| {.Thе plaintiff insured appeals the trial court’s grant of summary judgment in favor of the defendant insurer that resulted in the dismissal of the insured’s claim for statutory penalties and attorney’s fees under former LSA-R.S. 22:658 (current LSA-R.S. 22:1892). For the reasons expressed, we reverse and remand for further proceedings.
FACTS
This case arises out of a motor vehicle collision in East Baton Rouge Parish on October 27, 2006. Steven W. Richardson, insured by GEICO Indemnity Company (GEICO)
Shortly thereafter, by a letter dated May 23, 2007, Richardson demanded that GEICO unconditionally tender its underin-sured motorist (UIM) policy limits of $25,000.00, plus $3,000.00 for medical payments coverage. It is undisputed that GEICO received Richardson’s demand letter on May 25, 2007. Attached to Richardson’s demand letter was a copy of Safeco’s $50,000.00 check madе payable to Richardson and his attorney; an affidavit of Safe-co’s insured attesting to the fact that he had no other automobile liability insurance coverage in effect; a copy of the police report; and copies of Richardson’s medical records and medical |3bills reflecting that Richardson’s medical treatment through May 2007 totaled over $65,000.00, well above the underlying liability insurance coverage.
It is undisputed that Richardson’s demand letter did not contain information about any claim for reimbursement involving medical payments that were previously made by the Medical Care Recovery Unit of the Department of the Navy (the Navy). It is also undisputed that GEICO received separate notification of the Navy’s lien in a “Notice of Claim” that was sent to GEICO by the Navy on March 9, 2007, almost three months prior to GEICO’s receipt of Richardson’s demand letter. The Navy’s notice indicated that the “United States” was making claim to “any and all available insurance coverage including, but not limited to, ... Medical Payments, [and] Un-derinsured or Uninsured benefits” for the reasonable value of the medical care and treatment that had been provided by or through the United States to Richardson, with proof of the medical expenses to be
After receiving the Navy’s notice-of-claim letter and Richardson’s demand letter, GEICO began a series of numerous contacts and/or attempts to contact Richardson’s attorney’s office, as well as the Navy, in an effort to confirm the amount and payment details for the Navy’s outstanding medical payments lien.
After GEICO sent the intent-to-offer letter, GEICO continued to аttempt to contact Richardson’s attorney to discuss the issue of the Navy’s lien and the status of the case. On July 16, 2007, Richardson’s attorney’s office contacted GEICO to inform GEICO that the Navy’s lien had finally been settled for $12,000.00. Two days later, Richardson’s attorney advised GEICO in a faxed letter that due to the settlement of the medical payments lien from the underlying liability policy limits, GEICO was released from any obligation to pay the lien.
Almost two years later, on July 31, 2009, GEICO filed a motion for summary judgment, with a supporting affidavit referencing numerous attached exhibits. The affidavit was sworn by GEICO’s Claims Examiner, Thomas Miller, |fiwho had personally worked on Richardson’s claim. GEICO argued in its motion for summary judgment that Richardson was not entitled to penalties and attorney’s fees against GEICO for “bad faith” because the pleadings, exhibits, and Miller’s affidavit showed that Richardson could not sustain his burden of proving that GEICO “failed to pay” the UIM claim within thirty days of receiving “satisfactory proof of loss.” Additionally, GEICO argued that Richardson could not sustain his burden of proving that GEICO was arbitrary, capricious, or without probable cause in allegedly “failing” to timely pay Richardson’s UIM claim. Richardson filed no affidavits or memorandum in opposition to GEICO’s motion for summary judgment.
In its memorandum in support of the motion for summary judgmеnt, GEICO maintained that the statutory thirty-day time period in LSA-R.S. 22:658
On November 9, 2009, the summary judgment motion was tried. Judgment in favor of GEICO, dismissing Richardson’s claims with prejudice, was signed on November 20, 2009. No reasons were assigned. On appeal, Richardson contends that the trial court erred in failing to find that GEICO was arbitrary, capricious, or without probable cause when it failed to unconditionally tender the undisputed portion of Richardson’s claim within the statutorily-mandated time period after GEICO received a satisfactory proof of loss on Richardson’s UIM and medical payments claims,
SUMMARY JUDGMENT
Appellate courts review summary judgment de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Pugh v. St. Tammany Parish School Bd.,
On a motion for summary judgment, the initial burden of proof remains with the moving party. However, if the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require him to negate all essential elements of the opposing party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements еssential to the opposing party’s claim, action, or defense. Thereafter, if the opposing party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. LSA-C.C.P. art. 966 C(2).
Once the motion for summary judgment has been properly supported by the moving party, the failure of the opposing party to produce evidence of a material factual dispute mandates the granting of the motion. Pugh,
loin Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94),
A “genuine issue” is a “triable issue.” More precisely, “[a]n issue is genuine if reasonable persons could disagree. If on the state of the evidence, reasonable persons could reach only one conclusion, there is no need for a trial on that issue. Summary judgment is the means for disposing of such meretricious disputes.” In determining whether an issue is “genuine,” courts cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence. “Formal allegations without substance should be closely scrutinized to determine if they truly do reveal genuine issues of fact.”
A fact is “material” when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. “[Fjacts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute.” Simply put, a “material” fact is one that would matter on the trial on the merits. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of a trial on the merits. [Citations omitted.]
Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Guardia v. Lakeview Regional Medical Center,
LAW AND ANALYSIS
At issue in GEICO’s motion for summary judgment is the appropriate date of Richardson’s satisfactory proof of loss, if any, and whether GEICO arbitrarily, capriciously, and without probable cause failed to pay Richardson’s UIM and medical payments claims within thirty days of receipt of the satisfactory proof of loss. As the moving party, GEICO had the initial but-den of proof for purposes of seeking summary judgment; however, as a defendant in this matter, GEICO would not bear the burden of proof on these issues at trial. Therefore, GEICO was only |inrequired to point out to the trial court that there was an absence of factual support for one or more elements essential to Richardson’s action.
Louisiana Revised Statutes 22:658 A(l) requires all insurers to pay the amount of any claim due any insured within thirty days after receipt of satisfactory proofs of loss. Section B(l) of this statute provides the following:
Failure to make such payment within thirty days after receipt of such satisfactory written proofs аnd demand therefor ..., when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of fifty percent damages on the amount found to be due from the insurer to the insured, or one thousand dollars, whichever is greater, payable to the insured, ... or in the event a partial payment or tender has been made, fifty percent of the difference between the amount paid or tendered and the amount found to be due as well as reasonable attorney fees and costs.
It is well-settled that a satisfactory proof of lоss is that which is sufficient to fully apprise the insurer of the insured’s claims. Louisiana Bag Co., Inc. v. Audubon Indem. Co., 08-0453 (La.12/2/08),
Louisiana has adopted liberal rules concerning the lack of formality relative to proof of loss. Louisiana Bag Co.,
However, the statutory penalties are inappropriate when the insurer has a reasonable basis to defend the claim and was acting in good-faith reliance on that defense. Block v. St. Paul Fire & Marine Ins. Co., 32,306 (La.App. 2 Cir. 9/22/99),
GEICO argues, however, that Richardson produced no evidence to show that GEICO acted in an arbitrary and capricious manner in making the untimely payment. GEICO submitted Miller’s affidavit in support of the summary | ^judgment, outlining GEICO’s numerous and repeated attempts to contact Richardson’s attorney and/or a representative of the Navy in order to resolve the issue of the outstanding medical payments lien. The evidence reveals that GEICO attempted to contact Richardson’s attorney on June 21, 2007, but instead spoke with a representative in the attorney’s office. GEICO was advised that GEICO’s intent-to-offer the UIM limits letter had been received. Richardson’s attorney’s office representative confirmed that GEICO’s intent-to-offer letter “satisfied [Richardson’s] demand within the statutory deadlines[,]” and that Richardson “did not expect GEICO to release funds until the issue of the Navy’s lien was addressed.” According to Miller’s affidavit, Richardson’s attorney also advised GEICO on June 28, 2007, that he understood that GEICO was “not delaying payment, but was only seeking verification that the lien issues had been addressed.” Thus, GEI-CO maintains that its attempt to confirm the Navy’s lien was a legitimate and reasonable reason to delay payment to Richardson that precludes penalties and attorney’s fees under LSA-R.S. 22:658.
A determination of whether an insurer’s failure or refusal to pay within the time limits is arbitrary, capricious, or without probable cause is primarily a question of fact that depends upon facts known to the insurer at the time of the insurer’s action. Louisiana Bag Co.,
While the insurer is not required to tender payment for amounts that are reasonably in dispute, “there can be no good reason — or no probable cause — for withholding an undisputed amount.” Louisiana Bag Co.,
A McDill tender must be an unconditional tender. Id. Further, the McDill tender is a good faith act on the part of the insurer acknowledging the insurer’s contractual obligation to pay. Id.,
The Louisiana Supreme Court has recognized that “[a]ny insurer who fails to pay [an] undisputed amount has acted in a manner that is, by definition, arbitrary, capricious or without probable cause ...” Louisiana Bag Co.,
CONCLUSION
For the reasons assigned, we reverse the grant of summary judgment in favor of GEICO on Richardson’s claim for statutory penalties and attorney’s fees due to GEICO’s failure to unconditionally tender the undisputed portion of Richardson’s UIM and medical payments claims within the statutorily-mandated time period.' We remand to the trial court for further proceedings in accordance with this opinion. All costs of this appeal are assessed to defendant insurer, GEICO Indemnity Company.
REVERSED AND REMANDED.
Notes
. At times in the record, GEICO is also referred to as Government Employees Insurance Company.
. A copy of the demand letter is in the record; however, the attachments referenced in the demand letter were not included in the evidence filed in the record. The demand letter was attached to an affidavit executed by GEI-CO's Claims Examiner, Thomas Miller, who personally handled Richardson’s UIM claim. The Miller affidavit was filed and admitted into evidence in support of GEICO’s motion for summary judgment.
. A copy of the Navy's claim letter was attached to Miller’s affidavit.
. Miller's affidavit outlines at least twenty-two instances where GEICO contacted the Navy’s representative or Richardson’s attorney and/or attorney’s office representative in an attempt to address the issue of the Navy's outstanding lien.
. A copy of GEICO’s intent-to-offer letter was attached to Miller’s аffidavit.
. A copy of the faxed letter was attached to Miller’s affidavit. Additionally, a copy of the “Agreement to Protect Government's Interest" executed by Richardson’s attorney on February 12, 2007, and accepted by the Navy on March 5, 2007, was attached to Miller’s affidavit as well.
. A copy of GEICO’s letter outlining the payment of Richardson’s UIM policy limits and medical payments coverage was attached to Miller’s affidavit.
. Acts 2008, No. 415, § 1, effective January 1, 2009, re-designated the provisions of Title 22 into a new format and numbering scheme, including the re-numbering of former LSA-R.S. 22:658 to the current LSA-R.S. 22:1892 and former LSA-R.S. 22:1220 to the current LSA-R.S. 22:1973, without changing the substance of the provisions. Both of these statutes prohibit insurers from failing to timely pay claims after receiving satisfactory proofs of loss when that failure to pay is arbitrary, capricious, or without probable cause. However, only the shorter time period of thirty days provided in LSA-R.S. 22:658 (current LSA-R.S. 22:1892) is at issue in this case. Because Richardson’s cause of action arose under the previous statute number, it will be utilized throughout this opinion. See Guillory v. Lee, 09-0075 (La.6/26/09),