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

                                               FILED
                                                           August 11, 2009
                              No. 08-30795
                                                        Charles R. Fulbruge III
                                                                Clerk




MARKETFARE ANNUNCIATION, LLC; ROBERT RESOURCES, LLC,

                                       Plaintiffs-Appellees,

versus

UNITED FIRE AND CASUALTY INSURANCE COMPANY,

                                       Defendant-Appellant.


                     ********************


MARKETFARE N. BROAD, LLC; ROBERT RESOURCES, LLC,

                                       Plaintiffs-Appellees,

versus

UNITED FIRE AND CASUALTY INSURANCE COMPANY,

                                       Defendant-Appellant.


                     ********************
MARKETFARE (ST. CLAUDE), LLC,

                                    Plaintiff-Appellee-
                                    Cross-Appellant,

ROBERT RESOURCES, LLC,

                                    Plaintiff-Appellee,

versus

ESTATE OF JOHN G. SCHWEGMANN, JR.;
GUY G. SCHWEGMANN TRUST NO. 2,

                                    Intervenors-Appellees,

versus

JOHN FRANCIS SCHWEGMANN TRUST NO. 2;
JOHN GUY SCHWEGMANN; LAURIE S. DAMARE;
HEIDI SCHWEGMANN LEPOROWSKI,

                                    Intervenor Plaintiffs-Appellees,

versus

UNITED FIRE AND CASUALTY INSURANCE COMPANY,

                                    Defendant-Appellant-
                                    Cross-Appellee.


                 ********************




                                2
MARKETFARE CANAL, LLC,

                                      Plaintiff-Appellee-
                                      Cross-Appellant,

ROBERT RESOURCES, LLC,

                                      Plaintiff-Appellee,

versus

UNITED FIRE AND CASUALTY INSURANCE COMPANY,

                                      Defendant-Appellant-
                                      Cross-Appellee.


                  ********************


M.L. ROBERT, II, LLC; ROBERT RESOURCES, LLC,

                                      Plaintiffs-Appellees,

versus

UNITED FIRE AND CASUALTY INSURANCE COMPANY,

                                      Defendant-Appellant.




             Appeal from the United States District Court
                for the Western District of Louisiana
                          No. 2:06-CV-7232




                                  3
                                       No. 08-30795

Before REAVLEY, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*


       The plaintiff and intervenor (jointly referred to as “Marketfare”) each own
one or more grocery stores damaged by Hurricane Katrina. All the stores were
insured by the same company (“United Fire”), by policies that covered damages
from wind, and wind-driven rain, and looting but not from flooding. When dis-
putes arose regarding coverage as to damages, Marketfare sued United Fire,
utilizing diversity jurisdiction. The jury awarded extensive damages and penal-
ties for bad faith. United Fire appeals the judgment, and Marketfare appeals
the calculation of a penalty.
       We have reviewed the briefs and applicable law and pertinent parts of the
record and have heard the arguments of counsel. There is no reversible error on
United Fire’s direct appeal. The jury was properly charged, and the district
court did not abuse its discretion in its evidentiary rulings. The award of dam-
ages does not offend the policy’s anticoncurrent causation clause. The recovery
for business interruption is supported by sufficient evidence. The issue regard-
ing the award of damages without invoking the coinsurance provision was
waived. The district court properly gave damages for the property at West Es-
planade for damaged equipment and property that was not replaced. There was
ample evidence to support bad-faith penalties.
       The only reversible error regards Marketfare’s cross-appeal. The district
court correctly recognized that Marketfare cannot recover duplicate penalties
under La. R.S. §§ 22:1220(A) and 22:658. It can, however, recover once for the
greater of the two penalty provisions, in addition to consequential damages. In


       *
         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.

                                              4
                                  No. 08-30795

other words, although an insured cannot recover a penalty under both § 1220
and § 658, it is entitled to the greater penalty of the two in addition to conse-
quential damages under § 1220.
      It follows that the judgment must be modified so that the portion of the
judgment that reads, “Judgment in favor of plaintiff, Marketfare St. Claude
L.L.C., and against defendant United Fire & Casualty Insurance Company for
statutory damages and penalties pursuant to LA. REV. STAT. ANN. § 22:1220
in the amount of $1,800,000, legal interest to run from date of judgment,” is
modified to read, “Judgment in favor of plaintiff, Marketfare St. Claude L.L.C.,
and against defendant United Fire & Casualty Insurance Company for damages
pursuant to LA. REV. STAT. ANN. § 22:1220 in the amount of $900,000.00 plus
a statutory penalty pursuant to LA. REV. STAT. ANN. § 658 in the amount of
$1,470,393.50, legal interest to run from date of judgment.” In addition, the por-
tion of the judgment that reads, “Judgment in favor of plaintiff Marketfare
Canal, L.L.C., and against defendant United Fire & Casualty Insurance Com-
pany for statutory damages and penalties pursuant to LA. REV. STAT. ANN.
§ 22:1220 in the amount of $2,016,000.00, legal interest to run from date of judg-
ment,” is modified to read, “Judgment in favor of plaintiff, Marketfare Canal,
L.L.C., and against defendant United Fire & Casualty Insurance Company for
damages pursuant to LA. REV. STAT. ANN. § 22:1220 in the amount of
$1,008,000.00 plus a statutory penalty pursuant to LA. REV. STAT. ANN. § 658
in the amount of $1,575,684.50, legal interest to run from date of judgment.”
      The judgment, as MODIFIED, is AFFIRMED.




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