Bradley v. Allstate Ins Co ( 2010 )


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  •                                 REVISED MAY 11, 2010
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    FILED
    May 10, 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:
    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
    *
    District Judge, Eastern District of Louisiana, sitting by designation.
    No. 09-30035
    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
    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
    2
    No. 09-30035
    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
    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
    3
    No. 09-30035
    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
    handling of their homeowners claim for structural damage; and (5) damages for
    Allstate’s alleged bad faith pursuant to LA. REV. STATS. 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
    1
    This provision has been recently recodified as § 22:1892, but is referred to here as
    § 22:658.
    4
    No. 09-30035
    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
    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
    5
    No. 09-30035
    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.” FED. R. CIV. 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
    A. Structural Damages
    1. The Insurance Contract: “Total Loss” Provision
    Under Louisiana law,2 an insurance policy “constitutes the law between
    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
    6
    No. 09-30035
    the insured and insurer, and the agreement governs the nature of their
    relationship.” Cadwallader v. Allstate Ins. Co., 
    848 So. 2d 577
    , 580 (La. 2003).
    “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 LA.
    CIV. CODE 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 LA. CIV. CODE art. 2046).
    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. 
    Cadwaller, 848 So. 2d at 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. Assoc. v. Interstate Fire & Cas. Co., 
    630 So. 2d 759
    , 763 (La. 1994));
    LA. CIV. CODE art. 2050. “Words susceptible of different meanings must be
    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. 7 No.
    09-30035
    interpreted as having the meaning that best conforms to the object of the
    contract.” LA. CIV. CODE 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, 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 v. Schimek, 
    729 So. 2d 1024
    , 1029 (La. 1999) (citing LA. CIV.
    CODE. 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 1028
    (citing Yount v. Maisano,
    
    627 So. 2d 148
    (La. 1993)).
    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
    8
    No. 09-30035
    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
    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 Do Not Cover Under Coverages A and B:
    3
    The policy limit of liability shown on the Policy Declarations for Coverage A—Dwelling
    Protection is $105,600.
    9
    No. 09-30035
    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.
    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. Allstate further contends that
    enforcing the Bradleys’ interpretation would lead to the absurd result of
    requiring Allstate to pay the limit of liability for a total loss regardless of how it
    was caused, so long as some portion was caused by a covered peril.
    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).
    This key provision is ambiguous; it is unclear whether the ‘total loss’ must be
    ‘covered under Coverage A’ or merely ‘your dwelling and all attached structures’
    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. 3d Cir. 1975)). It is
    undisputed that the Bradleys’ home was rendered a total loss by Hurricane Katrina.
    10
    No. 09-30035
    must be ‘covered under Coverage A.’ Section 5(e) is therefore “susceptible of two
    possible meanings: (1) in the event of a total loss, [Allstate] is required to pay the
    homeowner the agreed full value of the policy as long as a covered loss causes
    some damage to the property, even if a non-covered peril renders the property
    a total loss; or (2) [Allstate] is only required to pay the homeowner the agreed
    face value of a policy when the property is rendered a total loss by a covered
    loss.” Chauvin v. State Farm Fire & Cas. Co., 
    495 F.3d 232
    , 238 (5th Cir. 2007).
    In Chauvin v. State Farm Fire & Casualty Co., we concluded that a similar
    provision contained in Louisiana’s VPL statute was ambiguous. 
    Id. at 238.
    The
    pivotal language in the statute stated that “in the case of a total loss the insurer
    shall compute and indemnify or compensate any covered loss of, or damage to
    such property. . . at such valuation without deduction. . . .” 
    Id. Finding that
    the
    provision was “susceptible of two possible meanings,” the Court then interpreted
    the statute in a manner that best conformed to the purpose of the law. 
    Id. After carefully
    examining the legislative intent and history behind the VPL law, the
    Court 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.” 
    Id. at 239.
          Unlike in Chauvin, here an insurance policy is at issue rather than a
    statute. Under Louisiana insurance law, ambiguities in a policy are construed
    in favor of the party seeking coverage: an “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, 729 So. 2d at 1029
    (citing LA. CIV.
    CODE art. 2056); see also Pareti v. Sentry Indem. Co., 
    536 So. 2d 417
    , 420 (La.
    1988) (citing Albritton v. Fireman’s Fund Ins. Co., 
    70 So. 2d 111
    , 111 (La. 1954)).
    11
    No. 09-30035
    Therefore, because the language of the insurance contract is plainly susceptible
    to more than one reasonable interpretation, subsection 5(e) must be construed
    in favor of the Bradleys.
    Requiring payment of the policy limits under the total loss provision,
    subject to reductions for non-covered losses under the policy, is consistent with
    the outcome in Real Asset Management v. Lloyd’s of London, 
    61 F.3d 1223
    (5th
    Cir. 1995). There we found that the Louisiana VPL required that the insurer pay
    the policy limits where Hurricane Andrew destroyed the insured property,
    resulting in a total loss. 
    Id. at 1229.
    We held, however, that the policy limits
    owed for the total loss were subject to reduction for the insured’s failure to
    mitigate the loss. 
    Id. at 1230.
    The question of “the extent of damages that can
    be shown to have been caused by the [insured’s] failure to mitigate” was
    remanded with the instruction that “the [insurer] bears the clear burden to show
    what extent of damages should be mitigated.” 
    Id. Additionally, nothing
    in subsection 5(e) or Coverage A—Dwelling
    Protection indicates that the provision is triggered only in the case of a total loss
    that is completely caused by a covered event. Rather, the intent of the parties
    appears to be to prevent, in the event of a total loss, a dispute regarding whether
    the loss should be valued at an amount different from the value of the home
    listed on the policy. In other words, the contract bars either party from arguing
    after the loss that the insured property had a greater or lesser value than the
    policy amount.
    Nor does the Bradleys’ interpretation of the total loss provision lead to the
    absurd consequences that Allstate insists will result. Allstate asserts that the
    Bradleys’ reading of the policy would necessarily mean that an insured whose
    12
    No. 09-30035
    house incurs only one dollar in wind-related damages, such as a few shingles
    blown off the roof, but also suffered devastating flood damage, would be entitled
    to receive the full limits of their policy.5 But section 5 clearly addresses the
    methods of “payment for covered losses.” Thus, Allstate is permitted to withhold
    payment for non-covered losses.
    Therefore, under the total loss provision the Bradleys are entitled to
    recover up to the Coverage A policy limit of $105,600 for covered losses. The
    district court erred by ignoring the total loss provision under section 5(e) and
    granting summary judgment to Allstate based on ACV under section 5(b).
    2. Louisiana Insurance Law: Actual Cash Value
    The district court found that the ACV of the Bradley’s 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
    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. 2d Cir. 1987). The homeowners policy does not define
    5
    Allstate’s interpretation suffers from its own reductio ad absurdum. By Allstate’s
    logic, a home with a minor amount of termite damage, which catches fire and burns to the
    ground, would not trigger section 5(e) because the policy excludes loss caused by “insects,
    rodents, birds, or domestic animals.”
    13
    No. 09-30035
    ACV. Louisiana law defines ACV as “reproduction cost less depreciation.”
    Hackman v. EMC Ins. Co., 
    984 So. 2d 139
    , 143 (La. App. 5th Cir. 2008) (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.”).6 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
    .7 Actual cash value is 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
    6
    Available at http://www.ldi.state.la.us/docs/CommissionersOffice/legal/Bulletins/
    Bul06_06_Cur_CommercialAndHomeown.pdf.
    7
    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 person
    should incur neither economic gain nor loss when his property is destroyed by
    
    fire.” 503 So. 2d at 1045
    .
    14
    No. 09-30035
    holding that there were no disputed issues of material fact regarding 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
    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.
    15
    No. 09-30035
    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.8
    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
    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
    8
    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.”).
    16
    No. 09-30035
    ACV—depending on the circumstances of each case.9 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
    question of fact. See Bennett v. State Farm Ins. Co., 
    869 So. 2d 321
    , 325-26 (La.
    App. 3d Cir. 2004) (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. 3d Cir. 1986) (question of fact whether, under
    insurance coverage, roof required repair or replacement).
    Thus, the contested question of whether the appropriate measure of the
    Bradleys’ actual loss is the cost to rebuild presents a genuine issue of material
    fact. The fact-finder must evaluate whether the Bradleys may recover rebuilding
    costs based on their professed intent to rebuild. The fact-finder must then
    additionally decide whether the Bradleys’ expert’s estimate of $265,427
    9
    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).
    17
    No. 09-30035
    represents a reasonable figure for rebuilding costs. Subtracting insurance
    payments already received10 results in the losses still recoverable under the
    homeowners policy, subject to the policy limits.11 Alternatively, if the fact-finder
    concludes that the Bradleys are not rebuilding or replacing, then the starting
    point for the double recovery analysis would be the ACV of their property.
    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
    10
    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”).
    11
    If the fact finder decides that the Bradleys’ actual loss is rebuilding costs and their
    expert’s estimate of $265,427 is reasonable, then deducting their combined flood and
    homeowners policy payments of $105,139.06 from the estimated rebuilding cost of $265,427,
    the Bradleys’ remaining uncompensated loss is $160,287.94.
    18
    No. 09-30035
    causes. They aver that only after the fact-finder12 segregates damages caused by
    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
    12
    Generally, it is the task of the fact-finder to apportion the damage caused by wind
    and the damage caused by flood. Dickerson v. Lexington Ins. Co., 
    556 F.3d 290
    , 295 (5th Cir.
    2009). 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 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).
    19
    No. 09-30035
    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 insurance companies
    or segregation of covered and excluded damages will, in theory, prevent the
    insured from receiving a double recovery.13
    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.14 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,
    13
    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.
    14
    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. §§ 4001-28. 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).
    20
    No. 09-30035
    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.
    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) subsection (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-
    21
    No. 09-30035
    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 or the cost to rebuild—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. c. Application
    of Total Loss Provision and No Double Recovery
    For the reasons discussed above, the total loss provision in section 5(e)
    dictates that the Bradleys are entitled to recover the full policy limits for covered
    losses, subject to the prohibition against double recovery.15 Whether additional
    recovery by the Bradleys amounts to a double recovery depends on whether their
    actual loss is calculated based on rebuilding or replacement costs, or ACV.16 The
    appropriate measure of actual loss presents a question of fact here, because it
    turns on the contested question of whether the Bradleys will be rebuilding the
    property; Mr. Bradley’s sworn testimony that he intended to rebuild the property
    created a genuine issue of material fact. Upon remand, the fact-finder must
    determine whether to calculate the Bradleys’ actual loss according to the cost of
    rebuilding or replacing, or ACV. The fact-finder must additionally arrive at the
    proper figure for 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.
    15
    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.
    16
    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, the total loss provision functions as a stipulation as to the amount
    of the ACV in the event of a total loss.
    22
    No. 09-30035
    Assuming the double recovery rule does not bar further payments to the
    Bradleys, then under the total loss provision they are entitled to recover up to
    the policy limits of the homeowners policy. But while the Bradleys would
    preliminarily be entitled to recovery, deductions may be made by Allstate for
    excluded losses. 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. LA. REV. STAT. ANN. § 22:658.
    With respect to mental anguish damages, “[t]he conduct prohibited in R.S.
    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., 
    988 So. 2d 186
    , 206 (La. 2008) (quoting Reed v. State Farm
    Mut. Auto Ins. Co., 
    857 So. 2d 1012
    , 1020 (La. 2003)). Thus, “a plaintiff
    attempting to base her theory of recovery against an insurer on [§§ 22:658 and
    23
    No. 09-30035
    22:1220] must first have a valid, underlying, substantive claim upon which
    insurance coverage is based.” Clausen v. Fid. & Deposit Co. of Md., 
    660 So. 2d 83
    , 85-86 (La. Ct. App. 1st Cir. 1995).
    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
    required under the policy.17 Mr. Bradley signed a “Personal Property Inventory
    Loss Form” for that amount on February 20, 2006. Mrs. Bradley testified that
    17
    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.
    24
    No. 09-30035
    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
    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.
    25
    No. 09-30035
    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,18 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
    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,
    18
    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.”).
    26
    No. 09-30035
    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
    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
    27
    No. 09-30035
    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 total loss provision of the
    homeowners policy, instead relying on the ACV provision and granting summary
    judgment in favor of Allstate based on its conclusion that the double recovery
    rule barred further recovery by the Bradleys. 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. 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. Lastly, the Bradleys’ interrogatory response and absence of Rule
    56(c) evidence regarding loss of contents demonstrates that, for purposes of
    summary judgment, they failed to meet their threshold burden of 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
    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.
    28
    

Document Info

Docket Number: 09-30035

Filed Date: 5/12/2010

Precedential Status: Precedential

Modified Date: 2/19/2016

Authorities (34)

Prytania Park Hotel, Ltd. v. General Star Indemnity Co. , 179 F.3d 169 ( 1999 )

Willie L. Thurman v. Sears, Roebuck & Co. , 952 F.2d 128 ( 1992 )

Berkshire Mutual Insurance Company v. Richard G. Moffett, ... , 378 F.2d 1007 ( 1967 )

Kohler v. Jacobs , 138 F.2d 440 ( 1943 )

In Re Katrina Canal Breaches Litigation , 495 F.3d 191 ( 2007 )

Smith v. AMERICAN FAMILY LIFE ASSUR. CO., COLUMBUS , 584 F.3d 212 ( 2009 )

Albert v. Farm Bureau Insurance Company , 940 So. 2d 620 ( 2006 )

Real Asset Management, Inc., Plaintiff-Appellee/cross-... , 61 F.3d 1223 ( 1995 )

American International Specialty Lines Insurance v. Canal ... , 352 F.3d 254 ( 2003 )

Chauvin v. State Farm Fire & Casualty Co. , 495 F.3d 232 ( 2007 )

Breaux v. Halliburton Energy Services , 562 F.3d 358 ( 2009 )

Lake Charles Diesel, Inc. v. General Motors Corp. , 328 F.3d 192 ( 2003 )

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Dickerson v. Lexington Ins. Co. , 556 F.3d 290 ( 2009 )

Yount v. Maisano , 627 So. 2d 148 ( 1993 )

Peterson v. Schimek , 729 So. 2d 1024 ( 1999 )

Louisiana Ins. Guar. Ass'n v. Interstate Fire & Casualty Co. , 630 So. 2d 759 ( 1994 )

Reed v. State Farm Mut. Auto. Ins. Co. , 857 So. 2d 1012 ( 2003 )

Pareti v. Sentry Indem. Co. , 536 So. 2d 417 ( 1988 )

Sher v. Lafayette Ins. Co. , 988 So. 2d 186 ( 2008 )

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