King v. Allstate Insurance , 293 F. App'x 270 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 10, 2008
No. 08-30093 Charles R. Fulbruge III
Summary Calendar Clerk
GEORGIA M. KING; DANATUS N. KING,
Plaintiffs-Appellants,
v.
ALLSTATE INSURANCE CO.,
Defendant-Appellee
Appeal from the United States District Court
for the Eastern District of Louisiana
No. 1:06-CV-7646
Before SMITH, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
Plaintiffs Georgia and Danatus King sued their insurer, Allstate Insurance
Company (“Allstate”), for damages to their property caused by Hurricane Katri-
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 08-30093
na. The parties entered into a settlement agreement, which the district court
approved. On September 5, 2007, that court, retaining jurisdiction, dismissed
the matter without prejudice to the plaintiffs’ right to reopen the matter to en-
force the agreement. Forty-eight days later, plaintiffs’ counsel contacted Allstate
because plaintiffs had not received payment; the check arrived the next day.
Several weeks later, on November 13, 2007, plaintiffs moved to reopen the case
and sought penalties, attorney’s fees, and costs. They did not, however, state un-
der which rule of civil procedure they were proceeding.
In light of the fact that plaintiffs cast the standard of review on appeal as
abuse of discretion and moved for relief more than ten days after entry of judg-
ment, it appears they were proceeding under Federal Rule of Civil Procedure
60(b).1 The only applicable subsection of that rule allows relief from a final judg-
ment for “any other reason that justifies relief.” FED. R. CIV. P. 60(b)(6). This
relief will be granted only under “extraordinary circumstances.” Batts v. Tow-
Motor Forklift Co., 66 F.3d 743, 747 (5th Cir. 1995).
Plaintiffs rely on LA. REV. STAT. ANN. §§ 22:658 (2008) and 22:1220 (2008)
for the proposition that failure to pay an insurance settlement within thirty days
entitles the insured to penalties, attorney’s fees, and costs. Instead of creating
strict liability for the insurer, however, § 22.658 requires a showing that the in-
surer was “‘arbitrary, capricious, or without probable cause,’ a phrase that is
synonymous with ‘vexatious.’” Reed v. State Farm Mut. Auto. Ins. Co., 857 So.
2d 1012, 1021 (La. 2003) (quoting La. Maint. Servs., Inc. v. Certain Underwriters
at Lloyd’s of London, 616 So. 2d 1250, 1253 (La. 1993)). In the district court and
1
See Teal v. Eagle Fleet, Inc., 933 F.2d 341, 347 n.3 (5th Cir. 1991) (“Whether this court
treats the motion under Rule 59(e) or Rule 60(b) depends on the time at which the motion is
served.”); see also Delgado v. Shell Oil Co., 231 F.3d 165, 182 (5th Cir. 2000) (“The standard
of review is whether the district court plainly abused its discretion.”). (Both rules currently
provide that the date of filing, rather than the date of service, determines the timeliness of the
motion.)
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No. 08-30093
on appeal, plaintiffs have failed to offer any proof that Allstate acted arbitrarily,
capriciously, or without probable cause. The burden is on plaintiffs to offer such
proof, id. at 1020, and they have not.
Plaintiffs’ claim under § 22.1220(B)(2) does not demonstrate such “extra-
ordinary circumstances” as to justify reopening the judgment under rule 60(b)(6).
Plaintiffs concede that Allstate has paid the agreed settlement amount. The dis-
trict court’s denial of the equitable relief available under rule 60(b)(6) was not
“so unwarranted as to constitute an abuse of discretion.” Seven Elves, Inc. v. Es-
kenazi, 635 F.2d 396, 402 (5th Cir. Unit A Jan. 1981).
AFFIRMED.
3