The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
GEOVERA SPECIALTY INSURANCE CO. CIVIL ACTION
VERSUS NO. 18-7577
MARIETTE JOACHIN, et al. SECTION: "G"(5)
ORDER AND REASONS
Before the Court is Plaintiff GeoVera Specialty Insurance Company’s (“GeoVera”)
“Motion for Summary Judgment for Declaratory Relief.”1 In this litigation, GeoVera alleges that
Defendants Ebert Joachin and Mariette Joachin (the “Joachins”) filed a fraudulent insurance claim
because the insurance policy issued by GeoVera did not cover the Joachins’ property.2 The
Joachins filed a Counterclaim, arguing that GeoVera denied their insurance claim in bad faith.3
GeoVera filed the instant motion, seeking summary judgment declaring that the insurance policy
did not provide coverage for the property in issue.4 Having considered the motion, the memoranda
in support and in opposition, the record, and the applicable law, the Court will grant the motion.
I. Background
A. Factual Background
1. GeoVera’s Claims
In the Complaint, GeoVera alleges that the Joachins filed fraudulent claims under a
1 Rec. Doc. 74.
2 Rec. Doc. 1.
3 Rec. Doc. 5.
4 Rec. Doc. 74 at 1.
homeowner insurance policy.5 According to GeoVera, on April 3, 2018, the Joachins purchased
a home at 5809 Bienvenue Avenue (the “Property”) for $55,000.00.6 GeoVera then alleges that
on April 11, 2018, the Joachins purchased from GeoVera a homeowner’s insurance policy (the
“Policy”) that was effective April 11, 2018 until April 11, 2019.7 GeoVera asserts that “[t]he
dwelling had termite damage, missing sheetrock, and other damage” that the Joachins failed to
disclose on their insurance application.8 GeoVera contends that on May 9, 2018, a fire caused
substantial damage to the Property, and on May 10, 2018, the Joachins filed an insurance claim
for $170,000.00 under the Policy.9 On June 6, 2018, the Property was allegedly demolished by
an order of the Jefferson Parish regulatory department.10
GeoVera avers that after the fire, it began an investigation regarding the claim and
requested that the Joachins submit to an Examination Under Oath (“EUO”) on July 12, 2018.11
GeoVera alleges that during the EUO, it learned that numerous repairs were being made to the
property at the time of fire, the Joachins had not yet moved into the Property, and the Joachins
had connected the electricity at the Property but no other utilities.12 GeoVera also contends that
the fire department investigation determined that the fire was accidental, but the results of the
police investigation are still unknown, and the Joachins stated during the EUO that the prior
5 Rec. Doc. 1.
6 Id. at 2.
7 Id. at 2–3.
8 Id. at 3.
9 Id.
10 Id. at 4.
11 Id. at 3–4.
12 Id. at 3–5.
owner of the Property had been arrested for the fire.13
GeoVera seeks declaratory judgment on the following: (1) the Property does not qualify
as “residence premises” under the Policy because the Joachins never resided at the property; (2)
the Joachins engaged in “misrepresentations” which voided the Policy when they indicated on
their application that they had not been subject to foreclosure, that the Property did not have
unrepaired damage, that the Property had public utilities in service, and that the Property was not
under renovation; (3) the Policy does not cover “vandalism and mischief” if the Court finds that
the Property was vacant and the prior owner started the fire; (4) the Property is subject to a
“vacancy exclusion” under Louisiana law if it was vacant more than sixty days; and (5) the
Joachins created an “increased hazard” of fire by leaving the property vacant.14 Based on these
findings, GeoVera urges the Court to declare that the Policy did not cover the Property.15
2. The Joachins’ Counterclaims
In the Counterclaim, the Joachins alleged that during the EUO, “there was an obvious
language barrier due to the policyholders being of Haitian origin and speaking French Creole.”16
The Joachins asserted that GeoVera conducted the EUO “without any type of interpreter present,”
and received “ill-obtained” answers.17 Specifically, the Joachins contended that during the EUO,
they emphasized that they planned for the Property to be their home, tried to clarify for GeoVera
that the repairs on the home were not renovations, and mistakenly interpreted questions about
foreclosure as asking whether they had been evicted from a property and not whether a foreclosure
13 Id. at 5.
14 Id. at 9–15.
15 Id. at 15.
16 Rec. Doc. 5 at 17.
17 Id. at 17–18.
action had been filed against them.18 Therefore, the Joachins argued that GeoVera engaged in bad
faith conduct when the Joachins’ attorney was not allowed to object to questioning during the
EUO and GeoVera utilized the “ill-obtained” responses in refusing to pay the Joachins under the
Policy.19 The Joachins sought damages for bad faith insurance adjusting under Louisiana Revised
Statutes 22:1892 and 22:1973.20
B. Procedural Background
On August 10, 2018, GeoVera filed a Complaint against the Joachins.21 On September 5,
2018, the Joachins filed an answer, counterclaims against GeoVera, and a third-party demand
against Bowles.22 On October 17, 2018, GeoVera filed a motion to dismiss the counterclaim.23
On June 28, 2019, the Court granted the motion to dismiss the counterclaim, finding that the
Policy did not provide coverage for the Property because the Joachins did not reside at the
Property at the time the Policy was purchased.24
On June 18, 2019, GeoVera filed the instant motion for summary judgment.25 On June
25, 2019, the Joachins filed an opposition to the motion.26 With leave of Court, on July 3, 2019,
GeoVera filed a reply in further support of the motion.27
18 Id.
19 Id.
20 Id. at 17–19.
21 Rec. Doc. 1.
22 Rec. Doc. 5.
23 Rec. Doc. 9.
24 Rec. Doc. 95.
25 Rec. Doc. 74.
26 Rec. Doc. 84.
27 Rec. Doc. 106.
II. Parties’ Arguments
A. GeoVera’s Arguments in Support of the Motion
In the instant motion, GeoVera urges the Court to grant summary judgment declaring that
the Policy did not provide coverage for the Property because the Joachins did not reside at the
Property on the date of inception of the Policy. 28 GeoVera argues that the Policy only affords
coverage for the “residence premises,” and the “residence premises” is limited to “‘[t]he one-
family dwelling where you reside . . . on the inception date of the policy period shown in the
Declarations and which is shown as the ‘residence premises’ in the Declarations.’”29 GeoVera
presents statements from the Joachins’ EUO wherein they state that they did not reside at the
property at the time they purchased the insurance policy and that they intended to move into the
property at a later date.30
GeoVera then alleges that it is improper for the Joachins to assert that the Policy should
have included a fire insurance exclusion under Louisiana Revised Statute § 22:1311 that allowed
the Joachins a sixty-day grace period to move into the property.31 GeoVera contends that: (1) in
order to apply Section 22:1311 as a grace period from an exclusion, the policy in question must
first cover the property, and (2) under Louisiana law, Section 22:1311 does not apply to
homeowner policies, only specific fire insurance policies.32 For these reasons, GeoVera requests
that the Court grant summary judgment declaring that the Policy does not cover the Property.33
28 Rec. Doc. 74-1 at 9–11.
29 Id. at 10.
30 Id. at 13–15.
31 Id. at 15–16.
32 Id.
33 Id. at 17.
B. The Joachins’ Arguments in Opposition to the Motion
In opposition, the Joachins argue that the Court should deny summary judgment because
the Policy allowed the Joachins a grace period in which to move into the property.34 The Joachins
assert that the Policy contained a provision which stated that it would not cover losses if the
Property was vacant more than 30 days.35 The Joachins aver that this language means they had
30 days in which to move into the Property, and the Property was only vacant 28 days before the
fire.36 The Joachins also contend that under Louisiana law, the Policy should have included a
standard fire policy provision providing a 60-day period in which coverage would not be
precluded based on vacancy.37 Thus, the Joachins argue that they did reside at the Property and
Court should deny summary judgment.
Alternatively, the Joachins submit an affidavit alleging that GeoVera has not yet produced
its corporate representatives for depositions, and the Joachins accordingly lack information
regarding several factual issues that could affect the motion for summary judgment. 38
Specifically, the Joachins aver that the depositions could reveal whether the Policy can be
classified as a fire policy and whether the standard fire policy provision should have been
included.39 Therefore, the Joachins contend that Federal Rule of Civil Procedure 56(d) warrants
a denial of the motion until the Joachins have additional information to respond to the motion.40
34 Rec. Doc. 84 at 5–6.
35 Id.
36 Id.
37 Id. at 6–8.
38 Id. at 11–12.
39 Id. at 11.
40 Id. at 11–12.
C. GeoVera’s Arguments in Further Support of the Motion to Dismiss
In reply, GeoVera argues that the Court’s June 28, 2019 order dismissing the Joachins’
counterclaim supports a grant of summary judgment on GeoVera’s requested declaratory relief.41
According to GeoVera, the Court’s Order found that the Joachins did not reside at the Property
on the date of the Policy’s inception, and the Policy therefore did not provide coverage for the
Property.42 GeoVera contends that this holding shows there are no genuine issues of material fact
in dispute regarding the Policy not applying to the Property.43 GeoVera also avers that the
Joachins do not satisfy the standard for Rule 56(d) relief because the rule requires a non-movant
to show that additional discovery would create a genuine issue of material fact.44 GeoVera argues
that the Joachins do not present any material in the affidavit showing that corporate depositions
would reveal a genuine issue of fact.45 Accordingly, GeoVera urges the Court to deny the Rule
56(d) request and grant its motion for summary judgment.46
III. Legal Standard
Summary judgment is appropriate when the pleadings, the discovery, and any affidavits
show that “there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”47 When assessing whether a dispute as to any material fact exists,
the court considers “all of the evidence in the record but refrains from making credibility
41 Rec. Doc. 106 at 1–2.
42 Id. at 2.
43 Id.
44 Id. at 3.
45 Id.
46 Id. at 4–5.
47 Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986); Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
determinations or weighing the evidence.”48 All reasonable inferences are drawn in favor of the
nonmoving party, but “unsupported allegations or affidavits setting forth ‘ultimate or conclusory
facts and conclusions of law’ are insufficient to either support or defeat a motion for summary
judgment.”49 If the record, as a whole, “could not lead a rational trier of fact to find for the non-
moving party,” then no genuine issue of fact exists, and the moving party is entitled to judgment
as a matter of law.50
“[A] nonmoving party is not entitled to rest on his pleadings, but must carry his burden of
providing evidence of a genuine issue of material fact.”51 “That burden can be met by depositions,
answers to interrogatories and admissions on file and affidavits.”52 The Fifth Circuit has
“repeatedly held that self-serving affidavits, without more, will not defeat a motion for summary
judgment.”53 However, a nonmovant’s deposition testimony is often considered by a court in
recognizing that a genuine issue of material fact exists, which precludes summary judgment.54
The party seeking summary judgment always bears the initial responsibility of informing
the Court of the basis for its motion and identifying those portions of the record that it believes
48 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008).
49 Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); Little, 37 F.3d at 1075.
50 Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
51 King v. Chide, 974 F.2d 653, 656 (5th Cir. 1992) (citing Reese v. Anderson, 926 F.2d 494, 499 (5th Cir.
1991)); see also Celotex, 477 U.S. at 325; see also Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th
Cir. 1998).
52 Id. (citing Fed. R. Civ. P. 56(c)).
53 Tyler v. Cedar Hill Indep. Sch. Dist., 426 Fed.Appx. 306, 307 (5th Cir. 2011) (per curiam) (citing
DirectTV, Inc. v. Budden, 420 F.3d 521, 531 (5th Cir. 2005); United State v. Lawrence, 276 F.3d 193, 197
(5th Cir. 2001)).
54 See, e.g., Vetter v. Frosch, 599 F.2d 630 (5th Cir. 1979); see also, e.g., King, 974 F.2d at 656 (5th Cir.
1992).
demonstrate the absence of a genuine issue of material fact.55 Thereafter, the nonmoving party
should “identify specific evidence in the record, and articulate” precisely how that evidence
supports his claims.56 To withstand a motion for summary judgment, the nonmoving party must
show that there is a genuine issue for trial by presenting evidence of specific facts.57 The
nonmovant’s burden of demonstrating a genuine issue of material fact is not satisfied merely by
creating “some metaphysical doubt as to the material facts,” “by conclusory allegations,” by
“unsubstantiated assertions,” or “by only a scintilla of evidence.”58 Rather, a factual dispute
precludes a grant of summary judgment only if the evidence is sufficient to permit a reasonable
trier of fact to find for the nonmoving party. Hearsay evidence and unsworn documents that
cannot be presented in a form that would be admissible in evidence at trial do not qualify as
competent opposing evidence.59
IV. Analysis
In the instant motion, GeoVera urges the Court to grant summary judgment declaring that
the insurance policy did not provide coverage for the property at issue because the Joachins did
not reside at the Property.60 In opposition, the Joachins assert that the Policy contained a provision
that allowed them 30 days to move into the Property, and additionally, the Policy should have
included a Standard Fire Policy that would allow 60 days to move into the Property.61 Based on
55 Celotex, 477 U.S. at 323.
56 Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir.), cert. denied, 513 U.S. 871 (1994).
57 Bellard v. Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012) (citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248–49 (1996)).
58 Little, 37 F.3d at 1075.
59 Fed. R. Civ. P. 56(c)(2); Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987).
60 Rec. Doc. 74-1 at 1.
61 Rec. Doc. 84 at 4–8.
these arguments, the Joachins appear to rely on two different vacancy exclusions to establish their
residency at the Property.
The Fifth Circuit has stated that under Louisiana law, it is clear that when making an
insurance claim, “the insured must prove coverage under the policy.”62 “Then, if the defendant-
insurer wishes to avoid liability by relying on a policy exclusion from coverage, it has the burden
of persuasion to establish that the uncompensated or under-compensated damage is subject to an
exclusion.”63 This distinction by the Fifth Circuit clearly acknowledges that there is a two-step
process to insurance claims, wherein an insured proves coverage and then an insurer attempts to
prove than an exclusion applies.
Here, oddly, the Joachins, who are the insured, are attempting to use language from an
exclusion provision to assert that coverage existed under the Policy. The Joachins assert that
under the language of the exclusion, because the Property had not been vacant more than 30 days,
they met the residency requirement. However, the Joachins are conflating their burden of proof.
In order to show that the Policy covered the Property, the Joachins must present evidence proving
that they resided at the Property at the time they purchased the Policy, and the language in the
exclusion provision does not state that the Joachins had 30 days to move into the Property. It only
states that if the Joachins left the Property vacant more than 30 days, GeoVera would deny
coverage for certain losses. This language means that the Joachins would first have to be covered
by the Policy in order to claim that a vacancy exclusion applied. Put another way, one must reside
62 Bayle v. Allstate Ins. Co., 615 F.3d 350, 358–59 (5th Cir. 2010) (emphasis in original) (citing Jones v.
Estate of Santiago, 2003-1424 (La. 4/14/04); 870 So. 2d 1002, 1010; Doerr v. Mobil Oil Corp., 774 So.2d
119, 123–24 (La. 2000); Lee v. Taylor, 808 So.2d 407, 410 (La. App. 1 Cir. 2000); Whitham v. Louisiana
Farm Bureau Cas. Insur. Co., 34 So.3d 1104, 1107 (La. App. 2 Cir. 2010)); Dickerson v. Lexington Ins.
Co., 556 F.3d 290, 295 (5th Cir. 2009).
63 Id. (emphasis in original).
before one can vacate, thereby triggering the exclusion upon which the Joachins rely.
Thus, the vacancy exclusion, and its corresponding grace period, are insufficient to
establish residency; they may only be utilized after coverage has been proven. Therefore, the
exclusionary provisions which the Joachins attempt to rely on are insufficient evidence of the
Joachins’ residency. Moreover, the Joachins do not provide any other evidence in the motion to
show that they met the residency requirement in the Policy. Where the Joachins cannot prove that
they met the residency requirement, they cannot assert that the Policy ever became effective for
the Property. Accordingly, there is no genuine issue of material fact that the Policy did not cover
the Property.
The Joachins argue that rather than grant summary judgment, the Court should apply
Federal Rule of Civil Procedure 56(d) and allow the Joachins additional time to depose GeoVera’s
corporate representatives.64 The Joachins aver that the depositions could reveal factual details that
would enable them to better oppose the motion for summary judgment.65
Pursuant to Rule 56(d), if a nonmovant shows by affidavit or declaration that “it cannot
present facts essential to justify its opposition” to a motion for summary judgment, the Court
may: “(1) defer considering the motion or deny it; (2) allow time to obtain affidavits or
declarations or to take discovery; or (3) issue any other appropriate order.” Rule 56(d) “allows
for further discovery to safeguard non-moving parties from summary judgment motions that they
cannot adequately oppose.”66 “While ‘Rule 56(d) motions for additional discovery are broadly
favored and should be liberally granted,’ the party filing the motion must demonstrate ‘how
64 Rec. Doc. 84 at 11–12.
65 Id.
66 Culwell v. City of Fort Worth, 468 F.3d 868, 871 (5th Cir. 2006) (citing Washington v. Allstate Ins. Co.,
901 F.2d 1281, 1285 (5th Cir. 1990)).
additional discovery will create a genuine issue of material fact.’ More specifically, ‘the non-
moving party must set forth a plausible basis for believing that specified facts, susceptible of
collection within a reasonable time frame, probably exist and indicate how the emergent facts, if
adduced, will influence the outcome of the pending summary judgment motion.’”67
GeoVera argues that it is entitled to a declaration that the Policy did not provide coverage
for the Property because the Joachins did not reside at the Property at the time the Policy was
purchased.68 The Joachins aver that if they are allowed to depose GeoVera’s corporate
representatives, they can attain additional information that would allow them to prove their
residency.69 Specifically, the Joachins assert that the depositions could reveal that the GeoVera
Policy “fits the definition of a fire policy.”70
As analyzed in the Court’s June 28, 2019 Order and Reasons and referenced supra,
whether the Policy qualifies as a fire policy is irrelevant to the issue of the Joachins’ residence at
the Property and the Policy’s coverage. Before a vacancy exclusion can apply to a Property, the
insured must first prove that the policy actually covered the property in question. Only after the
insured shows coverage can a vacancy exclusion be relied upon. Here, the Joachins must
demonstrate that they resided at the Property before it was “vacated” in order to trigger the
exclusion language upon which the Joachins attempt to rely. Thus, a vacancy exclusion cannot
establish residency, and the designation of the GeoVera Policy as a fire policy would not alter
67 Smith v. Reg'l Transit Auth., 827 F.3d 412, 422–23 (5th Cir. 2016) (quoting Am. Family Life Assurance
Co. v. Biles, 714 F.3d 887, 894 (5th Cir. 2013); Canady v. Bossier Par. Sch. Bd., 240 F.3d 437, 445 (5th
Cir. 2001)) (internal citations omitted).
68 Rec. Doc. 74-1 at 1–2.
69 Rec. Doc. 84 at 11–12.
70 Id. at 11.
this fact. Because the Joachins have not alleged that the depositions would produce facts that
could actually establish residency, the Joachins have not met the Rule 56(d) standard of
“demonstrat[ing] ‘how additional discovery will create a genuine issue of material fact.’””!
Therefore, the Court will deny the Joachins’ request for Rule 56(d) relief.
V. Conclusion
For the reasons discussed above, the Court finds that there is no genuine issue of fact
regarding the insurance policy not providing coverage for the property.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff and Counterclaim-Defendant GeoVera
Specialty Insurance Company’s “Motion for Summary Judgment for Declaratory Relief””? is
GRANTED.
NEW ORLEANS, LOUISIANA, this 18th_ day of July, 2019.
D \Qrrelt ( luett (Srv
NANNETTE JOLIVETTE BROWN
CHIEF JUDGE
UNITED STATES DISTRICT COURT
1 Smith v. Reg'l Transit Auth., 827 F.3d 412, 422-23 (Sth Cir. 2016) (quoting Am. Family Life Assurance
Co. v. Biles, 714 F.3d 887, 894 (Sth Cir. 2013); Canady v. Bossier Par. Sch. Bd., 240 F.3d 437, 445 (Sth
Cir. 2001)) Gnternal citations omitted).
® Rec. Doc. 74.
13