencies liable to Calogero for $3,105.81 plus penalties/fees; LIGA liable only for $275.88 rental expenses. Post-trial proceedings produced an amended November 16, 2018 judgment adding language that LIGA has no statutory duty to pay on behalf of USAgencies.
- Appellate-timeliness dispute: Calogero did not file an appeal within 10 days of the November 16 notice of signing; his counsel submitted an affidavit denying receipt of the notice and saying the notice was mailed to an old office address. The dissent would maintain the appeal as timely because the record lacks proof of receipt, invoking Myles v. Turner.
- The dissent reaches the merits: would (a) affirm the April 19, 2018 partial summary judgment dismissing bad-faith fees against LIGA, (b) amend and affirm the September 28, 2018 judgment to clarify decretal language, and (c) vacate the November 16, 2018 amended judgment (added without a new contradictory hearing).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of appeal from city court judgment | Calogero (via counsel) asserts she never received the notice of signing; appeals period runs from receipt, so appeal should be maintained | Majority relied on city-court local rule and absence of updated address to treat appeal as untimely | Dissent: maintain appeal as timely because record lacks evidence counsel received notice; Myles controls (receipt, not mailing) |
| Amendment of judgment without hearing | Calogero: city court improperly amended signed judgment after hearing based on LIGA counsel’s ex parte/email request; he opposed amendment | LIGA sought language clarifying it has no duty to pay; amendment occurred without new contradictory hearing or consent | Dissent: amendment violated La. C.C.P. art. 1951 (no hearing/consent); vacate Nov. 16 amended judgment and reinstate/clarify Sept. 28 judgment as proposed by dissent |
| LIGA liability for statutory bad-faith attorney's fees | Calogero: post‑amendment LIGA statutes allow "covered claims," so LIGA should pay attorney’s fees for pre‑insolvency bad faith | LIGA: not an "insurer" under LIGA law and therefore not liable for statutory penalties/attorney’s fees; Bowens controls | Held: Dissent follows Bowens — LIGA is not an insurer and is not liable for statutory bad-faith penalties or attorney’s fees; affirm partial summary judgment dismissing those claims against LIGA |
| LIGA liability for property-damage judgment (dollar-for-dollar credit) | Calogero: property damage is a covered claim and LIGA must pay $3,105.81 judgment against USAgencies | LIGA: entitled to setoff/credit because USAA already paid Calogero more than the USAgencies award; statute permits dollar-for-dollar credit | Held: Dissent finds no error — LIGA receives full credit for amounts paid by other insurer (USAA), so LIGA has no remaining liability for property damage |
Key Cases Cited
- Myles v. Turner, 612 So.2d 32 (La. 1993) (appeal period for city court judgment begins on receipt of notice of judgment, not on mailing)
- Bowens v. General Motors Corp., 608 So.2d 999 (La. 1992) (LIGA is not an insurer and is not liable for statutory penalties or attorney’s fees)
- Rodrigue v. Rodrigue, 591 So.2d 1171 (La. 1992) (local rules of court cannot conflict with legislation)
- Bourgeois v. Kost, 846 So.2d 692 (La. 2003) (a signed judgment may be altered only as provided by law; amendment requires statutory procedure)
- Tunstall v. Stierwald, 809 So.2d 916 (La. 2002) (appellate remedies for improperly amended judgments; appellate court may vacate amended judgment and reinstate original or render appropriate relief)