     Case: 12-31064       Document: 00512558652         Page: 1     Date Filed: 03/12/2014




           IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals
                                                                                Fifth Circuit

                                                                            FILED
                                       No. 12-31064                       March 12, 2014

                                                                          Lyle W. Cayce
                                                                               Clerk
DANNY KELLY,

                                                  Plaintiff–Appellant
v.

STATE FARM FIRE & CASUALTY COMPANY,

                                                  Defendant–Appellee


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:09-CV-619



Before HIGGINBOTHAM, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
       Plaintiff–Appellant Danny Kelly (“Kelly”) sued State Farm Fire &
Casualty Company (“State Farm” or “insurer”) on behalf of Henry Thomas
(“Thomas”), one of State Farm’s insured customers. Kelly asserted two bad-faith
claims arising out of a car accident that occurred on November 21, 2005. Kelly
alleged that State Farm failed to notify Thomas of a settlement offer and failed
to settle Kelly’s claim against Thomas. The district court granted summary



       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
    Case: 12-31064       Document: 00512558652     Page: 2    Date Filed: 03/12/2014



                                    No. 12-31064

judgment in State Farm’s favor on both counts. For the reasons that follow, we
affirm in part, reverse in part, and remand for further proceedings.
                                          I
         On November 21, 2005, a car accident occurred involving Thomas and
Kelly.       Thomas and Kelly were driving opposite directions when Thomas
initiated a left turn. Thomas hit Kelly while making the left turn. Kelly and a
witness at the scene told police that Thomas failed to yield to oncoming traffic.
Thomas maintained that he was not negligent. Kelly was taken to a hospital by
ambulance and was treated for a fractured femur. His hospital stay lasted
approximately six days and cost $26,803.17.
         On January 6, 2006, Kelly’s attorney mailed a letter to Thomas’s insurer,
State Farm, regarding Kelly’s claim. The letter included copies of Kelly’s
hospital records and stated:
               Please find enclosed a copy of Danny Kelly’s Medical
         Summary with attached medical records/reports and bills
         concerning his hospital treatment for the above referenced incident
         involving your insured. I will recommend release of State Farm
         Insurance Company and your insured, Henry Thomas, Jr., for
         payment of your policy limits.

              Please give me a call in the next ten (10) days to discuss this
         matter.
The parties dispute, however, when this letter was received. According to Kelly’s
certified-mail receipt, the letter was accepted by “G. Johnson” on January 9,
2006. State Farm maintains that the letter was not received until February 14,
2006. A State Farm activity log indicates that State Farm received a demand
for “policy limits $25,000.00” on February 11, 2006.1 It does not appear that
State Farm ever responded to the letter.


         1
        The activity log technically shows “DEMAND REC’D: 2/11/05.” However, since the
accident did not occur until November 2005, this is likely a typo.

                                          2
    Case: 12-31064     Document: 00512558652      Page: 3   Date Filed: 03/12/2014



                                  No. 12-31064

      Kelly’s attorney spoke with State Farm representatives on March 8 and
March 22. During the March 22, 2006 conversation, the representative offered
to settle the case for $25,000, the policy limit. The offer was memorialized in a
letter dated March 23, 2006. Kelly’s attorney rejected the offer and proceeded
to file suit. On the day that Kelly rejected State Farm’s settlement offer, State
Farm mailed a letter to Thomas informing him of the possibility of personal
liability and suggesting that he consider retaining independent counsel. State
Farm’s letter to Thomas did not discuss the letter from Kelly’s attorney, State
Farm’s offer to Kelly, or the extent of Kelly’s medical bills.
      At trial, Thomas was found liable for the accident and judgment was
rendered against him for $176,464.07, plus interest. State Farm promptly paid
Kelly the policy limit. Under the terms of his policy, Thomas was liable for the
remainder of the judgment. However, Thomas entered into a compromise
agreement with Kelly. Thomas assigned Kelly his right to pursue a bad faith
action against State Farm in exchange for Kelly’s promise not to enforce the
judgment against Thomas’s personal assets.
      Kelly filed suit against State Farm soon thereafter, alleging two counts of
bad faith under Louisiana law. Kelly alleged that State Farm acted in bad faith
when it (1) failed to notify Thomas of Kelly’s January 2006 letter; and (2) failed
to accept Kelly’s January 2006 settlement offer. State Farm removed the case
to federal court and filed a motion for summary judgment. On November 8,
2011, the district court partially granted State Farm’s motion. The district court
granted summary judgment in State Farm’s favor on Kelly’s first argument,
holding that the January 2006 letter did not constitute a settlement offer and
that State Farm did not have a duty to notify Thomas when the letter was
received. The district court denied summary judgment on the second point,
however, stating that Kelly might be able to prove that State Farm’s failure to
settle the claim constituted bad faith.

                                          3
    Case: 12-31064      Document: 00512558652      Page: 4    Date Filed: 03/12/2014



                                   No. 12-31064

      State Farm moved for reconsideration on November 23, 2011, arguing that
State Farm could be liable for bad faith failure to settle only if it failed to accept
an actual offer and acted in bad faith. According to State Farm’s contention, the
district court’s finding that the January 2006 letter did not constitute an offer
necessarily precluded liability on Kelly’s second claim. The district court agreed
and revised its opinion to grant full summary judgment in State Farm’s favor.
Judgment was entered accordingly, and Kelly appealed.
                                         II
      We review the district court’s grant of summary judgment de novo. McFaul
v. Valenzuela, 684 F.3d 564, 571 (5th Cir. 2012).            Summary judgment is
appropriate when there is no genuine issue of material fact and the moving
party has shown it is entitled to judgment as a matter of law. Id. A dispute is
“genuine” if the evidence is sufficient for a reasonable jury to return a verdict for
the nonmoving party. Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th
Cir. 2000). A fact issue is “material” if its resolution could affect the outcome of
the action. Id. We construe all facts and all reasonable inferences in the light
most favorable to the non-moving party. McFaul, 684 F.3d at 571.
      When evaluating issues of state law, federal courts “look to the final
decisions of that state’s highest court.” Chaney v. Dreyfus Serv. Corp., 595 F.3d
219, 229 (5th Cir. 2010). “In the absence of such a decision, ‘[federal courts]
must make an Erie guess and determine, in [their] best judgment, how [the
supreme court of that state] would resolve the issue if presented with the same
case.’” Six Flags, Inc. v. Westchester Surplus Lines Ins. Co., 565 F.3d 948, 954
(5th Cir. 2009) (quoting In re Katrina Canal Breaches Litig., 495 F.3d 191, 206
(5th Cir. 2007)). “In making an Erie guess, [federal courts] defer to intermediate
state appellate court decisions, unless convinced by other persuasive data that
the highest court of the state would decide otherwise.”            Mem’l Hermann



                                          4
     Case: 12-31064       Document: 00512558652           Page: 5    Date Filed: 03/12/2014



                                       No. 12-31064

Healthcare Sys. Inc. v. Eurocopter Deutschland GMBH, 524 F.3d 676, 678 (5th
Cir. 2008) (internal quotation marks omitted).
                                              III
        The parties’ briefs and the district court’s orders at times seem to conflate
the various causes of action and concomitant legal standards relevant to this
lawsuit. This conflation stems in large part from confusion over Kelly’s position
as a party in this case. Kelly’s lawsuit is premised on the assignment of rights
he received in his settlement agreement with Thomas. In the settlement
agreement, Thomas assigned to Kelly his right to pursue bad faith claims
against State Farm in exchange for Kelly’s promise not to pursue Thomas’s
personal assets in satisfaction of the judgment. When rights are assigned by
contract, the assignee—here, Kelly—stands in the shoes of the assignor—here,
Thomas.2 See N.S.Q. Assocs. v. Beychok, 94-2760, p. 9 (La. 9/5/95), 659 So.2d
729, 734 (noting “the general concept that an assignee usually stands in the
shoes of his or her assignor”). Thus, whereas Kelly was a third-party claimant
vis-à-vis State Farm in the parties’ earlier lawsuit—as well as during all pre-suit
interactions—he stands in Thomas’s shoes as the insured in his capacity as
plaintiff here. Therefore, any cause of action Kelly claims here must be available
to the insured. Kelly is not asserting a third-party claimant’s claims. In fact, he
specifically disclaims any third-party claims in his brief. With this in mind,
there appear to be two possible bases for Kelly’s bad-faith claims against State
Farm: Louisiana Revised Statutes § 22:1892 and § 22:1973. We review each in
turn.




        2
         The Louisiana Supreme Court has affirmed that individuals may assign their contract
rights in the insurance context. See In re Katrina Canal Breaches Litig., 2010-1823, p. 11 (La.
5/10/11), 63 So. 3d 955, 962 (stating that, in the insurance context, “the Louisiana legislature
has clearly indicated an intent to allow parties freedom to assign contractual rights”).

                                               5
    Case: 12-31064        Document: 00512558652         Page: 6    Date Filed: 03/12/2014



                                       No. 12-31064

                                             A
      Section 22:1892 establishes rules governing the relationship between
insurers, their insured, and third-party claimants in a variety of circumstances.
La. Rev. Stat. § 22:1892. For purposes of this suit, two provisions are potentially
relevant: §§ 22:1892(A)(1) and (2). Subsection (A)(1) states that all insurers
“shall pay the amount of any claim due any insured within thirty days after
receipt of satisfactory proofs of loss from the insured or any party in interest.”
Id. § 22:1892(A)(1) (emphasis added). Section (A)(2) states that insurers “shall
pay . . . any reasonable medical expenses claim due any bona fide third party
claimant within thirty days after written agreement of settlement of the claim
from any third party claimant.” Id. § 22:1892(A)(2) (emphasis added).3 As
explained below, Kelly does not have a claim under either provision of § 22:1892
because the facts of this case do not fall within the statutory language.
      Subsection (A)(1) contemplates a cause of action only when the insurer
fails to pay a claim based on a satisfactory proof of loss received from the
insured. Id. § 22:1892(A)(1). While Kelly stands in Thomas’s shoes as the
insured for purposes of this suit, Kelly’s allegations focus on State Farm’s failure
to pay a claim based on a proof of loss submitted by Kelly as a third-party
claimant. Specifically, Kelly argues State Farm failed to settle his third-party
claim after he submitted a purported settlement letter and medical receipts in
January 2006. These documents do not fall within the statute’s language. The
assignment between Kelly and Thomas provided Kelly with the ability to make
Thomas’s bad-faith claims on his behalf; the assignment does not allow Kelly to
shoehorn his third-party claims into § 22:1892(A)(1). Kelly has not alleged that
Thomas submitted a proof of loss to State Farm or that State Farm failed to pay
Thomas based on a proof of loss. Because Kelly’s purported settlement letter


      3
          The parties do not dispute that the thirty-day period was not met here.

                                              6
     Case: 12-31064         Document: 00512558652           Page: 7     Date Filed: 03/12/2014



                                         No. 12-31064

and medical receipts did not constitute “a satisfactory proof of loss from the
insured,” Kelly cannot maintain a claim under § 22:1892(A)(1) as a matter of
law. Id. Therefore, summary judgment is appropriate. Fed. R. Civ. P. 56(a).
       Kelly cannot maintain a claim under subjection (A)(2) either, for two
reasons. First, Kelly has expressly disavowed any third-party claims in this suit,
and subsection (A)(2) only pertains to such claims.                       See La. Rev. Stat.
§ 22:1892(A)(2).        Second, subsection (A)(2) only mandates payment by an
insurer when the insurer and third-party claimant have produced a written
settlement agreement. Id. Since neither party suggests that a settlement was
reached between State Farm and Kelly, Kelly cannot maintain a cause of action
under subsection (A)(2). State Farm is thus entitled to judgment as a matter of
law. Therefore, summary judgment is appropriate. Fed. R. Civ. P. 56(a).
                                                B
       Section 22:1973 contains two relevant subsections: subsection (A) describes
broad duties that insurers owe to their insured and subsection (B) lists acts
which constitute a breach of insurers’ duties when knowingly committed.
Subsection (A) states that insurers owe their insured “a duty of good faith and
fair dealing” and an “affirmative duty . . . to make a reasonable effort to settle
claims.” La. Rev. Stat. § 22:1973(A).4 Two parts of subsection (B) are relevant

       4
         The parties debate how the Fifth Circuit’s opinions in Commercial Union Insurance
Co. v. Mission Insurance Co., 835 F.2d 587 (5th Cir. 1988), and Brown v. Liberty Mutual Fire
Insurance Co., 168 F. App’x 558 (5th Cir. 2006), impact this case. In Commercial Union, the
court held that “Louisiana law only imposes liability for an excess judgment against a primary
insurer if that insurer failed to accept an actual offer to settle within its policy limits and such
failure was negligent, arbitrary and/or in bad faith.” 835 F.3d at 588. The court reached this
conclusion while acknowledging that “Louisiana courts have not explicitly articulated the
requirement . . . that a firm settlement offer be on the table before an insurer can be held
liable for its arbitrary refusal to settle.” Id. at 588 n.2. In Brown, an unpublished decision,
the court rejected the bad-faith claim at issue in part because a letter sent by the plaintiff did
not constitute an actual offer. 168 F. App’x at 563.
        While the precise scope of a bad-faith failure-to-settle claim probably deserves attention
from the Louisiana Supreme Court, we are nevertheless bound by prior precedent holding that
an actual offer is required in order to maintain such a claim. See French v. Allstate Indem.

                                                 7
     Case: 12-31064        Document: 00512558652          Page: 8     Date Filed: 03/12/2014



                                        No. 12-31064

here: (B)(1), which forbids “misrepresenting pertinent facts . . . relating to any
coverages at issue[;]” and (B)(5), which states that an insurer violates its duty
if it “[f]ail[s] to pay the amount of any claim due any person insured by the
contract within sixty days after receipt of satisfactory proof of loss from the
claimant when such failure is arbitrary, capricious, or without probable cause.”
Id. §§ 22:1973(B)(1), (B)(5).
       While subsection (A) states the duties of insurers in broad, precatory
terms, the Louisiana Supreme Court has held that the list of conduct in
subsection (B) constitutes the exclusive list of conduct that provides a cause of
action under § 22:1973. Theriot v. Midland Risk Ins. Co., 95-2895, p. 15–16 (La.
5/20/97), 694 So. 2d 184, 193. The Louisiana Supreme Court considered the
scope of § 22:1973 in the context of third-party claims, but intermediate
Louisiana courts have nevertheless interpreted Theriot as holding that
subsection (B) provides an exhaustive list of possible causes of action for the
insured under § 22:1973. See, e.g., Arvie v. Safeway Ins. Co. of La., 2006-1266,
p. 2 (La. App. 3 Cir. 2/7/07), 951 So. 2d 1284, 1285; McGee v. Omni Ins. Co.,
2002-1012, p. 7–8, 10–11 (La. App. 3 Cir. 3/5/03), 840 So. 2d 1248, 1254, 1256.
                                               1
       A violation of (B)(1) “can occur when an insurer either makes untrue
statements to an insured concerning pertinent facts or fails to divulge pertinent


Co., 637 F.3d 571, 589 (5th Cir. 2011) (affirming binding effect of prior Fifth Circuit precedent
on a state-law issue absent a clear change in law). Since the January 2006 letter from Kelly’s
attorney only stated that Kelly’s attorney would “recommend” a release in exchange for
payment of the policy’s limit, the letter did not constitute an offer. See McPherson v. Cingular
Wireless, LLC, 2007-0462, p. 5–7 (La. App. 3 Cir. 10/3/07), 967 So. 2d 573, 577–78 (holding that
“noncommittal” language in an employee handbook did not modify the parties’ contract of
employment); Restatement (Second) of Contracts § 26 (1981) (“A manifestation of willingness
to enter into a bargain is not an offer if the person to whom it is addressed knows or has
reason to know that the person making it does not intend to conclude a bargain until he has
made a further manifestation of assent.”). Therefore, Kelly cannot maintain a cause of action
as a matter of law, and State Farm was entitled to summary judgment on Kelly’s bad-faith
failure-to-settle claim.

                                               8
    Case: 12-31064     Document: 00512558652      Page: 9   Date Filed: 03/12/2014



                                  No. 12-31064
facts to the insured.” McGee, 840 So. 2d at 1256. Some intermediate appellate
courts have held that (B)(1) is only violated when an insurer misrepresents facts
about coverage, not facts concerning liability. See, e.g., Talton v. USAA Cas. Ins.
Co., 2006-1513, 2007-1414, p. 20 (La. App. 4 Cir. 3/19/08), 981 So. 2d 696, 710;
Strong v. Farm Bureau Ins. Co., 32,414, p. 5 (La. App. 2 Cir. 10/29/99), 743 So.
2d 949, 953. “A misrepresentation relating to a coverage issue would involve
facts about the policy itself, such as the amount of coverage, lapse or expiration
of the policy, or exclusions from coverage.” Strong, 743 So. 2d at 953. An insurer
also has “an independent duty to keep its insured informed of the status of
settlement negotiations[.]”    Teague v. St. Paul Fire & Marine Ins. Co.,
2006-1266, p. 62 (La. App. 1 Cir. 4/7/09), 10 So. 3d 806, 845. This includes a duty
to inform the insured about offers to settle that are made and received, offering
input on the settlement decision, and generally keeping the insured apprised of
those facts necessary for the insured to make a decision that is in their own
personal interest. Arvie, 951 So. 2d at 1285; McGee, 840 So. 2d at 1254, 1256;
Lafauci v. Jenkins, 2001-2960 (La. App. 1 Cir. 1/15/03), 844 So. 2d 19, 27-29. As
explained below, it is not clear that State Farm is entitled to judgment as a
matter of law on Kelly’s (B)(1) claim. As such, we reverse the district court’s
grant of summary judgment.
      In McGee, an insurer was found to have violated (B)(1) when it
“consistently failed to communicate the status of the claim to [the insured] on a
regular basis” and, when it did communicate with the insured, it “failed to
communicate the pertinent facts necessary for [the insured] to consider in
determining what was in her personal interest.” McGee, 840 So. 2d at 1256. The
insurer in Arvie committed similar bad faith conduct and also “failed to offer [its
insured] input into the settlement decision.” Arvie, 951 So. 2d at 1286. The only
communication between State Farm and Thomas alleged here consisted of a
single letter in which State Farm told Thomas that he might face personal

                                        9
   Case: 12-31064     Document: 00512558652      Page: 10   Date Filed: 03/12/2014



                                  No. 12-31064
liability and that he should consider seeking independent counsel. At no point
did State Farm inform Thomas the extent to which Kelly’s medical bills exceeded
his policy limits, nor did State Farm tell Thomas that it had made a settlement
offer that was rejected by Kelly. In short, State Farm sent a single, cursory
communication to Thomas, and it cannot be said as a matter of law that this
letter communicated the pertinent facts necessary for Thomas to determine what
was in his best interest. Therefore, State Farm was not entitled to judgment as
a matter of law on Kelly’s claim under § 22:1973(B)(1). Fed. R. Civ. P. 56(a).
                                        2
      Under § 22:1973(B)(5), it is the plaintiff’s burden to show that the insured
submitted a satisfactory proof of loss, which is one that is sufficient to fully
apprise the insurer of the insured’s claim. Reed v. State Farm Mut. Auto. Ins.
Co., 2003-0107, p. 13 (La. 10/21/03), 857 So. 2d 1012, 1020 (stating that the “one
who claims entitlement” has the “burden of proving” receipt of a satisfactory
proof of loss); see also McDill v. Utica Mut. Ins. Co., 475 So. 2d 1085, 1089 (La.
1985) (defining “satisfactory proof of loss”). Moreover, § 22:1973(B)(5) does not
provide a cause of action based on third-party proofs of loss. Langsford v.
Flattman, 2003-0189, pp. 3–4 (La. 1/21/04), 864 So. 2d 149, 151.
      Kelly’s claim under § 22:1973 fails for the same reason that his claim
under § 22:1892(A)(1) failed, see supra Part III.A: Kelly has not alleged that
Thomas submitted a proof of loss to State Farm that went unpaid. Rather, the
premise of Kelly’s case is his allegation that State Farm failed to act when his
attorney sent State Farm a third-party demand letter. As discussed earlier,
assuming arguendo that Kelly’s letter constituted a satisfactory proof of loss at
all, the letter was a proof of loss from a third-party claimant. The assignment
between Kelly and Thomas does not allow Kelly to shoehorn otherwise ineligible
claims into Louisiana’s insurance statutes. Section 22:1973 does not provide a



                                       10
    Case: 12-31064    Document: 00512558652      Page: 11    Date Filed: 03/12/2014



                                  No. 12-31064
cause of action when an insurer fails to pay a third party’s claim based on a proof
of loss. Therefore, summary judgment is appropriate. Fed. R. Civ. P. 56(a).
                                        IV
      For the foregoing reasons, we AFFIRM IN PART and REVERSE IN PART
the district court’s grant of summary judgment. We REMAND to the district
court for further proceedings consistent with this opinion.




                                        11
