* Shirley Dickerson, Dale Dickerson’s wife and co-plaintiff in this lawsuit, died on

January 15, 2006. The record does not reflect that her succession or her succession

representative was ever formally substituted as a plaintiff or appellee herein. References in

this opinion to “Dickerson” shall be to Dale unless otherwise specified.

** The original opinion in this case, published December 22, 2008, is withdrawn, and is

replaced by this substitute opinion.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-30823

cons w/No. 07-30868

DALE DICKERSON; SHIRLEY DICKERSON*

Plaintiffs-Appellees

v.

LEXINGTON INSURANCE COMPANY

Defendant-Appellant

Appeal from the United States District Court 

for the Eastern District of Louisiana

Before KING, HIGGINBOTHAM, and WIENER, Circuit Judges.

WIENER, Circuit Judge:**

Plaintiffs-Appellees Dale and Shirley Dickerson sued Defendant-Appellant

Lexington Insurance Company (“Lexington”) for its failure to pay his

homeowner’s policy claim timely following Hurricane Katrina. After a one-day

bench trial, the district court awarded Dickerson $175,467 in damages,

penalties, and attorneys’ fees and costs, ruling that Lexington acted in bad faith

United States Court of Appeals

Fifth Circuit

F I L E D

January 21, 2009

Charles R. Fulbruge III

Clerk
No. 07-30823

1 Henceforth we include both wind and rain when, for economy, we refer only to wind.

2

in violation of Louisiana statutes. Lexington appeals the judgment. We affirm

in part and reverse in part.

I. FACTS AND PROCEEDINGS

Dale and Shirley Dickersons’ home in Marrero, Louisiana, was extensively

damaged by Hurricane Katrina in August 2005. There was evidence of flooding

throughout the first floor; Dickerson estimated that the water had risen to a

level of approximately two feet inside his house. There was also evidence of

extensive damage from wind and rain.1 There was a hole in the roof. Furniture

was warped and waterlogged. Carpets were moldy. An attic door had blown

open exposing the crawl space to the wind and water. A light fixture on the first

floor still contained an inch of water when the Dickersons returned home in midSeptember following the storm.

The Dickersons held a homeowner’s insurance policy issued by Lexington.

That policy’s four classes of coverage for wind damage and the limits of each

were:

Coverage A (Building, i.e. home) - $153,000

Coverage B (Outbuildings) - $15,300

Coverage C (Contents) - $76,500

Coverage D (Additional living expenses) - $30,600

Like many homeowner’s policies, the Dickersons’ policy did not cover flood

damage. They held federal flood insurance issued through a different carrier,

which coverage paid $108,342 on their Katrina-related claim: $62,042 for

damage to their home and $46,300 for damage to its contents.

The Dickersons notified Lexington oftheir wind damage claim under their

homeowner’s policy in mid-September 2005, and a Lexington insurance adjuster

inspected the property on October 1. The adjuster wrote a report in November

2005, but also wrote a second report that he sent to Lexington on February 4,
No. 07-30823

2

It is unclear whether the first report was sent to Lexington.

3 Louisiana law requires insurers to act in good faith, including issuing payment within

a statutorily prescribed timeframe. LA. REV. STAT. ANN. §§ 22:1220 (“§ 22:1220") and 22:658

(“§ 22:658") (2008).

4 The check comprised $46,478 under Coverage A (home), $1,183 under Coverage B

(outbuildings) and $56,095 under Coverage C (contents). 

3

2006.2 Lexington issued a check to Dickerson for $11,335 on March 2, 2006,

indicating that it was for hurricane damage to the home under Coverage A.

Dickerson sued Lexington, claiming that it had breached the contract by

failing to pay; and, additionally, that Lexington had breached its statutory duty

of good faith through its unjustifiable failure to pay promptly and in full.3 That

suit was filed in May 2006. In June 2006, Dickerson sought additional payment

from Lexington based in part on his claim that the structure of his home had

been twisted in the storm. In response, Lexington sent a different adjuster to

the property and eventually paid Dickerson an additional $2,200 under Coverage

A. Finally, in May 2007, Lexington sent yet another adjuster to the Dickerson

home who found that, in fact, the home had suffered far more wind damage than

Lexington previously thought. That inspection resulted in a check to Dickerson

for $103,756 in June 2007, about a month before the bench trial in this case.4

Lexington’s response to Dickerson’s lawsuit was that it had made a good

faith effort to settle the claim, but that its adjusters had returned with

conflicting information and had determined that the bulk of the home’s damage

was caused by flooding, thus falling outside the Dickersons’ policy coverage.

Lexington also contended that Dickerson had breached the insurance contract

by failing to mitigate the damage to his home that had been caused by an

improperly secured roof tarp and by failing to submit an itemized list of the

damaged contents. 

After a one-day bench trial conducted in July 2007, the district court held

for Dickerson on all claims and entered a judgment for $122,362. The amount
No. 07-30823

5 Trinity Universal Ins. Co. v. Stevens Forestry Serv. Inc., 335 F.3d 353, 356 (5th Cir.

2003) (citing Erie R.R. v. Tompkins, 304 U.S. 64 (1938)). Lexington removed the suit to the

Eastern District of Louisiana on the grounds of diversity of the parties. Lexington is a citizen

of Delaware and Massachusetts.

6 Adams v. Unione Medtierranea di Sicurta, 364 F.3d 646, 655 (5th Cir. 2004) (citing

Baldwin v. Stalder, 137 F.3d 836, 839 (5th Cir. 1998)). 

7 Am. Int’l Specialty Lines Ins. Co. v. Res-Care, Inc., 529 F.3d 649, 656 (5th Cir. 2008).

4

of the judgment included $50,000 in penalties under § 22:1220. Separately, the

court awarded Dickerson attorneys’ fees of $53,105, bringing the total award to

$175,467.

Lexington timely appealed, contending that (1) there was insufficient

evidence for a fact-finder to conclude that wind, rather than flooding, caused the

subject damage to Dickerson’s home and contents, (2) the trial court improperly

calculated the value ofthe contents of Dickerson’s home in violation of the terms

of the insurance policy, (3) there was insufficient evidence to support a finding

that Lexington had acted in bad faith, (4) § 22:1220 does not authorize recovery

of mental anguish damages, (5) alternatively, there was insufficient evidence to

support a determination thatLexington’s bad faith actions had caused Dickerson

mental anguish, and (6) attorneys’ fees are impermissible under the applicable

version of § 22:658.

II. ANALYSIS

A. Applicable Law and Standard of Review

When sitting in diversity, we apply the substantive law of the state.5In

this case, we apply Louisiana law.

In the appeal of a bench trial, we review findings of fact for clear error6

and conclusions of law and mixed questions of law and fact de novo.

7

B. Evidence of Wind Damage
No. 07-30823

8 At trial, an expert for the plaintiff testified that the total cost of repairing the home’s

wind and flood damage would exceed $177,000. 

9 Jones v. Estate of Santiago, 870 So. 2d 1002, 1010 (La. 2004); Comeaux v. State Farm

Fire & Cas. Ins. Co., 986 So. 2d 153, 157-58 (La. App. 5th Cir. 2008).

10 Jones v. Estate of Santiago, 870 So. 2d at 1010.

5

On appeal, Lexington asserts that there was insufficient evidence

presented at trial to support the finding that wind, rather than flooding, caused

most of the damage to Dickerson’s home. As wind damage is covered by

Dickerson’s homeowner’s policy butflood damage is not, Lexington would not be

liable for any damage attributable to flooding.8 None disputes that, in addition

to flooding, both wind and rain caused damage, but the parties disagree on the

proper apportionment of the causes of the damage between flooding and wind.

Under Louisiana law, the insured must prove that the claim asserted is

covered by his policy.9 Once he has done this, the insurer has the burden of

demonstrating thatthe damage atissue is excluded from coverage.10 Thus, once

Dickerson proved his home was damaged by wind, the burden shifted to

Lexington to prove that flooding caused the damage at issue, thereby excluding

coverage under the homeowner’s policy. As no one disputes that at least some

of the damage to the Dickerson home was covered by the homeowner’s policy,

Lexington had to prove how much of that damage was caused by flooding and

was thus excluded from coverage under its policy.

Dickerson’s trial expert, a New Orleans general contractor, testified that

wind and rain from the storm caused approximately 70 percent of the damage.

The same percentage results when the estimated total value of damage to the

home and its contents is reduced by the amount that Dickerson’s flood insurer

paid following Katrina, although Dickerson’s expert also testified that he had not

known the total amount that the flood insurance had paid until after he came

up with his own estimate of the breakdown between the two causes of damage.
No. 07-30823

11 The origin of this figure is not entirely clear. Dickerson submitted the same itemized

contents list to Lexington and his flood insurer. Our review of the list indicates that the

replacement value of the contents either certainly or possibly damaged and destroyed by the

hurricane was about $117,000. The total value of the contents on Dickerson’s list, including

flood damaged items, exceeded $205,000. 

6

Lexington did not submit a competing percentage. Instead, it offered the

testimony of its own adjuster who provided the court with estimates of

rebuilding costs. Dickerson contended at trial that those costs were too low

because they did not reflect inflated post-Katrina prices for materials and labor.

Lexington also attempted to deconstruct Dickerson’s expert’s estimate by

identifying individual components of the damage and assigning their cause to

either flood or wind. For example, because flooding damaged the electrical

wiring, Lexington maintained that the entire replacement cost of the wiring

system throughoutthe house could be attributed to flooding. Dickerson’s expert

conceded that some of the figures in his estimate could be attributed entirely to

flood damage, but insisted that he had accounted for that in calculating the 70-

30 ratio. 

At trial, the question of flood versus wind damage essentially turned on

witness credibility, as the quantity and quality of the evidence adduced by each

party was similar. The district court, as the finder of fact in a bench trial, is best

positioned to evaluate the credibility of the witnesses. On this record, a

reasonable fact finder could conclude that Dickerson’s expert offered the more

credible analysis of the damage to the home and the cost of rebuilding it.

Finding no clear error, we defer to the determination of the district court and

affirm.

C. Value of the Home’s Contents

The contents coverage limit on Dickerson’s policy, Coverage C, is $76,500.

The district court valued Dickerson’s damaged and destroyed contents at

approximately $114,000.11 As the limit of the policy’s contents coverage is
No. 07-30823

12 The district court’s award of $20,495 under Coverage C was essentially the difference

between the amount Lexington had paid and the coverage limit.

13 There was some discrepancy in this figure. At trial, the parties stated that Lexington

paid $56,095 to Dickerson prior to trial, which was $20,405 below the coverage limit, but the

district court repeatedly referred to $20,495 as the amount awarded to bring Dickerson to the

coverage limit. In its brief, Lexington states that it paid Dickerson $56,005 prior to trial,

which comports with the trial court’s understanding. 

14 Lexington adds that Dickerson failed to comply with his policy by not promptly

submitting a list of damaged personal property or receipts for replacement of that property.

Lexington seems to offer the latter argument not as a stand-alone complaint, but in support

of its contention that the district court erred. Nevertheless, Dickerson did submit a list on May

10, 2007, shortly before trial. Lexington thereafter issue a check to Dickerson for $56,005.

7

substantially less than the total value of the contents, the figure at issue here

is the $76,500 coverage limit. By trial, Lexington had reimbursed Dickerson

$56,005 for the loss of his possessions.12

Lexington contends that the district court misinterpreted the language of

Coverage C. According to Lexington, the trial court’s award of $20,49513 under

this provision ignores the fact that Lexington was entitled to withhold some

portion of the proceeds of Coverage C until it received proof from Dickerson that

he had replaced the damaged or destroyed items.14

The policy reads:

When the replacement cost for the entire loss under

this endorsement is more than $500, we will pay no

more than the actual cash value for the loss or

damage until the actual repair or replacement is

complete. 

To us, the language is quite clear: It permits recovery of only the actual cash

value of an item until such time as the insured furnishes the insurer a receipt

for replacement of that item. The actual cash value of an item is its depreciated

value; presumably the replacement cost is higher. The insured is not entitled to

the full replacement value of an item until he proves that he has, in fact,

replaced that item.
No. 07-30823

15 Dickerson’s lawyer represented that Lexington actually used 28 percent to calculate

depreciation, but the witness seemed unfamiliar with the higher rate so we use the lower rate

for the sake of argument.

16 Using Lexington’s depreciation rate, contents valued at $114,000 would be

depreciated to $91,200, so Dickerson would receive $76,500, his policy’s coverage limit and the

8

According to Lexington, the district court erroneously calculated the

amount owed to Dickerson under Coverage C by using the replacement value

rather than the actual cash value, resulting in an excessive award for which

Dickerson had never provided the required substantiation. Lexington argues

that, by using the replacement value instead ofthe actual cash value,the district

court over-estimated the compensable value of Dickerson’s possessions and

awarded him too much. As evidence that the district court employed the wrong

value, Lexington claims that the district court’s $114,000 baseline value

represented the replacement value of the contents of the home rather than the

actual cash value; Lexington does not expressly address the $114,000 figure in

its brief. Lexington also seems to rely on its approval of only $77,765 in contents

coverage ofthe totalthat Dickerson submitted as evidence thatthe district court

got it wrong; yet it neither offers an explanation for what this figure represents

nor contends that this is the total replacement value of Dickerson’s possessions.

We are unable to determine the bases of Lexington’s claim of error and,

regardless, find the contention that the district court relied on the replacement

value rather than the actual value to be a distinction without a difference. Even

assuming that $114,000 was the aggregate replacement value, the court only

awarded Dickerson an amount sufficient to bring him up to the $76,500 limit of

his contents coverage, or 67percent of the value of his possessions. At trial,

Lexington’s claims adjuster testified that the depreciation rate its adjusters use

to calculate actual value is 20 percent15 which, when applied to $114,000,

produces a resultidenticalto the award. Under both calculations, Dickerson will

receive the coverage limit.16 Lexington has neither provided evidence that the
No. 07-30823

same result reached by the district court. 

17 Calogero v. Safeway Ins. Co. of La., 753 So. 2d 170, 174 (La. 2000). Calogero was

decided before the § 22:658 amendment at issue in this case went into effect. At the time of

that decision, the statute permitted attorneys’ fees just as it does now. The language

permitting attorneys’ fees was expunged in 2003 and reinserted in 2006.

18 § 22:1220(B)(5) and (6).

19 § 22:658(B)(1); see also Reed v. State Farm Mut. Auto Ins. Co., 857 So. 2d 1012, 1021

(La. 2003).

20 Calogero, 753 So. 2d at 174. In the instant case, the court assessed penalties against

Lexington under § 22:1220 only.

21 Calogero, 753 So. 2d at 174.

9

district court relied on an erroneous amount nor demonstrated harm from the

purported error. We affirm the award of the district court.

D. Bad Faith of the Insurer

Under § 22:1220, an insurer owes its policyholders a duty of good faith in

settling claims. Breach of the duty exposes an insurer to liability for damages,

discretionary penalties, and attorneys’ fees via § 22:658.17 Among the

enumerated breaches of § 22:1220's duty of good faith is failure to pay a claim

within 60 days following receipt of satisfactory proof of loss if that failure is

“arbitrary, capricious, or without probable cause.”18 In contrast, § 22:658

subjects the insurer to penalties and attorneys’ fees for its arbitrary and

capricious failure to pay a claim within 30 days.19 A plaintiff may be awarded

penalties under only one ofthe two provisions, §§ 22:1220 and 22:658, whichever

amount is greater.20 He may, however, seek attorneys’ fees under § 22:658 while

seeking damages and penalties under § 22:1220.21

A plaintiff has the burden of proving that his insurer (1) received

satisfactory proof of loss, (2) failed to pay within the required time, and (3) acted
No. 07-30823

22 Talbert v. State Farm Fire & Cas. Ins. Co., 971 So. 2d 1206, 1211-12 (La. App. 4th

Cir. 2007); DeSoto v. Balbeisi, 837 So. 2d 48, 51 (La. App. 1st Cir. 2002) (addressing version

of § 22:658 that permitted attorneys’ fees).

23 Calogero, 753 So. 2d at 174.

24 Reed, 857 So. 2d at 1021.

25 Id.

26 Calogero, 753 So. 2d at 173.

27 Broussard v. State Farm Fire & Cas. Co., 523 F.3d 618, 625 (5th Cir. 2008).

10

in an arbitrary and capricious manner.22“Arbitrary and capricious” has virtually

the same meaning under § 22:1220 as it does under § 22:658;23 courts interpret

the phrase as synonymous with “vexatious.”24“‘[V]exatious refusal to pay’ means

unjustified, without reasonable or probable cause or excuse.”25 An insurer does

not act arbitrarily and capriciously, however, when it withholds payment based

on a genuine (good faith) dispute about the amount of a loss or the applicability

of coverage.26

Lexington makes two assertions in this context. First, it contends that the

district court erred by requiring it to prove that it acted in good faith because it

is the plaintiff who must prove that the insurer acted in bad faith. Second,

Lexington contends that the evidence offered by Dickerson was insufficient to

prove thatLexington acted arbitrarily and capriciously. We address Lexington’s

assertions in turn.

1. Burden of Proof

We review de novo the district court’s assignment of the burden of proof.27

Lexington invites our attention to an exchange between its attorney and the

court atthe close of the bench trial during which the districtjudge observed that

the plaintiffs had not shown that Lexington’s actions were intentional and asked

Lexington for evidence that it had acted in good faith. Lexington interprets the

court’s statementto mean thatthe districtjudge believedLexington had to prove
No. 07-30823

28 Holt v. Aetna Cas. & Sur. Co., 680 So. 2d 117, 130 (La. App. 2d Cir. 1996) (emphasis

added). 

29 Indeed, in statutes that do have such a requirement, the wording is explicit such that

this court need not hunt for meaning in the text. See, e.g., LA. CIV. CODE ANN. ART. 1998

(2008).

11

that it had acted in good faith, instead of Dickerson having to prove that

Lexington acted in bad faith. We have reviewed the transcript of the exchange

in question and we cannot agree with Lexington’s interpretation. 

First, the statutes in question do not require proof that the insurer

intentionally harmed the plaintiff. In this respect, the district judge merely

stated a fact. In support of its insistence that Dickerson had to prove that

Lexington acted in bad faith, Lexington cites Holt v. Aetna Casualty & Surety

Company, in which the court stated, “[t]o prevail on a claim of breach of duty,

the insured must prove that the insurer knowingly committed actions which

were completely unjustified, without reasonable or probable cause or excuse.”28

As knowingly committing particular unjustified actions is not synonymous with

knowingly harming the insured, Lexington’s argument misses the mark. To the

extent that the statute requires an intentional or knowing act, it is to prevent

the imposition of penalties on insurers who have, by accident or oversight, failed

to pay within the statutory period. This is to say that the statute requires the

insurer to intend its actions; we do not however read Holt as requiring an

insured to prove that his insurer intended to harm him.29 Even though Holt is

a correct statement of the law, it does not provide support for Lexington’s

position.

Additionally, we disagree with Lexington’s conclusion that the district

court’s statement was an assessment of which party must bear the ultimate

burden of proof. In context, the better reading is that the district court believed

that the plaintiff had borne his burden, so it sought Lexington’s rebuttal. The
No. 07-30823

30 La. Bag Co., Inc. v. Audubon Indem. Co., ___ So. 2d ___, 2008 WL 5146674, at *7 (La.

Dec. 2, 2008); Holt, 680 So. 2d at 131 (citing Darby v. Safeco Ins. Co. of Am., 545 So. 2d 1022,

1028 (La. 1989)).

31 Pendarvis v. Am. Bankers Ins. Co., No. 06-772-DLD, 2008 WL 2280235, at *7-8 (M.D.

La. 2008) (holding no violation of § 22:1220 where insured and insurer engaged in continuing

negotiation over the value of the loss following Hurricane Katrina, and insurer continued to

respond promptly to insured’s inquiries), appeal docketed, No. 08-31064 (5th Cir. Oct. 29,

2008). 

32 Block v. St. Paul Fire & Marine Ins. Co., 742 So. 2d 746, 753-54 (La. App. 2d Cir.

1999).

33 Gates v. Auto Club Family Ins. Co., No. 06-4394, 2007 WL 1464259, at *4 (E.D. La.

2007). Partial payment in Gates was the difference between the insurer’s tendered amount

12

exchange came after both sides had concluded their cases. Before it uttered the

statements with which Lexington takes issue, the court cited examples of

Dickerson’s evidence of Lexington’s having acted in bad faith. Although the

insured has the burden of proof under §§ 22:1220 and 22:658, once he has made

his case, the burden of persuasion shifts to the insurer to rebut the insured’s

showing. The timing and context of the discussion between the court and the

defense attorney lead us to conclude that Lexington misinterprets the exchange

and that the district court was only inviting Lexington to offer evidence in its

defense.

2. Sufficiency of the Evidence

Again, to demonstrate arbitrariness or capriciousness, Louisiana law

requires a plaintiff to show that his insurer acted unjustifiably and

unreasonably. The statute is not intended, however, to prevent insurers from

disputing claims in good faith, including litigating such disputes.30 A refusal to

pay the full amount claimed will not be arbitrary and capricious when the

dispute has a good faith basis.31 Some delay to allow the insurer to verify a

claim may also be permissible.32 Without more, an insurer’s payment of less

than the full value of an insured’s loss is insufficient evidence of arbitrary and

capricious behavior for purposes of §§ 22:1220 and 22:658.33 Similarly, an
No. 07-30823

and the plaintiff’s contractor’s estimate of the total cost of repairs. In contrast, in Pendarvis,

the partial payment was the insurer’s tender of the undisputed lesser amount of the claim for

which insurer agreed it was liable while the full amount of the claim was being negotiated.

34 Block, 742 So. 2d at 752.

35 That payment also included $718 for damage to other structures on the property and

$1,874 for additional living expenses. Lexington apparently paid Dickerson another $1,000

for additional living expenses in October, but payments of additional living expenses have no

bearing on our analysis. 

13

insured who fails to provide his insurer with information required to process his

claim cannot then claim the insurer acted arbitrarily in delaying payment.34

Dickerson’s bad faith claim hinges on the undisputed timing of Lexington’s

firstinspection and payment. Dickerson had reported the damage to the insured

property in mid-September of 2005, and Lexington had sent an adjuster to

inspect the damage on October 1, a month after Katrina. A report based on this

inspection was sent to Lexington no later than November, yet no payment was

made. Another report was sent to Lexington (apparently by the same claims

adjuster) on February 4, 2006. Although Lexington representatives took the

position thatthe second report corrected a “mistake”in the November report, we

have found no explanation in the record for why Dickerson could not have been

compensated in the interim. Indeed, Lexington’s attorney stated at trial that he

had no explanation for the five-month delay. In its brief, however, Lexington

states that its adjuster revised the first report to account for rising construction

costs attributable to Katrina’s aftermath. Dickerson did not receive the payment

of $11,335 until March 2, 2006 — five months after the inspection and four

months after Lexington received the inspection report.35 Another inspection in

the spring of 2006 produced an additional $2,274 payment, again a mere fraction

of the aggregate $300,000 limit of Dickerson’s homeowner’s coverage. It was not

until the eve of trial, following a third inspection and more than a year and a

half after Katrina struck, that Lexington finally acknowledged that the insured
No. 07-30823

36 “[D]irect and positive evidence of vexatious refusal is not necessary to impose the

statutory penalty.” La. Bag. Co., 2008 WL 5146674, at *13 (quoting 14 COUCH ON INSURANCE

3D § 204.108).

14

property had suffered substantial wind (as opposed to flood) damage and made

a substantial payment.

Lexington insists thatit had a good faith dispute with Dickerson over how

much of the damage to the house and its contents was caused by flooding rather

than by wind. The existence of such a dispute is not supported by the evidence.

The insurer has pointed to nothing evidencing that it told Dickerson it was

disputing his claim on the basis of flood damage; it offers no evidence of a

dialogue with Dickerson over the quantum of the damage. Neither has

Lexington provided evidence that its adjusters and engineers had difficulty

assigning a portion of the damage to wind, and we have found no evidence in the

record to indicate that Lexington informed Dickerson that it was making or

could not make such a determination. Dickerson’s daughter testified at trial

that she and her brother repeatedly called Lexington about the insufficiency of

the payment but never got a response. The second inspection of the home did

not take place until June 2006, well after the long-delayed payment was made,

and even then resulted in payment of only $2,274. Given the lack of evidence of

a bona fide dispute and the fact that the extent of the flooding was self-evident,

we cannot creditLexington’s contention thatits payments totaling about $17,000

on damage valued at seven times that much (exclusive of the flood insurer’s

payment) was the result of a good faith dispute.

The district court applied the proper legal standard. It sought evidence of

a basis for Lexington’s delayed payments and later stalling, but could find

none.36 The court’s finding about whether Lexington’s dispute was in good faith

is a factual determination that we review deferentially. Even if Lexington

considered the damage to be much less than Dickerson claimed, it was aware
No. 07-30823

37 Article 1998. Damages for Non-pecuniary Loss

Damages for Non-pecuniary loss may be recovered when

the contract, because of its nature, is intended to gratify a Nonpecuniary interest and, because of the circumstances

surrounding the formation or the nonperformance of the

contract, the obligor knew, or should have known, that his

failure to perform would cause that kind of loss. 

15

that it owed some substantial amount, albeit a lesser one; yet it did not pay

Dickerson for five months following its first adjuster’s inspection. The fact that,

in the district court’s words, Lexington “all of a sudden decided or realized” on

the eve of trial that it owed an additional $46,479 under Coverage A — not to

mention amounts that it owed under other coverages — is further evidence that

Lexington’s earlier failure to pay was without probable cause. Lexington did

have a credible argument with respect to the contents claim, and the trial court

found that Lexington did not act capriciously in that regard. The district court’s

determination that Dickerson proved Lexington’s bad faith based on its arbitrary

and capricious withholding of payments under the policy’s Coverage A for the

dwelling was a conclusion of fact, which we review under the deferential clear

error standard. Finding none, we affirm.

E. Mental Anguish Recovery Under § 22:1220

Insurance contracts in Louisiana, such as the policy at issue here, are

regulated by both the Louisiana Civil Code and Title 22 ofthe Louisiana Revised

Statutes. The Civil Code provides the general law of contracts, and Title 22 fills

in the specifics that are applicable to contracts of insurance. Lexington claims

that the intersection of these two sources of law works to bar recovery of

damages for mental anguish by policyholders who claim their insurers have

acted toward them in bad faith. We conclude to the contrary.

1. Permissibility of Mental Anguish Damages as a Matter of Law

Lexington contends that Civil Code Article 1998 bars recovery of mental

anguish damages for breach of contract.37 Such damages are recoverable for
No. 07-30823

Regardless of the nature of the contract, these damages

may be recovered also when the obligor intended, through his

failure, to aggrieve the feelings of the obligee.

LA. CIV. CODE ANN. ART. 1998.

38 Id.

39 § 22:1220(B)(5) (2008).

40 § 22:1220(A).

16

breach of contract only if (1) the primary object of the contract is non-pecuniary,

or (2) the defendant’s conduct was intended to aggrieve the plaintiff.38 As

neither was the case here, argues Lexington, Dickerson cannot recover for

mental anguish suffered as a result of the insurer’s delays and denials. 

We have previously observed that § 22:1220 requires an insurer to act in

good faith by fairly and promptly adjusting and paying claims. This statute

identifies a half dozen per se breaches of the duty of good faith, including

arbitrary or capricious failure to pay a claim within 60 days following receipt of

satisfactory proof of loss.39 The statute specifies that “[a]ny insurer who

breaches these duties shall be liable for any damages sustained as a result ofthe

breach.”40 Lexington maintains that this broad language is negated by the Art.

1998's proscription of damages for non-pecuniary harms outside of its confines.

Lexington reasons that, because Art. 1998 governs all breaches of contract, and

the Civil Code creates the lens through which the revised statutes are to be

viewed, the Code article sets the limits of § 22:1220's governance of one kind of

contract, viz., insurance contracts. According to Lexington’s argument, because

the object of a home insurance contract is the payment of money — placing it

outside the first prong of Art. 1998 because it is intended to gratify a pecuniary

interest — Art. 1998 would only permit mental anguish damages if the insurer

intended to harm the insured.
No. 07-30823

41 Sher v. Lafayette Ins. Co., 988 So. 2d 186 (La. 2008).

42 Id. at 203. 

43 Gaffney v. State Farm Fire & Cas. Co., No. 06-8143, 2008 WL 4656926, at *1 (E.D.

La. 2008). The Gaffney court stated that Sher “simply held that the plaintiff in that particular

case failed to provide sufficient evidence to recover mental anguish damages pursuant to

Louisiana Civil Code Article 1998 ... the Supreme Court made no ruling one way or the other

under Section 22:1220 as to whether damages for mental anguish are recoverable as general

damages.” Id. See also Burgess v. Allstate Ins. Co., No. 07-248-JJB, 2008 WL 5121962, at *4

n.46 (M.D. La. Dec. 5, 2008) (stating that Sher is not dispositive on the permissibility of mental

anguish damages under § 22:1220); Creecy v. Metro. Ins. Co., No. 06-9307, 2008 WL 4758625,

at *2 (E.D. La. Oct. 30, 2008) (finding mental anguish damages permissible under § 22:1220

after Sher); Farber v. Am. Nat’l Prop. & Cas. Co., No. 08-821, 2008 WL 5159207, at *7 (La.

App. 3d Cir. Dec. 10, 2008) (same). Cf. Juneau v. State Farm Fire & Cas. Co., No. 08-1238,

2008 WL 5234405, at *4 (E.D. La. Dec. 12, 2008) (finding Sher barred mental anguish

damages recovery under § 22:1220); Barrow v. State Farm Fire & Cas. Co., No. 07-5603, 2008

WL 4412259, at *2 (E.D. La. Sept. 18, 2008) (same); see also Copelin v. State Farm Ins. Co.,

No. 06-4115, 2008 WL 4587306, at *2 (E.D. La. Oct. 10, 2008) (stating that Sher should guide

17

We have not previously addressed the interaction of Civil Code Art. 1998

and § 22:1220. Neither has the Louisiana Supreme Court squarely addressed

this issue. Lexington nevertheless contends that the recent Louisiana Supreme

Court decision in Sher v. Lafayette Insurance Company resolved the issue.41

Although we agree that the Sher decision lends some support to Lexington’s

argument, it is hardly determinative. The court essentially left for another day

the question posed here. In Sher, the trial court had refused to give a jury

instruction on mental anguish damages under Civil Code Art. 1998; the

discussion does not mention § 22:1220. The intermediate appellate court

affirmed that ruling, finding no error because the ruling had no impact on the

trial’s outcome. The Louisiana Supreme Court affirmed, concluding the trial

court’s error, “if any,” was harmless. In so holding, the court stated that “there

was no legal basis for the jury to have found damages for mental anguish.”42 The

court did not elaborate on this statement.

Several other courts also have viewed the Sher decision as inconclusive

with respect to mental anguish damages under § 22:1220.43 In Gaffney v. State
No. 07-30823

courts in determining permissibility of recovery for mental anguish under § 22:1220).

44 Orellana v. La. Citizens Prop. Ins. Co., 972 So. 2d 1252 (La. App. 4th Cir. 2007)

(affirming damages award for emotional distress under § 22:1220 when insurer failed to pay

timely under insured’s policy following HurricaneKatrina without mention of Art. 1998); Clark

v. McNabb, 878 So. 2d 677 (La. App. 3d Cir. 2004) (affirming award of damages under §

22:1220 for anxiety and mental anguish without mention of Art. 1998); Reed v. Recard, 744

So.2d 13 (La. App. 1st Cir. 1998) (same), abrogated on other grounds; Holt, 680 So. 2d 117

(affirming, but reducing damages for mental anguish awarded under § 22:1220 without

mention of Art. 1998). 

45 Veade v. La. Citizens Prop. Corp., 985 So. 2d 1275 (La. App. 4th Cir. 2008). 

46 Id. at 1281.

47 Orellana, 972 So. 2d at 1256 (Louisiana Fourth Circuit Court of Appeal permitting

damages for mental anguish under § 22:1220).

18

Farm Fire & Casualty Co., the district court stated that the Sher ruling was

limited to the specifics of that case and did not address the availability of

damages vel non for mental anguish under § 22:1220. A review of the case law

shows thatthe appellate courts of Louisiana and the district courts ofthis circuit

have regularly permitted mental anguish damages for a breach of § 22:1220.

Louisiana appellate courts have not been uniform in their holdings on this

question, either before or after Sher. Prior to that case, a number of Louisiana

appellate courts had approved awards for mental anguish under § 22:1220,

although mostly without addressing the applicability of Civil Code Art. 1998.44

Following Sher, the decisions remain mixed. The two cases to address mental

anguish damages under § 22:1220 post-Sher resulted in divergent outcomes. For

example, Louisiana’s Fourth Circuit Court of Appeal, in Veade v. Louisiana

Citizens Property Corp., held that Civil Code Art. 1998 applies to § 22:1220

damages.

45 The Veade court, in reaching its conclusion, affirmed an award of

mental anguish damages on a finding that the insurer acted intentionally46 and

appeared to conflict with prior authority in that circuit permitting mental

anguish damages under § 22:1220.47 The Veade decision briefly refers to the
No. 07-30823

48 Veade, 985 So. 2d at 1280-81 (citing Orellana, 972 So. 2d at 1256).

49 2008 WL 5159207, at *7 (relying on Orellana with only passing reference to Sher’s

dissent). Both Veade and Farber look to Orellana for guidance on the availability of mental

anguish damages under § 22:1220.

50 Faust v. State Farm Fire & Cas. Co., No. 06-8470, 2007 WL 1191163, at *4 (E.D. La.

2007) (“Plaintiffs’ claims for general damages such as emotional distress do not arise from a

simple breach of their insurance contract. Rather, they are based on the asserted violation of

State Farm's statutory duty under Section 22:1220 in one or more of the specified ways.”)

(internalfootnote omitted); see also Bowers v. StateFarm Fire & Cas. Co., No. 06-830, 2007 WL

2670087, at *1 (E.D. La. 2007) (distinguishing mental anguish damages under § 22:1220 from

prohibition on such damages in insurance contracts).

At common law, claims of breach of the duty of good faith are distinct from claims of

breach of contract. See, e.g., Med. Care Am., Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, 341

F.3d 415, 419 (5th Cir. 2003). 

51 Faust, 2007 WL 1191163, at *4.

19

conflicting opinion in Orellana v. Louisiana Citizens Property Insurance Corp.,

acknowledging that case’s holding that “damages can be recovered for mental

anguish if the insurer breaches its duty of good faith,” and deflecting any

apparent conflict by noting Orellana made no mention of the insurer’s intent (or

lack thereof)to aggrieve the insured.48 Notably, Veade cites Sher as support, not

as determinative of the question. In contrast, Farber v. American National

Property & Casualty Co. affirmed an award of general damages for mental

anguish under § 22:1220 after Sher.

49

Atleast two federal district courts in Louisiana have determined that Civil

Code Art. 1998 does not bar § 22:1220 damages for mental anguish under

insurance contracts, reasoning that § 22:1220 addresses a harm distinct from

breach of contract: breach of the duty of good faith.50 “The prohibited acts set

forth in § 22:1220(B) amount to knowing and vexatious wrongdoing directed

toward an insured. The general and special damages award is thus aimed at,

and limited to, a caliber of misconduct that goes well beyond an ordinary breach

of contract.”51 By this rationale, Art. 1998 simply does not apply. Indeed, the

Louisiana Supreme Court itself has acknowledged and endorsed this reading of
No. 07-30823

52 Manuel v. La. Sheriff’s Risk Mgmt. Fund, 664 So. 2d 81, 84 (La. 1995) (“[T]he statute

does not speak on a matter that is a subject of the contract, or is specifically addressed in the

contract. The statute speaks of an insurer's obligation to act in good faith toward insured and

non-insured claimants and establishes penalties for the commission of certain acts, none of

which are covered in the contract.”). Although Manuel addressed the 1991 version of the

statute, the relevant language of the applicable version is identical. The court in Manuel

permitted the plaintiffs to sue their insurer for mental anguish damages, among other claims.

Id. at 82-83.

53 Id.

54 § 22:1220(A).

55 § 22:1220(C).

56 Bellard v. American Cent. Ins. Co., 980 So. 2d 654, 674 (La. 2008) (quoting Keeth v.

Dep’t of Pub. Safety & Transp., 618 So. 2d 1154, 1160 (La. App. 2d Cir. 1993).

57 Courts have permitted the award of damages for mental anguish caused by insurers’

breaches under § 22:1220 for years. The Louisiana Legislature has amended the statute twice

20

§ 22:1220 — albeit without express reference to Art. 1998.52 “[T]he subject

matter of the statute is unrelated to that of the contract.... The duties that it

does impose upon insurers are separate and distinct from the duties mentioned

in the contract of insurance.”53

This is a more plausible reading ofthe statute. It is supported by the plain

language of § 22:1220, whereas Lexington’s proffered reading is not. The statute

specifically refers to a breach of the duty of good faith; it does not refer to breach

of contract. Furthermore,§ 22:1220 is broadly worded, explicitly permitting

liability for “any damages sustained,”54 including, without limitation, “any

general or special damages.”55 “General damages are those which may not be

fixed with pecuniary exactitude; instead, they ‘involve mental or physical pain

or suffering, inconvenience, the loss of intellectual gratification or physical

enjoyment, or other losses of life or life-style which cannot be definitely

measured in monetary terms.’”56 By authorizing “any damages,” including “any

general or special damages,” the legislature pointedly permitted the award of

mental anguish damages.57
No. 07-30823

since 1997 and yet has not clarified the language to bar such awards. 

58 Buddy’s Tastee No. 1, Inc. v. Tastee Donuts, Inc., 483 So. 2d 1321, 1324 (La. App. 4th

Cir. 1986).

59 Atwood v. Hylan, 685 So. 2d 450, 454 (La. App. 2d Cir. 1996).

21

We hold that Art. 1998 is, as a matter of law, inapplicable to § 22:1220 and

does not bar the award of mental anguish damages under this statute: Damages

for mental anguish may be awarded under § 22:1220 for breaches of the duty of

good faith. With this established we must determine whether Dickerson

adduced sufficient proof of mental anguish to support an award.

2. Sufficiency of the Evidence

The trial court awarded Dickerson $25,000 in general damages for mental

anguish that he suffered from Lexington’s arbitrary refusal to pay. Lexington

contends that Dickerson did not offer sufficient evidence to support such an

award. 

Both Dickerson and his daughter, Cindy Bane, testified about his living

situation following Hurricane Katrina. Bane testified that the year and a half

of fighting with Lexington caused her father’s mental health to deteriorate.

Bane said that her father became increasingly withdrawn and short-tempered

over the course of his ordeal. She noted that he has been living in the bathtub

showroom of a store and showering with a garden hose while standing on a

wooden pallet in an unheated back room. Dickerson testified that the stress

caused a rash for which he eventually had to seek a doctor’s care.

Lexington asserts that for an insured to succeed on a claim of mental

anguish, the law requires more evidence than Dickerson offered. “[B]are

allegations of depression and embarrassment”58 are insufficient, Lexington

contends; mental anguish must rise to the level of medical significance.59

Lexington insists that Dickerson should have offered the testimony of an expert

who could attest to his mental state before and after the storm and to any nexus
No. 07-30823

60 Adams v. Unione Medtierranea, 364 F.3d at 655.

61 Stanford v. Town of Ball, 903 So. 2d 1235, 1243-44 (La. App. 3d Cir. 2005).

62 Kim v. Kim, 970 So. 2d 1158, 1165 (La. App. 5th Cir. 2007). 

63 Lacombe v. Carter, 975 So. 2d 687, 690 (La. App. 3d Cir. 2008).

64 Laurents v. La. Mobile Homes, 689 So. 2d 536, 543 (La. App. 3d Cir. 1997).

22

with the ensuing battle with the insurer. Furthermore, argues Lexington, much

of the suffering was of Dickerson’s own making; he could have saved himself

significant hardship by moving into the FEMA trailer that sat unoccupied on his

front lawn for months. His unilateral and arbitrary choice to live in a bathtub

showroom instead of the trailer should not provide a basis for Lexington’s

liability.

There is no clear legal standard for what constitutes sufficient evidence of

mental anguish in a case such as this. It was up to the trial court as fact-finder

to determine whether the evidence Dickerson presented was sufficient to prove

that he suffered compensable mental anguish as a result of Lexington’s actions.

In effect,the question whether there was legally sufficient evidence merges with

this factual question. We review the court’s factual conclusion for clear error;

mixed questions of law and fact de novo.

60

These cases are necessarily fact-specific, so outcomes vary.61 The case law

provides only anecdotal guidance as to what may or may not suffice to prove

compensable mental anguish. “Mental anguish which gives rise to a claim for

damages must be a real mental injury that one can reasonably expect a person

in such a position to suffer.”62 It “does not require proof that medical or

psychiatric care was required as a result of the incident, but minimal worry and

inconvenience should not be compensated.”

63 Neither is expert testimony

mandatory, as Lexington contends.64
No. 07-30823

65 972 So. 2d at 1256.

66 Holzenthal v. Sewerage & Water Bd. of New Orleans, 950 So. 2d 55, 79-80 (La. App.

4th Cir. 2007). 

67 Matt v. Agro Distribution, LLC, 904 So. 2d 928, 934 (La. App. 3d Cir. 2005). 

68 Stanford v. Town of Ball, 903 So. 2d at 1245-46 (plaintiff and his family’s testimony

about humiliation from living in a home with raw sewage fumes emanating from the plumbing

and backing up in the bathtub was sufficient evidence of aggravation and inconvenience

endured, but court reduced jury award, finding $175,000 excessive).

69 Ganhart v. Executive House Apartments, 671 So. 2d 525, 527-28 (La. App. 4th Cir.

1996) (plaintiff testified that leak in apartment above hers caused hers to smell and made her

fear a rodent infestation, electrical fire, that her ceiling could fall in or that she could slip on

wet carpet).

70 Kim, 970 So. 2d 1158 at 1165 (plaintiff testified she suffered mental anguish from

damage to her reputation and gossiping about her due to defendant’s failure to comply with

their business partnership agreement).

23

For example, in Orellana, the fact that the plaintiff had to stand idle and

watch his home deteriorate while his insurer refused to pay helped convince the

court that mental anguish damages under § 22:1220 were proper.65 Another

Louisiana court found the evidence sufficient to support an award for mental

anguish based on the testimony of an elderly couple who both stated that they

felt helpless as they watched their home become more and more damaged by

vibrations from a prolonged street drainage construction project in their

neighborhood, and that they would have to endure additional distress as the

home was repaired.66 Still another court sanctioned mental anguish damages

based on the plaintiffs’ testimony that a crop failure forced them to take on

mortgages and finance their farming operation on credit cards, causing them

“increased stress, irritability, and short tempers.”67 In other cases, Louisiana

courts have found testimony of humiliation68 and fears of possible injury69

sufficient, but have also held that evidence of damage to reputation and harm

from gossiping was insufficient.70 The case Lexington cites as setting the
No. 07-30823

71 Atwood, 685 So. 2d at 454.

72 The district court awarded penalties under § 22:1220, not under § 22:658, so this

portion of the amendment is not at issue here.

24

standard at “psychic trauma requiring medical treatment” is inapposite here.71

That case concerned a property owner’s claim of psychic trauma as a result of

physical damage to his property resulting from a property dispute; itis a specific

type of mental anguish claim and thus distinct from the instant situation.

Dickerson did not offer expert or medical testimony, but he did offer more

than“bald assertions.” His daughter’s testimony of watching her father’s mental

state deteriorate and his becoming short-tempered and anti-social is more than

bare or conclusional. The same holds for Dickerson’s testimony that he suffered

a rash from the stress, for which he did seek medical care. Although Lexington

contends plausibly that Dickerson could have mitigated his suffering, the district

court was best positioned to make credibility determinations of the witnesses,

and it found the weight of the evidence tipped in favor of Dickerson. On review,

we find no clear error in the district court’s conclusions grounded largely in

credibility determinations. 

F. Applicability of § 22:658 Amendment Permitting Attorneys’ Fees

Section 22:658(B)(1) permits the imposition of penalties against insurers

who delay payment of claims in bad faith. A post-Katrina amendment to this

statute that took effect on August 15, 2006 altered the statute in two significant

ways: (1) Penalties were doubled from 25 percent to 50 percent of any amounts,

in addition to the payment for the claim, determined to be due from the

insurer,72 and (2) recovery of attorneys’ fees by the insured was permitted.

Hurricane Katrina plaintiffs have advanced several arguments to encourage

courts to permit the amended version of the statute to apply to their insurance

disputes. Here, Lexington insists that the amendments do not apply because

they did not take effect until after Dickerson filed his claim. The critical
No. 07-30823

73 The answer to this question has significant implications for victims of Hurricane

Katrina that extend beyond any single case, because most Katrina victims made claims well

before the amendments took effect. If, however, the measuring event is not limited to the filing

of a claim — for example, it might be the refusal by the insurer to pay — some of those

claimants still might benefit from the amendment.

74 988 So. 2d at 199. In Sher, the owner of a small apartment building in which he lived

sought recovery following Hurricane Katrina under his commercial all-risk insurance policy.

75 Id.

76 Id. at 201.

77 Id.

25

question is at what point on the timeline does an insurer’s refusal to pay trigger

the penalty provisions of § 22:658.73 Courts have disagreed about this,

pinpointing, for example (1) the filing of the initial claim, (2) the submission of

satisfactory proof of loss, (3) the insurer’s refusal to pay or denial of a claim, and

(4) an ongoing refusal to pay. In Sher, the Louisiana Supreme Court clarified

that, as a general rule, the relevant event for triggering the attorneys’ fees

provisions of § 22:658 is the submission of satisfactory proof of loss.74 In so doing,

the Sher court rejected two arguments that might have permitted other Katrina

victims to benefit from the amended § 22:658: (1) that injury from an insurer’s

bad faith delay of payment or denial of recovery continues so long as the delay

or denial continues,75 and (2) that the amendments were retroactive.

76 At the

same time, the Sher court left some room for holding that other later-occurring

events might trigger § 22:658, noting that if Sher had not yet submitted his

satisfactory proof of loss, a petition for damages could have sufficed, and that if

damage is discovered after the first claim is made and the insurer fails timely

to pay this additional claim, such a failure might give rise to penalties.77

Lexington argues that Sher forecloses the award of attorneys’ fees in this

case because the satisfactory proof of loss was submitted and payment was

refused before August 15, 2006. We agree. The district court awarded Dickerson
No. 07-30823

78 The trial court entered judgment as to attorneys’ fees on September 11, 2007. Sher

was decided on April 8, 2008.

79 Santibanez v. Wier McMahon & Co., 105 F.3d 234, 239 (5th Cir. 1997); see also

Vandenbark v. Owens-Illinois Glass Co., 311 U.S. 538, 542-43 (1941) (“[T]he dominant

principle is that nisi prius and appellate tribunals alike should conform their orders to the

state law as of the time of the entry. Intervening and conflicting decisions will thus cause the

reversal of judgments which were correct when entered.”) 

26

attorneys’ fees and costs under § 22:658 in the amount of $53,105 in reliance on

the “continuing breach” rationale, holding that Lexington could be liable for that

part of the breach (the continued refusal to pay) that extended past August 15,

2006. 

After Sher, Louisiana law clearly prohibits the continuing-breach rationale

employed by the district courtin this case, irrespective of any meritthatit might

have had at the time of decision. Dickerson filed his claim with Lexington in the

fall of 2005, prior to the August 15, 2006 effective date of the amendment to §

22:658. Even though Sher post-dates the district court’s judgment on attorneys’

fees in this case,78 the intervening Louisiana Supreme Court decision controls.

We must apply the “latest and most authoritative expression of state law

applicable to the facts of a case.”79 We therefore reverse the judgment of the

district courtto the extentthatit awarded attorneys’ fees. Because it is possible,

however, that some damage was not discovered until after August 15, 2006

(Lexington made its third inspection in 2007 during which it found new damage),

we remand this issue to the district court for it to consider whether attorneys’

fees under the amended version § 22:658 might apply to any part of the

insurance proceeds that were paid after the effective date of the amendment.

III. CONCLUSION

We reverse that part of the judgment which awards attorneys’ fees and

remand it to the district court for further proceedings consistent with this

opinion. We affirm the judgment of the district court in all other respects.
No. 07-30823

27

REVERSED and REMANDED in part; AFFIRMED in part.