Williams v. U.S. Fire Ins.

• Decision Date: 05 October 2022
• Docket Number: 22-71
• Citation: Williams v. U.S. Fire Ins., 349 So.3d 684 (La. App. 2022)
• Parties: Richard and Judith WILLIAMS v. UNITED STATES FIRE INSURANCE, et al.
• Court: Court of Appeal of Louisiana

349 So.3d 684

Richard and Judith WILLIAMS

v.UNITED STATES FIRE INSURANCE, et al.

22-71

Court of Appeal of Louisiana, Third Circuit.

October 5, 2022

Marne A. Jones, Mark A. Hill, Martin Schneider, Thompson, Coe, Cousins & Irons, LLP, 650 Poydras Street, Suite 2105, New Orleans, LA 70130, (504) 526-4320, COUNSEL FOR DEFENDANTS/APPELLANTS: United States Fire Insurance Company, Trip Mate, Inc.

Judith M. Williams, 4501 Jackson Street, C-324, Alexandria, LA 71303, (318) 525-2708, COUNSEL FOR PLAINTIFFS/APPELLEES: Judith M. Williams, Richard Williams

William M. Ford, Susan Ford Fiser, Ford Law Office, LLC, 1630 Metro Drive, Alexandria, LA 71301, (318) 442-8899, COUNSEL FOR PLAINTIFFS/APPELLEES: Judith M. Williams, Richard Williams

Court composed of Elizabeth A. Pickett, Van H. Kyzar, and Candyce G. Perret, Judges.

PERRET, Judge.

This case is on appeal following a motion for summary judgment filed by Richard and Judith Williams, Plaintiffs-Appellees("Plaintiffs").United States Fire Insurance Company and Tripmate, Inc., Defendants-Appellants("Defendants"), appeal the Judgment that granted Plaintiffs’ motion for summary judgment.The judgment ordered Defendants to pay Plaintiffs’ medical expenses and medically related travel expenses ($97,980.24), as well as statutory damages ($97,980.24) and attorney fees ($4,000.00).Court costs were also assessed against Defendants.Additionally, Plaintiffs filed a Motion to File a Later Answer and an Answer to Appeal requesting that they be awarded judicial interest from April 16, 2020, an increased award for attorney fees in the amount of $25,000.00, and costs incurred in both courts.We affirm the trial court's judgment but deny Plaintiffs’ Motion to File a Later Answer.

FACTS AND PROCEDURAL HISTORY:

Plaintiffs purchased travel protection insurance for their trip when they booked a cruise to Norway with Viking Cruise Line.United States Fire Insurance Company("USFIC") was the underwriter for Part B of the travel insurance policy, while Tripmate, Inc.("Tripmate") was the adjuster for the insurance, and Generali Global ("Generali") was the contact for Plaintiffs while traveling abroad on the cruise.Part B included coverage for trip interruption, missed connection, travel delay, air flight only accidental death and dismemberment, medical expense/emergency assistance (accident & sickness medical expense; emergency medical evacuation, medical repatriation, and return of remains), non-medical emergency evacuation, baggage and personal effects, and baggage delay.

On March 10, 2020, during their trip, Mr. Williams presented to the ship infirmary with acute shortness of breath and chest pain.He was taken by ambulance to Helse Bergen Haukeland Universitetssjukehus, where he was treated for five days.Ultimately, Mrs. Williams hired private medical transport, REVA, which transported Mr. Williams back to the United States.REVA determined that emergency transportation was required and also that no lesser level of care was safe.Upon return, Mr. Williams was directly admitted to Intensive Care at Rapides Regional Medical Center.

On July 20, 2020, Plaintiffs filed a Petition for Damages asserting that the medical expenses and medical travel expenses they accrued were covered by the travel protection insurance they procured prior to their trip.The petition claims that USFIC was the underwriter for the medical expenses portion of the policy, and that Tripmate and Generali acted on behalf of USFIC.Additionally, Plaintiffs asserted that Generali was always kept informed of the situation and was asked to assist with transport home.However, Plaintiffs assert that Generali refused to speak with REVA representatives and did not provide its own transportation for Mr. Williams.Therefore, Plaintiffs concluded that Defendants breached the terms of the insurance contract and acted in bad faith.Further, Plaintiffs allege Tripmate continued to remain unresponsive to Plaintiffs’ requests once Plaintiffs returned home.Plaintiffs asserted Unfair Trade Practices and unfair settlement practices in their petition.Further, Plaintiffs alleged that Defendants failed to timely pay their claims after receiving proof of loss, entitling Plaintiffs to penalties and attorney fees under La.R.S. 22:1964 and 22:1973.

After no answer was received, Plaintiffs moved for, and were granted, a preliminary default on October 26, 2020.The preliminary default was not confirmed.On November 12, 2020, Generali was dismissed as a party at Plaintiffs’ request.

Plaintiffs filed an Amended Petition for Damages on January 4, 2021, against Viking Cruise Line,¹ USFIC, and Tripmate.The amended petition asserted the disputed contract was a health and accident contract subject to La.R.S. 22:1821, that Tripmate refused to communicate with REVA and refused to provide transportation, and that Tripmate and USFIC acted in bad faith in failing to assist in arrangements and in failing to honor the terms of the insurance contract.

Thereafter, Plaintiffs filed a Motion for Summary Judgment against USFIC and Tripmate on the issue of liability for failing "to pay insurance claim within the period permitted by law" as well as double and special damages.Plaintiffs asserted that Tripmate was kept apprised of Mr. Williams's medical emergency through Generali, refused to respond to requests for assistance, and failed to respond to the emergency within two days as required by La.R.S. 22:1821.Additionally, Plaintiffs alleged the related bills and claims were not paid or resolved within thirty days as required by La.R.S. 22:1821(A).Lastly, Plaintiffs asserted USFIC failed to timely answer a request for admissions and, consequently, those requests are deemed admitted.Attached to the motion was the Request for Admissions, First Set of Interrogatories and Request for Production, and the Affidavit of Steve Williams, RN, CEN, CFRN, Director of Global Air Medical Operations, REVA.

The motion was unopposed and granted on May 3, 2021.However, Defendants filed a Motion to Vacate and Motion for New Trial alleging breakdowns in notice and service of the motion.After a hearing on June 14, 2021, the May 3, 2021 Judgment was vacated and the Motion for New Trial was granted.

Plaintiffs subsequently filed a second Motion for Summary Judgment, which included several exhibits: Affidavit of Judith Williams with attachments (Advertisement for Insurance and Travel Protection Plan #UF425V with Louisiana Amendatory Endorsement² ); Affidavit of Steve Williams(REVA); Affidavit of Richard Williams; Plaintiffs’ Request for Admissions; and USFIC's responses to the Request for Admissions.³Mrs. Williams's affidavit related her prior experience as a registered nurse, facts pertinent to the cruise and procuring the travel insurance, facts regarding Mr. Williams's medical event and hospital stay, and discussed the Norwegian hospital facilities.Mrs. Williams also attested to the lack of communication and participation in planning from Tripmate, despite a meeting and ongoing communication with the Generali agent.Mrs. Williams further attested that the Norwegian and U.S. physicians agreed to the mode of travel due to Mr. Williams's condition.Finally, Mrs. Williams explained that Tripmate's failure to respond continued once Plaintiffs returned to the United States.

Steve Williams's affidavit explained that he was asked to review Mr. Williams's medical case in March of 2020.Steve Williams explained the considerations taken into account in determining modes of medical transport.In this case, two modes of travel were considered, including commercial medical escort, but ultimately Mr. Williams's condition necessitated private transport.The affidavit set forth the problems Mr. Williams would have encountered had he flown commercial, especially during the COVID-19 pandemic.

Defendants opposed the motion and attached Defendant's Responses to Plaintiffs’ Requests for Admissions as an exhibit in support of their opposition.⁴Therein, Defendants asserted that there are genuine issues of material fact regarding the extent of coverage and that discovery is not complete.Defendants alleged that Plaintiffs failed to obtain and submit Tripmate's Program Medical Advisor and/or the local attending physician's approval for the transport and, instead of obtaining permission, Mrs. Williams independently arranged transport by REVA.In their facts, Defendants assert these independent arrangements were made while efforts were being made by Tripmate to transport Mr. Williams according to the travel insurance provisions and pending approval from his physician.Therefore, after reviewing the claim submitted by Plaintiffs, including the severity of Mr. Williams's condition, Defendants determined reimbursement for "non-medical or registered nurse escort, and ground transportation" was warranted.Furthermore, Defendants argued that the travel insurance plan is not a health and accident policy subject to La.R.S. 22:1821.⁵

Thereafter, a hearing was held on October 11, 2021.After argument, the trial court granted summary judgment, stating:

The Court reviewed the document.Clearly there was coverage.The issue is whether or not the amount of the damages, the payment.And the policy required them to provide notice, and the law requires you all to respond within time limits.The, the 22 - - Revised Statute 22:1821 gives you two days in emergency situations, and then you have the thirty days to resolve the matter.

Like she stated, at this point, it's been a year and a half since this happened.I don't know if how much more evidence and how much more information.The affidavits clearly in her, um, attached to her Motion establish that there was an emergency; there was notice.You all don't dispute coverage.

So the Court grants the Motion for Summary Judgment.

Thereafter, on December 13, 2021, the trial court granted Defendants’ Petition for Suspensive Appeal.On January 6, 2022, the court granted Plaintiffs’ motion to...