The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
NICK SHULTZ, ET AL. CIVIL ACTION
VERSUS NO. 23-678
NATIONAL UNION FIRE INSURANCE COMPANY SECTION: G(1)
OF PITTSBURGH, PA, ET AL.
ORDER AND REASONS
Plaintiffs Nick Shultz and Jefferson Aircraft, LLC (“Plaintiffs”) filed this instant insurance
dispute action against Defendants National Union Fire Insurance Company of Pittsburgh, PA
(“National Union”) and Clay & Land Insurance, Inc. (“Clay & Land”) (collectively
“Defendants”).1 Plaintiffs bring claims for breaching the terms of an insurance contract, statutory
bad faith penalties, negligence, and misrepresentation relating to damages of an aircraft owned by
Plaintiffs.2 The aircraft was damaged on or around August 29, 2021 during Hurricane Ida, and on
December 3, 2021 the aircraft was involved in a crash while in route to make scheduled repairs,
destroying the aircraft.3
Before the Court is National Union’s Motion for Partial Summary Judgment Dismissing
Claim for Further Payment for Property Damage under the National Union Aircraft Insurance
Policy.4 National Union avers that partial summary judgment is appropriate since it paid Plaintiffs
1 Rec. Doc. 1-1 at 4.
2 Id. at 4–16.
3 Id. at 7–8.
4 Rec. Doc. 14.
$65,000.00, the full Agreed Value of the aircraft, after the aircraft was destroyed.5 National Union
argues that payment for both Hurricane Ida damages and the December 3, 2021 accident would
constitute impermissible double recovery.6 Plaintiffs concede that double recovery is not allowed.7
Considering National Union’s motion, Plaintiffs’ opposition,8 National Union’s reply
memoranda,9 the record, and the applicable law, the Court grants the motion.
I. Background
Plaintiffs owned a 1968 Cessna 182 (“the Aircraft”) and engaged the services of Clay &
Land to procure a policy of insurance for the Aircraft.10 On May 24, 2021, Clay & Land renewed
an existing policy on the Aircraft with policy number LA 0021368-18 (“the Insurance Policy”)
with National Union, the insurance carrier.11 Clay & Land was the full agent on the policy and was
responsible for the underwriting and binding of the insurance policy with National Union.12 The
insurance policy stated an agreed value on the Aircraft in the amount of $65,000.00.13 On or around
August 29, 2021, Hurricane Ida caused significant damages to the Aircraft.14 Plaintiffs reported
5 Rec. Doc. 14 at 1.
6 Id. at 1–2.
7 Rec. Doc. 20 at 2.
8 Rec. Doc. 20.
9 Rec. Doc. 24.
10 Rec. Doc. 1-1 at 5.
11 Id.
12 Id. at 8.
13 Id. at 5.
14 Id. at 7.
the damages to Defendants, and requested that a claim be opened.15 Defendants opened a claim
and sent Plaintiffs a quote in the amount of $41,466.38 for a repair of the Aircraft, with repairs to
be made by Paradise Valley Aviation in Clarksville, Arkansas.16 Defendants coordinated for a pilot
to transport the Aircraft from Saint Charles, Louisiana to Clarksville, Arkansas for the needed
repairs.17
On December 3, 2021, the pilot picked up the Aircraft from Saint Charles, Louisiana.18
While traveling from Louisiana to Arkansas, the pilot crashed the Aircraft near Bonnerdale,
Arkansas, killing the pilot and destroying the Aircraft.19
On May 25, 2022, National Union issued a payment of $65,000.00 to Plaintiffs, the agreed
value of the Aircraft.20 On September 12, 2022, Plaintiffs separately paid for a VREF valuation of
the Aircraft.21 The appraised value of the Aircraft was $162,179.00,22 and Plaintiffs provided
National Union with this appraisal.23 Plaintiffs argue that National Union failed to adequately and
timely pay for the damages to the Aircraft by attempting to pay both claims via one check in the
amount of $65,000.00 over sixty days from both the Hurricane Ida occurrence and crash.24
15 Id.
16 Id.
17 Id.
18 Id.
19 Id. at 8.
20 Id.
21 Id. at 9.
22 Id.
23 Rec. Doc. 20-2 at 2.
24 Rec. Doc. 1-1 at 11.
Plaintiffs also allege that Clay & Land had a duty to provide proper insurance to Plaintiffs and
failed in that duty.25
On December 5, 2022, Plaintiffs filed a Petition for Damages in the Twenty-Fourth Judicial
District Court for the Parish of Jefferson.26 Plaintiffs bring claims against National Union for
breach of the insurance policy and bad faith insurance adjusting.27 Plaintiffs also bring claims
against both Defendants for detrimental reliance, negligence, and misrepresentation.28 Defendants
removed the case to this Court on February 24, 2023 under 28 U.S.C. § 1441 and 28 U.S.C. §
1332.29
On August 18, 2023, National Union filed the instant Motion for Partial Summary
Judgment Dismissing the Claim for Further Payment for Property Damage Under the National
Union Aircraft Insurance Policy.30 Plaintiffs filed an opposition to this motion on September 12,
2023.31 On September 22, 2023, National Union filed a reply brief in further support of the
motion.32
II. Parties’ Arguments
A. National Union’s Arguments in Support of the Motion
National Union seeks partial summary judgment dismissing Plaintiffs’ claims for further
25 Id.
26 Rec. Doc. 1-1.
27 Id. at 9–12.
28 Id.
29 Rec. Doc. 1 at 3.
30 Rec. Doc. 14.
31 Rec. Doc. 20.
32 Rec. Doc. 24.
recovery under the insurance policy.33 National Union submits that summary judgment is
appropriate since it has paid Plaintiffs $65,000.00, the full agreed value of the insured Aircraft, as
a result of the accident that occurred on December 3, 2021.34 National Union argues that Plaintiffs
are not entitled to additional recovery for damage to the Aircraft resulting from Hurricane Ida for
which repairs were never made and could not be made due to the destruction of the Aircraft on
December 3, 2021.35 National Union contends that payment for the Agreed Value of the Aircraft
is all that is required under the policy, and any further recovery over and above that amount would
constitute impermissible double recovery under Louisiana law.36
B. Plaintiffs’ Arguments in Opposition to the Motion
In opposition, Plaintiffs argue that National Union, as a depositary of the Aircraft, is
“responsible to the depositor for its value.”37 Plaintiffs contend that National Union owed a duty
outside of the insurance policy to safeguard the property.38 Plaintiffs aver that the crash on
December 3, 2021, was a separate occurrence caused by National Union’s negligence, and thus
was not an occurrence under the insurance contract.39 As such, Plaintiffs submit that, under
Louisiana law, they are not limited to the insurance policy and damages should be set by the
appraised value of the Aircraft at $162,179.00.40
33 Rec. Doc. 14.
34 Rec. Doc. 14-1 at 1.
35 Id.
36 Id. at 2.
37 Rec. Doc. 20 at 4.
38 Id. at 5.
39 Id. at 6.
40 Id.
Plaintiffs further argue that National Union was notified of the total loss of the plane on
December 4, 2021 and did not issue a check to Plaintiffs until May 25, 2022.41 Plaintiffs argue
that, under Louisiana law, this constitutes a breach of the insurer’s duties by failing to pay the
amount of the claim within sixty days after receipt of satisfactory proof of loss, and that such
failure was arbitrary, capricious, or without probable cause.42
C. National Union’s Arguments in Further Support of the Motion
National Union reargues that double recovery is impermissible.43 National Union submits
that Plaintiffs did not dispute the agreed value of the Aircraft when they negotiated and purchased
the policy.44 National Union contends that the instant matter differs from Plummer v. Motors Inc.
Corp.,45 cited by Plaintiffs in opposition, in that the parties here agreed on the value of the
Aircraft.46 National Union asserts that the VREF valuation of the Aircraft is irrelevant and does
not alter or amend the terms of the Insurance Policy.47 National Union avers that Plaintiffs’
allegations of bad faith and entitlement to penalties and attorneys’ fees are not the subject of the
instant motion for partial summary judgment.48
41 Id. at 10.
42 Id. at 6–7. (citing La. R.S. § 22:1973).
43 Rec. Doc. 24 at 2.
44 Id. at 3.
45 Plummer v. Motors Ins. Corp., 233 La. 340, 96 So. 2d 605 (1957).
46 Id. at 5.
47 Id.
48 Id. at 6.
III. Legal Standard
Summary judgment is appropriate when the pleadings, discovery, and affidavits
demonstrate “no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.”49 To decide whether a genuine dispute as to any material fact exists, the court
considers “all of the evidence in the record but refrain[s] from making credibility determinations
or weighing the evidence.”50 All reasonable inferences are drawn in favor of the nonmoving
party.51 Yet “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.”52
If the entire record “could not lead a rational trier of fact to find for the non-moving party,” then
no genuine issue of fact exists and, consequently, the moving party is entitled to judgment as a
matter of law.53 The nonmoving party may not rest upon the pleadings.54 Instead, the nonmoving
party must identify specific facts in the record and articulate the precise manner in which that
evidence establishes a genuine issue for trial.55
The party seeking summary judgment always bears the initial responsibility of showing the
basis for its motion and identifying record evidence that demonstrates the absence of a genuine
49 Fed. R. Civ. P. 56(a); see also Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
50 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008)
(citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)).
51 Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007) (quoting Reeves, 530 U.S. at
150).
52 Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); Little, 37 F.3d at 1075.
53 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting First Nat’l Bank of
Ariz. v. Cites Serv. Co., 391 U.S. 253, 289 (1968)).
54 Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
55 See id.; Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).
issue of material fact.56 “To satisfy this burden, the movant may either (1) submit evidentiary
documents that negate the existence of some material element of the opponent’s claim or defense,
or (2) if the crucial issue is one on which the opponent will bear the ultimate burden of proof at
trial, demonstrate that the evidence in the record insufficiently supports an essential element of the
opponent’s claim or defense.”57 If the moving party satisfies its initial burden, the burden shifts to
the nonmoving party to “identify specific evidence in the record, and to articulate” precisely how
that evidence supports the nonmoving party’s claims.58 The nonmoving party must set forth
“specific facts showing the existence of a ‘genuine’ issue concerning every essential component
of its case.”59
IV. Analysis
National Union seeks partial summary judgment of Plaintiffs’ claims relating to further
recovery under the insurance policy because they allege that $65,000.00, the agreed value of the
aircraft, was tendered to Plaintiffs, and further payment for the Hurricane Ida damages would
constitute impermissible double recovery.60 Plaintiffs argue that the value of the aircraft was
$162,179.00 pursuant to the VREF appraisal.61 Plaintiffs further contend that National Union
breached its duty as depositary, was negligent in the transporting of the aircraft, and acted in bad
56 Celotex Corp., 477 U.S. at 323.
57 Duplantis v. Shell Offshore, Inc., 948 F.2d 187, 190 (5th Cir. 1991) (internal citation omitted).
58 Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994), cert. denied, 513 U.S. 871 (1994); see also Morris
v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998).
59 Morris, 144 F.3d at 380; see also Bellard v. Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012).
60 Rec. Doc. 14 at 1.
61 Rec. Doc. 20 at 2.
faith, and thus, is responsible to Plaintiffs for additional damages outside of the insurance policy.62
However, the instant motion only seeks partial summary judgment relating to Plaintiffs’ breach of
contract claim for further recovery under the insurance policy.63 National Union’s alleged
negligence, bad faith, or breached duties as depositary under Louisiana law are not at issue in the
instant motion.
Under Erie Railroad Co. v. Tompkins,64 a federal court sitting in diversity jurisdiction
applies the substantive law of the forum state.65 Under Louisiana law, an insurance policy
“constitutes the law between the insured and insurer, and the agreement governs the nature of their
relationship.”66 The words of the policy are given their generally prevailing meaning and
“interpreted in light of the other provisions so that each is given the meaning suggested by the
contract as a whole.”67 In Louisiana, “an insured may not recover in excess of his actual loss,”
although he “may recover under each policy providing coverage until the total loss sustained is
indemnified.”68 An insured party in Louisiana may generally “‘recover under all available
coverages provided that there is no double recovery.’”69
62 Id. at 4–6.
63 Rec. Doc. 14-1 at 1.
64 304 U.S. 64 (1938).
65 Cates v. Sears, Roebuck & Co., 928 F.2d 679, 687 (5th Cir. 1991).
66 Peterson v. Schimek, 98–1712, p. 4 (La.3/2/99); 729 So. 2d 1024, 1028.
67 Coleman v. Sch. Bd. of Richland Par., 418 F.3d 511, 516–17 (5th Cir. 2005) (citing La. Civ. Code arts.
2047, 2050).
68 Wegener v. Lafayette Ins. Co., 2010-0810 (La. 3/15/11); 60 So. 3d 1220, 1235 (quoting Cole v. Celotex,
599 So. 2d 1058, 1080 (La. 1992)).
69 Bradley v. Allstate Ins. Co., 620 F.3d 509, 521 (5th Cir. 2010) (quoting Cole, 599 So. 2d at 1080).
In support of its motion, National Union points to the Insurance Policy which states in
pertinent part:
Coverage C: COVERAGE C – The most we will pay for physical damage to your
aircraft is the lesser of: 1. Its Agreed Value if it is a total loss; or, 2. The costs to
repair or replace damage with materials of like kind and quality; including the
lowest cost of shipping parts of the aircraft for repair and return the aircraft to the
occurrence site or home base, whichever is closer, but minus any previous
unrepaired damage or betterment. We will not pay more to repair your aircraft than
we are required to pay under a total loss (Agreed Value less salvage value).70
The parties agree that following the December 3, 2021 accident, the Aircraft was
“destroyed” or, in other words, a total loss.71 The agreed value of the Aircraft was $65,000.00 per
the Insurance Policy,72 which National Union paid in full to Plaintiffs on May 25, 2022.73 As such,
National Union argues that, under the clear terms of the policy, it is not required to make any
additional payment to Plaintiffs for damages to the Aircraft caused by Hurricane Ida, as this would
result in impermissible double recovery.74 In opposition, Plaintiffs concede that they are not
allowed double recovery for the loss of the property, but that the amount of loss in this matter, in
accordance with Louisiana jurisprudence on recovery for property damaged while deposited with
a depositary due to negligence, is the full appraised value of the aircraft at the time of the negligent
crash.75 As stated above, alleged negligence based on a duty as depositary under Louisiana law
70 Rec. Doc. 14-3 at 33 (emphasis added).
71 Rec. Doc. 14-1 at 1; Rec. Doc. 1-1 at 8.
72 Rec. Doc. 14-3 at 1.
73 Rec. Doc. 1-1 at 8.
74 Rec. Doc. 14-1 at 9.
75 Rec. Doc. 20 at 2.
will not be addressed since the instant motion does not seek judgment on Plaintiffs’ tort claims.76
The material issue is if there is a genuine dispute as to whether Plaintiffs are entitled to payment,
under the Insurance Policy, for damage from Hurricane Ida and the December 3, 2021 accident.
The theory of double recovery has been applied in Touchet v United Prop. & Cas. Ins.
Co.77 In Touchet, like the instant matter, the insured property was damaged by one occurrence and
then damaged by a second occurrence before repairs from the first occurrence could be made.78
Plaintiffs in Touchet argued that “the policy limit for each hurricane is potentially recoverable
since the policy limits apply separately to each hurricane.”79 The court disagreed, reasoning that:
The policy covers only one dwelling and the limits under Coverage A represent the
replacement cost for that dwelling, as agreed to by plaintiffs when they purchased
the policy. The court allows that recovery under separate policy limits would be
justified in the event that plaintiffs had begun repairs following one occurrence and
then suffered additional damage in the second. Here, however, plaintiffs have
admitted that they made no repairs to the dwelling. Accordingly, holding
[Defendant] liable for two policy limits covering the same dwelling would amount
to exemplary damages.80
Here, repairs for damages following Hurricane Ida had not yet been made when the
December 3, 2021 accident occurred, destroying the Aircraft. Thus, payment to Plaintiffs for both
the Hurricane Ida damages and the December 3, 2021 accident would constitute impermissible
double recovery. Plaintiffs have conceded that they are not allowed double recovery.81 As such,
76 See Rec. Doc. 14-1 at 4.
77 Touchet v. United Prop. & Cas. Inc. Co., No. 2:21-CV-00094, 2022 WL 710621 (W.D. La. Mar. 9,
2022).
78 See generally id.
79 Id. at 2.
80 Id.
81 Rec. Doc. 20 at 2.
there is no genuine issue of material fact in dispute and National Union is entitled to judgment
dismissing Plaintiffs’ breach of contract claim seeking further payment under the terms of the
Insurance Policy.
V. Conclusion
For the reasons discussed herein, the Court concludes that the undisputed evidence in the
record establishes that Plaintiffs’ breach of contract claim seeking further payment under the
Insurance Policy would lead to impermissible double recovery. Thus, partial summary judgment
is appropriate.
Accordingly,
IT IS HEREBY ORDERED that National Union’s Motion for Partial Summary Judgment
Dismissing Claim for Further Payment for Property Damage under the National Union Aircraft
Insurance Policy*®” is GRANTED. Any breach of contract claims related to further payment under
the terms Insurance Policy are DISMISSED WITH PREJUDICE.
NEW ORLEANS, LOUISIANA, this 7Tth_ day of November, 2023.
NANNETTE JOLIVETTE BROWN
CHIEF JUDGE
UNITED STATES DISTRICT COURT
® Rec. Doc. 14.