# Certain Underwriters at LLoyd's London v. Covington Flooring Company, Inc.

> District Court, E.D. Louisiana · January 17, 2024

URL: https://www.frixlaw.com/law-library/cases/10190380

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** January 17, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

CERTAIN UNDERWRITERS AT LLOYDS, CIVIL ACTION
LONDON, ET AL.

VERSUS NO. 22-5292
c/w 23-371

COVINGTON FLOORING CO., INC., ET SECTION: “G”(1)
AL.

ORDER AND REASONS
Before the Court are Defendants Covington Flooring Company, Inc., The Charter Oak Fire
Insurance Company, and Travelers Property Casualty Company of America’s (collectively
“Defendants”) “Motion for Partial Summary Judgment”1 and Plaintiff St. Augustine High School,
Inc.’s (“St. Augustine”) “Motion for Extension of Deadlines for Experts.”2 St. Augustine brings
claims against Defendants for damages to a gymnasium leased by St. Augustine.3 Defendants
argue that St. Augustine does not have a right to recover damages for: (1) loss of property value;
(2) betterment and improvement costs; (3) increased cost of property and casualty insurance
coverage and limited property and casualty insurance coverage; (4) property damage; (5) non-
compliance with loan covenants, and (6) past, present, and future mental pain and suffering.4 In
opposition, St. Augustine argues that it does have the right to recover damages as a result of the

1 Rec. Doc. 31.
2 Rec. Doc. 32.
3 Rec. Doc. 1.
4 Rec. Doc. 31.
fire to the gymnasium based on certain language of the lease agreement.5 Considering the motions,
the oppositions, the reply memoranda, the record, and the applicable law, the Court grants in part
and denies in part Defendants’ Motion for Partial Summary Judgment and grants St. Augustine’s
Motion for Extension of Deadlines for Experts.
I. Background
St. Augustine contracted with Defendant Covington Flooring Company, Inc.
(“Covington”) to replace the hardwood floors in the gymnasium located at 2600 A P Tureaud
Avenue, New Orleans, Louisiana 70119, after it was damaged during a hurricane.6 It is alleged

that Covington’s employees were utilizing cloth rags to apply Bona DriFast Stain and Bona Sport
Seal products which contain compounds that are susceptible to self-heating and spontaneous
ignition if the rags are not properly disposed.7 The Complaint provides that shortly after
Covington’s employees left the project for the day on November 25, 2021, a fire was discovered
at the gym.8 It is alleged that the fire occurred as a result of the self-heating and combustion of the
improperly discarded stain rags.9 As a result of the fire, St. Augustine submitted a first-party claim
for repairs and additional expenses incurred as a result of the fire.10 At the time of the fire, the
gymnasium was insured by Certain Underwriters at Lloyds, London, Indian Harbor Insurance
Company, QBE Specialty Insurance Company, Steadfast Insurance Company, General Security

5 Rec. Doc. 34.
6 Rec. Doc. 1-2 at 4.
7 Id.
8 Id.
9 Id.
10 Id.
Indemnity of Arizona, United Specialty Insurance Company, Lexington Insurance Company, HDI
Global Specialty SE, Old Republic Union Insurance Company, Geovera Specialty Insurance
Company, and Transverse Specialty Insurance Company (“Insurance Plaintiffs”).11
On November 10, 2022, Insurance Plaintiffs filed suit against Covington in the Civil
District Court for the Parish of Orleans.12 On December 14, 2022, Covington removed the matter
to this Court, and it was assigned docket number 22-5292.13
On November 24, 2022, St. Augustine filed suit against Covington, The Phoenix Insurance
Company, and Travelers Indemnity Company of Connecticut.14 On January 30, 2023, Covington

removed the matter to this Court, and it was assigned docket number 23-371.15 On May 24, 2023,
St. Augustine filed an Amended Complaint, which added The Charter Oak Fire Insurance
Company and Travelers Property Casualty Company of America as defendants and removed The
Phoenix Insurance Company and Travelers Indemnity Company of Connecticut as defendants.16
On June 9, 2023, Covington filed a Motion to Consolidate both cases.17 On June 14, 2023,
the Court granted the motion and consolidated the matters.18

11 Rec. Doc. 1-2 at 1–3.
12 Rec. Doc. 1-2.
13 Rec. Doc. 1.
14 Case No. 23-371, Rec. Doc. 1-2.
15 Case No. 23-371, Rec. Doc. 1.
16 Case No. 23-371, Rec. Doc. 13.
17 Rec. Doc. 24.
18 Rec. Doc. 25.
On November 7, 2023, Defendants filed the instant Motion for Partial Summary Judgment
referencing docket number 23- 371.19 On November 17, 2023, St. Augustine filed the instant
Motion for Extension of Deadlines for Experts.20 On November 22, 2023, St. Augustine filed an
opposition to Defendants’ Motion for Partial Summary Judgment.21 On November 29, 2023,
Defendants filed a reply memorandum in further support of the Motion for Partial Summary
Judgment.22 On November 29, 2023, the parties filed a Stipulation of Dismissal, dismissing all
claims in docket number 22-5292.23 On December 4, 2023, Defendants filed an opposition to St.
Augustine’s Motion for Extension of Deadlines for Experts.24

II. Parties’ Arguments
A. Defendants’ Arguments in Support of the Motion for Partial Summary Judgment
First, Defendants argue that St. Augustine, as the lessee of the gymnasium building, has no
right to recovery for property damages to the gymnasium.25 Defendants submit that at the time of
the November 25, 2021 fire, St. Joseph’s Society of the Sacred Heart, Inc. (“St. Joseph”) owned
the property, and St. Augustine was the tenant of the premises.26 Defendants contend that it is St.
Joseph that has a personal right to seek repair for the damage.27 Defendants aver that the lease

19 Rec. Doc. 31.
20 Rec. Doc. 32.
21 Rec. Doc. 34.
22 Rec. Doc. 40.
23 Rec. Doc. 38.
24 Rec. Doc. 41.
25 Rec. Doc. 31-3 at 4.
26 Id.
27 Id. at 6.
agreement between St. Augustine and St. Joseph does not contain an assignment or subrogation of
rights provision for St. Augustine to pursue claims of St. Joseph.28 Defendants assert that the lease
agreement provides that St. Joseph maintains all the rights as owner of the property in the event of
a loss or damage to the property, and St. Joseph is listed at the sole loss payee.29 As such,
Defendants argue that St. Augustine’s claims for property damage should be dismissed.30
Next, Defendants argue that if the Court finds that St. Augustine does have a personal right
to pursue a claim for damages to the gymnasium building, then St. Augustine has no claim for
damages for betterment and improvements to the gymnasium building.31 Defendants contend that

St. Augustine renamed the gymnasium building and made an announcement that it would rebuild
a “new and improved Health and Wellness Center” consisting of three levels, new “modernized”
products, a wellness room, additional bathrooms, a coaches’ office, championship pavilion, and a
mezzanine area.32 Defendants contend that St. Augustine seeks from Defendants the full cost of
its new Health and Wellness Center project as property damages in this case.33 Assuming that St.
Augustine has the right to recover for property damage, Defendants aver that St. Augustine can
only recover damages to restore the property to its pre-damage condition, not a better condition.34

28Id.
29 Id. at 7.
30 Id. at 8.
31 Id.
32 Id. at 9–10.
33 Id. at 10.
34 Id. at 11.
Next, Defendants argue that St. Augustine has no legal right to pursue damages for the loss
of property value.35 Defendants contend that since St. Augustine is not the owner of the
gymnasium building, it has no ownership interest in the property, and thus no legal right to
damages for loss of property value.36 Defendants assert that any loss of value of the gymnasium
building would be a loss by St. Joseph.37
Next, Defendants argue that St. Augustine has no legal right to pursue damages for
increased cost of insurance (higher insurance premiums) as a result of a loss since such claims are
not recoverable elements of damages in Louisiana.38 Defendants contend that Louisiana courts

have repeatedly ruled that no cause of action exists for a plaintiff’s claim for increased insurance
premiums.39 Defendants assert that St. Augustine has not produced any evidence supporting this
element of damages.40
Next, Defendants argue that St. Augustine has no legal right to pursue damages for non-
compliance with loan covenants due to limited property and casualty insurance coverage.41
Defendants assert that this element of damages is derivative of the claim of increased costs of
insurance discussed above.42 Defendants contend that St. Augustine was not able to provide any

35 Id. at 12.
36 Id.
37 Id.
38 Id. at 13.
39 Id.
40 Id.
41 Id. at 14.
42 Id.
evidence to support such a claim.43 Defendants submit that St. Augustine has had no conversations
with any lenders or prospective lenders regarding the effect of insurance coverage.44 Defendants
aver that St. Augustine has no legal authority or evidence supporting this claim.45
Lastly, Defendants argue that St. Augustine has no legal right to pursue damages for past,
present, and future mental pain and suffering.46 Defendants contend that said damages are not
recognized in Louisiana as a recoverable element of damages for a corporation.47 Defendants
further contend that St. Augustine cannot pursue a claim for mental anguish on behalf of others,
such as students, staff, or shareholders.48

B. St. Augustine’s Arguments in Opposition to the Motion for Partial Summary Judgment
In opposition, St. Augustine argues that it does have a right to recover property damages.49
St. Augustine contends that the lease contains numerous provisions that assign real rights from St.
Joseph to St. Augustine, such as the right to make any alterations or modifications, the right to
obtain insurance, the right to address and resolve maintenance items and repairs, and the right to
repair and maintain the premises in good condition.50

43 Id.
44 Id.
45 Id.
46 Id. at 15.
47 Id.
48 Id. at 15–16.
49 Rec. Doc. 34 at 4.
50 Id. at 5.
St. Augustine submits that a letter from Vy. Rev. Nelson Moreira demonstrates an oral
assignment and an oral lease agreement which spans for a period of 20 years.51 St. Augustine
argues that it is entitled to recover damages that will restore its property to its former condition,
including, but not limited to, the cost of all materials, labor, code upgrades and other costs.52
C. Defendants’ Arguments in Further Support of the Motion for Partial Summary
Judgment

Defendants argue that St. Augustine’s opposition is untimely since it was filed seven days
prior to the submission date, instead of eight days prior to the submission date pursuant to Local
Rule 7.5.53 Defendants contend that the Court should not consider St. Augustine’s opposition.
Next, Defendants argue that St. Augustine has not provided evidence to support a transfer
of the right of action to pursue a claim for damages.54 Defendants submit that while St. Augustine
references assignments and subrogation, no such terminology is found within the lease provisions
or the cover correspondence page to the lease.55 Defendants contend that whether the lease
provides for a transfer of the right of action to pursue a claim for building damages via assignment
or subrogation is a legal determination based on the plain reading of the lease.56 Defendants aver
that St. Augustine has not provided any additional evidence in support of its argument that it
obtained St. Joseph’s right to pursue a claim for damages to the gymnasium building.57 Defendants

51 Id.
52 Id. at 6.
53 Rec. Doc. 40 at 2.
54 Id.
55 Id.
56 Id.
57 Id. at 3.
submit that St. Augustine has not provided any legal authority to support its claims.58 Defendants
move the Court to grant the Motion for Partial Summary Judgment and dismissing the contested
elements of damages.59
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.”60 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.”61 All reasonable inferences are drawn in favor of the nonmoving
party.62 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.”63
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.64 The nonmoving party may not rest upon the pleadings.65 Instead, the nonmoving

58 Id.
59 Id.
60 Fed. R. Civ. P. 56(a); see also Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
61 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)).
62 Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007) (quoting Reeves, 530 U.S. at
150).
63 Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); Little, 37 F.3d at 1075.
64 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)).
65 Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
party must identify specific facts in the record and articulate the precise manner in which that
evidence establishes a genuine issue for trial.66
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
issue of material fact.67 “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.”68 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.69 The nonmoving party must set forth
“specific facts showing the existence of a ‘genuine’ issue concerning every essential component
of its case.”70
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,

66 See id.; Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).
67 Celotex Corp., 477 U.S. at 323.
68 Duplantis v. Shell Offshore, Inc., 948 F.2d 187, 190 (5th Cir. 1991) (internal citation omitted).
69 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).
70 Morris, 144 F.3d at 380; see also Bellard v. Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012).
by unsubstantiated assertions, or by only a scintilla of evidence.”71 Moreover, the nonmoving party
may not rest upon mere allegations or denials in its pleadings.72
IV. Analysis
As an initial matter, the Court will address the timeliness of St. Augustine’s opposition to
the instant Motion for Partial Summary Judgment. Pursuant to Local Rule 7.5, “[e]ach party
opposing a motion must file and serve a memorandum in opposition to the motion with citations
of authorities no later than eight days before the noticed submission date.” Defendants’ Motion for
Partial Summary Judgment was set for submission on November 29, 2023. Thus, St. Augustine’s

opposition was to be filed to later than November 21, 2023. St. Augustine filed its opposition on
November 22, 2023.73 As such, St. Augustine’s opposition is untimely. Nevertheless, the Court
will exercise its discretion to consider St. Augustine’s untimely opposition.
A. St. Augustine’s Claim for Property Damage and Loss of Property Value
Defendants argue that St. Augustine does not have a right to recover for property damages
or loss of property value to the gymnasium since, as lessor of the premises, St. Augustine does not
have an ownership interest in the gymnasium.74 Defendants submit that the gymnasium is owned
by St. Joseph, and without subrogation or assignment of rights, St. Augustine cannot recover for
property damages to the gymnasium,75 or for loss of property value.76

71 Little, 37 F.3d at 1075 (internal citations and quotation marks omitted).
72 Morris, 144 F.3d at 380.
73 Rec. Doc. 34.
74 Rec. Doc. 31-3 at 4.
75 Id. at 6.
76 Id. at 12.
Louisiana law is clear that the property owner has an action for property damages.
Louisiana Code of Civil Procedure article 681 states, “Except as otherwise provided by law, an
action can be brought only by a person having a real and actual interest which he asserts.” The
ownership of property includes the rights to possess it, use it, enjoy the use of it, and dispose of
it.77 A tortfeasor who causes injury or damage to a real right in property owes an obligation to the
owner of the real right. This relationship arises as a matter of law and provides to the owner of the
real right a personal right to sue the tortfeasor for damages.78
It is undisputed that St. Augustine is not the owner of the gymnasium. St. Augustine

submits that it had a prior oral lease with St. Joseph, which was later reduced to writing.79 St.
Augustine argues that said lease agreement contains assignments and subrogation of real rights
that grant St. Augustine the right to pursue claims for damages to the gymnasium, namely
provisions granting St. Augustine the right to make alterations and modifications to the premises,
the right to obtain insurance, the right to resolve maintenance and repair issues, and the right to
maintain in good condition all portions of the premises.80
The second provision of the lease agreement, titled “Acceptance of Premises” provides in
pertinent part, “Tenant shall accept the Premises on the Effective Date in its “AS-IS” condition…”
and “[t]he taking of possession of the Premises shall be conclusive evidence that Tenant accepts

77 See Eagle Pipe and Supply, Inc. v. Amerada Hess Corp., 10–2267, 10–2272, 10–2275, 10–2279, 10–2289,
pp. 10–11 (La. 10/25/11), 79 So. 3d 246, 258; Giroir v. Dumesnil, 248 La. 1037, 1050, 184 So. 2d 1, 6 (1966).
78 Eagle Pipe & Supply, Inc., 79 So. 3d at 279.
79 Rec. Doc. 34 at 5.
80 Id. at 2.
the Premises and that the Premises were in good condition at the time possession was taken.”81
Therefore, the Court finds that the cited provision establishes that St. Augustine had actual
possession of the gymnasium. The lease agreement states, “Tenant, at its sole expense, shall repair,
replace and maintain in good condition all portions of the Premises and all areas, improvements
and systems of the Premises…”82 As such, the plain language of the lease establishes that St.
August was responsible for repair and maintenance of the gymnasium.
The Court is now faced with mixed questions of law and fact. Jurisprudence is unclear as
to whether St. Augustine, as a lessee, has a right of action to pursue a claim for property damages

or loss of property value under these circumstances. Additionally, there are fact issues in dispute
regarding the extent of the obligation assumed by St. Augustine by way of the lease agreement.
Summary judgment should be granted only where there is a question of law to be decided and
there is no issue of fact to be tried.83 Where a decision of a question of law by the court depends
on an inquiry into the surrounding facts and circumstances, the court should refuse to grant a
motion for summary judgment until the facts and circumstances have been sufficiently developed
to enable the court to be reasonably certain that it is making a correct determination of the question
of law.84 To that end, granting summary judgment on these issues would be inappropriate. Thus,
the Court denies summary judgment as to these claims.

81 Rec. Doc. 31-6 at 3.
82 Id. at 5.
83 Shahid v. Gulf Power Co., 291 F.2d 422 (5th Cir. 1961).
84 N. L. R. B. v. Smith Industries, Inc., 403 F.2d 889 (5th Cir. 1968).
B. St. Augustine’s Claim for Costs for Improvements and Additions to the Gymnasium
Defendants argue that St. Augustine has no claim for damages for betterment and
improvements to the gymnasium building.85 Defendants contend that St. Augustine renamed the
gymnasium building and made an announcement that it would rebuild a “new and improved Health
and Wellness Center” consisting of three levels, new “modernized” products, a wellness room,
additional bathrooms, a coaches’ office, championship pavilion, and a mezzanine area.86
Defendants state that St. Augustine seeks from Defendants the full cost of its new Health and
Wellness Center project as property damages in this case.87 Defendants aver that St. Augustine

can only recover damages to restore the property to its pre-damage condition, not a better
condition.88
In opposition, St. Augustine refers to Section 8 of the lease agreement which grants it the
right to address and resolve maintenance items, repairs, and improvements.89 Louisiana
jurisprudence has established that the assessment of property damage suffered by a plaintiff is
intended to place the injured party in the same position he was in prior to the accident, not in a
better position.90 “When property is damaged through the legal fault of another, the primary
objective is to restore the property as nearly as possible to the state it was in immediately preceding

85 Rec. Doc. 31-3 at 8.
86 Id. at 9–10.
87 Id. at 10.
88 Id. at 11.
89 Rec. Doc. 34 at 5.
90 Lemon v. Fein, 467 So. 2d 548, 554 (La. App. 4th Cir. 1985); Cenac v. Duplantis Moving & Storage Co.,
407 So. 2d 424 (La. App 1st Cir. 1981).
the damage, it is well settled that the measure of damage is the cost of restoring the property to its
former condition.”91
As stated above, “[t]he 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.”92 St.
Augustine does not present any evidence or legal authority to support a claim for damages for
improvements and additions to the gymnasium. As such, the Court finds that St. Augustine’s
recoverable damages are limited to the cost of restoring the gymnasium to its former condition.

Thus, there are no issues of fact in dispute and summary judgment is warranted in favor of
Defendants on this issue.
B. St. Augustine’s Claim for Increased Cost of Insurance
Defendants argue that damages in the form of increased cost of insurance (higher insurance
premiums) as a result of a loss to the insured are not recognized as a recoverable element of
damages in Louisiana.93 Defendants further argue that St. Augustine has failed to present any
evidence to support said claim.94 St. Augustine does not address this argument. As stated above,
“[t]he nonmoving party must set forth ‘specific facts showing the existence of a “genuine” issue
concerning every essential component of its case.’”95

91 Coleman v. Victor, 326 So. 2d 344, 346–47 (La. 1976).
92 Little, 37 F.3d at 1075 (internal citations and quotation marks omitted).
93 Rec. Doc. 31-3 at 13.
94 Id.
95 Morris, 144 F.3d at 380; see also Bellard v. Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012).
It is well-established under Louisiana law that no cause of action exists for a claim for
increased insurance premiums.96 “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.”97 St. Augustine does not present any evidence or legal
authority to support a claim for increased cost of insurance coverage. As such, the Court finds that
there are no material facts in dispute and summary judgment is warranted in favor of Defendants
on this issue.
C. St. Augustine’s Claim for Damages for Non-Compliance with Loan Covenants

Defendants argue that St. Augustine has no legal right to pursue damages for non-
compliance with loan covenants due to limited property and casualty insurance coverage.98
Defendants assert that this element of damages is derivative of the claim of increased costs of
insurance discussed above.99 Defendants contend that St. Augustine was not able to provide any
evidence to support such a claim.100 Defendants submit that St. Augustine’s representatives
testified that they have had no conversations with any lenders or prospective lenders regarding the
effect of insurance coverage.101 St. Augustine does not address this issue in opposition. As stated

96 Burmaster v. Plaquemines Parish Government, 2010- 1543 (La. App. 4 Cir. 3/30/11), 64 So. 3d 312, 319;
Nikolaus v. City of Baton Rouge/Parish of East Baton Rouge, 2009-2090 (La. App. 1 Cir 6/11/10), 40 So. 3d 1244,
1248; Severn Place Associates v. American Building Services, Inc., 05-859 (La. App. 5 Cir. 4/11/06), 930 So. 2d
125,129; Louisiana Swabbing Service, Inc. v. Enterprise Products Co., 2000-1161 (La. App. 3 Cir. 5/2/01), 784 So.
2d 862, 866–867.
97 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)).
98 Rec. Doc. 31-3 at 14.
99 Id.
100 Id.
101 Id.
above, “[t]he nonmoving party must set forth ‘specific facts showing the existence of a “genuine”
issue concerning every essential component of its case.’”102 St. Augustine does not present any
evidence or legal authority to support a claim for damages for non-compliance with loan
covenants. As such, the Court finds that there are no issues of material fact in dispute and summary
judgment is warranted in favor of Defendants on this issue.
D. St. Augustine’s Claim for Past, Present, and Future Mental Pain and Suffering
Defendants argue that St. Augustine has no legal right to pursue damages for past, present,
and future mental pain and suffering.103 Defendants contend that said damages are not recognized

in Louisiana as a recoverable element of damages for a corporation.104 Defendants further contend
that St. Augustine cannot pursue a claim for mental anguish on behalf of others, such as students,
staff, or shareholders.105 St. Augustine does not address this issue in its opposition. As stated
above, “[t]he nonmoving party must set forth ‘specific facts showing the existence of a “genuine”
issue concerning every essential component of its case.’”106 It is well-established in Louisiana that
a corporate entity cannot suffer mental anguish,107 nor can one recover for mental anguish suffered
by another.108 St. Augustine has not presented any evidence or legal authority to support a claim

102 Morris, 144 F.3d at 380; see also Bellard v. Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012).
103 Id. at 15.
104 Id.
105 Id. at 15 – 16.
106 Morris, 144 F.3d at 380; see also Bellard v. Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012).
107 Bayou Fleet Partnership v. Clulee, 19-934 (La. App. 5 Cir. 9/10/14), 150 So. 3d 329, at 333–34; M & A
Farms, Ltd. v. Town of Ville Platte, 422 So. 2d 708, at 711 (La. App. 3rd Cir. 1982); Pontchartrain Gardens, Inc. v.
State Farm General Ins. Co., 2009 WL 86671 (E.D.La 1/13/2009); AT&T Corp. v. Columbia Gulf Transmission
Co., 2008 WL 4585439 (W.D. La. 9/15/2008).
108 One River Place Condominium Association v. Axis Surplus Ins. Co., 629 F.Supp.2d 613, 617 (E.D. La.
2019).
for past, present, and future mental pain and suffering. As such, the Court finds that there are no
issues of material fact in dispute and summary judgment is warranted in favor of Defendants on
this issue.
V. St. Augustine’s Motion for Extension of Deadlines for Experts
On November 17, 2023, Plaintiff St. Augustine filed a motion requesting that the Court
extend the expert deadlines set out in the Scheduling Order.109 St. Augustine requests that its expert
deadline be extended from the current deadline of November 17, 2023 to December 1, 2023.110 St.
Augustine also requests that Defendants’ expert deadline be extended from December 15, 2023 to

December 29, 2023.111 St. Augustine contends that it needs to add a property damage expert and
to submit any report generated.112 St. Augustine asserts that an extension would put the parties in
a better position to settle this matter, and no party is subject to prejudice.113
On December 4, 2023, Defendants filed an opposition to the motion.114 Defendants contend
that the requested extension would prejudice Defendants since it would lessen the amount of time
that Defendants have to perform expert discovery and take trial depositions prior to the January 5,
2024 deadline in the Court’s Scheduling Order, and to file any necessary Daubert motions which
must be heard by January 24, 2024.115 Defendants contend that the December 1, 2023 extension

109 Rec. Doc. 32-1.
110 Id. at 1.
111 Id.
112 Id. at 2.
113 Id.
114 Rec. Doc. 41.
115 Id. at 1–2.
date requested by St. Augustine has passed without the production of a damages expert report or
damages expert designation.116 Defendants assert that St. Augustine’s motion is moot and should
not be considered by the Court.117
The Court, in its discretion, finds that St. Augustine has shown good cause for the
modification of the Court’s Scheduling Order. Considering the representations made by St.
Augustine and the March 11, 2023 trial date, the Court grants the parties a two-week extension for
expert deadlines.
VI.Conclusion

For the reasons stated herein, the Court finds that the undisputed facts in the record indicate
that summary judgment is warranted in favor of Defendants for the following claims: (1) costs of
improvements and additions, (2) increased cost of insurance coverage, (3) non-compliance with
loan covenants, and (4) past, present, and future mental pain and suffering, and Defendants are
entitled to judgment as a matter of law. However, Defendants’ Motion for Summary Judgment
is denied regarding St. Augustine’s claims for property damage and loss of property value as
genuine facts remain in dispute. Additionally, the Court finds that St. Augustine has shown
good cause for the modification of the Court’s Scheduling Order. Accordingly,
IT IS HEREBY ORDERED that Defendants’ Motion for Partial Summary Judgment is

GRANTED IN PART AND DENIED IN PART. St. Augustine’s claims for: (1) costs of
improvements and additions, (2) increased cost of insurance coverage, (3) non-compliance with
loan covenants, and (4) past, present, and future mental pain and suffering are hereby

116 Id. at 2.
117 Id.
DISMISSED. Summary Judgment is DENIED as to St. Augustine’s claims for property damage
and loss of property value.
IT IS FURTHER ORDERED that St. Augustine’s Motion for Extension of Expert
Deadlines is GRANTED. Discovery is reopened for the limited purpose of expert discovery.
Plaintiffs shall file their expert report within two weeks of this Order, on or before January 31,
2024. Defendants shall file their expert report on or before February 14, 2024.
IT IS FURTHER ORDERED that the deadline for Daubert motions is extended to March
1, 2024. Any other pre-trial deadlines not addressed herein shall remain in place.
NEW ORLEANS, LOUISIANA, this 17th day of January, 2024.

NANNETTE JQVIVETTE BROWN
CHIEF JUDGE
UNITED STATES DISTRICT COURT

20

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10190380. Public record. Not legal advice.