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 2001-06

Rawboe Properties v. Westchester Fire Ins ( 2001 )


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  •                   UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 01-30108
Summary Calendar
RAWBOE PROPERTIES LLC; ROGER T. BOES,
Plaintiffs-Appellants,
VERSUS
WESTCHESTER FIRE INSURANCE COMPANY; ET AL,
Defendants
WESTCHESTER FIRE INSURANCE COMPANY
Defendant-Appellee
Appeal from the United States District Court
For the Eastern District of Louisiana, New Orleans
(00-CV-196-T)
June 19, 2001
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Appellants Rawboe Properties, L.L.C., and Roger T. Boes appeal
the district court’s grant of summary judgment on claims for
damages under a fire insurance policy.
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 01-30108
--2--
Appellee Westchester issued a fire insurance policy to Rawboe,
which, inter alia, required all claims to be submitted within two
years of knowledge of loss.   The insured property was damaged as a
result of a fire, and Westchester received two estimates on the
damage, both of which were for $26,710.60.     The Appellants signed
a Proof of Loss for that amount minus a deductible cost and a
subrogation receipt, stating that payment was received in full
settlement of all claims.   After the two year prescription period,
the Appellants filed suit for additional damages, but the district
court granted summary judgment to the Appellee.
This court reviews a grant of summary judgment de novo,
applying the same standards as the district court.    Sherrod v. Am.
Airlines, Inc.,
    132 F.3d 1112
    , 1119 (5th Cir. 1998).         Summary
judgment is granted if there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett,
    477 U.S. 317
    , 327
(1986).
Under Louisiana law, when the insured and insurer reasonably
disagree as to the amount of loss, the insurer may refuse to pay
and not be subject to penalties.   Sibley v. Insured Lloyds,
    442 So. 2d 627
    , 632 (La. App. 1st Cir. 1983).   However, if part of the claim
is not disputed, the insurer may avoid penalties by unconditionally
tendering payment as to the undisputed part.
    Id.
       Rawboe has
failed to present evidence that the claim was in dispute at the
No. 01-30108
--3--
time of the settlement.   Since there was no dispute, Westchester
was not compelled to make an unconditional offer.    Furthermore,
under the plain terms of the contract, Rawboe’s claims prescribed.
Accordingly, we AFFIRM the judgment of the district court.
AFFIRMED.