Bradley v. Allstate Insurance

Case: 09-30035 Document: 00511237812 Page: 1 Date Filed: 09/20/2010

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
September 20, 2010
No. 09-30035 Lyle W. Cayce
Clerk

FELTON BRADLEY; LUCILLE BRADLEY

Plaintiffs - Appellants
v.

ALLSTATE INSURANCE COMPANY

Defendant - Appellee

Appeal from the United States District Court
for the Eastern District of Louisiana

Before HIGGINBOTHAM and STEWART, Circuit Judges, and * ENGELHARDT,
District Judge.
CARL E. STEWART, Circuit Judge:
ON PETITION FOR PANEL REHEARING AND PETITION FOR
REHEARING EN BANC: The original opinion in this case was issued by the
panel on May 11, 2010. No active judge of this court having requested a poll
(F ED. R. A PP. P. 35; 5 TH C IR. R. 35), the petition for rehearing en banc is
DENIED. The petition for panel rehearing is GRANTED to the extent that we
VACATE our previous opinion (606 F.3d 215 (5th Cir. 2010)) and replace it with
the following. In all other respects, the petition for panel rehearing is DENIED.

*
District Judge of the Eastern District of Louisiana, sitting by designation.
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OPINION
This appeal involves an insurance dispute arising from the total
destruction of Felton and Lucille Bradley’s home as a result of flood and wind
damage suffered during Hurricane Katrina. The Bradleys’ homeowners policy
with Allstate Insurance Company carried a dwelling limit of $105,600. The
Bradleys have received $105,139.06 in total insurance payments for their
dwelling—$41,339.06 under their Allstate homeowners policy and $63,800 from
their flood insurance policy. The Bradleys filed suit against Allstate, alleging
that they were entitled to the full limits under their homeowners policy and
additional payments for loss of personal property, additional living expenses,
mental and physical distress, and Allstate’s bad faith. The district court
determined that, despite the total loss provision of the homeowners policy, the
Bradleys were only entitled to the actual cash value of their home. The district
court found that the actual cash value of the home prior to its destruction was
less than the total amount they received under their homeowners and flood
policies, and any further recovery by the Bradleys would amount to a double
recovery. The district court further held that the Bradleys had not advanced any
evidence in support of their other claims. The district court awarded the
Bradleys some relief as to additional living expenses, but granted summary
judgment in favor of Allstate on all other claims. We AFFIRM in part and
VACATE and REMAND in part.
This appeal presents the following issues: (1) whether the total loss or
actual cash value provision of the policy controls; (2) the proper definition of
actual cash value under Louisiana law; (3) how to determine whether the
insured has received a double recovery, i.e., collected insurance proceeds in

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No. 09-30035

excess of actual losses; and (4) whether the district court erred by granting
summary judgment on the Bradleys’ claims for loss of personal property,
additional living expenses, mental and physical distress, and bad faith.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
Prior to Hurricane Katrina, the Bradleys owned and resided at a house
located at 2637 Tennessee Street, New Orleans, Louisiana. The property was
insured under a homeowners policy issued by Allstate and a separate flood policy
issued by Fidelity National Insurance Company. Like many homeowners
policies, the Bradleys’ homeowners policy specifically excluded flood damage.
The homeowners policy contained coverage limits of $105,600 for the dwelling,
$73,920 for the contents, and $10,560 for other structures.
Hurricane Katrina destroyed the Bradleys’ home in August 2005. A few
badly damaged concrete blocks were the only structural component of the house
left on the property. The Bradleys notified Allstate of their loss and filed a claim
on September 1, 2005. Allstate first sent an engineer to inspect and adjust the
loss on December 22, 2005. The engineer’s report concluded that “the structure
has been destroyed from a combination of hurricane winds and flooding.” On two
later occasions, Allstate again sent engineers to adjust the claim. On January 5,
2006, one of those Allstate adjusters concluded that “the dwelling is unlivable
due to Catastrophic Wind Damage.”
Allstate ultimately paid $41,339.06 for structural damage and $10,632 for
contents under the homeowners policy. From their flood insurance, the Bradleys
received the policy limits of $63,800 for structural damage and $6,200 for home

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contents. Thus, the total payment to the Bradleys for structural damage to their
home under both policies was $105,139.06.
Allstate subsequently performed a retroactive analysis that appraised the
pre-storm market value of the Bradleys’ home at $85,000. At deposition, Mr.
Bradley testified that the pre-storm value of the home was between $85,000 and
$95,000, and Mrs. Bradley testified that the pre-storm value was in the
neighborhood of $97,000. An expert hired by the Bradleys estimated the cost to
rebuild the home at $265,427.
To date, the Bradleys have not rebuilt their Tennessee Street house,
although Mr. Bradley stated at deposition that he intends to rebuild. In order to
benefit from government assistance through the Road Home program, the
Bradleys attested that they will rebuild and return to the property. The Bradleys
did purchase another home in New Orleans East for $134,500, but they have not
designated that home as a replacement property.
B. Procedural History
On May 30, 2007, the Bradleys filed suit against Allstate in Louisiana
state court; Allstate removed the case to federal court based upon diversity
jurisdiction. The Bradleys claimed that Allstate breached the insurance
contract, acted negligently, and acted in bad faith. They further alleged that
under the Louisiana’s Value Policy Law (VPL), they were entitled to the full
policy limits from Allstate, without deduction or offset. The complaint
specifically sought to recover: (1) the policy limits under their homeowners
insurance, because their home was rendered a total loss; (2) additional recovery
for loss of their personal property; (3) additional living expenses (ALE); (4)
compensation for mental anguish and emotional distress related to Allstate’s

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handling of their homeowners claim for structural damage; and (5) damages for
Allstate’s alleged bad faith pursuant to L A. R EV. S TAT. §§ 22:1220 and 22:658.1
Through a series of orders addressing multiple motions for partial
summary judgment, motions to reconsider, motions in limine, and sua sponte
granting summary judgment, the district court awarded the Bradleys an amount
less than they claimed for ALE and granted summary judgment in favor of
Allstate on all other claims. The court held that the Bradleys were only entitled
to the actual cash value (ACV) of their home, which was less than the amount
they received under their homeowners and flood policies combined. On the VPL
claims, the court found that although the Bradleys “allege that the property was
damaged by wind and flood and that the home is a total loss, there is no
allegation that the total loss was caused by wind or any other peril covered
under the homeowners policy.” The court also dismissed the Bradleys’ claims for
loss of personal property for failure to introduce evidence of ownership or the
value of the items claimed. The mental and emotional distress claims were
rejected for failure to advance any evidence of mental anguish or emotional
distress. With regard to the Bradleys’ bad faith claims, the court found that
Allstate had fully paid the Bradleys’ claims under the policy and therefore there
was no “valid, underlying, substantive claim.”
The Bradleys filed this appeal, arguing that the district court erred in
granting summary judgment. The Bradleys contend that summary judgment
was improper because: (1) the district court ignored the plain language of the
insurance contract providing for the payment of policy limits in the event of a

1
This provision has been recently recodified as § 22:1892, but is referred to here as
§ 22:658.

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total loss; (2) used the wrong measure of value to determine their scope of
recovery; (3) improperly allowed Allstate to offset its payments with the
Bradleys’ recovery from their flood insurance; (4) failed to consider the weight
of the evidence regarding lost personal property and ALE; and (5) wrongly
dismissed the Bradleys’ bad faith, mental anguish, and emotional distress
claims.
II. STANDARD OF REVIEW
“This court reviews a district court’s grant of summary judgment de novo.”
Breaux v. Halliburton Energy Servs., 562 F.3d 358, 364 (5th Cir. 2009). We also
review de novo the district court’s interpretation of state law and give no
deference to its determinations of state law issues. See Salve Regina Coll. v.
Russell, 499 U.S. 225, 239–40 (1991). Summary judgment is appropriate when
“the discovery and disclosure materials on file, and any affidavits show that
there is no genuine issue as to any material fact and that the movant is entitled
to a judgment as a matter of law.” F ED. R. C IV. P. 56(c). All the facts and evidence
must be taken in the light most favorable to the non-movant. Breaux, 562 F.3d
at 364.
Summary judgment is also proper if the party opposing the motion fails
to establish an essential element of his case. Celotex Corp. v. Catrett, 477 U.S.
317, 322–23 (1986). The non-moving party must do more than simply deny the
allegations raised by the moving party. See Donaghey v. Ocean Drilling &
Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992). Rather, the nonmovant must
come forward with competent evidence, such as affidavits or depositions, to
buttress his claims. Id.
III. DISCUSSION

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A. Structural Damages
1. The Insurance Contract: “Total Loss” Provision
Under Louisiana law,2 an insurance policy “constitutes the law between
the insured and insurer, and the agreement governs the nature of their
relationship.” Peterson v. Schmiek, 98-1712, p. 4 (La. 3/2/99), 729 So. 2d 1024,
1028. “Words and phrases used in an insurance policy are to be construed using
their plain, ordinary and generally prevailing meaning, unless the words have
acquired a technical meaning.” Id. (citing L A. C IV. C ODE art. 2047). “When the
words of a contract are clear and explicit and lead to no absurd consequences, no
further interpretation may be made in search of the parties’ intent.” Smith v.
Am. Family Life Assur. Co. of Columbus, 584 F.3d 212, 215–16 (5th Cir. 2009)
(citing L A. C IV. C ODE art. 2046).

2
When sitting in diversity, this Court applies the substantive law of the state. In re
Katrina Canal Breaches Litig., 495 F.3d 191, 206 (5th Cir. 2007) (citing Erie R.R. v. Tompkins,
304 U.S. 64 (1938)). As stated in In re Katrina Canal Breaches Litigation:
To determine Louisiana law, we look to the final decisions of the Louisiana
Supreme Court. See id. In the absence of a final decision by the Louisiana
Supreme Court, we must make an Erie guess and determine, in our best
judgment, how that court would resolve the issue if presented with the same
case. See id. In making an Erie guess, we must employ Louisiana’s civilian
methodology, whereby we first examine primary sources of law: the
constitution, codes, and statutes. Id. (quoting Lake Charles Diesel, Inc. v. Gen.
Motors Corp., 328 F.3d 192, 197 (5th Cir. 2003)); Prytania Park Hotel, Ltd. v.
Gen. Star Indem. Co., 179 F.3d 169 (5th Cir. 1999). “Jurisprudence, even when
it rises to the level of jurisprudence constante, is a secondary law source in
Louisiana.” Prytania Park Hotel, 179 F.3d at 169 (footnote omitted); see also
Am. Int’l Specialty Lines Ins. Co., [352 F.3d 254, 261 (5th Cir. 2003)] (quoting
Transcon. Gas Pipe Line Corp. v. Transp. Ins. Co., 953 F.2d 985, 988 (5th Cir.
1992)). Thus, although we will not disregard the decisions of Louisiana’s
intermediate courts unless we are convinced that the Louisiana Supreme Court
would decide otherwise, we are not strictly bound by them. Am. Int’l Specialty
Lines Ins. Co., 352 F.3d at 261.
Id.

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A contract is ambiguous only if its terms are unclear or susceptible to more
than one reasonable interpretation, or the intent of the parties cannot be
ascertained from the language employed. Cadwallader v. Allstate Ins. Co., 2002-
C-1637, p. 4 (La. 6/27/03); 848 So. 2d 577, 580. Where an insurance policy
includes ambiguous provisions, the “[a]mbiguity . . . must be resolved by
construing the policy as a whole; one policy provision is not to be construed
separately at the expense of disregarding other policy provisions.” In re Katrina
Canal Breaches Litig., 495 F.3d 191, 206 (5th Cir. 2007) (quoting La. Ins. Guar.
Ass’n. v. Interstate Fire & Cas. Co., 93-0911 p. 5 (La. 1/14/94); 630 So. 2d 759,
763); L A. C IV. C ODE art. 2050. “Words susceptible of different meanings must be
interpreted as having the meaning that best conforms to the object of the
contract.” L A. C IV. C ODE art. 2048. “Ambiguity may also be resolved through the
use of the reasonable-expectations doctrine, ‘by ascertaining how a reasonable
insurance policy purchaser would construe the clause at the time the insurance
contract was entered.’” In re Katrina Canal Breaches Litig., 495 F.3d at 206
(quoting La. Ins. Guar. Ass’n, 93-0911 at p. 6, 630 So. 2d at 764).
“If, after applying the other general rules of construction, an ambiguity
remains, the ambiguous contractual provision is to be construed against the
insurer who furnished the policy’s text and in favor of the insured finding
coverage.” Peterson, 98-1712 at p. 5; 729 So. 2d at 1029 (citing L A. C IV. C ODE. art.
2056). “The purpose of liability insurance is to afford the insured protection from
damage claims. Insurance contracts, therefore, should be interpreted to effect,
not deny, coverage.” Id. at p. 4; 729 So. 2d at 1028 (citing Yount v. Maisano, 627
So. 2d 148 (La. 1993)).

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With these principles in mind, we turn to a review of the insurance policy
at issue. The Allstate homeowners policy states in pertinent part:
5. How We Pay for a Loss
Under Coverage A - Dwelling Protection, payment for covered loss
will be by one or more of the following methods:
...
b) Actual Cash Value. If you do not repair or replace the damaged,
destroyed or stolen property, payment will be made on an actual
cash value basis. This means there may be a deduction for
depreciation. Payment will not exceed the limit of liability shown on
the Policy Declarations for the coverage that applies to the
damaged, destroyed or stolen property regardless of the number of
items involved in the loss.

You may make a claim for additional payment as described in
paragraph “c” . . . if you repair or replace the damaged, destroyed or
stolen covered property within 180 days of the actual cash value
payment.

c) Building Structure Reimbursement. Under Coverage A—Dwelling
Protection and Coverage B—Other Structures Protection, we will
make additional payment to reimburse you for cost in excess of
actual cash value if you repair, rebuild, or replace damaged,
destroyed or stolen covered property within 180 days of the actual
cash value payment . . . .

If you replace the damaged building structure(s) at an address other
than shown on the Policy Declarations through construction of a
new structure or purchase of an existing structure, such
replacement will not increase the amount payable under Building
Structure Reimbursement described above . . . .

e) In the event of the total loss of your dwelling and all attached
structures covered under Coverage A—Dwelling Protection, we will

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pay the limit of liability shown on the Policy Declarations for
Coverage A—Dwelling Protection.3

The section of the homeowners policy referenced in 5(e), Coverage A Dwelling
Protection, provides as follows:
Coverage A
Dwelling Protection
Property We Cover Under Coverage A:
1. Your dwelling including attached structures. Structures connected to
your dwelling by only a fence, utility line, or similar connection are not
considered attached structures.
....
Losses We Cover Under Coverages A and B:
We will cover sudden and accidental direct physical loss to property
described in Coverage A—Dwelling Protection and Coverage B—Other
Structures Protection except as limited or excluded in this policy.
Losses We Do Not Cover Under Coverages A and B:
We do not cover loss to the property described in Coverage A—Dwelling
Protection or Coverage B—Other Structures Protection consisting of or
caused by:
1. Flood, including, but not limited to surface water, waves, tidal water or
overflow of any body of water, or spray from any of these, whether or not
driven by wind.
...
23. We do not cover loss to covered property described in Coverage A—
Dwelling Protection or Coverage B—Other Structures Protection when:
a) there are two or more causes of loss to the covered property; and
b) the predominant cause(s) of loss is (are) excluded under Losses
We Do Not Cover, items 1 through 22 above.

3
The policy limit of liability shown on the Policy Declarations for Coverage
A—Dwelling Protection is $105,600.

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Without addressing the section 5(e) total loss provision, the district court
held that the measure of the Bradleys’ recovery was the ACV under 5(b). The
Bradleys argue that—contrary to the determination of the district court—
section 5(e) of their homeowners policy is the controlling provision in the event
of a total loss,4 and the total loss provision entitles them to the full policy limits
of their homeowners policy. Allstate claims that the plain and unambiguous
language of section 5(e) renders it inapplicable where the total loss was caused
in part by a non-covered peril such as a flood.5
The critical language of section 5(e) provides that “payment for covered
loss will be by one or more of the following methods . . . In the event of a total
loss of your dwelling and all attached structures covered under Coverage
A—Dwelling Protection, we will pay the limit of liability . . . .” (emphasis added).
The total loss provision unambiguously applies only when the total loss is caused
by a covered peril. It is undisputed that the Bradleys’ home was “destroyed from
a combination of hurricane winds and flooding” due to Hurricane Katrina. Thus,

4
When the cost to repair exceeds the value of the property, the property is considered
a total loss. Real Asset Mgmt., Inc. v. Lloyd’s of London, 61 F.3d 1223, 1229 (5th Cir. 1995)
(citing Dumond v. Mobile Ins. Co., 309 So. 2d 776, 778 (La. Ct. App. 3 Cir. 1975)). It is
undisputed that the Bradleys’ home was rendered a total loss by Hurricane Katrina.
5
Although Allstate argues on appeal that the prefatory language to section 5(e)
requires that the loss have been caused by a covered peril, Allstate did not argue this
interpretation of the contract of insurance before the district court. Similarly, the Bradleys
have not argued the applicability of section 23 of the policy. Although issues not raised before
the district court are generally waived, “an argument is not waived on appeal if the argument
on the issue before the district court was sufficient to permit the district court to rule on it.”
In re Liljeberg Enters., Inc., 304 F.3d 410, 428 n.29 (5th Cir. 2002). Here the Bradleys’ policy
was before the district court. Louisiana law requires that we read the policy as a whole,
construing its words and phrases “using their plain, ordinary and generally prevailing
meaning.” Cadwallader, 2002-1637 at p.3; 848 So. 2d at 580. We are not bound to overlook the
relevant provisions of the policy only because the parties failed to point to them.

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the Bradleys’ loss was due in part to a non-covered peril under section 1—flood.
Under section 23, however, if wind, rather than flood, was the predominant
cause of loss—as the Bradleys argue—then the loss is covered and subject to the
section 5(e) total loss provision.
The relevant question therefore becomes whether a non-covered peril was
the predominant cause of the loss. This contested issue of fact has not been
addressed by the district court.6
The district court did not address the total loss provision under section
5(e), instead granting summary judgment to Allstate based on ACV under
section 5(b). Additionally, because the issue was not presented to it, the district
court did not evaluate the applicability of section 5(e) based on whether the
Bradleys’ loss was predominantly caused by a covered peril, as required by
section 23. Accordingly, we remand so that the district court may evaluate the
causation issues and ascertain the applicability of the section 5(e) total loss
provision.
2. Louisiana Insurance Law: Actual Cash Value
The district court found that the ACV of the Bradleys’ home was $97,000
because the market value of the Bradleys’ home at the time that it was destroyed
did not exceed $97,000. Allstate contends that the district court correctly
determined the ACV of the Bradleys’ home based on its pre-storm value and

6
Based on our review of the record, the Bradleys have likely proffered sufficient
evidence to meet their summary judgment burden of proof on the issue of causation under
Dickerson v. Lexington Ins. Co., 556 F.3d 290, 295 (5th Cir. 2009). An Allstate civil engineer’s
December 2005 report concluded that “the structure [had] been destroyed from a combination
of hurricane winds and flooding.” An Allstate adjuster’s January 2006 report concluded that
“the dwelling is unlivable due to Catastrophic Wind Damage.” The Bradleys also assert that
a neighbor, Bryce Egan, stayed behind through the storm and witnessed the Bradleys’ house
being destroyed before the arrival of flood waters.

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appropriately held that they were not entitled to recover further payment under
their homeowners policy. The Bradleys argue that ACV is properly calculated as
the replacement value of the home less depreciation, but that—regardless—
ACV is not the correct measure of their potential recovery.
“The touchstone for . . . determining actual cash value is the basic
principle that an adequately insured person should incur neither economic gain
nor loss when his property is destroyed . . . .” Bingham v. St. Paul Ins. Co., 503
So. 2d 1043, 1045 (La. App. 2 Cir. 1987). The homeowners policy does not define
ACV. Louisiana law defines ACV as “reproduction cost less depreciation.”
Hackman v. EMC Ins. Co., 07-552, p. 7–8 (La. App. 5 Cir. 3/25/08); 984 So. 2d
139, 143 (citing Real Asset Mgmt., 61 F.3d at 1228 n.7); see also La. Dept. Ins.,
Insurance Bulletin No. 06-06 (“ACV is the amount needed to repair or replace
the damaged or destroyed property, minus the depreciation.”).7 ACV is
determined by calculating the cost of duplicating the damaged property with
new materials of like kind and quality, less allowance for physical deterioration
and depreciation. Real Asset Mgmt., 61 F.3d at 1230–31.8 Actual cash value is

7
Available at http://www.ldi.state.la.us/docs/CommissionersOffice/legal/Bulletins/
Bul06_06_Cur_CommercialAndHomeown.pdf.
8
In Bingham v. St. Paul Ins. Co., the Louisiana Court of Appeals explained:
This court had occasion to establish the definition of the term “actual
cash value” as limited by the term “not exceeding the amount which it would
cost to repair or replace the property with material of a like kind and quality.”
In Mercer v. St. Paul Fire and Marine Insurance Company, 318 So. 2d 111 (La.
App. 2d Cir. 1975), we approved the assessment in Reliance Insurance Company
v. Board of Supervisors, Louisiana State University Agricultural and
Mechanical College, 255 F. Supp. 915 (E.D. La. 1966), that in determining
actual cash value, the court should consider original cost, possible appreciation
and depreciation, the nature of the property lost and the current replacement
cost. This court further stated that “[t]he touchstone for the court in
determining actual cash value is the basic principle that an adequately insured

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not necessarily synonymous with market value at the time of the loss. Id. at
1227–28.
Thus, ACV is computed as the cost of replacing the building as it existed
at the time of the accident, taking into account the replacement costs within a
reasonable time after the accident, minus depreciation. The district court erred
by calculating ACV based on the pre-storm market value of the house and
holding that there were no disputed issues of material fact regarding the ACV
of the Bradleys’ home. Accordingly, we remand so that the district court may
properly calculate the ACV of the Bradleys’ home.
3. Louisiana Insurance Law: No Double Recovery
An insured party in Louisiana may generally “recover under all available
coverages provided that there is no double recovery.” Cole v. Celotex, 599 So. 2d
1058, 1080 (La. 1992) (quoting 15A Couch on Insurance § 56:34 (2d ed. 1983));
see also Albert v. Farm Bureau Ins. Co., 940 So. 2d 620, 622 (La. 2006) (“. . .
Louisiana law does not allow for double recovery of the same element of
damages.”). The fundamental principle of a property insurance contract is to
indemnify the owner against loss, that is “to place him or her in the same
position in which he would have been had no [accident] occurred.” Berkshire
Mut. Ins. Co. v. Moffett, 378 F.2d 1007, 1011 (5th Cir. 1967). Consequently,
“while an insured may not recover in excess of his actual loss, an insured may
recover under each policy providing coverage until the total loss sustained is

person should incur neither economic gain nor loss when his property is
destroyed by fire.”
503 So. 2d at 1045.

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indemnified.” Cole, 599 So. 2d at 1080 (quoting Appleman, Insurance Law and
Practice § 5192 (1981)).
a. Measure of Loss for Purposes of Determining Double Recovery
As discussed above, the district court incorrectly found that the ACV of the
Bradley’s home was $97,000 because the evidence established that the market
value of the Bradleys’ home did not exceed $97,000 at the time that it was
destroyed by Hurricane Katrina. The court held that because the Bradleys had
already collected $105,139.06 from flood and homeowners coverage combined,
any additional recovery would amount to a double recovery. Relying upon Cole
v. Celotex, the district court therefore held that the Bradleys were not entitled
to further recovery as a matter of law.
Allstate contends that the Bradleys were not entitled to recover any
further payment under their homeowners policy because they have already
recovered the ACV of the property, relying on the incorrect definition of ACV.9
Any further payment, Allstate insists—and the district court found—would
amount to a double recovery and windfall to the Bradleys. The Bradleys argue
that the district court should have used their expert’s estimate of the “cost of

9
As stated above, the correct measure of ACV under Louisiana law is replacement cost
minus depreciation. Further, Allstate’s position that actual loss for purposes of double recovery
should be based on the pre-storm market value of the home would effectively invalidate the
total loss provision of the policy. The policy limits and premium for the policy reflect Allstate’s
estimate of the home’s pre-storm value. Real Asset Mgmt., 61 F.3d at 1227–28. Yet according
to Allstate’s interpretation, if the home were completely destroyed by wind, then Allstate
would still not be required to pay the policy limits ($105,600) because the payment would
exceed the pre-storm value ($97,000). This reads the total loss provision out of the contract and
amounts to a windfall for Allstate. Such a construction does not reflect the intent of the
parties, as expressed by the words of the policy. See LA . CIV . CODE art. 2049 (“A provision
susceptible of different meanings must be interpreted with a meaning that renders it effective
and not with one that renders it ineffective.”).

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rebuild or replace” as the proper measure of damages for determining whether
there has been a double recovery.
In order to determine whether there has been a double recovery by an
insured party, the court must ascertain actual loss relative to amounts already
recovered under the homeowners policy and other insurance coverages. In the
context of evaluating double recovery—or whether any of the insured’s losses
remain uncompensated—the insured’s scope of recovery is measured by the
actual loss, not by the total amount of insurance coverage.
A review of decisions under Louisiana law demonstrates that actual loss
has alternately been measured by the cost of repair, replacement, or
ACV—depending on the circumstances of each case.10 Recovery for up to the
amount of replacement costs turns on whether those additional costs have been
or will be incurred. Using replacement costs as the measure of actual loss only
in such limited circumstances squares with the general principles of double
recovery; replacement costs constitute recovery of a different element of damages
than ACV. See Albert, 940 So. 2d at 622 (“Louisiana law does not allow for
double recovery of the same element of damages”). Where contested, the proper
measure of actual loss, like the measure of recovery under the policy, is a

10
The district courts of the Eastern District of Louisiana, presiding over the bulk of the
Louisiana Hurricane Katrina insurance disputes, have adopted varying positions. See Davis
v. Allstate Ins. Co., No. 07-4572, 2009 WL 122761 (E.D. La. Jan. 15, 2009) (measuring the
scope of loss for double recovery purposes by “the value of the property” without articulating
how the value is determined); Creecy v. Metro. Ins. Co., 06-9307, 2008 WL 4758625 (E.D. La.
Oct. 30, 2008) (analyzing double recovery in terms of total cost of repair to insured’s home);
Johnson v. State Farm Fire & Cas. Co., No. 07-1226, 2008 WL 2178059 (E.D. La. May 19,
2008) (measuring scope of loss for double recovery purposes by cost of rebuilding destroyed
home); Wellmeyer v. Allstate Ins. Co., No. 06-1585, 2007 WL 1235042, at *3–4 (E.D. La. Apr.
26, 2007) (noting a dispute of fact as to whether the “value” was properly characterized by pre-
storm actual cash value or some other measure of value).

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No. 09-30035

question of fact. See Bennett v. State Farm Ins. Co., 2003-1195, p. 4–6 (La. App.
3 Cir. 3/24/04); 869 So. 2d 321, 325–26 (question of fact whether, under
insurance coverage, carport required repair or replacement); Higginbotham v.
New Hampshire Indem. Co., 498 So. 2d 1149, 1151–52 (La. App. 3 Cir. 1986)
(question of fact whether, under insurance coverage, roof required repair or
replacement).
Here, however, it is undisputed that the Bradleys have not repaired,
rebuilt, or replaced the Tennessee Street property within the two-year period
allowed under the policy and Louisiana law. See Versai Mgmt. Corp. v.
Clarendon Am. Ins. Co., 597 F.3d 729, 737 (5th Cir. 2010) (“Versai’s claim for
replacement costs likewise was properly dismissed because Versai has not
completed repairs on its property as required by the insurance policy.”); La.
Dept. Ins., Directive 195.11 Thus, as a matter of law, the appropriate measure
of the Bradleys’ actual loss is the ACV of the property—not the cost to rebuild
or replace the property. The fact-finder must determine, or the parties may
stipulate, the ACV of the property.12 Subtracting insurance payments already

11
Available at http://www.ldi.state.la.us/docs/commissionersoffice/legal/directives/
Dir195_ Cur_ExtensionOfTimePerio.pdf.
12
For example, if the fact-finder decides that the Bradleys’ expert’s estimate of
$265,427 in replacement costs is reasonable, then that figure subject to depreciation may
provide the basis for calculating ACV.

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received13 results in the losses still recoverable under the homeowners policy,
subject to the policy limits.
Because the district court treated ACV as synonymous with the pre-storm
market value of the Bradleys’ home, it incorrectly held that there was no
evidence suggesting the Bradleys had uncompensated losses.
b. Covered v. Excluded Losses
The Bradleys additionally argue that because of the mutually exclusive
nature of the wind and flood policies, the distinct coverages preclude double
recovery for the same element of damages. They assert that the district court
erred in its order-of-operations; after the court determines which contractual
provision of the policy controls, the Bradleys claim that the district court’s next
step must be evaluating whether the losses resulted from covered or excluded
causes. They aver that only after the fact-finder 14 segregates damages caused by

13
The double recovery rule applies to all available coverages—an insurer may not
benefit from offsets for payments received by the insured from the United States Small
Business Association (SBA) or Road Home Program. See Cole, 599 So. 2d at 1080 (an insured
may “recover under all available coverages provided that there is no double recovery”). Rather,
the SBA and Road Home programs are government incentives to return to New Orleans and
to offset the costs of returning home where the costs associated with returning far exceed the
amounts recoverable to insureds under their policies. See Metoyer v. Auto Club Family Ins.
Co., 536 F. Supp. 2d 664, 670-71 (E.D. La. 2008) (Louisiana Recovery Authority benefits paid
to insured homeowner do not result in a credit against homeowners insurance liability because
“it could not have been the intention of the Federal Government grant writers, or the
Louisiana Legislature that insurance companies should benefit from the provisions of the
LRA”).
14
Generally, it is the task of the fact-finder to apportion the damage caused by wind
and the damage caused by flood. Dickerson, 556 F.3d at 295. As we explained in Dickerson:
Under Louisiana law, the insured must prove that the claim asserted is covered
by his policy. Once he has done this, the insurer has the burden of
demonstrating that the damage at issue is excluded from coverage. Thus, once
[the insured] proved his home was damaged by wind, the burden shifted to [the
insurer] to prove that flooding caused the damage at issue, thereby excluding
coverage under the homeowners policy. As no one disputes that at least some

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No. 09-30035

wind and those caused by flood, will it be discernible whether there will be a
double recovery by the insured. The district court’s summary judgment ruling
addressed the issue of double recovery first, and granted summary judgment
before reaching the contested issue of causation.
An insured “whose property sustains damage from flood and wind can
clearly recover for his or her segregable wind and flood damages except to the
extent that he seeks to recover twice for the same loss.” Johnson v. State Farm
Fire & Cas. Co., No. 07-1226, 2007 WL 2178059, at *2 (E.D. La. May 19, 2008)
(citing Weiss v. Allstate Ins. Co., No. 06-3774, 2007 WL 891869, at *2 (E.D. La.
Mar. 21, 2007)). Insureds are entitled to recover any previously uncompensated
losses that are covered by their homeowners policy and which, when combined
with their flood proceeds, do not exceed the value of their property. Id. The
homeowners and flood insurance policies provide distinct coverages; each
protects against a different form of damage. See Ferguson v. State Farm Ins.
Co., No. 06-3936, 2007 WL 1378507, at *4 (E.D. La. May 9, 2007) (“While it is
true that plaintiffs paid for two separate policies, one homeowners and one flood,
that does not equate to double coverage in the event of a given loss. The flood
policy is not excess insurance. Instead, it covers a loss not covered by the
homeowner policy.”). The interplay between the segregation of flood and wind
losses and the double recovery rule ensures that proper adjustment by the

of the damage to the [the insured’s] home was covered by the homeowners
policy, [the insurer] had to prove how much of that damage was caused by
flooding and was thus excluded from coverage under its policy.
Id. (internal citations omitted).

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insurance companies or segregation of covered and excluded damages will, in
theory, prevent the insured from receiving a double recovery.15
But payments under flood policies, like any insurance disbursement, may
not always be entirely accurate. Fundamentally, Allstate and the Bradleys
dispute who receives the potential windfall from an overpayment by the flood
policy.16 As the Bradleys advocate, by first segregating losses into those covered
by wind and flood, and allowing the insured to collect all the proceeds for losses
caused by wind—regardless of prior payments from flood insurance—the insured
would receive the benefit of an overpayment by the flood insurance. If the
insured were to collect flood overpayments plus the correct wind payments,
recovery under wind and flood insurance coverages combined would exceed
actual losses; the insured would be receiving an unlawful double recovery.
Therefore, the district court first evaluates whether the insured has
already been fully compensated by payments under wind and flood insurance.

15
As discussed in Ferguson:
Plaintiffs achieved full coverage by having two policies, so that either
homeowner or flood insurance would cover any loss in full, or at least to the
value they selected in their contracts. Plaintiffs could have purchased more
insurance coverage on either policy by paying higher premiums. By choosing a
lower level of coverage, the plaintiffs assumed some of the risk of any potential
loss for the benefit of a lower premium. . . .
Ferguson, 2007 WL 1378507, at *4.
16
The Bradleys’ flood policy is a write-your-own policy under the National Flood
Insurance Program (NFIP). The purpose of the NFIP is “to provide flood insurance protection
to property owners in flood-prone areas under national policy promulgated by the Federal
Emergency Management Agency (FEMA).” National Flood Insurance Act of 1968, Pub. L. No.
90-448, §§ 1302–1376, 42 U.S.C. §§ 4001–4028. Congress also adopted a program to permit
insurance companies to write their own flood insurance policies, remitting the premiums to
the National Flood Insurance Administration. See 44 C.F.R. § 62.23–.24. Write-your-own
companies draw money from FEMA through letters of credit to disburse claims. Id.
Consequently, United States Treasury funds are used to pay the insured’s claims. See
Gowland v. Aetna, 143 F.3d 951, 955 (5th Cir. 1988).

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If the court concludes that the homeowners’ insurer is not liable for further
payments to the insured because additional payments would result in a double
recovery, then the homeowners’ insurer effectively receives the benefit of the
overpayment by the flood insurance. Whether “the flood insurance overpayments
. . . would have to later be returned to the federal government is not at issue
here. . . .” Ferguson, 2007 WL 1378507, at *5 n.34. But it is worth noting that the
benefit will not necessarily serve to enrich the insurer, because NFIP policies
contain a subrogation clause providing:
Whenever we make a payment for a loss under this policy, we are
subrogated to your right to recover for that loss from any other
person. That means that your right to recover for a loss that was
partly or totally caused by someone else is automatically transferred
to us to the extent that we have paid you for the loss . . . . If you
make any claim against any person who caused your loss and
recover any money, you must pay us back first before you may keep
any of the money.
44 C.F.R. § 61.13 app. A(1), § VII(S) (2002).
Because Louisiana’s double recovery bar prevents the insured from
recovering in excess of actual loss, a district court does not necessarily err by
evaluating double recovery prior to the resolution of disputed issues of causation.
Where the value of the property in question has been conclusively established,
a district court may find as a matter of law that the insured is limited to a
specific recovery. Lambert v. State Farm Fire & Cas. Co., 568 F. Supp. 2d 698,
703 (E.D. La. 2008) (citing Broussard v. State Farm Fire & Cas. Co., No. 06-
8084, 2007 WL 2264535, at *5 (E.D. La. Aug. 2, 2007)). But where the insurer
has not conclusively established the value of the property—as here—the court
cannot find as a matter of law that the insured is limited to a specific recovery
based on the insurer’s asserted valuation of the property. Id.

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c. Application of the Policy’s Total Loss or ACV Provision and No
Double Recovery
For the reasons discussed above, depending on the factual determinations
of the district court on remand as to the predominant cause of the damage to the
Bradleys’ property, either: (1) the total loss provision in section 5(e) will dictate
that the Bradleys are entitled to recover the full policy limits for covered losses;
or (2) the ACV provision in section 5(b) will dictate that the Bradleys are entitled
to recover the ACV of their home, replacement cost minus depreciation. Under
either section 5(e) or (b), the Bradleys’ recovery will be subject to the prohibition
against double recovery.17 In some instances, whether additional recovery leads
to a double recovery depends on whether actual loss is calculated based on
rebuilding or replacement costs, or ACV. The appropriate measure of actual loss
does not present a question of fact here, however, because the allowable period
for the Bradleys to recover rebuilding or replacement costs has expired and they
have failed to rebuild or replace—therefore ACV is the proper measure of actual
loss as a matter of law. Upon remand, the fact-finder must arrive at the proper
figure for ACV to establish the amount of actual loss. As long as the Bradleys’
combined recovery under their homeowners and flood policies is less than their
actual loss, then the double recovery rule does not preclude the Bradleys from
receiving additional compensation under their homeowners policy.
Assuming the double recovery rule does not bar further payments to the
Bradleys, then they are entitled to recover up to the policy limits of the

17
The Bradleys have recovered $41,339.06 for structural damage and the policy
provides for recovery up to $105,600; the policy therefore allows for further recovery of up to
$64,260.94 for covered losses.

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No. 09-30035

homeowners policy.18 But while the Bradleys would preliminarily be entitled to
recovery, deductions may be made by Allstate for excluded losses.19 The losses
attributable to excluded events, specifically flood-related damages, raise factual
questions inappropriate for summary judgment. Under the Dickerson
framework, Allstate bears the burden of establishing how much of the total loss
is attributable to flood damage. Dickerson, 556 F.3d at 295. The Bradleys’ policy,
of course, contains one additional, crucial limitation: by the explicit terms of the
contract, Allstate is liable for no more than the stated policy limits regardless of
the extent of the Bradleys’ loss.
B. Louisiana Revised Statutes §§ 22:658 and 22:1220
The Bradleys asserted claims for bad faith and mental and physical
distress under Louisiana Revised Statutes §§ 22:658 and 22:1220 related to
uncompensated loss for damage to their home.
A cause of action for penalties under § 22:658 requires a showing that: (1)
the insurer has received satisfactory proof of loss; (2) the insurer fails to tender
payment within thirty days of receipt thereof; and (3) the insurer’s failure to pay
is arbitrary, capricious or without probable cause. L A. R EV. S TAT. A NN. § 22:658.
With respect to mental anguish damages, “[t]he conduct prohibited in R.S.

18
Even if the ACV of the Bradleys’ home is less than the policy limits recoverable under
the total loss provision, recovery of the policy limits would not amount to a double recovery on
that basis alone. Rather, here the total loss provision functions as a stipulation as to the
amount of the ACV in the event of a total loss.
19
It is important, however, “to distinguish between this dispute over which force totally
destroyed a home and cases in which the parties disagree as to the causes of various damaged
elements of a home. Distinct elements of damage would have to be considered separately.
Flood-damaged carpets, for example, would not bar recovery for a wind-damaged roof.” Kodrin
v. State Farm Fire & Cas. Co., 314 F. App’x 671, 675 n.15 (5th Cir. 2009).

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22:658(A)(1) is virtually identical to the conduct prohibited in R.S. 22:1220(B)(5):
the failure to timely pay a claim after receiving satisfactory proof of loss when
that failure to pay is arbitrary, capricious, or without probable cause.” Sher v.
Lafayette Ins. Co., 2007-2441 p. 26 (La. 4/8/08); 988 So. 2d 186, 206 (quoting Reed
v. State Farm Mut. Auto Ins. Co., 03-0107, p. 12 (La. 10/21/03); 857 So. 2d 1012,
1020). Thus, “a plaintiff attempting to base her theory of recovery against an
insurer on [§§ 22:658 and 22:1220] must first have a valid, underlying,
substantive claim upon which insurance coverage is based.” Clausen v. Fid. &
Deposit Co. of Md., 95 0504, p. 3 (La. App. 1 Cir. 8/4/95); 660 So. 2d 83, 85.
The district court did not speak to the arbitrariness of the insurer’s failure
to pay; it instead granted summary judgment in favor of Allstate on the §§
22:658 and 22:1220 claims based on its conclusion that the Bradleys had not
carried their burden of establishing a valid, underlying breach of contract.
Because the §§ 22:658 and 22:1220 claims are inextricably intertwined with the
underlying breach of contract claims, we do not reach the question of entitlement
to recovery under §§ 22:658 and 22:1220. We have held that the district court
improperly granted summary judgment on the issue of the uncompensated
structural damages and we therefore vacate the grant of summary judgment on
the §§ 22:658 and 22:1220 claims as well, and remand for reconsideration
consistent with this opinion.
C. Loss of Contents of the Home
The Bradleys initially filed a loss of contents claim for $36,378, which
included loss of jewelry, two flat-screen televisions, digital recording equipment,
DVD equipment, VCRs, computers, leather jackets, and a mink coat. The claim
relied upon the original purchase price of these items rather than their ACV as

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No. 09-30035

required under the policy.20 Mr. Bradley signed a “Personal Property Inventory
Loss Form” for that amount on February 20, 2006. Mrs. Bradley testified that
they were unable to obtain verification for many of the items on the list. Allstate
determined that only $14,877.39 worth of the claimed contents were recoverable
without further documentation. After deducting for depreciation, Allstate paid
the Bradleys $10,632.43, and requested additional documentation as to the
remaining contents.
During the discovery process, Allstate propounded the following
interrogatory:
Interrogatory No. 13
Provide an itemized statement of all damages sought against
Allstate Insurance Company in this action of any kind or nature
whatsoever, including, but not limited to, any and all compensatory
damages, penalties and otherwise, and identify all documents
relating thereto.
With respect to their contents claim, the Bradleys answered “contents in the
amount of $14,877.16.” The Bradleys never attempted to amend their answer
pursuant to Rule 26(e), nor have they argued that this response was error.
Based on the Bradleys’ failure to put forth any summary judgment
evidence of the value of the specific items claimed and the answer to
Interrogatory No. 13, the district court concluded that there was no genuine
issue of material fact regarding uncompensated loss of contents, and granted

20
The section of the policy, “What You Must Do After A Loss,” provides in part:
(c) separate damaged from undamaged property. Give us a detailed list
of the damaged, destroyed or stolen property, showing the quantity, cost, actual
cash value and the actual loss claimed.
(d) give us all accounting records, bills, invoices and other vouchers, or
certified copies which we may reasonably request to examine and permit us to
make copies.

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No. 09-30035

summary judgment in Allstate’s favor on this issue. Allstate asserts that the
district court correctly held that no material facts are in dispute regarding the
Bradleys’ claim for uncompensated loss of contents. The Bradleys claim that the
original, handwritten two-page loss of contents list totaling $36,878 establishes
a genuine issue of material fact regarding their recovery under the homeowners
policy.
Ordinarily, an affidavit in conjunction with a list of lost contents suffices
to raise a genuine issue of material fact. Lambert, 568 F. Supp. 2d at 709. In
response to Allstate’s motion for summary judgment, however, the Bradleys did
not offer even an affidavit as to the value of their lost contents. The failure to
advance any Rule 56(c) proof, together with the concession in their interrogatory
response,21 demonstrates that no genuine issue of material fact exists as to the
value of the lost contents. Therefore, the district court did not err in concluding
that Allstate was entitled to judgment as a matter of law on the claim for loss of
contents.
D. Additional Living Expenses
The policy provides for ALE as follows:
1. Additional Living Expense

21
Although interrogatory responses are not binding judicial admissions, FED . R. CIV .
P. 33(c), they may be used as evidence for assessing summary judgment, FED . R. CIV . P. 56(c).
See Mahler v. Klein Karoo Landboukooperasie, No. 94-10635, 1995 WL 371037, at *4 n.3 (5th
Cir. June 5, 1995) (unpublished) (citing Thurman v. Sears, Roebuck & Co., 952 F.2d 128, 136
n.23 (5th Cir. 1992)). Federal Rule of Civil Procedure 56(c) provides that “if the pleadings, the
discovery and disclosure materials on file, and any affidavits show that there is no genuine
issue as to any material fact and the moving party is entitled to judgment as a matter of law.”
(emphasis added); see also Kohler v. Jacobs, 138 F.2d 440, 441 (5th Cir. 1943)
(“[I]nterrogatories are in the nature of evidence, and . . . may be considered on a motion for
summary judgment under Rule 56.”).

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a) We will pay the reasonable increase in living expenses necessary
to maintain your normal standard of living when a direct physical
loss we cover under Coverage A–Dwelling Protection, Coverage
B–Other Structures Protection or Coverage C–Personal Property
Protection makes your residence premises uninhabitable.
When the Bradleys evacuated, they initially went to a relative’s home in
Alabama. Allstate advanced $850 to the Bradleys shortly after the evacuation.
After approximately two or three weeks, the Bradleys moved to Phoenix City,
Alabama, and lived in a hotel that was paid for by FEMA for two weeks. The
Bradleys then moved to an apartment in Phoenix City, where they lived for
three or four months. The Bradleys presented evidence that they participated in
a Section 8 housing assistance program and received $179 toward their rent,
beginning in September 2005. The out-of-pocket cost for rent was $280 per
month, and FEMA reimbursed the Bradleys for two months of rent payments.
The Bradleys also received $2,000, which FEMA provided to Katrina victims.
The Bradleys next moved to Columbus, Georgia, where they signed a 12-month
lease on an apartment, with monthly rent of $600. In June 2007 the Bradleys
returned to New Orleans.
The district court sua sponte granted summary judgment in favor of the
Bradleys for ALE incurred while living in Columbus, awarding them $7,200. The
district court concluded that Allstate did not act in bad faith in failing to pay
ALE because the Bradleys did not present evidence of ALE in a timely manner.
The Bradleys assert that there exist genuine issues of material fact
regarding unpaid ALE. They argue that leases provided to Allstate for the period
that they lived outside of New Orleans are sufficient to establish a genuine issue
regarding uncompensated expenses, and any payments that they received from
Section 8 and FEMA should not be credited to Allstate. Allstate argues that, by

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No. 09-30035

definition, the Bradleys’ living expenses did not increase during a time period in
which they incurred no expenses because they received payments from other
sources, such as FEMA.
The Bradleys have not presented evidence establishing a genuine issue of
material fact regarding further uncompensated ALE; no estimate has been
provided regarding uncompensated losses. Because the Bradleys have not
established any plausible breach of contract for unpaid ALE, there is no basis for
asserting a bad faith claim against Allstate with respect to unpaid ALE. The
district court did not err in granting summary judgment on both the breach of
contract claim and the related bad faith claim for ALE.
IV. CONCLUSION
The district court erred by ignoring the section 5(e) total loss provision of
the homeowners policy, instead prematurely relying on the section 5(b) ACV
provision. In order to determine whether section 5(e) controls here, on remand
the court must evaluate whether a “covered loss” predominantly caused the
damage to the Bradleys’ property. The district court also erred by utilizing an
incorrect method of calculating ACV, rather than using replacement cost minus
depreciation as required by Louisiana law. Its holding that the double recovery
rule precluded further recovery by the Bradleys, based on an incorrect method
of calculating ACV, must therefore be vacated. Additionally, because the district
court granted summary judgment on the §§ 22:658 and 22:1220 claims based
upon its determination that the Bradleys could not show an underlying breach
of contract, we vacate the grant of summary judgment on the §§ 22:658 and
22:1220 claims. With respect to loss of contents of the home, the Bradleys’
interrogatory response and absence of Rule 56(c) evidence demonstrates that, for
purposes of summary judgment, they failed to meet their threshold burden of

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No. 09-30035

proof regarding the loss of contents; the district court did not err in concluding
that there was no genuine issue of material fact regarding uncompensated loss
of contents. Lastly, the district court properly granted summary judgment on the
Bradleys’ ALE claim because they advanced no summary judgment evidence
creating a genuine issue of material fact regarding uncompensated ALE.
For the reasons discussed above, the district court’s grant of summary
judgment is VACATED and REMANDED for consideration consistent with this
opinion as to the breach of contract and related bad faith claims for
uncompensated structural damage to the Bradleys’ home. The summary
judgment is AFFIRMED with respect to the claim for loss of contents and ALE
and the associated claims of bad faith.

29