Cheek v. Bankers Specialty Insurance Company et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LINDSEY CHEEK 	CIVIL ACTION
VERSUS 	NO. 23-7106
CONVEX INSURANCE UK LTD, ET
AL.
SECTION “R” (1)
ORDER AND REASONS
Before the Court is defendant Convex Insurance Company UK Ltd.’s
(“Convex”) unopposed motion for summary judgment. 1 The Court grants the
motion.
I. 	BACKGROUND
The Court has reviewed the record and determines the undisputed
facts are as follows. 	Plaintiff Lindsey Cheek had an insurance policy with
Convex for her residential property at 70545 Riverside Drive, Covington,
Louisiana starting on May 24, 2021. 2 	Cheek simultaneously had a flood
insurance policy on the property with Bankers Specialty Insurance Company
(Bankers).3 Hurricane Ida damaged the property on August 29, 2021. 4
1 	R. Doc. 21.
2 	R. Doc. 21-1, at 1.
3 	Id.
4 	Id.
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On October 28, 2021, a representative of Fountain Group Adjusters
mailed Cheek an assessment of the damage to her property, assessing the
flood damage at $6,415.36. 5 	Fountain Group Adjusters performed the
inspection 	on 	behalf 	of 	Bankers. 6 	Bankers 	paid 	Cheek 	$5,165.36 	on
November 17, 2021.7
Cheek sued Bankers and Convex in state court on August 25, 2023,
asserting breach of insurance contract and bad faith handling of insurance
claims. 8 	The defendants removed the action to federal court on November
29, 2023. 9 Bankers and Cheek settled on September 26, 2024. 10
Thereafter, Convex moved for summary judgment. Convex asserts that
it did not breach the insurance contract, nor did it violate the Louisiana bad
faith statutes because it did not receive notice of the claim until this
litigation. 11
The Court considers the motion below.
5 	R. Doc. 1-2, at 3.
6 	Id.
7 	Id.
8 	R. Doc. 1-2.
9 	R. Doc. 1.
10 	R. Doc. 9.
11 	R. Doc. 20. Convex construed notice of this litigation as notice of the
claim. Convex subsequently inspected the property on June 28, 2024
and paid Cheek $23,171.99 through her counsel for this litigation. R.
Doc. 21-2, at 3.
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II. 	LEGAL STANDARD
Summary judgment is warranted when “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.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). 	The Court considers the evidence in
the 	record 	without 	making 	credibility 	determinations 	or 	weighing 	the
evidence. Delta & Pine Land Co. v. Nationwide Agribusiness Ins., 530 F.3d
395, 398-99 (5th Cir. 2008). All reasonable inferences are drawn in favor of
the nonmoving party. 	Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216
(5th Cir. 1985). If the record could not lead a rational trier of fact to find for
the nonmoving party, there is no genuine dispute of material fact. EEOC v.
Simbaki, Ltd., 767 F.3d 475, 481 (5th Cir. 2014).
If the dispositive issue is one on which the nonmoving party will bear
the burden of proof at trial, the moving party may satisfy its burden by
pointing out that the evidence in the record is insufficient with respect to an
essential element of the nonmoving party’s claim. 	See Celotex, 477 U.S. at
325. 	The burden then shifts to the nonmoving party, who must, by
submitting or referring to evidence, set out specific facts showing that a
genuine issue exists. See id. at 324. The nonmovant may not rest upon the
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pleadings but must identify specific facts that establish a genuine issue for
resolution.
In the Fifth Circuit, a district court may not grant a “default” summary
judgment on the ground that it is unopposed. Morgan v. Fed. Express Corp.,
114 F. Supp. 3d 434, 437 (S.D. Tex. 2015) (collecting cases). 	Even in the
context of unopposed motions for summary judgment, the movant must still
show that there is no genuine issue of material fact, and that it is entitled to
summary judgment as a matter of law. 	Hetzel v. Bethlehem Steel Corp., 50
F.3d 360, 363 n.3 (5th Cir. 1995). When a motion for summary judgment is
unopposed, a court may accept the movant's evidence as undisputed.
Morgan, 114 F. Supp. 3d at 437. 	Nevertheless, if the moving party fails to
meet its burden, the Court must deny its motion for summary judgment.
Hetzel, 50 F.3d at 362 n.3.
III. 	DISCUSSION
Here, Cheek asserts two claims: for breach of an insurance contract
and for bad faith handling of insurance claims under Louisiana law. 	To
establish either, Cheek must provide evidence that Convex received proof of
loss. See, e.g., Maldano v. Kiewit Louisiana Company, 146 So. 3d 210, 218
(La. App. 1 Cir. 2014); Rosen v. United Services Auto. Ass’n, 104 So. 3d 633,
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639 (La. App. 4 Cir. 2012); Lee v. Sapp, 234 So. 3d 122, 128 (La. App. 4 Cir.
2017).
In Louisiana, a breach of contract claim requires: 1) an obligation to
perform; 2) a failure to perform; and 3) damages arising from the failure to
perform. 	IberiaBank v. Broussard, 907 F.3d 826, 835 (5th Cir. 2018). For
the purposes of an insurance contract, failure to perform would be failure to
pay despite a proper claim. 12 	See Whitehead v. Curole, 277 So. 3d 409, 412
(La. App. 1 Cir. 2019); see also La. Rev. Stat. § 22:1973. 	The insurance
contract between Cheek and Convex provides that there is “no duty to
provide coverage” for a loss when there is a prejudicial failure to provide
“[p]rompt notice to” Convex or its agent. 13
Louisiana Revised Statute Sections 22:1892 and 22:1973 govern bad
faith insurance claims under Louisiana law. 14 	These penalty statutes are
12 	R. Doc. 21-2.
13 	R. Doc. 21-3, at 54.
14 	La. Rev. Stat. § 22:1973 was repealed, and La. Rev. Stat. § 22:1892 was
significantly amended, by Act No. 3 of the 2024 Regular Session,
effective July 1, 2024. 	See Act No. 3 of the 2024 Regular Session,
Senate Bill No. 232. 	However, in Louisiana, “[i]n the absence of
contrary legislative expression, substantive laws apply prospectively
only.” 	La. Civ. Code art. 6; see Bourgeois v. A.P. Green Indus., Inc.,
783 So. 2d 1251, 1257 (La. 2001). 	Because there was no legislative
expression in the Act to make it retroactively applicable, and because
Section 22:1973 is a substantive law, the Court makes an Erie guess
that its repeal applies prospectively. 	As this case was filed in August
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designed to “provide remedies to insureds whose insurance claims are
improperly handled or to whom payment is unreasonably delayed.” 	Lee v.
Sapp, 234 So. 3d 122, 128 (La. App. 4 Cir. 2017).
To establish a cause of action under Section 22:1982, a claimant must
show that “(1) an insurer has received satisfactory proof of loss, (2) the
insurer failed to tender payment within thirty days of receipt thereof, and (3)
the insurer's failure to pay is arbitrary, capricious, or without probable
cause.” Guillory v. Lee, 16 So. 3d 1104, 1126 (La. 2009).
Section 	22:1973 	subjects 	the 	insurer 	to 	damages 	and 	additional
penalties if (1) it receives satisfactory proof of loss, (2) it fails to pay a claim
within sixty days after receiving the proof of loss, and (3) the failure was
arbitrary, capricious, or without probable cause. La. Rev. Stat. § 22:1973(B)-
(C) (2023).
Satisfactory proof of loss is proof that is “sufficient to fully apprise the
insurer of the insured’s claims.” La. Bag Co. v. Audubon Indem. Co., 999 So.
2d 1104, 1119 (La. 2008) (quoting McDill v. Utica Mut. Ins. Co., 475 So. 2d
1085, 1089 (La. 1985)). 	The burden of proving the insurer received
satisfactory proof of loss is on plaintiff.
2023 and removed in November 2023, Section 22:1973 and the prior
version of Section 22:1982 still apply.
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Because Cheek would have borne the burden of proof on proof of loss
at trial, to defeat a motion for summary judgment, she must “go beyond the
pleadings and by her own affidavits, or by the depositions, answers to
interrogatories, and admissions on file, designate specific facts showing that
there is a genuine issue for trial.” See Celotex Corp., 477 U.S. at 324 (internal
quotation 	marks 	omitted). 	Cheek 	points 	to 	no 	competent 	summary
judgment evidence to raise a genuine issue of material fact as to whether she
provided Convex with proof of loss. 	There is nothing in the record that
suggests that plaintiff provided any proof of loss to Convex, let alone a
satisfactory proof of loss.
Convex submitted an affidavit of the claims coordinator who reviewed
Convex’s records and found “no evidence that a claim was submitted by or
on behalf of [Cheek] under the Policy for Hurricane Ida . . . .” 15 	There is no
genuine dispute of material fact on the issue of proof of loss. Proof of loss is
an essential element of all the nonmoving party’s claims. 	See Celotex, 477
U.S. at 325. Absent proof of loss, plaintiff’s breach of contract and bad faith
insurance claims must fail. Convex is entitled to judgment as a matter of law.
For the reasons set forth above, the Court grants Convex’s motion for
summary judgment.
15 	R. Doc. 21-4.
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IV. 	CONCLUSION
For the foregoing reasons, the Court GRANTS defendant’s motion for
summary 	judgment. 	The 	Court 	DISMISSES 	plaintiff’s 	claims 	WITH
PREJUDICE.
New Orleans, Louisiana, this 28th day of October, 2025.
_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
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