SECTION: “G” (2) '
ORDER
Pending before the Court are Defen-dantyCounter Claimant Louisiana Health Service and Indemnity Company d/b/a Blue Cross and Blue Shield of Louisiana’s (“Blue Cross”) “Motion for Summary Judgment on Coverage Obligations”
I. Background
A. Factual Background
1. The Policy at Issue
On May 19, 2016, Illinois Union filed a complaint for declaratory judgment against Blue Cross.
2. The Underlying Action
In this action, Illinois Union seeks a declaration as to the extent of its obligation to Blué Cross with respect to a settlement reached by Blue Cross with Omega Hospital, LLC (“Omega”) in a separate lawsuit filed by Omega against Blue Cross in state court (“the Omega Lawsuit” or “the. underlying action”).
Illinois Union alleges that Blue Cross settled the underlying action without Illinois Union’s consent in violation of the Policy’s requirement that Blue Cross obtain Illinois Union’s written consent to settle in order to obtain coverage.
B. Procedural Background
On May 19, 2016, Illinois Union filed a complaint for declaratory judgment against Blue Cross.
On April 11, 2017, Blue Cross filed its currently pending motion for summary judgment on coverage obligations.
On April 12, 2017, Illinois Union filed its currently pending motion for summary judgment on coverage obligations.
II. Parties’ Arguments
A. Blue Cross’s Motion for Summary Judgment on Coverage Obligations
Blue Cross moves for summary judgment in its favor with respect to: (1) Count I of Illinois Union’s Complaint, in which Illinois Union seeks a declaratory judgment that Illinois Union is not required to indemnify Blue Cross for the underlying settlement due to the fact that Blue Cross did not obtain Illinois Union’s consent; (2) Count II of Illinois Union’s Complaint, which seeks a declaratory judgment that Illinois Union has no obligation to indemnify Blue Cross due to the fact that the settlement encompasses damages that are not covered under the Policy; (3) Count I of Blue Cross’s counterclaim for a declaratory judgment that Illinois Union
1. Blue Cross’s Arguments in Support of the Motion for Summary Judgment
a. The Policy’s Definition of Loss
In support -of its motion for summary judgment, Blue Cross represents that the Policy at issue obligates Illinois Union to pay loss resulting from claims “alleging error or omissions” in the performance of Blue Cross’s managed care professional services.
Blué Cross asserts that in the underlying action, Omega Hospital alleged that Blue Cross improperly reduced the amount of its reimbursement payments to Omega Hospital for medical services and supplies.
b. The Policy’s Consent to Settle Clause
Next, Blue Cross argues that Illinois Union may not raise lack of consent as a coverage defense.
Blue Cross next asserts that despite withholding its written consent, Illinois Union verbally consented to the settlement.
Blue Cross next argues that where an insurer wrongfully denies coverage, the insured reasonably believes that “it may be cast in judgment if brought to trial,” and there is no evidence that the insured “improperly entered into th[e] settlement,” the insured is entitled to settle the claim.
c. Breach of Contract
Finally, Blue Cross argues that Illinois Union breached its contractual obligations to Blue Cross when it refused to indemnify Blue Cross as required under the Policy.
2. Illinois Union’s Arguments in Opposition to the Motion for Summary Judgment
a. The Policy’s Deftnition of Loss
In opposition to Blue Cross’s motion for summary judgment, Illinois Union argues that the Policy does not cover the voluntary settlement payment to Omega in the underlying action.
Illinois Union argues that Blue Cross, as the insured, bears the initial burden of proof to satisfy the Policy’s defined terms as incorporated into the insuring agreement.
b. Contractual Nature of Damages
Next, Illinois Union argues that Blue Cross’s settlement with Omega was for damages that were contractual in nature and does not, constitute a loss under the Policy.
Moreover, Illinois Union argues that the amount paid to Omega in the settlement also represents benefits owed under health care plans/contracts with Omega’s patients, ie. Blue Cross’s members or subscribers.
c. Settlement Allocation
Next, Illinois Union asserts that an insurer must only reimburse an insured to the extent that a settlement compromises claims that are covered by a policy.
Illinois Union represents that the Fifth Circuit has recognized in Enserch Corporation v. Shand Morahan & Company that an insured’s allocation in a settlement is “necessarily suspect when insurance indemnification is at issue.”
Illinois Union next argues that the testimony of one of its employees, Pizzonia, as a fact witness regarding which of Omega’s causes of action in the underlying action are covered by the Policy is not proper summary judgment evidence, as the questions posed by Blue Cross’s counsel to Pizzonia during his deposition were “vague hypotheticals” that sought “legal conclusions.”
Here, Illinois Union argues that Omega’s factual allegations in the underlying action raise issues of underpaid amounts or benefits owed under a contract or health plan.
Moreover, Illinois Union contends that Blue Cross’s reliance on Judge Lemelle’s opinion remanding the Omega lawsuit is misguided.
d. Consent to Settle Clause
Next, Illinois Union argues that Blue Cross settled the Omega claim without
Illinois Union likewise argues that Federal Insurance Company v. New Hampshire Insurance Company is distinguishable, because that case involved a motion to dismiss under Rule 12(b)(6) in which the court found that the facts alleged, if accepted as true, could indicate that the insurer unreasonably delayed settlement where time was of the essence.
Moreover, Illinois Union contends that its offer at mediation to contribute $500,000 on a cost of defense basis does not constitute consent to settle.
Illinois Union next argues that it never denied coverage but rather reserved its rights to enforce the consent to settle clause in the Policy.
According to Illinois Union, under Louisiana law as applied by the Fifth Circuit, there are only three limited exceptions that allow an insured to settle without the insurer’s consent.
First, Illinois Union contends that the first exception does not apply, because under the Policy, Blue Cross, not Illinois Union, has the duty to defend and there is no evidence that Illinois Union instructed Blue Cross not to defend against Omega’s claims or failed to reimburse Blue Cross for its defense.
According to Illinois Union, the mediation of the underlying action was “unilateral and rushed.”
According to Illinois Union, during the mediation, Blue Cross represented that the money it offered for settlement was Blue Cross’s own funds.
3. Blue Cross’s Reply in Further Support of the Motion for Summary Judgment
In its reply, Blue Cross argues that Illinois Union improperly attempts to broaden the scope of the exclusion in the Policy to exclude coverage for all claims arising out of a contract.
Next, Blue Cross argues that it is not seeking to recover for amounts paid pursuant to contracts with in-network providers or with its patients.
Blue Cross next asserts that Illinois Union simultaneously argues that Blue Cross was required to allocate Omega’s claimed damages among the various causes of action in the underlying suit but that Blue Cross’s allocation of the damages in the settlement is necessarily suspect.
Blue Cross acknowledges that a portion of the damages in the underlying action were owed under its members’ health plans and payable by statute to Omega and asserts that it does not seek coverage for those amounts.
Finally, according to Blue Cross, Illinois Union could have participated in the drafting of the settlement agreement, but Illinois Union’s representatives decided to leave the mediation before the terms of the settlement were complete.
B. Illinois Union’s Motion for Summary Judgment on Coverage Obligations
In its motion for summary judgment, Illinois Union seeks summary judgment in its favor on: (1) Count I of its Complaint, which seeks a declaratory judgment that Illinois Union is not required to indemnify Blue Cross for the underlying settlement due to the fact that Blue Cross did not obtain Illinois Union’s consent; and (2) Count II of its Complaint, which seeks a declaratory judgment that Illinois Union has no obligation to indemnify Blue Cross due to the fact that the settlement encompasses damages that are not covered under the Policy.
1. Illinois Union’s Arguments in Support of the Motion for Summary Judgment
a. The Policy’s Consent to Settle Clause
In its motion for summary judgment, Illinois Union first argues that Blue Cross lacked the required prior written consent to settle.
ft. The Policy’s Cooperation Clause
Illinois Union next argues that Blue Cross failed to comply with the cooperation clause in the Policy, which requires the insured to provide Illinois Union “with all information, assistance, and cooperation” that it reasonably requests.
c. The Policy’s Deñnition of Loss
Next, Illinois Union argues that Blue Cross has not suffered “loss” as defined in the Policy, and thus, there is no coverage under the Policy.
Illinois Union asserts that Blue Cross bears the initial burden of proving satisfaction of the loss deñnition in the Policy.
Next, Illinois Union argues that even if the remaining causes of action in the underlying lawsuit, ie. claims for violation of LUTPÁ and negligent misrepresentation, are potentially covered by the Policy, legal theories do not control an insurer’s indemnity obligation.
According to Illinois Union, Omega argued throughout the underlying suit that Blue Cross was obligated to reimburse Omega for the underpayment of benefits based on an implied contract and Blue Cross admits that it had an obligation- to pay Omega.
Illinois Union asserts that case law interpreting similar policy language has held that insurers are not obligated to reimburse for amounts due under a contract with a medical provider and that no case has found that underpayment of benefits by a health care insurer qualifies as loss.
d. Settlement Allocation
Next, Illinois Union argues, as it did in opposition to Blue Cross’s motion for sum
e. Defense Costs & Attorneys’ Fees
Finally, Illinois Union argues that it is entitled to summary judgment on Blue Cross’s counterclaim that Illinois Union failed to pay certain defense costs.
2. Blue Cross’s Arguments in Opposition to the Motion for Summary Judgment
a. The Policy’s Consent to Settle Clause
In its opposition to Illinois Union’s motion for summary judgment, Blue Cross argues, as it did in its motion for summary judgment, that Illinois Union cannot raise lack of consent as a coverage defense, because it unreasonably withheld its consent for Blue Cross to settle.
b. The Policy’s Cooperation Clause
Next, Blue Cross argues that it complied with the Policy’s cooperation clause.
c. Exclusionary Language in the Policy
Next, Blue Cross asserts that the rule requiring exclusionary language to be narrowly construed applies with equal force to carve outs in the definition of loss, even if such carve outs are not in the exclusions section of a policy.
As to loss resulting from Omega’s claims for negligent misrepresentation and violation of the Unfair Trade Practices Act, Blue Cross argues that Illinois Union must provide coverage, because such claims do not arise out of Blue Cross’s contractual obligation to reimburse Omega for services and instead arise out of a more general obligation related to “industry practice.”
Blue Cross contends that in cases like this one where an underlying complaint alleges claims premised on a violation of a statutory right, the exclusion for amounts due under a contract does not bar coverage.
d. Attorneys’ Fees
Finally, Blue Cross argues that it is entitled to attorneys’ fees, because Louisiana courts have recognized an insured’s entitlement to attorneys’ fees where the insurer has been guilty of bad faith toward the insured and the insured has to employ an attorney to protect its interests.
3. Illinois Union’s Reply in Further Support of the Motion for Summary Judgment
In reply, Illinois Union first argues that its reservations of rights do not constitute denials of coverage and did not waive Blue Cross’s obligation to obtain consent to settle.
Next, Illinois Union contends that Blue Cross breached the duty to cooperate causing prejudice to Illinois Union.
Next, Illinois Union argues that Blue Cross cannot show any damages ensued from tort theories in the underlying suit.
Illinois Union next contends that the damages in the settlement are benefits owed under a contract or health care plan and are therefore not covered under the Policy.
Next, Illinois Union argues that the fraud exception applies to exclude coverage in this case.
Finally, Illinois Union argues that Blue Cross’s bad faith cause of action under Louisiana Revised Statute § 22: 1973 does not provide for attorneys’ fees.
4. Illinois Union’s Sur-Reply in Further Support of the Motion
In further support of its motion for summary judgment, Illinois Union contends that Blue Cross made “multiple settlement offers” to Omega without Illinois Union’s knowledge or written consent.
III. Law and Analysis
A. Legal Standard for Summary Judgment
Summary judgment is appropriate when the pleadings, the discovery, and any affidavits show that “there is no genuine dispute as to any material fact and the mov-ant is entitled to judgment as a matter of law.”
The party seeking summary judgment always bears the initial responsibility of informing the Court of the basis for its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact.
B. Legal Standard for Interpreting Insurance Contracts under Louisiana Law
Under Louisiana law, “an insurance policy is a contract between the parties and should be construed by using the general rules of interpretation of contracts set forth in the Louisiana Civil Code.”
If the contract is clear and unambiguous and does not have absurd consequences, the court applies the ordinary meaning of the contractual language.
C. Analysis
In its motion for summary judgment on coverage obligations, Blue Cross argues: (1) that the damages settled in the underlying action are included in the Policy’s definition of loss; (2) that the Policy’s consent to settle clause does not bar coverage; and (3) that Illinois Union breached a contract with Blue Cross.
Similarly, in its motion for summary judgment on coverage obligations, Illinois Union argues that: (1) that the damages settled in the underlying action are not included in the Policy’s definition of loss; (2) the Policy’s consent to settle clause bars coverage; (3) that the Policy’s cooperation clause bars coverage; and (4) that Blue Cross is not entitled to defense costs or attorneys’ fees.
Because the parties’ motions for summary judgment substantially overlap, the
1. Blue Cross’s Damages in the Underlying Action and the Policy’s Definition of Loss
, In both motions for summary judgment, Blue Cross and Illinois Union each assert they are entitled to summary judgment on the issue of whether Blue Cross’s settlement constitutes a covered loss under the Policy. In its motion for summary judgment, Blue Cross argues that the damages resulting from the tort-based causes of action in the underlying lawsuit are covered under the Policy’s definition of loss and are not excluded by the carve-out for benefits owed under any contract.
As noted supra, under Louisiana law, “an insurance policy is a contract that must be construed in accordance with the general rules of interpretation of contracts set forth in the Louisiana Civil Code.”
The Court notes that Illinois Union argues that Blue Cross, as the insured, bears the burden of demonstrating that the carve outs in the Policy’s definition of loss do not apply.
Here, the Policy defines “loss” as “Defense Expenses and any monetary amount that an Insured is legally obligated to pay as a result of a Claim....”
As an initial matter, the Court notes that Blue Cross specifically acknowledges that a portion of the damages in the underlying action were “owed under its members’ health plans and payable, by statute, to Omega Hospital.”
Further, Blue Cross points to the testimony of Illinois Union’s head of medical risk claims department, Pizzonia, in which he acknowledged that damages awarded under LUTPA, fraud, negligent misrepresentation, and detrimental reliance are separate and apart from benefits owed under a contract.
By contrast, Illinois Union points to Omega’s opposition to Blue Cross’s summary judgment motion in the underlying action, which it asserts made repeated reference to Omega’s contract claims.
Finally, Illinois Union notes that the settlement in the underlying action allocates a small portion to benefits allegedly owed on behalf of Blue Cross members and a much larger portion, to damages alleged in the tort claims and argues that this allocation is “suspect” and crafted “for the purpose of effectuating coverage.”
Based on the foregoing, the Court finds that both parties have pointed to conflicting facts in the record as to whether the underlying claim is covered by the Policy. As noted supra, interpretation of insurance contracts generally involve questions of law. Here, however, the parties present conflicting evidence as to the underlying facts of the settlement.
The Court notes that the terms of the underlying settlement are confidential and that neither party submitted the settlement document into the record. While the record indicates that the underlying settlement allocated approximately 10% of the total settlement to damages for benefits owed to Omega on behalf of Blue Cross members and approximately 90% of the total settlement to damages stemming from the tort claims alleged in Omega’s petition, Illinois Union presents sufficient evidence to raise a genuine dispute of material fact as to whether the underlying claims involved obligations under a contract such that they would be excluded from coverage under the Policy.
Likewise, the Court finds that Blue Cross has pointed to sufficient facts in the record to raise a genuine dispute of material fact as to whether approximately 90% of the damages in the underlying settlement, allocated to damages stemming from Omega’s tort claims, are covered under the Pokey’s definition of loss and not excluded under the carve-outs or other exclusions in the Policy. However, Blue Cross is not entitled to summary judgment on its coverage and breach of contract claims, because Illinois Union has also pointed to sufficient facts in the record to raise a genuine dispute of material fact as to the nature of the claims settled in the underlying action.
As the Fifth Circuit, applying Louisiana law, has held, “an insurer should have to reimburse the insured only-to the extent that the settlement compromised claims that were covered by the policy.”
The Court notes that Illinois Union argues that three of the claims in the underlying action are uninsurable as a matter of law.
As to the fraud claim in the underlying action, the Court notes that in its reply brief in further support of its motion for summary judgment, Illinois Union notes that the fraud exclusion in the Policy actually requires “some in fact determination of fraud,, either through an admission or a final adjudication ‘in a proceeding constituting the Claim or in a proceeding separate from or collateral to any proceeding constituting the Claim.’ ”
As to Illinois Union’s arguments regarding the claim of detrimental reliance in the underlying action, the,Court notes that a detrimental reliance theory, may sound in contract.
Finally, the Court notes that a claim for unjust enrichment under Louisiana law is characterized as “quasi-contractual.”
Based on the foregoing, the Court concludes that there are genuine disputes of material fact precluding summary judgment regarding whether the Policy covers the settlement damages for which Blue Cross seeks coverage such that neither party is entitled to summary judgment.
2. The Policy’s Consent to Settle Clause
In its motion for summary judgment, Illinois Union argues that even if the settled claims are covered under the Policy, Blue Cross lacked the required prior written consent to settle the underlying action.
Blue Cross argues that Illinois Union may not raise lack of consent as a coverage defense, because Illinois Union unreasonably withheld consent and thus left Blue Cross free to settle the underlying action.
Under Louisiana law, consent to settle clauses in insurance policies have been found to be consistent with public policy.
Here, the Policy itself contains the following language in the “Conditions” section of the Policy: “No Insured may settle or offer to settle any Claim, incur Defense Expenses, otherwise assume any contractual obligation or admit liability with respect to any Claim without the Insurer’s prior written consent, which consent shall not be unreasonably withheld. The Insurer shall not be liable for any settlement, Defense Expenses, assumed obligation or admission to which it has not consented.”
The parties do not dispute that the Policy contains a consent to settle clause re
In particular, Blue Cross points to evidence in the record that Omega was seeking damages in the range of $45 million to $108 million and that Blue Cross communicated this range to Illinois Union.
Finally, Blue Cross argües that even though Illinois Union did not provide its written consent to the settlement, Illinois Union verbally consented to the settlement in the underlying action by agreeing to pay a portion of the settlement.
By contrast, Illinois Union asserts that its refusal to give ■ written consent was reasonable and points to a communication it received from Blue Cross prior to the mediation in which Blue Cross’s in-house counsel advised Illinois Union that a trial with Omega would be “very winnable” and that the damages in the case were “big— but imaginary.”
Accordingly, based on the foregoing, both parties have pointed to facts in the record to raise a disputed issue of material fact as to whether Illinois Union’s refusal to give written consent to settlement was reasonable under the circumstances. Moreover, as noted supra, Louisiana jurisprudence suggests that a failure to conform to a consent to settle clause may be excused where the insurer “denies coverage where there is coverage, or unjustifiably delays settlement.”
The Court notes that in its sur-reply, Illinois Union argues that it is undisputed that: (1) the Policy required that “no insured may settle or offer to settle any Claim ... without the insurer’s prior written consent, which consent shall not be unreasonably withheld;” and (2) that Blue Cross made offers to settle in the underlying action without obtaining Illinois Union’s consent, both prior to and during the mediation, which ultimately resulted in the settlement at issue.
However, the Court finds this new argument, brought for the first time in a sur-reply, insufficient to show that summary judgment in Illinois Union’s favor is warranted. First, Illinois Union has not shown that the Policy precludes coverage of a settlement if any offer to settle was made prior to the ultimate settlement regardless of whether or not that offer was accepted. Here, the Policy states that the insurer “shall not be liable for any settlement ... to which it has not consented.”
Second, the Court notes that Illinois Union also claims that Blue Cross did not inform Illinois Union or seek Illinois Union’s written consent for the settlement offers made by Blue Cross during the mediation.
Because disputes of material fact exist regarding the reasonableness of Illinois Union’s denial of written consent and whether Illinois Union denied coverage where there is coverage, neither party is entitled to summary judgment based on the Policy’s consent to settle clause.
3. The Policy’s Cooperation Clause
In its motion for summary judgment, Illinois Union argues that coverage of the underlying settlement is also barred, because Blue Cross failed to comply with the cooperation clause in the Policy, which it represents requires the insured to provide Illinois Union “with all information, assistance, and cooperation” that it reasonably requests.
In opposition, Blue Cross contends that it cooperated in accordance with the Policy’s cooperation clause and that even if the Court does find a breach of the cooperation clause, Illinois Union has failed to show that the breach was material and prejudicial.
“In an insurance contract, the insured’s duty to provide information ordinarily arises only under the express policy obligations.”
In response, Blue Cross points to evidence that it provided regular status updates consistent with the parties’ custom, including 16 updates it provided to Illinois Union regarding the underlying action.
The Court notes that Illinois Union argues that there were gaps in Blue Cross’s updates and that Blue Cross could have provided Illinois Union with more helpful information over the course of the litigation.
4. Defense Costs in the Underlying Action
In its motion for summary judgment, Illinois Union argues that it is entitled to summary judgment on Blue Cross’s counterclaim that Illinois Union failed to pay certain defense costs in the underlying action.
Illinois Union has submitted evidence, including correspondence between Blue Cross and Illinois Union representatives,
In its Counterclaim, Blue Cross asserts that Illinois Union has a duty to reimburse Blue Cross for costs incurred in connection with the underlying action, including defense expenses.
5. Attorneys’ Fees in the Instant Action
Illinois Union also contends that it is entitled to summary judgment on Blue Cross’s request for attorneys’ fees associated with the instant action, because attorneys’ fees are only recoverable when authorized by statute or contract, neither of which applies, here.
The Court'notes as a preliminary matter that under Louisiana law, attorneys’ fees are recoverable only when authorized by statute or contract.
IY. Conclusion
Based on the foregoing, the Court finds that there are genuine disputes of material fact precluding summary judgment for either party on: (1) Count I of Illinois Union’s Complaint, in which Illinois Union seeks a declaratory judgment that Illinois Union is not required to indemnify Blue Cross for the underlying settlement due to the fact that Blue Cross did not obtain Illinois Union’s written consent; (2) Count II of Illinois Union’s Complaint, in which Illinois Union seeks a declaratory judgment that Illinois Union has no obligation to indemnify Blue Cross due to the fact that the settlement encompasses damages that are not covered under the Policy; (3) Count I of Blue Cross’s counterclaim for declaratory judgment that Illinois Union must indemnify Blue Cross for the settlement in the underlying action; and (4) Count II of Blue Cross’s counterclaim for breach of contract as a result of Illinois Union’s failure to indemnify Blue Cross for the settlement in the underlying action.
The Court concludes that there are genuine disputes of material fact precluding summary judgment regarding whether the Policy covers the settlement damages for which Blue Cross seeks coverage. Because disputes of material fact exist regarding the reasonableness of Illinois Union’s denial of written consent, neither party is entitled to summary judgment based on the Policy’s consent to settle clause. To the extent Illinois Union asserts that summary judgment is proper on the basis of Blue Cross’s failure to comply with the cooperation clause, the Court finds that genuine disputes of material fact exist precluding summary judgment on this basis.
The Court finds that there is no dispute of material fact as to whether Illinois Union agreed to reimburse Blue Cross’s defense costs in the underlying action in excess of the SIR. Thus, the Court finds that Illinois Union is entitled to summary judgment in its favor to the extent that it requests summary judgment on Blue Cross’s request for defense costs associated with the underlying action in excess of the SIR. Finally, because attorney’s fees are not recoverable under Louisiana Revised Statute § 22:1973, the Court finds that Illinois Union is entitled to summary judgment in its favor denying Blue Cross’s request for attorneys’ fees in the instant action.
Accordingly,
IT IS HEREBY ORDERED that Blue Cross’s “Motion for Summary Judgment on Coverage Obligations”
IT IS FURTHER ORDERED that Illinois Union’s “Motion for Summary Judgment on Coverage”
Notes
. Rec. Doc. 116.
. Rec. Doc. 118.
. Rec. Doc. 125-1 at 2.
. Rec. Doc. 1.
. Id. at 3.
.Rec. Doc. 118-5 at 8.
. Id. at 9.
. Id. at 10. The parties do not dispute that Louisiana law applies to the instant dispute. See Rec. Doc. 116-1 at 8 (Blue Cross citing Louisiana law); Rec. Doc. 118-1 at 6 (Illinois Union citing Louisiana law).
. Id. at 16.
. Rec. Doc. 1 at 1.
. Id. at 2.
. Rec. Doc. 1-2 at 8-11.
. Id. at 9.
. Id. at 10.
. Rec. Doc. 1.
. Rec.Doc.il.
. Id.
. Rec. Doc. 116.
. Rec. Doc. 147.
. Rec. Doc. 176.
. Rec. Doc. 118.
. Rec. Doc. 146.
. Rec. Doc. 172.
. Rec. Doc. 116-1 at 17.
. Id. at 10.
. Id.
. Id.
. Id.
. Id.
. Id.
. Id.
. Id. at 11.
. Id.
. Id.
. Id. at 12.
. Id.
. Id. (citing Fed. Ins. Co. v. New Hampshire Ins. Co., No. 03-385,
. Id. at 12-13.
. Id. at 13.
. Id.
. Id. (citing Pizzonia Dep. Tr. at 122:18-123:10).
. Id.
. Id. at 14 (citing Singleton v. United Tugs, Inc.,
. Id. at 15.
. Id. (citing Encinas Dep. Tr. 63:10-64:15; Rec. Doc. 116-11).
. Id.
. Id. at 16.
. Id.
. Id.
. Id.
. Rec. Doc. 147 at 1.
. Id. at 2 (citing Doerr v. Mobil Oil Corp.,
. Id. (citing Rec. Doc. 118-5).
. Id.
. Id. (citing Fielding v. Cas. Reciprocal Exch.,
. Id. (citing Medill v. Westport Ins. Corp.,
. Id. at 3.
. Id.
. Id.
. Id. (citing Rec. Doc, 116-8).
. Id, at 10.
. Id.
. Id.
. Id. at 11 (citing La. Rev. Stat. § 40:2101).
. Id. (citing Rec. Doc. 118-39).
. Id. at 12.
. Id. at 4 (citing Fed. Ins. Co. v. New Hampshire Ins. Co.,
. Id. (citing Rec. Doc. 118-26 at 326-327).
. Id.
. Id. (citing
. Id. at 4-5 (citing
. Id. at 5 (citing Cooper Indus., LLC v. Am. Int’l Spec. Lines Ins. Co., 273 Fed.Appx, 297, 308 (5th Cir. 2008)),
. Id.
. Id. (citing XL Specialty Ins. Co. v. Bollinger Shipyards, Inc.,
. Id. at 6.
. Id.
. Id.
. Id. at 6-7.
. Id. at 7.
. Id.
. Id.
. Id.
. Id.
. Id. (citing Rec. Doc. 116-4 at 6).
. Id.
. Id. at 9.
. Id.
. Id.
. Id. (citing
. Id. at 12-13.
. Id. at 13 (citing
. Id. at 13-14 (citing Rec. Doc. 118-25).
. Id. at 14.
. Id.
. Id.
. Id.
. Id. at 15.
. Id. (citing New England Ins. Co. v. Barnett,
. Id. at 16 (citing Fed. Ins. Co. v. Hawaiian Elec. Indus., Inc.,
. Id. at 17.
. Id. at 17-18 (citing Barnett,
. Id. at 17.
. Id.
.Id. at 18.
. id.
. id.
. Id. at 19.
. Id. (citing Rec. Doc. 118-32).
. Id.
. Id. (citing Rec. Doc. 118-33).
. Id. at 20 (citing Rec. Doc. 118-34).
. u.
. Id.
. Id.
. Id.
. Rec. Doc. 176 at 3.
. Id. (citing Looney Ricks Kiss Architects, Inc. v. Bryan, No. 07-572,
. Id. at 3-4.
. Id. at 5,
. Id.
. Id.
. Id.
. Id.
. Id. at 5-6 (citing
. Id. at 6.
. Id.
. Id.
. Id. at 7 (citing O’Brien Dep. Tr.).
. Id.
. Id.
. Rec. Doc. 118 at 1.
. Id.
. Rec. Doc. 118-1 ató.
. Id. (citing 118-5).
. Id.
. Id. at 6-7 (citing Danrik Const. Inc. v. Am. Cos. Co.,
. Id. at 7.
. Id. at 7-8 (citing Rec. Doc. 118-5).
. Id. at 8 (citing Nat'l Union Fire Ins. Co. of Pittsburgh, Pa. v. Cagle,
. Id.
. Id.
. Id. at 9.
. Id. (citing Rec. Doc. 118-5).
. Id.
. Id. at 10.
. Id. (citing Rec, Doc. 1-2).
. Id.
. Id. (citing Patriot Const. & Equip. v. Rage Logistics, LLC,
. Id. at 11.
. Id.
. Id. at 12,
. Id.
. Id.
. Id. at 13.
. Id.
. Id. at 14 (citing La. Rev. Stat. § 40: 2101).
. Id.
. Id. at 15.
. Id. (citing National Union Fire Ins. Co. v. Hosp. Affiliates Mgmt. Corp.,
. Id. at 15-16 (citing Health Net, Inc. v. RLI Ins. Co.,
. Id. at 17.
. Id. (citing Exh. 22).
. Id.
. Id. at 19.
. Id. (citing Rec. Doc. 11).
. Id.
. Id. (citing Sher v. Lafayette Ins. Co.,
. Rec. Doc, 146 at 4.
. Id. at 5.
. Id. at 6.
. Id.
. Id. at 7-8 (citing Fed. Ins. Co. v. Hawaiian Elec. Indus., Inc.,
. Id. at 7 (citing Singleton v. United Tugs, Inc., 97-1652 (La. App. 4 Cir. 3/18/98),
. . Id. at 8.
. Id.
. Id. (citing Kovesdi v. Allstate Indem. Co.,
. Id. at 9-10.
. Id. at 11-12.
. Id. at 11.
. Id. at 12.
. Id. at 13.
. Id. at 14 (citing MBIA, Inc. v. Fed. Ins. Co.,
. Id. at 15.
. Id.
. Id. (citing Exh. B).
. Id.
. Id. at 16-17.
. Id. at 17.
. Id.
. Id. at 18 (citing Exec. Risk Indent., Inc. v. CIGNA Corp.,
. Id. at 18-19 (citing CIGNA Corp.,
. Id. at 19.
. Id. at 20 (citing Md. Cas. Co. v. Dixie Ins. Co.,
. Id.
. Rec. Doc. 172 at 1.
. Id. at 1-2 (citing Rec. Doc. 131).
. Id. at 2.
. Id.
. Id. at 3.
. Id.
. Id. at 4.
. Id. (citing Rec. Doc. 117-5).
. Id. at 5.
. Id. at 6.
. Id.
. Id. at 7.
. Id. The Court notes that Illinois Union also argues that Blue Cross cites to and attaches a case that cannot be considered as precedent under Pennsylvania superior court rules and requests that it and the portions of Blue Cross’s memorandum that quote the case be stricken from the record. Because the Court does not rely on the unpublished Pennsylvania case in its analysis, Illinois Union’s request that the case be stricken is denied as moot.
. Id. at 9.
. Id. (citing Rec. Doc. 118-5).
. Id.
. Rec. Doc. 172 at 9,
. Rec. Doc. 223-3 at 2.
. Id.
. Id.
. Id.
. Id. at 3.
. Id. at 1.
. Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23,
. Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co.,
. Galindo v. Precision Am. Corp.,
. Matsushita Elec. Indus. Co. v. Zenith Radio,
. See Celotex,
. Celotex,
. Forsyth v. Barr,
. Bellard v. Gautreaux,
. Little,
. Martin v. John W. Stone Oil Distrib., Inc.,
. In re Katrina Canal Breaches Litig.,
. Wisznia Co.,
. In re Katrina Canal Breaches Litig.,
. Prejean v. Guillory, 2010-0740, at 6 (La. 7/2/10);
. In re Katrina Canal Breaches Litig.,
. Id. at 208 (quoting Cadwallader v. Allstate Ins. Co.,
. Id.
. Rec. Doc. 116.
. Rec. Doc. 116-1 at 17.
. Rec. Doc. 118 at 1.
. Id.
. Id.
. Rec. Doc. 116-1 at 10.
. Id. at 10, 16.
. Rec. Doc. 118 — 1 at 9, 11.
. Id. at 20.
. Coleman v. Sch. Bd. of Richland Par.,
. Doerr v. Mobil Oil Corp., 774 So.2d 119, 124 (La. 2000). See also Coleman,
. Doerr,
. See id. See also Garcia v. St. Bernard Parish Sch. Bd.,
. Coleman,
. Reynolds v. Select Props., Ltd.,
. Widder v. La. Citizens Prop. Ins. Corp., 2011-0196 (La. App. 4 Cir. 8/10/11),
. Rec. Doc. 147 at 2.
. See Jones v. Estate of Santiago, 2003-1424 (La. 4/14/04),
.
. Fielding,
.Id.
. Rec. Doc. 118-5 at 9.
. Id. at 10. (“Loss shall not include....")
. Jones
. Rec. Doc. 118-5 at 9.
. Id. at 8.
. Id. at 11.
. Id. at 10.
. Rec. Doc. 176 at 6.
. Id.
. Rec. Doc. 116-1 at 8.
. Id. at 10 (citing Rec. Doc. 1-2 at 3).
. Id. (citing Rec. Doc.1-2 at 9-11).
. Id. (citing Rec. Doc. 116-8 at 38).
. Id. at 11 (citing Rec. Doc. 116-4 at 8).
. Id. (citing Rec. Doc. 116-7 at 5-9). The Court notes that Illinois Union argues that Pizzonia's testimony regarding coverage for Omega's cause of action is "not proper summary judgment evidence." Rec. Doc. 147 at 6. However, on summary judgment, pursuant to Federal Rule of Civil Procedure 56(c)(1)(A), a party asserting a fact cannot be or is genuinely disputed must support the fact by “citing to particular parts of materials in the record, including depositions...." Illinois Union argues that the questions posed to Pizzonia were "vague” but does not point to any authority for its proposition that Pizzonia’s deposition testimony regarding Omega’s causes of action should not be considered on summary judgment. Even if Pizzonia's deposition testimony were improper, the Court finds that Blue Cross has nevertheless pointed to sufficient evidence to raise a genuine dispute of material fact as to Illinois Union’s coverage obligations over the underlying settlement.
. Rec. Doc. 158-2 at 1-2.
. Id. at 2. The Court notes Illinois Union’s arguments that the settlement allocation in the underlying action is "inherently suspect.” However, in the case cited for that proposition, Enserch Corp. v. Shand Morahan & Co., Inc., the Fifth Circuit, applying Texas law, merely disapproved of the trial court’s in
. Rec. Doc. Í18-26 at 326-327.
. Rec. Doc. 147 at 7 (citing Rec. Doc. 116— 8; Rec. Doc. 147-5).
. id. (citing Rec. Doc. 147-6 at 18).
. Id. (citing Rec; Doc. 1-2 at 59).
. Id. at 12 (Rec. Doc. 118-39).
. Id. at 4 (citing Rec. Doc. 118-26 at 326-27).
. Rec. Doc. 172 at 6 (citing Rec. Doc. 172-5 at 19, 23).
. Id. (citing Rec. Doc. 172-5 at 9).
. Id.
. See Rec. Doc. 118-26 at 326-27, See also Rec. Doc. 116-12 at 2.
. Fed. Ins. Co. v. New Hampshire Ins. Co.,
.Rec, Doc. 118-1 at 11.
. Id. at 10.
. Id.
. Rec. Doc. 172 at 9 (citing Rec. Doc. 118— 5).
. Id.
.
. Id.
. See Rec. Doc. 118-26 at 330 (Blue Cross's coverage attorney testifying that Blue Cross did not acknowledge liability for any of the tort claims in the underlying action).
. See Stokes v. Georgia-Pac. Corp.,
. Copeland v. Wasserstein, Perella & Co.,
. Id. See also Roger,
. See, e.g., Rec. Doc. 1-2 at 10.
. See, e.g., Rec. Doc. 172 at 6.
. See Canal/Claiborne, Ltd. v. Stonehedge Dev., LLC, 2014-0664 (La. 12/9/14),
. Rec. Doc. 118-5 at 10.
. Rec. Doc. 118-1 at 10.
. See Magic Moments Pizza, Inc. v. Louisiana Rest. Ass'n, 02-160 (La. App. 5 Cir. 5/29/02),
. Rec. Doc. 118-5 at 10.
. Rec. Doc. 118-1 at 6.
. Id.
. Id. at 7.
. Rec. Doc. 116-1 at 13.
. Id.
. Id. at 14 (citing Singleton v. United Tugs, Inc.,
. Id. at 15.
. Id.
. See Rosenthal v. Sec. Ins. Grp. of New Haven,
. Danrik Const., Inc. v. Am. Cas. Co. of Reading Penn.,
. New England Ins. Co. v. Barnett,
. Id. (citing Arceneaux v. Amstar Corp.,
. Id. (citing Emile M. Babst Co., Inc. v. Nichols Constr. Corp.,
. Rec. Doc. 1-3.
. See Rec, Doc,' 116-1 at 13 (Blue Cross asserting that under the terms of the Policy, it may settle a claim with Illinois Union's written consent).
. Id. át 12-13 (Blue Cross asserting that it requested but did not receive Illinois Union's written consent before settling, because 1111- . nois Union declined to give its written con- . sent).
. Rec. Doc. 1-3 at 28.
. Rec. Doc. 116-1 at 12 (citing Rec, Doc. 1, Rec. Doc. 116-8).
. Id.
. Rec. Doc. 158-2 at 2.
. Rec. Doc. 146 at 8 (citing Rec. Doc. 146-7 at 3, 7).
. Rec. Doc. 116-1 at 13.
. Rec. Doc. 116-7 at 4.
. Id. at 14.
. Rec. Doc. 147 at 13-14 (citing Rec.- Doc. 118-25).
. Id. at 14.
. Id. at 15 (citing Rec. Doc. 147-4 at 3).
. Rec. Doc. 147-4 at 3,
. Id. at 15.
. Rec. Doc, 116-10 at 2.
. New England Ins. Co. v. Barnett,
. Rec. Doc. 223-3 at 1.
. Id.
. Rec. Doc. 1-2 at 27.
. In re Katrina Canal Breaches Litig.,
. Rec. Doc. 223--3 at 2.
. Rec. Doc. 118--1 at 4.
. Id.
. Id.
. Id.
. Id. at 4-5.
. Rec. Doc. 118-5 at 27.
. Rec. Doc. 118-1 at 7-8.
.Id. at 8.
. Id.
. Id.
. Rec. Doc. 146 at 8-9.
. Id.
. Id.
. Id. at 12.
. Id. at 13.
. Nat’l Union Fire Ins. Co. of Pittsburgh v. Cagle,
. Hamilton v. State Farm Fire & Cos. Ins. Co.,
. Id. See also Lee v. United Fire & Cas. Co.,
. Lee,
. Nat’l Union,
. Williams v. Lowe,
. Rec. Doc. 118-2 at 5-6 (citing Rec. Doc. 25 at 4) (correspondence between Illinois Union claims handler and Blue Cross counsel with attached memorandum on the Omega suit dated March 8, 2016).
. Rec. Doc. 118-23 at 1-2,
. Rec. Doc. 146 at 9-10 (citing Rec. Docs. 146-16-146-25).
. Rec. Doc. 146-7 at 5-6.
. Rec. Doc. 172 at 3.
. Rec. Doc. 118-1 at 19.
. Id. (citing Rec. Doc. 22),
. Rec. Doc. 118-21 at 1; Rec. Doc. 118-22 at 1-2.
. Rec, Doc. 118-37; Rec. Doc. 118-38.
. Rec. Doc. 118-21 at 2.
. Rec. Doc. 11 at 19.
. Rec. Doc. 146-1 at 2.
. Rec. Doc. 11 at 21.
. Id.
. Rec. Doc. 146 at 20.
. Sher v. Lafayette Ins. Co., 2007-2441 (La. 4/8/08),
. Rec. Doc. 146 at 20.
. Id. at 23,
. La. Rev. Stat. § 22:1973(C).
. Katie Realty, Ltd. v. La. Citizens Prop. Ins. Corp., 2012-0588, (La. 10/16/12),
. Batson v. S. La. Med. Ctr.,
. See Rec. Doc. 11 at 21, 24.
. Rec. Doc. 116.
. Rec. Doc. 118.