95 So. 3d 1192
La. Ct. App.2012Background
- Halmekangas sued ANPAC Louisiana Insurance Company, Stephen Harelson, and American National Property and Casualty Company in Civil District Court (June 21, 2006) alleging errors caused underinsurance.
- He also had a federal action against State Farm; ANPAC removed and sought summary judgment on preemption; Fifth Circuit remanded to state court.
- Policy issued January 3, 2005, with declarations describing 3400 square feet dwelling; later amendments continued to reflect 3400 sq ft despite claims of 5400 sq ft.
- After Katrina (Aug. 29, 2005) and a fire (Sept. 4, 2005), Halmekangas claimed underinsurance and that ANPAC-Harelson errors caused damages; ANPAC paid full policy limits.
- Halmekangas contends the policy was underinsured due to agent/insurer errors; ANPAC argues claims against it are derivative of the agent’s acts and governed by La. R.S. 9:5606.
- Trial court granted summary judgment for ANPAC; the court of appeal affirmed, holding actions against ANPAC perempted under 9:5606.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is La. R.S. 9:5606 applicable to ANPAC-LA? | Halmekangas argues 9:5606 does not apply to ANPAC-LA, which should be liable independently. | ANPAC-LA contends claims against it are derivative of the agent’s acts and governed by 9:5606. | Yes; 9:5606 applies to ANPAC-LA. |
| What is accrual date for 9:5606 preemption? | Accrual begins when injury or discovery occurs; action filed within a year of Katrina and within 3 years of the act is timely. | There was actual/constructive notice of errors more than one year before filing; accrual occurred earlier. | Accrual occurred by March 2005; filing June 2006 is perempted under 9:5606. |
Key Cases Cited
- Klein v. American Life and Cas. Co., 858 So.2d 527 (La. App. 1 Cir. 2003) (acts of an insurer's agent imputable to insurer; peremptive periods apply to insurer)
- Isidore Newman School v. J. Everett Eaves, Inc., 42 So.3d 352 (La. 2010) (duty of insurer/agent; insured's duty to read policy; not compelled to advise insurer's coverage amount)
- Rapp v. GEICO Indemnity Co., 925 So.2d 626 (La. App. 4 Cir. 2006) (delivery of policy presumed received when mailed; summary judgment on coverage)
- City Blueprint & Supply Co., Inc. v. Boggio, 3 So.3d 62 (La. App. 4 Cir. 2008) (policy interpretation and duties; reading policy contents)
- Seruntine v. State Farm Fire and Cas. Co., 42 So.3d 968 (La. 2010) (late-discovery rule; insured's reading of policy duties)