     Case: 17-30433      Document: 00514236926         Page: 1    Date Filed: 11/14/2017




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

                                    No. 17-30433                                   FILED
                                  Summary Calendar                         November 14, 2017
                                                                              Lyle W. Cayce
                                                                                   Clerk
HENRY ROSENTHAL,

                                                 Plaintiff - Appellant
v.

ALLSTATE PROPERTY & CASUALTY INSURANCE COMPANY,

                                                 Defendant - Appellee




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                            USDC No. 2:16-CV-13732


Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Plaintiff–Appellant Henry Rosenthal brought several state-law claims
against Defendant–Appellee Allstate Property and Casualty Insurance
Company for failing to investigate and pay a claim related to engine damage
to a 1991 Bluebird Recreational Vehicle in Louisiana state court. Allstate
removed the case to federal court based on diversity jurisdiction and filed a
motion for summary judgment. The district court granted this motion. Because


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 17-30433
Rosenthal has provided insufficient evidence to survive summary judgment,
we AFFIRM.
                                       I.
      In June 2013, Henry Rosenthal purchased a 1991 Bluebird Recreational
Vehicle (“RV”) in Virginia. Rosenthal drove this RV from Virginia to his house
in Louisiana. From July 23, 2013, to June 8, 2015, Rosenthal did not drive the
RV on the road, though he sometimes started the engine and drove it on his
driveway. The RV was insured by Allstate Property and Casualty Insurance
Company (“Allstate”).
      Rosenthal alleges that a heavy rainstorm occurred on or around May 27,
2015, which damaged the engine. He claims that the engine first did not run
and that when it finally ran, water spewed out of the exhaust. After the alleged
rainstorm, he filed an insurance claim with Allstate on June 8, 2015. Two days
later, Allstate sent an adjuster who photographed the RV and requested that
Rosenthal have a mechanic of his choice evaluate the engine and provide a
repair estimate.
      Instead of having a mechanic inspect the engine, Rosenthal discussed
the problem with Clarke Power Services (“Clarke”) over the phone. Rosenthal
then emailed Allstate’s adjuster a repair estimate from Clarke. In response,
the adjuster explained that he could not pay the claim without an actual
inspection by a mechanic. After many conversations between Rosenthal and
different Allstate representatives, Allstate enlisted a mechanical engineer in
the Special Investigation Unit, Jeffrey Stark, to inspect the RV. Stark stated
in his report that the most likely cause of the problem was the improper
maintenance and storage of the engine (i.e., letting the RV sit idle for two
years). He also advised that further examination of the engine, which would
entail partial disassembly, could confirm the exact cause of the damage and
was necessary in order to assess the repairs. Rosenthal refused to get this
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                                  No. 17-30433
additional inspection. Accordingly, Allstate denied the claim for failure to
cooperate with its investigation and failure to provide sufficient proof of loss.
      In May 2016, Rosenthal sued Allstate in Louisiana state court for breach
of contract, negligent claims handling, negligent misrepresentation, bad-faith
claims handling in violation of Louisiana Statutes § 22:1973 and § 22:1892,
and violations of Louisiana Civil Code Articles 2315, 2316, and 2320. In
August 2016, Allstate removed this case to federal court based on diversity
jurisdiction. In March 2017, Allstate filed a motion for summary judgment. The
district court granted this motion. It reasoned that (1) Rosenthal had not
demonstrated that the damage to his RV is a covered loss under the insurance
policy and (2) he had not provided Allstate with proof of loss and therefore
could not prevail on a bad-faith claim under the Louisiana Statutes. Rosenthal
timely appealed.
                                       II.
      We review a district court’s grant of summary judgment de novo. Delta
& Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th
Cir. 2008) (citing Wyatt v. Hunt Plywood Co., 297 F.3d 405, 408 (5th Cir. 2002)).
Summary judgment is appropriate if “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. “The mere existence of a scintilla of evidence in support of the
plaintiff’s position will be insufficient; there must be evidence on which the
jury could reasonably find for the plaintiff.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 252 (1986). Although reasonable inferences are drawn in favor
of the nonmoving party, we do not “in the absence of any proof, assume that
the nonmoving party could or would prove the necessary facts.” Little v. Liquid
Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam) (emphasis
removed) (citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990)).
Summary judgment is proper if “the nonmoving party has failed to make a
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                                       No. 17-30433
sufficient showing on an essential element of her case with respect to which
she has the burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
       “In a diversity case such as this one, we apply state substantive law.”
Wiltz v. Bayer CropScience, Ltd. P’ship, 645 F.3d 690, 695 (5th Cir. 2011)
(citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938)). Here, we apply
Louisiana law to determine (1) whether Rosenthal’s insurance policy covers his
type of loss, (2) whether Rosenthal provided sufficient evidence that the
covered type of loss actually caused damage to his RV, and (3) whether
Rosenthal provided sufficient evidence that Allstate engaged in bad-faith
claims handling. 1
       The first issue is whether Rosenthal’s insurance policy covers his type of
loss. We conclude that the policy does. Rosenthal alleges that a severe rain
event caused damage to his RV’s engine. Under Louisiana law, an insurance
policy is “subject to the same basic interpretive rules as any other contract.”
Doerr v. Mobil Oil Corp., 774 So. 2d 119, 123 (La. 2000) (collecting authorities),
corrected on reh’g, 782 So. 2d 573 (La. 2001). The policy should be construed
“in accordance with the general, ordinary, plain and popular meaning of the
words used in the policy, unless the words have acquired a technical meaning.”
Carbon v. Allstate Ins. Co., 719 So. 2d 437, 439–40 (La. 1998) (quoting La. Ins.
Guar. Ass’n v. Interstate Fire & Cas. Co., 630 So. 2d 759, 763 (1994)) (citing
Breland v. Schilling, 550 So. 2d 609, 610 (La. 1989)). “The provisions of the
contract ‘must be interpreted in light of the other provisions so that each is
given the meaning suggested by the contract as a whole.’” Naquin v. Elevating
Boats, L.L.C., 817 F.3d 235, 239 (5th Cir. 2016) (first citing La. Civ. Code


       1These are the only issues that Rosenthal briefed. To the extent that there are any
other arguments as to why the district court should not have granted summary judgment
against him, he has forfeited them. See Sanders v. Unum Life Ins. Co. of Am., 553 F.3d 922,
926 (5th Cir. 2008) (“‘A party waives an issue if he fails to adequately brief it’ on appeal.”
(quoting Audler v. CBC Innovis Inc., 519 F.3d 239, 255 (5th Cir. 2008))).
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art. 2050; then citing First Am. Bank v. First Am. Transp. Title Ins. Co., 585
F.3d 833, 837 (5th Cir. 2009)).
      The following clause in the Allstate insurance policy is at issue here:
      We will pay for direct and accidental loss to your insured motor
      home or a non-owned motor home not caused by collision. Loss
      caused by missiles, falling objects, fire, theft or larceny, explosion,
      earthquake, windstorm, hail, water, flood, malicious mischief or
      vandalism, and riot or civil commotion is covered. Glass breakage,
      whether or not caused by collision, and collision with a bird or
      animal is covered.
In this case, loss due to a severe rain event qualifies as a “direct and accidental
loss.” We need not specifically define “direct and accidental loss” in deciding
this. The clause above expressly states that “[l]oss caused by . . . water” is
covered as a direct and accidental loss. Water can come from the clouds as rain.
See Water, Merriam-Webster’s Collegiate Dictionary (11th ed. 2003) (defining
water as “[t]he liquid that descends from the clouds as rain”). In the clause, the
term “water” is surrounded by weather events (i.e., “windstorm,” “hail,” and
“flood”) that are considered relatively infrequent as compared to normal rains
or winds. Water from a heavy rainstorm would therefore qualify as a cause of
a direct and accidental loss. Even if coverage of such loss were ambiguous,
under Louisiana law, “any ambiguities within the policy must be construed in
favor of the insured to effect, not deny, coverage.” Doerr, 774 So. 2d at 124
(collecting cases).
      The next issue is whether Rosenthal provided sufficient evidence that
water from a severe rain event actually caused the damage to his RV in order
to survive summary judgment. We conclude that he has not. The insured has
the burden of “establish[ing] that any uncompensated (or under-compensated)
damage was caused by a covered peril.” Bayle v. Allstate Ins. Co., 615 F.3d 350,
358 (5th Cir. 2010). Here, Rosenthal has not provided more than a “scintilla”
of evidence that there was an actual heavy rainstorm on or around May 27,
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                                 No. 17-30433
2015, and that water from this rainstorm was indeed the cause of the engine
damage. Rosenthal’s theory is that during the severe rain event, six to eight
inches of rain fell within a span of two hours, and because it was raining so
hard, the water came off of the roof of his house at a 45-degree angle and fell
into the RV’s vertical exhaust pipe. This theory is unsubstantiated.
      First, the weather records show that the total rainfall for the entire
month of May 2015 at the weather station closest to Rosenthal’s residence was
3.95 inches. Second, Rosenthal has admitted that he did not witness water
entering the vertical exhaust pipe during any rain event including the alleged
one in May 2015. Third, Allstate’s expert, Jeffrey Stark, visited Rosenthal’s
property on January 31, 2017, and attempted to test whether water would fall
off the roof and into the vertical exhaust pipe. The RV was in the same position
as in May 2015. Stark placed a garden hose on the peak of Rosenthal’s roof in
the direction of the pipe. He then observed the water falling. None of the water
fell into the pipe; the water fell onto the ground. Rosenthal’s expert witness,
Christopher Rodriguez, speculated that high-velocity winds during heavy rain
could have changed the angle of the water so that it could have entered the
vertical exhaust pipe, but he concluded his comments by stating that he was
not “offer[ing] any professional opinions” about how the water runs off a roof
during a storm. Further, recall that after his inspection, Stark had stated that
the most likely cause of the damage was improper maintenance and storage
(i.e., letting the RV sit idle for two years). Though Rodriguez did not state an
opinion on whether improper storage and maintenance was the most likely
cause, he agreed that the RV had been improperly stored and that problems
could have arisen from such storage.
      Finally, we address whether Rosenthal provided sufficient evidence that
Allstate engaged in bad-faith claims handling in order to survive summary
judgment. We conclude that he has not. An insurer is required to “pay the
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amount of any claim due any insured within thirty days after receipt of
satisfactory proofs of loss from the insured.” La. Stat. Ann. § 22:1892(A)(1). An
insurer who fails to pay the claim within thirty days after receipt of such
satisfactory written proofs is subject to penalties if the failure is “found to be
arbitrary, capricious, or without probable cause.” Id. § 22:1892(B)(1); see also
id. § 22:1973 (“An insurer . . . owes to his insured a duty of good faith and fair
dealing.”). In order to recover under these provisions, Rosenthal must prove
that “(1) the insurer has received satisfactory proof of loss, (2) the insurer
fail[ed] to tender payment within thirty days of receipt thereof, and (3) the
insurer’s failure to pay is arbitrary, capricious, or without probable cause.”
Versai Mgmt. Corp. v. Clarendon Am. Ins. Co., 597 F.3d 729, 739 (5th Cir. 2010)
(per curiam) (quoting La. Bag Co. v. Audubon Indem. Co., 999 So. 2d 1104,
1112–13 (La. 2008)). Here, Rosenthal has failed to offer a satisfactory proof of
loss for the same reasons (iterated above) that he has not provided adequate
evidence that water from a heavy rainstorm indeed caused the damage to his
RV. Moreover, he has continually refused to obtain an inspection that involves
disassembly in order obtain a conclusive assessment of the cause of the engine
damage and the extent of repairs.
                                       III.
      In sum, while the insurance policy covers loss caused by a severe
rainstorm, Rosenthal has provided insufficient evidence that such a rainstorm
actually caused damage to his RV and that Allstate engaged in bad-faith claims
handling. Thus, we AFFIRM the district court’s grant of summary judgment
against Rosenthal.




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