     Case: 09-30665     Document: 00511218790          Page: 1    Date Filed: 08/30/2010




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

                                                  FILED
                                                                           August 30, 2010

                                     No. 09-30665                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



CHRISTOPHER WEISER

                                                   Plaintiff - Appellant
v.

HORACE MANN INSURANCE COMPANY

                                                   Defendant - Appellee




                   Appeal from the United States District Court
                       for the Eastern District of Louisiana
                                 No. 2:06-CV-9080


Before GARZA, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
        Following a bench trial, the district court entered judgment in favor of
Christopher Weiser (“Weiser”) and against Horace Mann Insurance Co. (“Horace
Mann”). The court, however, awarded Weiser substantially less in property
damages than he sought. Weiser appeals the judgment, including the court’s
decision not to award penalties or full costs.




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-30665        Document: 00511218790          Page: 2     Date Filed: 08/30/2010

                                        No. 09-30665

       The case began when Hurricane Katrina damaged Weiser’s home in
August 2005. Weiser held a homeowner’s insurance policy issued by Horace
Mann that excluded flood damage.1 Weiser reported the damage to Horace
Mann, which sent an adjuster to his home. The adjuster determined the damage
was principally caused by flooding, with flood water in the one-story home
reaching over six feet. Based on its adjuster’s report, Horace Mann paid Weiser
$592.46 for minor exterior structural damage caused by wind. The company
determined any other damage to the home and its contents was caused by
flooding and thus not covered under the policy.
       Weiser disagreed, and in August 2006, filed suit against Horace Mann
alleging that Horace Mann had breached its insurance contract and violated
Louisiana good faith law, which, inter alia, requires an insurer to adjust and pay
claims within a statutory time limit. L A. R EV. S TAT. A NN. §§ 22:658 (2007);
22:1220 (2007).2 The statutes allow an insured to recover penalties if any delays
were “arbitrary, capricious, or without probable cause.” Id.
       After conducting a bench trial, the district court found flooding caused the
majority of the damage and held Horace Mann liable only for a relatively small
amount of unpaid exterior damage. The court found that Horace Mann had not
breached its good faith duties and denied any penalties. Additionally the court
held that Weiser could only recover part of his pre-settlement offer costs under
F ED. R. C IV. P. 54(d).3


       1
         Weiser held a separate flood policy issued by Fidelity Insurance Co. (“Fidelity”).
Fidelity paid Weiser his policy limits for structural and contents damage, which were
approximately $5,000 less than the adjusted damages. Fidelity is not involved in this case.
       2
         LA . REV . STAT . ANN . § 22:658 was redesignated as § 22:1892 in 2009. LA . REV . STAT .
ANN . § 22:1220 was redesignated as § 22:1973 in 2009.
       3
        Because Horace Mann made a FED . R. CIV . P. 68 offer that was greater than Weiser’s
ultimate recovery, Weiser could only recover pre-offer costs. See Payne v. Milwaukee County,
288 F.3d 1021, 1024 (7th Cir. 2002).

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   Case: 09-30665     Document: 00511218790    Page: 3    Date Filed: 08/30/2010

                                  No. 09-30665

      On appeal from a bench trial, we review conclusions of law and mixed
questions of fact and law de novo. Am. Int’l Specialty Lines Ins. Co. v. Res-Care,
Inc., 529 F.3d 649, 656 (5th Cir. 2008) (citation omitted). We review findings of
fact for clear error. Dickerson v. Lexington Ins. Co., 556 F.3d 290, 294 (5th Cir.
2009) (citation omitted). In addition, when a court denies full costs to the
prevailing party under F ED. R. C IV. P. 54(d), we review for abuse of discretion.
Salley v. E.I. Du Pont de Nemours & Co., 966 F.2d 1011, 1017 (5th Cir. 1992).
      After a careful review of the briefs, the district court’s thorough and
thoughtful order and reasons, and all relevant portions of the record, we find no
reversible error in the district court’s judgment on damages and good faith.
Furthermore, the district court clearly stated reasons for denying full pre-
settlement costs to Weiser, and we find the decision was not an abuse of
discretion. See id.
      AFFIRMED.




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