104 So. 3d 633
La. Ct. App.2012Background
- Rosen and wife Eddy K. Rosen owned a home in Orleans Parish damaged by Hurricane Katrina and carried both flood and homeowners policies with USAA.
- Rosen's claim sought contents coverage for items above the flood-line; non-flood contents list was submitted and USAA paid $10,842.10 for wind-damage above the flood-line.
- Two USAA adjusters, Goltzman and Lee, documented roof damage and wind-related damage to rooms above the flood-line; engineer was never retained.
- Plaintiffs filed suit in 2006 for contents coverage and bad-faith penalties; district court granted bad-faith summary judgment but denied contents coverage at first.
- USAA later moved for summary judgment on contents coverage; the district court granted it, holding no genuine issue of material fact as to covered loss.
- The appellate court reversed, finding a genuine issue of material fact whether wind-driven rain caused contents damages above the flood-line and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a genuine issue exists on causation of contents damages above the flood-line | Rosen: wind-damage caused contents above flood-line; evidence enough to show covered loss | USAA: Rosens must prove all contents were damaged by a covered peril; cannot prove wind-driven rain caused all listed damages | Genuine issue exists; reversal and remand required |
Key Cases Cited
- Williams v. Progressive Sec. Ins. Co., 787 So.2d 494 (La.App. 4 Cir. 2001) (insured bears burden to show coverage; insurer bears burden to prove exclusions)
- Cruz v. Hanover Ins. Co., 239 So.2d 468 (La.App. 4 Cir. 1970) (wind damage causality presumption for coverage proof)
- Landry v. Louisiana Citizens Prop. Ins. Co., 964 So.2d 463 (La.App. 3 Cir. 2007) (flood exclusions do not negate indemnity when wind and rain are proximate causes)
- Best v. State Farm Fire & Cas. Co., 969 So.2d 671 (La.App. 4 Cir. 2007) (burden when exclusions for water apply; wind entry via openings can trigger coverage)
- In re Kluksdahl, 62 So.3d 189 (La.App. 4 Cir. 2011) (de novo standard for summary judgment review in appellate context)