RULING AND ORDER ON DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT ON CLAIMS UNDER LOUISIANA REVISED STATUTE 22:1318

JOHN W. DeGRAVELLES, District Judge.

This matter comes before the Court on the Motion for Partial Summary Judgment on Claims Under Louisiana Revised Statute 22:1318 (Doc. 31) (the "VPL Motion") filed by Defendant Americas Insurance Company ("AIC" or "Defendant"). Plaintiffs Charles Nelson and Barbara Nelson ("Plaintiffs") oppose the motion (Doc. 39), and AIC has filed a reply (Doc. 50). Oral argument is not necessary. The Court has carefully considered the law, the facts in the record, and the arguments and submissions of the parties and is prepared to rule.

I. Introduction

The essential facts are undisputed. Plaintiffs had a homeowner's policy with AIC. Their property flooded. Then, after Plaintiffs began cleanup but before they made any major repairs, their property burned down. AIC paid Plaintiffs certain insurance proceeds but offset the amounts with what Plaintiffs recovered from their flood insurer.

Plaintiffs now bring this suit seeking, among other things, to recover the total amount of their homeowner's policy under Louisiana's Valued Policy Law, La. Rev. Stat. Ann. § 22:1318 ("VPL"). This statute provides in relevant part:

La. Rev. Stat. Ann. § 22:1318(A) (emphasis added).

AIC moves for summary judgment on this claim on the grounds that Plaintiffs' property was not rendered a total loss by a covered peril (fire) but was rather partially destroyed by a non-covered peril (flood). Defendant points to Fifth Circuit decisions and various Eastern and Western District cases. Plaintiffs oppose, arguing that they prevail because of the plain language of the statute and because there are questions of material fact precluding summary judgment.

For the following reasons, the VPL Motion is granted. Because Plaintiffs' property was damaged due to flooding (a non-covered peril) and fire (a covered peril), there was no "total loss" under the VPL, and Plaintiffs cannot recover the total amount of their homeowner's policy with AIC for the damages they sustained in the fire.

II. Relevant Factual Background

A. The Policy

AIC issued a homeowner's insurance policy, Policy Number 626401 (the "Policy"), for certain property owned by Plaintiffs in Independence, Louisiana (the "Property"). (Policy, Doc. 29-5.) The Policy provides the following:

SECTION I — PERILS INSURED AGAINST

A. Coverage A — Dwellings and Coverage B — Other Structures

(Policy, Doc. 29-5 at 19.)

With respect to the first, Coverage A (entitled "Dwelling") provides, "We cover: a. The dwelling on the `residence premises' shown in the Declarations, including structures attached to the dwelling[.]" (Policy, Doc. 29-5 at 14.) Further, an "occurrence" is defined in the Policy as "an accident . . . which results, during the policy period, in: . . . `Property damage[,]'" which is defined as "physical injury to, destruction of, or loss of use of tangible property." (Policy, Doc. 29-5 at 13.)

With respect to the second (Exclusions), the Policy provides:

SECTION I — EXCLUSIONS

(Policy, Doc. 29-5 at 22-23.)

The Policy also provides that AIC will "not be liable in any one loss: . . . [f]or more than the applicable limit of liability." (Policy, Doc. 29-5 at 24.) The Policy describes the following "Limits" and "coverage for which premium was paid:"

(Policy, Doc. 29-5 at 2, 4.)

B. The Flood Insurance Policy

Additionally, Occidental Fire & Casualty Company of North Carolina also issued to Plaintiffs a flood insurance policy on the Property. (Docs. 29-6; 29-7; Petition for Breach of Contract, Breach of Duty of Good Faith and Fair Dealings and For Penalties ("Petition") ¶ 6, Doc. 1-1 at 2.)

C. The Great Flood and the Fire

Plaintiffs' home was damaged in August 2016 by the Great Flood. (Petition, ¶¶ 5, 8, Doc. 1-1 at 1-2.) Barbara Nelson testified that, after the flood, she never obtained "an estimate to repair the roof or interior damage . . . [b]ecause [they] were going to wait and redo the whole house . . . because [they] had flooded and all[.]" (B. Nelson Dep. 39:16-22, Doc. 50-1 at 2.) The areas that were damaged were in the living room and her bedroom. (B. Nelson Dep. 39:23-40:4, Doc. 50-1 at 3.)

There is conflicting evidence as to how much AIC paid Plaintiffs for wind damage sustained during the Great Flood. AIC asserts that it paid Plaintiffs $3,361.63. (Marcia Riley Aff. ¶ 21, Doc. 29-4 at 2; Letter, Doc. 29-21 at 1). Plaintiffs respond that this figure is misleading, as AIC adjuster Marcia Riley testified that Plaintiffs were really only paid $438.74, which was the actual cash value less the deductible. (Riley Dep. 41:10-20, Doc. 39-6 at 1.) Barbara Nelson similarly testified that she received about $400, after deductible and depreciation, for the wind damage. (B. Nelson Dep. 40:5-14, Doc. 50-1 at 3.)

In any event, Occidental issued two checks in December 2016 for the August 14, 2016, flood damage. (Occidental Checks, Doc. 29-7.) The checks were in the amounts of $61,357.81 and $12,290.58. (Occidental Checks, Doc. 29-7.) These flood payments will be discussed in greater detail below.

Plaintiffs alleged, "while [they] were attempting to obtain funds from their flood insurer to begin repairing their home, their home caught fire on October 20, 2016, due to an unknown cause." (Petition ¶ 8, Doc. 1-1 at 2.)

The parties dispute the extent to which work was done on the Property after the flood but before the fire. Specifically, Barbara Nelson attests that, "on October 19, [her] daughter, Tabatha Whitehead, had been to check on the [P]roperty and perform clean-up work, and found it in good condition, with the electricity working." (B. Nelson Aff. ¶ 4, Doc. 39-8 at 1.) Whitehead similarly stated that she checked on the Property on October 19, "which was done routinely, and performed clean-up work. [She] found the [P]roperty in good condition, with the electricity working, and the upper floor habitable." (Whitehead Aff. ¶ 5, Doc. 39-9 at 1.) Riley similarly admitted that Plaintiffs "went [to the Property] several times . . . just to check on the [P]roperty's condition, make sure that it was okay and to determine what they could do to begin repairs according to their statements[.]" (Riley Dep. 143:12-19, Doc. 39-12 at 2.)

Conversely, Defendant points to other evidence. Specifically, Barbara Nelson testified at her deposition that, at the time of the fire, there was no time frame for repairing the house, and no one had spent the night at the house since the flood. (B. Nelson Dep. 57:14-21, Doc. 30-5 at 2.) Barbara Nelson also stated:

(B. Nelson Dep. 40:15-41:13, Doc. 50-1 at 3-4.) Additionally, Mrs. Nelson said that no one spent the night at the Property between the flood and the fire. (B. Nelson Dep. 43:17-20, Doc. 50-1 at 6.) Mrs. Nelson also stated she would go to the Property "every two or three weeks . . . to check on everything." (B. Nelson Dep. 43:21-44:4, Doc. 50-1 at 6-7.) At the time of the fire, it had been weeks since she had gone to the Property. (B. Nelson Dep. 45:6-12, Doc. 50-1 at 8.) Sometimes Mrs. Nelson would go with her other daughter Tabitha. (B. Nelson Dep. 58:13-24, Doc. 50-2 at 5.)

Tiffany Whitehead testified that she and Mrs. Nelson went to the Property maybe two or three times to check it. (T. Whitehead Dep. 15:2-21, Doc. 50-3 at 2.) When they went, they tried to clean out the contents, though they never moved furniture out. (T. Whitehead Dep. 15:22-16:4, Doc. 50-3 at 2-3.)

D. Payments Made to Plaintiffs under the Policy for the Fire and under the Occidental Policy for the Flood

On May 11, 2017, AIC informed Plaintiffs of what payments they would receive for the fire damage to the Property. (Letter, Doc. 29-21 at 1; Riley Aff. ¶ 21, Doc. 29-4 at 2.) The payments were broken down as follows:

(Letter, Doc. 29-21 at 1.) Thus, Plaintiffs received $138,500 for Coverage A, minus a "Flood Building Estimate Grand Total of $64,051.09, a Flood Debris Removal Total of $1,573.77, the prior wind damage claim of $3,361.63, and Plaintiffs' deductible of $1,000, for a total of $68,513.51 for Coverage A and $5,135.00 for Coverage C. (Riley Aff. ¶ 21, Doc. 29-4 at 2.) Thus, Plaintiffs' net payment was $73,648.51. (Letter, Doc. 29-21 at 1; Riley Aff. ¶ 21, Doc. 29-4 at 2.)

AIC representative Riley similarly testified:

(Riley Dep. 104:11-19, Doc. 39-2 at 1.) AIC did not issue the payments until March 7, 2018. (AIC Checks, Doc. 39-5.)

Riley conceded that there was no provision in the Policy stating that AIC did not have "to pay the full stated value, face value when there [was] a total loss by a covered peril, such as fire." (Riley Dep. 136:9-17, Doc. 39-3 at 1.) However, Riley also stated that flooding was excluded under the Policy. (Riley Dep. 136:19-25, Doc. 39-3 at 1.)

Riley further said that "there was preexisting damage as well from a flood and wind claim, which were not repaired. (Riley Dep. 121:5-7, Doc. 39-7 at 1.) However, the flood and wind damage did not cause the fire. (Riley Dep. 121:8-10, Doc. 39-7 at 1.)

Critically, Plaintiffs also emphasize that Riley could not "really tell just by looking at [an] estimate what was finally approved and paid by Occidental[.]" (Riley Dep. 113:15-24, Dep. 39-10 at 3.) Riley stated that AIC was still requesting the relevant records and that, based on their information, AIC did not have enough information to issue payment until it received the "building estimate," which "cleared up" its questions. (Riley Dep. 113:24-114:7, Doc. 39-10 at 3-4.) Riley later said that there was "no way for AIC to state whether any of the valuations or the damages that are listed [by Occidental] [were] either complete or accurate[.]" (Riley Dep. 149:10-15, Doc. 39-12 at 3.)

The net amount claimed on Plaintiffs' Proof of Loss for the flood damage was $67,946.93. (Pl. Ex. 8, Doc. 39-11 at 1.) The full cost of repair listed on this document was $81,702.10 (Pl. Ex. 8, Doc. 39-11 at 1.) Plaintiffs signed the Proof of Loss and verified under penalty of perjury that it was true and correct to the best of their knowledge. (Pl. Ex. 8, Doc. 39-11 at 1.)

Riley testified that this "included amounts that would only allow for repairs, partial repairs to the structure[.]" (Riley Dep. 142:11-16, Doc. 39-12 at 1) She also said that she had no documentation that the Property "was deemed a total loss as a result of the flood by anybody[.]" (Riley Dep. 142:6-10, Doc. 39-12 at 1.)

III. Summary Judgment Standard

"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). If the mover bears his burden of showing that there is no genuine issue of fact, "its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. . . . [T]he nonmoving party must come forward with `specific facts showing that there is a genuine issue for trial.'" See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348 (1986) (internal citations omitted). The non-mover's burden is not satisfied by "conclusory allegations, by unsubstantiated assertions, or by only a `scintilla' of evidence." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citations and internal quotations omitted). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'" Matsushita Elec. Indus. Co., 475 U.S. at 587. Further:

International Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1263 (5th Cir. 1991).

IV. Discussion

A. Parties' Arguments

1. Defendant's Memorandum in Support (Doc. 31-1)

Defendant assert that the Fifth Circuit and Eastern and Western Districts of Louisiana "have all held that the VPL only applies when a total loss is caused by a covered peril." (Doc. 31-1 at 4.) AIC primarily relies on Chauvin v. State Farm, 495 F.3d 232 (5th Cir. 2007), which purportedly involved damages by a covered peril (wind) and non-covered peril (flooding) and which held that "the VPL only requires an insurer to pay the agreed face value of the insured property if the property is rendered a total loss from a covered peril." (Doc. 31-1 at 5 (quoting Chauvin, 495 F.3d at 239).) According to Defendant, Chauvin found that a contrary holding would not further the purpose of the VPL. AIC also points to Eastern District case law which prohibited a homeowner from "double recovery" under homeowner's and flood policies. (Doc. 31-1 at 6-7 (citations omitted).) Similarly, a Western District case, Turk v. Louisiana Citizens Property Insurance Corp., No. 06-144, 2006 WL 1635677 (W.D. La. June 7, 2006), aff'd and remanded, 281 F. App'x 262 (5th Cir. 2008), allegedly found that, if a loss is 50% caused by a covered peril and 50% caused by a non-covered peril, the VPL does not require the insurer to provide full recovery under the policy. (Doc. 31-1 at 6.)

Defendant maintains:

(Doc. 31-1 at 7-8.)

Defendant concludes, "Plaintiffs' damages/losses were not caused solely by a covered peril, and [P]laintiffs received payments representing the total amount of the AIC policy, including an offset for the wind/flood payments Plaintiffs already received before their [P]roperty was repaired or even habitable." (Doc. 31-1 at 8.) AIC closes by praying for partial summary judgment and seeking dismissal of Plaintiffs' VPL claims.

2. Plaintiffs' Opposition (Doc. 39)

Plaintiffs respond that "a reasonable jury could return a verdict finding that AIC must pay the valued policy limit for the Nelson's (sic) insured home that was totally destroyed as a result of a fire loss that occurred on October 20, 2016, as fire is a covered peril under the AIC homeowner's policy[.]" (Doc. 39 at 2.) Plaintiffs highlight the following points supposedly giving rise to dipsued facts:

Turning to the law, Plaintiffs distinguish Defendant's authority by arguing that none of those cases involved "concurrent or sequential losses" but rather a single incident (such as Hurricane Katrina) involving wind and flooding. Here, Plaintiffs' Property "was totally destroyed by a single peril, fire in an isolated occurrence that AIC admits did not include any flood, water, wind or other peril than accidental fire." (Doc. 39 at 9-10 (emphasis in original).) Further, according to Plaintiffs, Defendant has failed to prove that they would receive a "double recovery" on "the same loss." (Doc. 39 at 10.)

Plaintiffs also dispute the amount AIC tendered. AIC has failed to produce any evidence establishing that an alternative valuation method should be used in this case, and AIC has pointed to no such policy provision. This is critical because, to contravene the VPL, the policy itself must give notice of a different method. Plaintiffs point to certain policy provisions supporting their position.

Further, Plaintiffs cite their own authority, specifically a Louisiana Fourth Circuit opinion, Rosen v. United Services Automobile Ass'n, 2012-0284 (La. App. 4 Cir. 11/14/12), 104 So.3d 633, 639, which relied on Landry v. Louisiana Citizens Property Insurance Co., 07-247 (La. App. 3 Cir. 8/28/07), 964 So.2d 463, 477. These cases purportedly hold that flood water exclusions do not negate an insurer's duty to indemnify when the proximate cause of the loss was wind or rain, even when "flood waters contributed to the damage." (Doc. 39 at 13 (citations omitted).) Further, this authority allegedly says that each case turns on the specific facts involved and are left to the trier of fact.

According to Plaintiffs, Chauvin and the other Katrina cases are distinguishable because, again, they involved a "single hurricane event with concurrent or simultaneous, indistinguishable wind-and-flood losses." (Doc. 39 at 14.) Chauvin does not defeat Plaintiffs' claim either, because it purportedly recognized that homeowners are entitled under the VPL to full recovery in the event of a total loss. Further, in Chauvin, the total loss was caused by a non-covered peril, whereas, here, the total loss was caused by a covered peril. Plaintiffs point to another Fourth Circuit decision which purportedly allowed full recovery in a flood and wind situation because "most of the damage was caused by wind." (Doc. 39 at 15.)

Plaintiffs conclude:

(Doc. 39 at 15.)

3. Defendant's Reply (Doc. 50)

Defendant responds:

(Doc. 50 at 2 (numerous citations omitted).) Defendant again hammers Chauvin and Turk as well as Judge Barbier's decision in Halmekangas v. State Farm Ins. Co., No. 06-3942, 2008 WL 5381603 (E.D. La. Dec. 19, 2008), where there was a flood and subsequent fire. Defendant also distinguishes Rosen and Landry, arguing that (1) Rosen did not discuss or address the VPL, and (2) the Third Circuit's Landry decision was overturned by the Supreme Court, which provided a more narrow ruling than the appellate court.

Lastly, Defendant seeks to exclude Plaintiffs' affidavits because they directly contradict prior deposition testimony. (Doc. 50 at 4.) Defendant specifically notes the affidavit's recitation of other expenses which are irrelevant to the VPL claim, as the VPL only relates to the dwelling and not other losses.

AIC concludes:

(Doc. 50 at 5.)

B. Applicable Law

1. Louisiana Law Generally

Where jurisdiction is founded on diversity, federal courts must apply the substantive law of the forum state. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 S.Ct. 1188 (1938); James v. State Farm Mut. Auto. Ins. Co., 743 F.3d 65, 69 (5th Cir. 2014) (citing Westlake Petrochems., L.L.C. v. United Polychem., Inc., 688 F.3d 232, 238 n.5 (5th Cir. 2012)). Therefore, if there are no Louisiana Supreme Court cases on point, the Court must make an "Erie guess" by deciding how the Louisiana Supreme Court would rule. Jorge-Chavelas v. Louisiana Farm Bureau Cas. Ins. Co., 307 F.Supp.3d 535, 549 (M.D. La. 2018), aff'd, 917 F.3d 847 (5th Cir. 2019).

Applying the substantive law of Louisiana is different from other states because it follows the civil law tradition. This Court has previously stated:

Id.

Further, the Louisiana Supreme Court has stated, "we are a civilian jurisdiction in which legislation, the solemn expression of the legislative will, is the superior source of law." Willis-Knighton Med. Ctr. v. Caddo Shreveport Sales & Use Tax Comm'n, 04-0473 (La. 4/1/05), 903 So.2d 1071, 1088. See also La. Civ. Code art. 1 ("The sources of law are legislation and custom."); La. Civ Code art. 2 ("Legislation is a solemn expression of legislative will.").

2. Principles of Statutory Construction

"The statutory interpretation articles in the Louisiana Civil Code provide that `[w]hen a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.'" Chauvin v. State Farm Fire & Cas. Co., 495 F.3d 232, 238 (5th Cir. 2007) (quoting La. Civ. Code art. 9). "However, `[w]hen the language of the law is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law.'" Id. (quoting La. Civ. Code art. 10). "When interpreting a statute, `[t]he words of a law must be given their generally prevailing meaning,' and `[w]hen the words of a law are ambiguous, their meaning must be sought by examining the context in which they occur and the text of the law as a whole.'" Id. (quoting La. Civ. Code arts. 11, 12).

Additionally, "a statute is interpreted according to the principles of statutory construction, without leaning to one side or the other." Chauvin, 495 F.3d at 238 n.16 (citations and quotations omitted). Thus, the VPL is not construed against the insurer and in favor of the insured. See id.

3. Louisiana's Valued Policy Law

Again, the VPL statute provides, in relevant part:

La. Rev. Stat. Ann. § 22:1318(A) (emphasis added).

The Louisiana Supreme Court has explained the reason why Value Policy Laws were enacted:

Landry v. Louisiana Citizens Prop. Ins. Co., 2007-1907 (La. 5/21/08), 983 So.2d 66, 76-77.

Thus, the Fifth Circuit has recognized that Louisiana's "VPL was enacted to fix the value of the insured property in the event of a total loss and thus, operates as a form of liquidated damages." Chauvin, 495 F.3d at 238 (citing Hart v. N. British & Mercantile Ins. Co., 182 La. 551, 162 So. 177, 181 (1935); The Forge, Inc. v. Peerless Cas. Co., 131 So.2d 838, 840 (La. Ct. App. 1961)). "[A]ccording to the Louisiana courts, the VPL was adopted for two main purposes:"

Id. at 239.

Chauvin is critical to this Court's analysis, so an extensive discussion is warranted. There, plaintiffs argued that their homes were rendered total losses by Hurricanes Katrina and/or Rita. Id. at 235. The insurers filed motions under Fed. R. Civ. P. 12(b)(6) and 12(c) "arguing, inter alia, that . . . even if the VPL extends to perils other than fire, the VPL does not allow full recovery when the total loss is not caused by a covered peril." Id. at 236. The homeowners responded, inter alia, "that the VPL requires an insurer to pay the agreed face value when (1) the property is rendered a `total loss,' even if the `total loss' is due to an excluded peril; so long as (2) a covered peril causes some damage, no matter how small, to the property." Id.

"In a well-reasoned opinion, the district court granted the insurers' motions," finding that the VPL is ambiguous but that the homeowner's "interpretation would lead to absurd consequences." Chauvin, 405 F.3d at 236. The district "court concluded that the focus of the VPL was on establishing the value of the property in the event of a total loss and was not intended to expand coverage to excluded perils." Id. "Thus, the [district] court determined that the VPL does not apply when a total loss does not result from a covered peril." Id.

The Fifth Circuit affirmed. Id. at 241. The appellate court began by explaining:

Id. at 238. Given the ambiguity, the Fifth Circuit was required to interpret the VPL "in a manner that best conform[ed] to the purpose of the law," both of which purposes were articulated above. Id. (citing La. Civ. Code art. 10).

The appellate court concluded, "[a]fter considering the purposes of the VPL," that "the insurers' construction of the VPL best conforms with its legislative purpose and thus, the VPL only requires an insurer to pay the agreed face value of the insured property if the property is rendered a total loss from a covered peril." Chauvin, 495 F.3d at 239. The court of appeals began by stating that "the homeowners' interpretation does nothing to further the purpose of the VPL":

Chauvin, 495 F.3d at 239-40. The Fifth Circuit then provided two additional reasons:

Id. at 240. The Fifth Circuit then ended its analysis, "the district court correctly concluded that Louisiana's VPL does not apply when a total loss does not result from a covered peril." Id. at 241.

Chauvin has been followed by several Eastern District cases. For example, in Elloie v. Allstate Ins. Co., No. 07-4434, 2008 WL 2794726 (E.D. La. July 18, 2008), "property sustained damage from flood and wind damage," and plaintiff sought "the total face amount of the homeowner's policy under Louisiana's [VPL], without a deduction or offset, because [plaintiff's] property [was] a total loss." Elloie, 2008 WL 2794726, at *1. The insurer, Allstate, responded that flooding was an excluded peril and that the statute requires that the "total loss be caused by a covered peril, such as wind." Id. Judge Lemmon held:

Elloie, 2008 WL 2794726, at *3-4. See also Bradley v. Allstate Ins. Co., No. 07-3748, 2008 WL 2952974, at *4 (E.D. La. July 25, 2008) (relying on Chauvin and reaching same result with respect to the VPL).

Chauvin was also followed in Turk v. Louisiana Citizens Property Insurance Corp., 281 F. App'x 262 (5th Cir. 2008) (per curiam). There, following the granting of partial summary judgment in favor of the insurers, appellant homeowners argued that "the district court erred in holding that [the VPL] does not require an insurer to pay the policy limits when the property is partially damaged by a covered peril but rendered a total loss by a non-covered peril." Id. "Their position is that if there is a total loss and any amount of damage due to a covered peril, the insurers must pay the full value placed on the property." Id. at 263 n.1. In a short analysis, the Fifth Circuit rejected the homeowners' argument and affirmed:

Turk, 281 F. App'x at 263-64.

This Court also notes as persuasive Chief Judge Haik's pre-Chauvin ruling from the Western District in Turk v. Louisiana Citizens Property Insurance Corp., No. 06-144, 2006 WL 1635677, at *1 (W.D. La. June 7, 2006), aff'd and remanded, 281 F. App'x 262 (5th Cir. 2008). There, he found:

Id.

Equally persuasive is Judge Barbier's post-Chauvin ruling in Halmekangas v. State Farm Ins. Co., No. 06-3942, 2008 WL 5381603 (E.D. La. Dec. 19, 2008). In Halmekangas, the homeowner's property was damaged by flooding from Hurricane Katrina, and, three days later, the "property was completely destroyed by fire[.]" Id., 2008 WL 5381603, at *1. The homeowner's insurer, ANPACLA, made certain payments under its policy, and a second insurer, State Farm, paid under the flood policy. Id.

In a motion for partial summary judgment, ANPACLA argued "that when an insured home is destroyed by flood under a flood policy as well as some other covered peril under a homeowners policy, the insured owner cannot receive a double recovery by recovering proceeds under both policies for the same damages." Id. ANPACLA sought "a credit for all insurance proceeds paid to [the homeowner] up to the pre-storm value of the home to prevent any windfall to the insured." Id. (emphasis in original). Plaintiff responded that ANPACLA's authority all involved "concurrent causes of damage to an insured property[,]" not situations, as here, where property is "partially flooded, and . . . then later destroyed completely by fire." Id. (emphasis in original) The homeowner further argued that, under the VPL, "he is entitled to the total value of his loss under the policy-namely the full pre-storm value of his home," and "any flood damage proceeds need not have been used to repair the flooded structure, and therefore should not be credited against the amounts he is due under the ANPACLA policy for the total destruction of his home by fire." Id. "In sum, [the homeowner] argues that he is not seeking a double recovery as suggested by ANPACLA, but is simply attempting to be made whole for his loss." Id.

Judge Barbier granted the motion in part and denied it in part. He explained:

Halmekangas, 2008 WL 5381603, at *2 (emphasis in original). Judge Barbier granted the motion "only insofar as it seeks a ruling on the basic principle that [the homeowner] cannot recover twice for the same damages-that is, [the homeowner] cannot recover under his fire policy for the same damages that he has already recovered under his flood policy." Id. at *3 (emphasis in original). Thus, the homeowner was entitled to present evidence "to the extent that there remain factual issues pertaining to the actual pre-storm value of [his] property, and to the extent that [he] may be able to segregate what damages [were] attributable to the flooding during Katrina from those damages attributable to the fire after Katrina[.]" Id. However, ANPACLA was not entitled to summary judgment "specifically awarding it an offset in the full $83,399.57 amount paid by [the homeowner's] flood insurer because there remain[ed] issues of fact regarding whether the post-Katrina fire resulted in damages that were not included in the flood insurance payment." Id.

C. Analysis

1. Plaintiffs Cannot Recover Under the VPL.

Having carefully considered the matter, the Court finds that Chauvin and its progeny control this case. As in Chauvin, the phrase "total loss" in the VPL is ambiguous, so the Court must turn to the purpose of the law. Chauvin, 495 F.3d at 238. Like Chauvin, Plaintiffs' interpretation "does nothing to further the purpose of the VPL":

Id. at 239-40. Further, AIC's interpretation does not cause the VPL to be meaningless, as Plaintiffs would have still been protected in the event of a "total" loss by fire, as opposed to a partial loss by a non-covered event. Id. at 240. Lastly, as in Chauvin, Plaintiffs' stance leads to absurd results; AIC would be forced to pay the full policy limits for only a partial loss, as part of the home was destroyed by flood and the remainder by fire. Id. at 236. In short, Chauvin is clear: "Louisiana's VPL does not apply when a total loss does not result from a covered peril." Id. at 241.

Here, "a total loss did not result from a covered peril," id., and no reasonable jury could conclude otherwise. Plaintiffs' primary evidence that the home was a "total loss" was Riley's statement to this effect, but Riley's testimony must be read in context:

(Riley Dep. 104:11-19, Doc. 39-2 at 1.) Thus, Riley specifically stated (1) that flood damage was excluded under the Policy, and (2) that the flood repairs had not been made. Even construing this testimony in a light most favorable to Plaintiffs and drawing reasonable inferences in their favor, no reasonable juror could conclude from Riley's testimony, read as a whole, that AIC conceded the issue and admitted that the home was a "total loss" for purposes of the VPL.

Other evidence confirms this as well. For example, Riley testified that "there was preexisting damage as well from a flood and wind claim, which were not repaired." (Riley Dep. 121:5-7, Doc. 39-7 at 1.) More importantly, Occidental issued two checks in December 2016 for the August 14, 2016, loss in the amounts of $61,357.81 and $12,290.58. (Occidental Checks, Doc. 29-7.) Further, Plaintiffs themselves submitted the Proof of Loss that listed the full cost of repair as $81,702.10, and Plaintiffs signed this document and certified that it was true and correct. (Pl. Ex. 8, Doc. 39-11 at 1.) Thus, even if Riley could not "really tell just by looking at [the] estimate what was finally approved and paid by Occidental" (Riley Dep. 113:15-24, Doc. 39-10 at 3) and even if she conceded that there was "no way for AIC to state whether any of the valuations or the damages that are listed [by the flood company] [were] either complete or accurate" (Riley Dep. 149:1-15, Doc. 39-12 at 3), all reasonable jurors would conclude from Riley's statement that there was unrepaired preexisting damage from the flood, the Occidental checks, and the Proof of Loss form that the Property was, at the very least, damaged by the flood to such an extent that the fire alone did not render the Property a "total loss."

Further, there is no question of fact that the Property was not fully repaired at the time of the fire. The Court recognizes that Plaintiffs present evidence that they "checked on" the Property and performed "clean-up work" (B. Nelson Aff. ¶ 4, Doc. 39-8 at 1; Whitehead Aff. ¶ 5, Doc. 39-9 at 1.) Further, Riley admitted that the Plaintiffs checked on the Property "to determine what they could do to begin repairs according to their statements[.]" (Riley Dep. 143:12-19, Doc. 39-12 at 2.) However, Plaintiffs had not begun pulling the walls down and had not hired anyone to do repair work. (B. Nelson Dep. 40:15-41:13, Doc. 50-1 at 3-4.) Barbara Nelson also testified that, at the time of the fire, there was no time frame for repairing the house, and no one had spent the night at the house since the flood. (B. Nelson Dep. 57:14-21, Doc. 30-5 at 2.) Thus, all reasonable jurors would conclude that the Property had not been fully repaired at the time of the fire.

Thus, under Chauvin and its progeny, Plaintiffs cannot recover the full value of the policy under the VPL when part of the loss was caused by a non-covered peril like flooding. See Chauvin, 495 F.3d at 240-41; Elloie, 2008 WL 2794726, at *3-4; Bradley, 2008 WL 2952974, at *4; Turk, 2006 WL 1635677, at *1, aff'd and remanded, 281 F. App'x 262 (5th Cir. 2008). Summary judgment on this issue is thus granted.

2. Plaintiffs' Legal Arguments Are Unpersuasive.

Plaintiffs' authority does not save them on the VPL issue. The Louisiana Supreme Court's holding in Landry (which overturned the Third Circuit's opinion) was that "defendant validly provided a different method of loss computation as permitted by [Louisiana's VPL;]" that, "[c]onsequently, the valuation provisions of the statute are not applicable to plaintiffs' claim[;]" and that "defendant is entitled to settle plaintiffs' covered property losses as set forth in the policy." Landry, 983 So. 2d at 83. Landry specifically declined to address the question raised by Chauvin and this case:

Id. Turk highlighted this language and recognized, "Of course, the question deemed irrelevant is the only question that is before this Court on interlocutory review." Turk, 281 F. App'x at 264 n.2. And, as one treatise explained:

15 William Shelby McKenzie & H. Alston Johnson, III, Louisiana Civil Law Treatise, Insurance Law & Practice § 10:27 (4th ed. 2018). Thus, Landry does not save Plaintiffs' VPL claim.

Rosen, 104 So.3d 633, is equally unavailing on the VPL issue. As Defendant contends, the VPL is not discussed at all in the case.

Plaintiffs also try to distinguish Defendant's authority from the Fifth Circuit by arguing that this suit involves two separate events rather than a single incident like Hurricane Katrina. However, the homeowner in Halmekangas made the same argument when the flooding and fire were separated by three days, and Judge Barbier rejected this position. Halmekangas, 2008 WL 5381603, at *1. Ultimately, the homeowners could not obtain double recovery in Halmekangas, Id. at *1-2. Though Halmekangas involved a three-day break between the flood and fire and though the instant case involved a two month break, the Court finds this to be a distinction without a difference, particularly in light of the fact that, in both cases, the homes had not been fully repaired following the flood damage and remained unoccupied. Ultimately, the same result as in Halmekangas is warranted here.

Lastly, the Court recognizes that Chauvin is not exactly on all fours. In Chauvin, the property was partially damaged by a covered peril and then totally lost by a non-covered peril. Chauvin, 495 F.3d at 238-41. Conversely, here, the first loss was a non-covered peril and the final loss was a covered peril. However, the Court reaches the same result using the same framework laid out by Chauvin (interpreting the ambiguity in light of the purpose of the law). In the end, in both Chauvin and this case, part of the loss was caused by a covered peril and part was caused by a non-covered peril, so Plaintiffs cannot recover under the VPL. Again, as Fifth Circuit said in Chauvin (quoting the district court):

Id. at 240. Thus, under Chauvin and the above authorities, Defendant is entitled to partial summary judgment on this issue.

3. This Ruling Is Limited.

The Court has found that the VPL does not apply to allow Plaintiffs to recover the total amount of the AIC policy. However, the Court must emphasize that this holding is limited.

As Judge Barbier found, Defendant's motion is granted "only insofar as it seeks a ruling on the basic principle that [the homeowner] cannot recover twice for the same damages-that is, [the homeowner] cannot recover under his fire policy for the same damages that he has already recovered under his flood policy." Halmekangas, 2008 WL 5381603, at *3 (emphasis in original). That is, AIC is only "responsible for paying only for the percentage of loss which is attributable to the covered peril." Turk, 2006 WL 1635677, at *1. Phrased another way, Plaintiffs may be allowed to submit evidence "to the extent that [they] may be able to segregate what damages attributable to the flooding . . . from those damages attributable to the fire [.]" Halmekangas, 2008 WL 5381603, at *3.

This is important because, here, Defendant has filed a second motion for partial summary judgment seeking a finding that:

(Doc. 30-1 at 1.) While the Court suspects there will be questions of material fact on this issue,1 the Court will withhold judgment on this issue until it rules on this second motion.

V. Conclusion

Accordingly,

IT IS ORDERED that the Motion for Partial Summary Judgment on Claims Under Louisiana Revised Statute 22:1318 (Doc. 31) filed by Defendant Americas Insurance Company is GRANTED. Because Plaintiffs' Property was damaged due to flooding (a non-covered peril) and fire (a covered peril), there was no "total loss" under the VPL, and Plaintiffs cannot recover the total amount of their homeowner's policy with AIC for the damages they sustained in the fire.