ANNA JOHNSON, Plaintiff VERSUS IMPERIAL FIRE & CASUALTY INSURANCE COMPANY
CIVIL ACTION No. 07-4255 SECTION I/2
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF
LOUISIANA, NEW ORLEANS DIVISION
2007 U.S. Dist. Ct. Pleadings 42552; 2008 U.S. Dist. Ct.
Pleadings LEXIS 1149
August 22, 2008
Complaint
COUNSEL: [*1] Paul C. Miniclier (# 17062), David A. Binegar (# 26603), The Law
Office of Paul C. Miniclier, 1305 Dublin Street, New Orleans, Louisiana 70118, (504)
864-1276, Attorneys for Plaintiff, Anna Johnson.
TITLE: COMPLAINT AND JURY DEMAND
TEXT: CIVIL ACTION
NOW INTO COURT, through undersigned counsel, comes plaintiff, Anna Johnson, and
files her Complaint and Jury Demand as follows.
I. JURISDICTION AND VENUE
1. Jurisdiction is proper under the National Flood Insurance Act of 1968, 42 U.S.C.
4001, and federal common law, as well as this Court's supplemental/pendent jurisdiction. Venue is proper in this Court pursuant to 28 U.S.C. § 1331.
II. THE PARTIES
2. Plaintiff, ANNA JOHNSON, is of the full age of majority and a resident of the Parish
of Orleans and the State of Louisiana.
3. IMPERIAL FIRE & CASUALTY INSURANCE COMPANY, is a foreign insurance company
authorized to do and/or doing business in the Parish of Orleans, State of Louisiana
and subject to the jurisdiction of this Honorable Court, ("Imperial") which at all
times pertinent herein was the WYO and/or flood insurer of [*2] Anna Johnson for
the property located at 2521-2523 Law Street, New Orleans, Louisiana 70117, which
issued a flood insurance poncy to plaintiff.
III. FACTUAL BACKGROUND
4. On or about August 29, 2005, Hurricane Katrina, as predicted by weather
forecasters, passed through New Orleans, Louisiana, and thereafter caused massive
damage, including storm water, flood and wind damage to component parts and contents
of plaintiff's residence located at 2521-2523 Law Street, New Orleans, Louisiana
70117, including but not limited to ancillary structures insured by the insuring
agreements between plaintiff and defendant insurance companies. The building,
ancillary building and contents were a total loss entitling plaintiff to the full
insurable amount shown on her policy for building and structures.
5. At all times relevant hereto, plaintiff owned the insured residence and resided
there until she was forced to evacuate by mandatory evacuation orders issued by the
Governor of the State of Louisiana and the Mayor of New Orleans.
6. At all times material hereto, plaintiff had an insurance contract in effect with
"Imperial" for flood dwelling and contents and with Alliance [*3] Insurance Agency
for homeowners' dwelling, contents, other structures, and loss of use/ALE. The
applicable insurance contracts specifically provided coverage for the incident that
occurred on and after August 29, 2005.
7. Plaintiff's residence, as a result of the above sudden and accidental event was
severely damaged and/or destroyed, and received flood waters that caused severed
damage to property in excess of flood policy limits. The National Weather Service
reported the landfall winds reached and/or exceeded 145 MPH at 6:00 a.m. on August
29, 2005. Katrina passed just to the east of the City of New Orleans; the winds were
at and/or in excess of 135 MPH at 8:00 a.m. The eye of Katrina was 32 miles in diameter
and Katrina's winds radiated 125-150 miles from the center. The strength and magnitude
of Katrina's violent winds and subsequent water surge leave little doubt that the
high velocity wind force and surging water was the "efficient proximate cause" of
the damage to plaintiffs' building and ancillary structures and total destruction/loss of plaintiffs' building and ancillary structures. As a result of this
damage, subsequent storms and/or weather further aggravated and/or [*4] contributed
to the property loss.
8. Plaintiff's residence sustained massive damage as a result of a sudden and
accidental event that proceeded or occurred as a result of an otherwise covered peril
as defined in her policy of insurance.
9. Following the storm, plaintiff notified her flood insurance company of her total
loss and filed her claim.
10. Subsequently, Imperial sent adjusters and/or other authorized representatives
to evaluate plaintiff's flood losses.
11. The flood adjuster that came to plaintiff's home assessed the plaintiff's damage.
12. Imperial offered to pay plaintiff $ 88,233.87 for the damage to her dwelling.
The $ 88,233.87 was less than the damage actually sustained by Ms. Johnson's residence
as a result of the flood waters.
13. Imperial and/or its authorized agents advised the plaintiff that the value of
her covered loss under her flood policy was significantly less then the true value
of the damages and/or the necessary repairs to the residence and/or other structures.
14. At all times material hereto, plaintiff has fully cooperated with Imperial and
provided access to the residence, as well as claim documentation to the best [*5]
of her ability.
IV. CAUSES OF ACTION
FIRST CAUSE OF ACTION: BREACH OF CONTRACT
15. Plaintiff realleges and reavers each and every allegation contained in Paragraphs
1 through 14, as if delineated here in extenso.
16. Imperial breached its contract of insurance with plaintiff by:
A. Failing to promptly and reasonably adjust the claim;
B. Failing to properly train and/or instruct its adjusters and/or agents;
C. Failing to provide uniform and/or standard guidelines and/or materials
to adjusters and/or agents to properly evaluate claims;
D. Failing to take into account increases in the cost of labor, material
and/or replacement cost and adjusting claims for these increased costs;
E. Failing to timely provide sufficient funds for the repairs and replacement of the subject property;
F. Failing to pay for sufficient living expenses incurred by plaintiff
after she evacuated her insured residence in the time frame of the relevant
insurance contract;
G. Failing to promptly adjust and properly pay the policy limits for the
plaintiff's total loss of buildings;
H. Failing to provide sufficient funds for the repair or [*6] replacement of the
contents contained in the subject property, as per policy provisions; and
I. Any other acts or omissions to be shown at trial on the merits.
SECOND CAUSE OF ACTION: NEGLIGENT MISREPRESENTATION
17. Plaintiff realleges and reavers each and every allegation contained in Paragraphs
1 through 16, as if delineated here in extenso.
18. Imperial further breached its contract with plaintiff and/or acted negligently
by the following actions:
A. Failing to respond to verbal requests and correspondence in a timely manner;
B. Failing to properly and timely adjust this case consistent with insurance industry
standards;
C. Failing to provide any reasonable basis for denying payment on this claim now months
following the incident;
D. Failing to meet its duty owed to plaintiff to engage in good faith and fair dealings;
and
E. Any other actions or omissions that will establish bad faith, breach of contract
and/or negligence which will be proven at the trial on the merits.
THIRD CAUSE OF ACTION: DECLARATORY JUDGMENT
19. Plaintiff realleges and reavers each and every allegation contained in Paragraphs
1 through 18, as if [*7] delineated here in extenso.
20. Plaintiff seeks a declaratory judgment for the purposes of determining a question
of actual controversy between the parties concerning her rights, obligations, and
coverages under the subject policy.
21. Plaintiff seeks a declaration that the flood policy provides full insurance
coverage for all damage to the insured residence, property, and loss of use caused
by Hurricane Katrina.
FOURTH CAUSE OF ACTION: SPECIFIC PERFORMANCE
22. Plaintiff realleges and reavers each and every allegation contained in
Paragraphs 1 through 21, as if delineated here in extenso.
23. Imperial entered into the subject contract of insurance with the plaintiff
wherein it clearly and expressly agreed to provide insurance coverage for physical
loss to property, contents and loss of use proximately and efficiently caused by a
flood. Plaintiff in turn paid Imperial substantial premiums in consideration for the
agreed upon hurricane/flood coverage.
24. Plaintiff has now suffered severe damage to her insured residence and property
as a proximate and direct result of Hurricane Katrina and/or subsequent storms or
weather and has consequently been denied use [*8] of her residence as well.
25. Plaintiff performed her end of the bargain and is accordingly now entitled
to specific performance of the flood insurance contract. The Court should therefore
require Imperial to specifically perform such agreement.
FIFTH CAUSE OF ACTION: UNJUST ENRICHMENT
26. Plaintiff realleges and reavers each and every allegation contained in
Paragraphs 1 through 25, as if delineated here in extenso.
27. Despite realizing substantial premium from plaintiff, Imperial has withheld
the insurance proceeds owed to plaintiff for the hurricane damage to her insured
property.
28. Imperial has therefore been unjustly enriched at plaintiff's expense.
SIXTH CAUSE OF ACTION: IMPERIALS'S VIOLATION OF THE NATIONAL FLOOD INSURANCE ACT,
CODE OF FEDERAL REGULATIONS AND FEDERAL COMMON LAW
29. Plaintiff realleges and reavers each and every allegation contained in
Paragraphs 1 through 28, as if delineated here in extenso.
30. At all material times, Imperial negligently and in bad faith failed to adjust
plaintiff's claims properly.
31. At all material times, Imperial and its agents violated its own rules for
adjusting flood claims.
32. At all material times, [*9] Imperial and its agents violated the National
Flood Insurance Act, the flood insurance regulations issued by NFIP, and federal
common law.
33. Imperial violated the NFIA, flood insurance regulations, and federal common
law and federal common law bad faith laws in the adjustment of plaintiff's flood claims
in the following non-exclusive particulars: (1) failing to timely adjust plaintiff's
flood claims; (2) failing to honor plaintiff's satisfactory proof of loss; (3) failing
to properly train its adjusters and agents; (4) failing to provide its adjusters and
agents with proper uniform materials with which to properly evaluate claims; (5)
failing to take into account the economic climate after Hurricane Katrina; (6) failing
to account for the increase in labor, materials, costs, and time in valuing
plaintiff's claims; and (7) any and all misconduct as becomes known before trial.
34. As a result of its misconduct, Imperial is liable to plaintiff for all damages
occasioned by its misconduct, specific and general, as well as attorneys' fees, costs,
interests, penalties.
SEVENTH CAUSE OF ACTION: BAD FAITH
35. Plaintiffs reallege and reaver each and every allegation contained in [*10]
Paragraphs 1 through 27, as if delineated here in extenso.
36. Pursuant to La. R. S. 22:1220; La. R.S. 22:658 and La. C.C. Art. 1997, Imperial
further breached its duty of good faith and fair dealing, as well as its affirmative
duty to adjust claims fairly and promptly and to make a reasonable effort to settle
claims with plaintiffs by:
A. Failing to issue a property insurance contract to plaintiffs that
contained exclusionary language that is narrowly drafted;
B. Failing to issue a property insurance contract to plaintiffs that
contained exclusionary language that was defined within the agreement;
C. Failing to issue a property insurance contract to plaintiffs that is
not designed to be used to deny coverage for the cost of repairs and
restoration of plaintiffs' property as a result of the damages arising from
an occurrence or covered peril as defined in the policy;
D. Failing to issue a policy of insurance that will provide for the repair
of any covered damage resulting from a covered accident and direct physical
loss which resulted from the high velocity hurricane winds that damaged
plaintiffs' property and destroyed its contents; [*11]
E. Failing to provide a property insurance contract that is unambiguous;
F. Failing to pay plaintiffs sufficient additional living expenses;
G. Failing to sufficiently pay plaintiffs for contents damages;
H. Failing to pay a settlement within thirty (30) days after the agreement
is reduced to writing;
I. Failing to pay the full amount of any claim due the plaintiffs within
sixty (60) days after receipt of satisfactory proof of loss;
J. Failing to promptly adjust the claim within thirty (30) days of being
notified by petitioners.
K. Failing to reasonably and promptly adjust the amounts of the claim to
reflect increases in the costs of repairs and/or replacement;
L. The defendants failure and/or omissions constitute bad faith in that
they were arbitrary and capricious, all of which entitles plaintiffs to
recover attorney's fees, costs and penalties as allowed by law; and
M. Any other acts or omissions to be shown at trial on the merits.
37. Defendant Imperial's failures were willful and/or intentional and/or arbitrary and capricious so that the plaintiffs are entitled to an award of penalties,
attorney's fees and costs.
PRAYER FOR
[*12]
RELIEF
WHEREFORE, plaintiff is entitled to full insurance coverage under the Imperial
flood policy of insurance for the damage to the insured residence and property caused
by Hurricane Katrina and other such, equitable relief set for in the petition,
including, but not limited to:
A. A Declaration and/or Judgment by this Court that the subject policy provides
full insurance coverage for the damages caused by Hurricane Katrina to plaintiff's
insured residence;
B. A Declaration and/or Judgment that Imperial violated the National Flood
Insurance Act, the Code of Federal Regulations interpreting same, and federal common
law in the adjusting, claims handling and payment of flood insurance proceeds under
the NFIP flood policy of insurance.
C. Federal common law bad faith damages against Imperial, including attorney's
fees, court costs and any other damages incurred by plaintiff as a result of the bad
faith of Imperial;
D. Court costs, expenses, and judicial interest; and
E. Any and all other equitable relief deemed appropriate by this Court.
JURY DEMAND
The plaintiff respectfully prays for a trial by jury of all claims.
WHEREFORE, plaintiff, Anna Johnson, [*13] respectfully prays after due
proceedings be had that there be a judgment entered in her favor and against defendants
awarding damages, prejudgment interest, post judgment interest, attorney's fees and
costs, punitive and/or exemplary damages as may be allowed by law and for further
relief as equity and justice require.
Respectfully submitted,
/s/ [Signature]
Paul C. Miniclier (# 17062)
David A. Binegar (# 26603)
The Law Office of Paul C. Miniclier
1305 Dublin Street
New Orleans, Louisiana 70118
(504) 864-1276
Attorneys for Plaintiff, Anna Johnson
PLEASE SERVE:
IMPERIAL FIRE & CASUALTY INSURANCE COMPANY
through its registered agent for service of process,
Louisiana Secretary of State, Al Ater
8549 United Plaza Boulevard
Baton Rouge, Louisiana 70809