The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
FANNIE BROWN CIVIL ACTION
VERSUS 18-1069-SDD-RLB
GERALDINE CLARK, et al.
RULING
This matter is before the Court on the Motion for Partial Summary Judgment1 filed
by Defendant, Liberty Personal Insurance Company (“Liberty Mutual”). Plaintiff Fannie
Brown (“Brown” or “Plaintiff”) filed an Opposition,2 to which Liberty Mutual filed a Reply.3
For the reasons that follow, the Court finds that Liberty Mutual’s Motion shall be
GRANTED.
I. FACTUAL AND PROCEDURAL BACKGROUND
This action began in the 19th Judicial District Court for East Baton Rouge Parish,
where, on January 4, 2018, Brown filed suit against Defendant Geraldine Clark and her
insurers, seeking damages related to a motor vehicle collision.4 Also made defendant
therein was Brown’s own insurer, Liberty Mutual. On August 31, 2018, Brown filed an
Amended and Supplemental Petition in that suit, making various allegations against
Wright National, which had issued a Standard Flood Insurance Policy (“SFIP”) covering
1 Rec. Doc. No. 103.
2 Rec. Doc. No. 106.
3 Rec. Doc. No. 107.
4 Rec. Doc. No. 1-1.
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Brown’s residence in Baton Rouge, Louisiana, which was damaged by flooding in
August 2016.5 Wright National properly removed the suit to this Court on December 7,
2018.6
In this Motion for Summary Judgment, Liberty Mutual seeks partial summary
judgment on Brown’s bodily injury claims and related bad faith claims stemming from the
January 15, 2017 motor vehicle accident that gave rise to this suit. Liberty Mutual argues
that to recover under her uninsured motorist (UM) coverage, Brown must, as a matter of
Louisiana law, demonstrate that the tortfeasor, Geraldine Clark, was underinsured and
that Brown’s damages exceed the $15,000 already paid to her by Clark and her insurer,
Farm Bureau Insurance Company. According to Liberty Mutual, Brown “simply has not
come forward with any evidence to demonstrate that she has sustained economic
damages that exceed the amounts available to her under”7 Clark’s Farm Bureau
insurance policy. Moreover, Liberty Mutual argues, Brown’s corresponding claims for
bad faith penalties and attorney’s fees should be dismissed with prejudice because,
under Louisiana law, a bad faith claim requires a “valid underlying claim”8 to survive; in
its view, Brown does not have one.
Brown’s Opposition to the Motion attempts to defeat summary judgment by
repeatedly explaining that Liberty Mutual is in receipt of her medical records, which, she
claims, detail her neck and shoulder pain and make “clear that the damage. . . exceeded
5 Rec. Doc. No. 1-2.
6 Rec. Doc. No. 1.
7 Rec. Doc. No. 103-1, p. 2.
8 Naquin v. Elevating Boats, L.L.C., 817 F.3d 235, 240 (5th Cir. 2016).
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the policy limits of $15,000.”9 In its Reply, Liberty Mutual does not dispute that it received
Brown’s medical records, nor does it “necessarily disagree that Ms. Brown sustained
some injury in the accident.”10 Per Liberty Mutual, however, the records contain “no
evidence of plaintiff’s economic losses exceeding $15,000, which would then trigger the
Policy’s UM coverage.”11 Because proving economic damages is an essential element
of a UM claim, as discussed above, Liberty Mutual argues that the lack of evidence of
economic losses is fatal to Brown’s claim. After reviewing the parties’ briefs, the
summary judgment evidence, and the applicable law, the Court agrees with Liberty
Mutual and finds that summary judgment should be granted, for reasons explained
below.
II. LAW AND ANALYSIS
a. Summary Judgment Standard
“The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.”12 “When assessing whether a dispute to any material fact exists, we consider all
of the evidence in the record but refrain from making credibility determinations or weighing
the evidence.”13 A party moving for summary judgment “must ‘demonstrate the absence
of a genuine issue of material fact,’ but need not negate the elements of the nonmovant’s
9 Rec. Doc. No. 106, p. 21.
10 Rec. Doc. No. 102-1, p. 5 (emphasis original).
11 Rec. Doc. No. 107, p. 1-2.
12 Fed. R. Civ. P. 56(a).
13 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008).
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case.”14 If the moving party satisfies its burden, “the non-moving party must show that
summary judgment is inappropriate by setting ‘forth specific facts showing the existence
of a genuine issue concerning every essential component of its case.’”15 However, the
non-moving party’s burden “is not satisfied with some metaphysical doubt as to the
material facts, by conclusory allegations, by unsubstantiated assertions, or by only a
scintilla of evidence.”16
Notably, “[a] genuine issue of material fact exists, ‘if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.’”17 All reasonable factual
inferences are drawn in favor of the nonmoving party.18 However, “[t]he Court has no
duty to search the record for material fact issues. Rather, the party opposing the summary
judgment is required to identify specific evidence in the record and to articulate precisely
how this evidence supports his claim.”19 “Conclusory allegations unsupported by specific
facts … will not prevent the award of summary judgment; ‘the plaintiff [can]not rest on his
allegations … to get to a jury without any “significant probative evidence tending to
support the complaint.”’”20
14 Guerin v. Pointe Coupee Parish Nursing Home, 246 F.Supp.2d 488, 494 (M.D. La. 2003)(quoting Little
v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)(en banc)(quoting Celotex Corp. v. Catrett, 477 U.S.
317, 323-25)).
15 Rivera v. Houston Independent School Dist., 349 F.3d 244, 247 (5th Cir. 2003)(quoting Morris v. Covan
World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998)).
16 Willis v. Roche Biomedical Lab., Inc., 61 F.3d 313, 315 (5th Cir. 1995)(quoting Little, 37 F.3d at 1075 (5th
Cir. 1994)).
17 Pylant v. Hartford Life & Accident Ins. Co., 497 F.3d 536, 538 (5th Cir. 2007)(quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)).
18 Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985).
19 RSR Corp. v. Int’l Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010) (quoting Rogers v. Tenn. Gas Pipeline Co.,
136 F.3d 455, 458 (5th Cir. 1998)).
20 Nat’l Ass’n of Gov’t Employees v. City Pub. Serv. Bd., 40 F.3d 698, 713 (5th Cir. 1994) (quoting Anderson,
477 U.S. at 249).
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b. Evidence of Covered Damages
Brown’s Liberty Mutual insurance policy provided “economic-only”
uninsured/underinsured motorist coverage that would compensate her in the event that
she incurred medical expenses and other damages that exceeded the tortfeasor’s policy
limits.21 The Louisiana Supreme Court has held that “’satisfactory proof of loss’ in a claim
pursuant to UM coverage is receipt by the insurer of ‘sufficient facts which fully apprise
the insurer that (1) the owner or operator of the other vehicle involved in the accident was
uninsured or under insured; (2) that he [or she] was at fault; (3) that such fault gave rise
to damages; and (4) establish the extent of those damages.’”22 Liberty Mutual’s argument
for summary judgment focuses on element (4), specifically that Brown has never been
able “to demonstrate what medical expenses she has incurred as a result of the motor
vehicle accident.”23
Liberty cites Brown’s deposition testimony in support of this argument. Asked
whether she had submitted the records from the physical therapy she attended after the
collision to Liberty Mutual, she unequivocally stated, “No.”24 Likewise, when asked if she
had submitted medical bills to Liberty Mutual, Brown explained that “Liberty Mutual didn’t
receive these because they went to the other insurance company [Clark’ insurer, Farm
Bureau].”25 So, Brown admits that Liberty Mutual has not received medical bills that
21 Rec. Doc. No. 103-3, p. 29 et seq.
22 Reed v. State Farm Mut. Auto. Ins. Co., 2003-0107 (La. 10/21/03), 857 So. 2d 1012, 1022 (quoting McDill
v. Utica Mutual Insurance Company, 475 So.2d 1085, 1089 (La.1985)).
23 Rec. Doc. No. 103-1, p. 9.
24 Rec. Doc. No. 103-6, p. 33, 126:16-19.
25 Id. at p. 41, 158:13-16.
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establish the extent of her damages. Her digressive Opposition does not identify any
evidence that could prevent summary judgment on this point. Although she repeatedly
points to her discovery responses as evidence of her losses, none of those responses
provide evidence of her economic damages. Although medical records may demonstrate
that Brown was seen or treated by a physician, those records, absent bills or other
evidence of expenditures, are not ipso facto evidence of economic damages. In other
words, medical records indicative of injury are not probative of medical expenses. Plaintiff
Brown points to no record evidence of medical bills or medical expenses. Instead, she
insists that “all pertinent medical records were. . .provided” and that, based on those
records, Liberty Mutual had “notice of bodily injury exceeding policy limits.”26 This is a
conclusory statement that, in addition to being contradicted by her own testimony,
appears to be unsupported by any competent summary judgment evidence. Brown
identifies no such evidence, in any event; the Court will not comb the record seeking
documents that support her claim. Even if the evidence of Brown’s economic damages
did appear somewhere in the record, the United States Court of Appeals for the Fifth
Circuit has held that “[w]hen evidence exists in the summary judgment record but the
nonmovant fails even to refer to it in the response to the motion for summary judgment,
that evidence is not properly before the district court.”27 Indeed, the Fifth Circuit added,
“Judges are not like pigs, hunting for truffles buried in briefs.”28 Accordingly, because the
record reflects that Brown has failed to establish the extent of her damages as required
26 Rec. Doc. No. 106, p. 12.
27 Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003).
28 Id. (quoting U.S. v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)).
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by law, her bodily injury claims shall be dismissed with prejudice. Moreover, as Liberty
Mutual correctly points out, Louisiana law instructs that in order for a claim of statutory
bad faith to survive, it must be based on a valid underlying claim.29 Because Brown’s
underlying claim is dismissed, her related claim for bad faith penalties and attorney’s fees
is not viable and is also dismissed with prejudice.
III. CONCLUSION
For the reasons stated above, Liberty Mutual’s Motion for Partial Summary
Judgment30 is GRANTED and Plaintiff’s claims against Defendant Liberty Mutual are
hereby dismissed with prejudice.
IT IS SO ORDERED.
Signed in Baton Rouge, Louisiana the 17th day of August, 2020.
S
CHIEF JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
29 Naquin v. Elevating Boats, L.L.C., 817 F.3d 235, 240 (5th Cir. 2016) (citing Matthews v. Allstate Ins. Co.,
731 F.Supp.2d 552, 566 (E.D.La.2010)).
30 Rec. Doc. No. 103.
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