Failure to Settle Within Policy Limits
If you are a lawyer who has, for any length of time, been hired by an insurer to defend its insureds in litigation, no doubt you have received from plaintiff’s counsel, following discovery of the policy terms, a settlement demand at or just below the insurer’s policy limit. Under the Louisiana Code of Professional Responsibility, Rules 1.2 and 1.4, you are required to keep your client informed of any offers of settlement. Under Louisiana case law, the party being represented, whether or not it is the party paying for the representation, is considered the client. This means you are obligated to promptly advise the insured that you have received an offer to settle the litigation for an amount that, if paid by the insurer who hired you, will shield the insured from the possibility of an excess judgment. Quite obviously, self-interest often takes over and soon the insurer who has hired you receives a demand from the insured’s attorney demanding that the settlement offer, even if unreasonable, be accepted. Obviously, any advice on this issue is not something you are ethically permitted to render, and the decision must be made by the insurer, with or without assistance from its coverage counsel.
Likewise, if you are a lawyer who has, for any length of time, defended tort suits alleging bodily injury, you know that neither the evaluation of liability nor the evaluation of damages is an exact science. Reasonable professional judgment as to either of these main elements of evaluating a claim may differ, and two equally experienced and competent lawyers may disagree as to the settlement value of the same claim. In my practice, I try to evaluate the claim as soon as I receive enough information to do so. This may be after discovery has ended, or it may be considerably earlier, depending on the case and its facts. An early evaluation made before receipt of a settlement demand often is free of the pressure that might otherwise bear on insured and insurer alike.
Finally, if you are a lawyer who has, for any length of time, represented insurers as coverage or consulting counsel, you have been faced with the question of the appropriate amount that your client should agree to pay to settle a suit against its insured. In making your determination, you should prepare your own evaluation of the liability and damages, relying on reports of defense counsel where necessary and justified. When I am asked to make such evaluation, I heed the advice of my friend Shelby McKenzie:
It is suggested that the insurance company should disregard its policy limits in evaluating the reasonableness of a settlement offer. The insurer should not be motivated by how much it stands to gain or lose, thus disregarding the insured’s exposure. Instead, the insurance company should analyze the claim from the viewpoint of how much it would be willing to pay in settlement of the case if its policy limits were adequate to cover the insured’s full exposure. Then, it should be prepared to fund such reasonable settlement up to its policy limits. On the other hand, if the insurer reasonably would risk its own funds in litigation of the claim, then it should not be required to pay more simply because the insured has purchased inadequate insurance protection.
Early Louisiana precedent. While an insurer in Louisiana does not guarantee that an excess judgment will not be rendered against its insured, it is expected to take reasonable steps to properly evaluate such exposure and avoid such an outcome when it is reasonable to do so. Although there are Louisiana cases as early as the 1930s on this issue, Younger v. Lumbermens Mutual Casualty Co., decided in 1965, marked the beginning of our current rules about an insurer’s responsibilities to its insured in exercising settlement rights. In Younger, the Louisiana Third Circuit Court of Appeal recognized that insurers generally bring superior knowledge to the evaluation of litigation, describing them as professionals in the defense of suits. The court opined that an insurer’s duties to its insured are similar to those of a fiduciary, who must put its insured’s welfare before its own, and created, in essence, a standard of conduct for an insurer in cases potentially surpassing policy limits, stating:
“The question is always: ‘Did the insurer exercise that degree of skill, judgment, and consideration for the welfare of the insured which it, as a skilled professional defender of lawsuits having sole charge of the investigation, settlement, and trial of the suit may have been expected to utilize?’ If it did, there is no problem; it is not liable. If it did not, then the court could easily describe its conduct as being negligent, or as not in accordance with the high duty of good faith which it owed to its insured.”
In Younger, the underlying suit involved an automobile striking a pedestrian, with the driver and pedestrian the only witnesses. Not surprisingly, each gave widely different versions of the accident. The pedestrian claimed she was struck while in a position of apparent safety by the motorist driving on the wrong side of the road. The defendant motorist claimed the plaintiff pedestrian darted in front of her from between two parked cars. Lumbermens could have settled within the $5,000 policy limits but refused, relying on its policyholder’s version of the facts. At trial, judgment was rendered against the insured for $17,000 and affirmed on appeal. The insured then assigned to the plaintiff, in satisfaction of the excess judgment, her rights against Lumbermens. The original plaintiff sued Lumbermens for the $12,000 excess judgment, asserting that Lumbermens should be liable to him for failing to settle within its limits and for failing to keep the defendant insured informed of the settlement negotiations.
The court opined that liability for an excess judgment for failure to settle does not rest on the insurer’s ability to predict the outcome of the litigation; rather, it rests on the reasonableness of the decision to litigate. The court held that the insurer was not unreasonable in relying on the evidence given by its insured, which, if believed by the finder of fact, would have exonerated her.
Younger establishes that the decision to litigate must not be arbitrary or unreasonable under the circumstances, and the insurer has the right to litigate when it has a reasonable basis for that decision. In subsequent cases, our courts have not second-guessed the insurer’s decision to litigate rather than accept a settlement demand within limits without convincing evidence that the insurer was acting in its own self-interest and in disregard of the insured’s interest. Although there have been cases in which our courts have found the insurer’s conduct unreasonable, insurers have not been held liable for judgments in excess of their policy limits in cases in which liability, or the amount of damages, were issues reasonably justifying litigation.
On the other hand, an earlier decision differentiated between an insurer’s decision to litigate based on its evaluation of the insured’s liability and the quantum of the case, and an insurer’s decision to litigate based on a perceived coverage defense.
In Trahan v. Central Mutual Insurance Co., Central Mutual originally denied coverage under the business pursuits exclusion of a homeowners’ policy but provided a defense. The plaintiff offered to settle within the $25,000 policy limit, which Central Mutual rejected, even though the insured had offered to contribute $8,000 toward the settlement. The trial resulted in a $75,000 judgment, which was affirmed on appeal. Trahan settled the excess judgment for $25,000 and sued Central Mutual for its failure to settle.
The Louisiana Court of Appeal found that Central Mutual had placed “blind faith” in its coverage defense when it refused the offer to settle, and had thus placed its own interest above that of its insured. Judgment was awarded against Central Mutual for the $25,000 paid by Trahan.
Some legal scholars interpret Trahan as standing for the proposition that an insurer who rejects an otherwise reasonable settlement offer because of its belief in a coverage defense will be held responsible to the insured for the damage caused by the insurer’s misplaced reliance on its coverage defense.
Later, Louisiana’s Second Circuit, in Keith v. Comco Insurance Co., visited the subject. The court stated:
The insurer, as a professional defender of lawsuits, is held to a standard higher than that of an unskilled practitioner; what may be neglect on the part of the latter may well constitute bad faith on the part of the insurer. The insurer is not required to settle a claim within policy limits under penalty of absolute liability for any excess judgment rendered against the insured, but the insurer may be liable for the excess judgment if its refusal to settle within policy limits is found to be arbitrary or in bad faith. Liability is not predicated on failure to predict the correct outcome of the action, but rather on whether the insurer unreasonably exposed its insured to a judgment in excess of policy limits, and whether the proposed settlements are rejected conscientiously in terms of deliberate judgment evaluation rather than for inadequate or no reason. A determination as to what constitutes bad faith or lack of good faith depends on the facts and circumstances of each case. The courts look to various factors to evaluate whether an insurer is in bad faith for failure to compromise a case within policy limits:
(1) the probability of the insured’s liability;
(2) the adequacy of the insurer’s investigation of the claim;
(3) the extent of damages recoverable in excess of policy coverage;
(4) rejection of offers in settlement after trial;
(5) the extent of the insured’s exposure as compared to that of the insurer; and
(6) the nondisclosure of relevant factors by the insured or insurer.
Present law. The Louisiana Supreme Court finally directly visited this issue in Smith v. Audubon Insurance Co. in 1996, having earlier been satisfied to merely deny supervisory writs to decisions of the courts of appeal. In Smith, the insured’s grandson was seriously burned while repairing a lawn mower at the insured’s home. In statements made shortly after the accident, both the insured grandfather and the injured grandson showed that the insured grandfather was present but suggested he was not at fault. After suit was filed, depositions indicated that the grandfather was holding the gas tank, which he dropped when the carburetor caught on fire. The insurer rejected a settlement offer for the $25,000 policy limits. The jury found the grandfather at fault (60 percent) and awarded $55,000. The trial court rejected the insured’s claim for the excess judgment based on the recorded interviews shortly after the accident. The court of appeal reversed, finding the insurer did not have a reasonable belief that the injured plaintiff was 100 percent at fault. In a 5–2 decision, the Louisiana Supreme Court reinstated the trial court decision, with the following explanation of an insurer’s duty with respect to settlement:
In the absence of bad faith, a liability insurer generally is free to settle or to litigate at its own discretion, without liability to its insured for a judgment in excess of the policy limits. On the other hand, a liability insurer is the representative of the interests of its insured, and the insurer, when handling claims, must carefully consider not only its own self-interest, but also its insured’s interest so as to protect the insured from exposure to excess liability. Thus, a liability insurer owes its insured the duty to act in good faith and to deal fairly in handling claims.. . .
Thus, the determination of whether the insurer acted in bad faith turns on the facts and circumstances of each case. Of course, an insurer is not obliged to compromise litigation just because the claimant offers to settle a claim for serious injuries within the policy limits, and its failure to do so is not by itself proof of bad faith. The determination of good or bad faith in an insurer’s deciding to proceed to trial involves the weighing of such factors, among others, as the probability of the insured’s liability, the extent of the damages incurred by the claimant, the amount of the policy limits, the adequacy of the insurer’s investigation, and the openness of communications between the insurer and the insured. Nevertheless, when the insurer has made a thorough investigation and the evidence developed in the investigation is such that reasonable minds could differ over the liability of the insured, the insurer has the right to choose to litigate the claim, unless other factors, such as a vast difference between the policy limits and the insured’s total exposure, dictate a decision to settle the claim.
Smith remains the standard in Louisiana, and subsequent decisions have evaluated the insurer’s conduct under these standards.
Bottom line. The bottom line is that when an insurer is evaluating whether to accept an offer within its insured’s policy limit, it should do so without regard to the limit. Liability and damages in a case should be valued without regard to the insurance limit. Once that number has been determined, it is probably good “insurance” for an insurer to then throw in a little extra to take into account its continuing litigation expenses. Then, assuming the gap between the value of the case and the policy limit is large, defend the suit. If the gap is small, consider whether peace of mind, finality, and relations with the insured justify making the settlement.
Bad-Faith Claims Asserted by Third Parties
If an injured plaintiff, a third party to the contact of insurance, has asserted a claim alleging insurer bad faith, a general allegation of “bad faith” may not be sufficient to support the plaintiff’s cause of action, and, in some cases, an exception or motion for summary judgment may be successful in removing the claim from the suit.
Louisiana Revised Statutes Section 22:1973. Section 22:1973 (A) of the Louisiana Revised Statutes sets forth general duties of good faith and fair dealing on the part of the insurer. The duties are owed to the insured, not to third parties. This was confirmed by the Louisiana Supreme Court in Kelly v. State Farm Fire & Casualty Co., in which the Louisiana Supreme Court recognized that
[d]espite the broad wording of Section 22:1973(A), it does not give a third-party claimant the right to sue an insurer for a generalized breach of its duty of good faith and fair dealing.
The only exception to this rule is when the insured has assigned its rights to a third-party claimant, as was the case in Kelly.
Claims by third parties are actionable under section 22:1973:1973 only if the insurer has taken one or more of the prohibited actions specified in section (B). That section addresses the following prohibited actions:
· Section (B)(1): Misrepresentation of pertinent facts or provisions of the insurance policy concerning coverage;
· Section (B)(2): Failure to pay a settlement within 30 days after the settlement has been reduced to writing;
· Section (B)(3): The insurer taking action based on an altered application when notice of the alteration was not provided to the insured;
· Section (B)(4): Misleading a claimant as to the applicable prescriptive period; and
· Section (B)(5): Failing to pay a claim due “any person insured by the contract” within 60 days after receipt of satisfactory proof of loss when such failure is arbitrary, capricious, or without probable cause.
Louisiana courts have consistently held that third-party claimants cannot bring a claim under section (B)(5). Thus, because plaintiffs are third parties to the policy of insurance, they cannot assert a claim under section (B)(5).
Louisiana Revised Statutes Section 22:1892. The Louisiana legislature promulgated sections (A)(4) and (B)(1) of section 22:1892 of the Louisiana Revised Statutes to allow for claims by third parties. Otherwise, section 22:1892 applies only to claims of the insured. This is clearly exemplified in section (A)(1) of the statute, which provides:
All insurers issuing any type of contract, other than those specified in R.S. 22:1811, 1821, and Chapter 10 of Title 23 of the Louisiana Revised Statutes of 1950, 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. The insurer shall notify the insurance producer of record of all such payments for property damage claims made in accordance with this Paragraph.
Sections (A)(4) and (B)(1) of Louisiana Rev. Stat. § 22:1892, in so far as they concern third parties, only apply to property damage claims. Specifically, section (A)(4) provides:
(4) All insurers shall make a written offer to settle any property damage claim, including a third-party claim, within thirty days after receipt of satisfactory proofs of loss of that claim.
Section (B)(1) provides:
B. (1) Failure to make such payment within thirty days after receipt of such satisfactory written proofs and demand therefor or failure to make a written offer to settle any property damage claim, including a third-party claim, within thirty days after receipt of satisfactory proofs of loss of that claim, as provided in Paragraphs (A)(1) and (4) of this Section, respectively, or failure to make such payment within thirty days after written agreement or settlement as provided in Paragraph (A)(2) of this Section when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of fifty percent damages on the amount found to be due from the insurer to the insured, or one thousand dollars, whichever is greater, payable to the insured, or to any of said employees, or in the event a partial payment or tender has been made, fifty percent of the difference between the amount paid or tendered and the amount found to be due as well as reasonable attorney fees and costs. Such penalties, if awarded, shall not be used by the insurer in computing either past or prospective loss experience for the purpose of setting rates or making rate filings.
Bottom line. Louisiana’s two bad-faith statutes set forth limited, specific actions of insurers that can give rise to a cause of action by a third party. Because these actions are not present in most cases, a detailed review of the facts alleged and the prohibited actions delineated in the statutes may support a dispositive motion as to the bad-faith claim.
Bad Faith Based on Failure to Defend
If an insured has alleged bad faith based on the insurer’s failure to defend the insured against claims asserted by an injured third party, a careful analysis of the facts alleged by the third party is required. The third party may “throw in the kitchen sink” in an attempt to trigger coverage. If the third party makes this attempt by throwing in various vague, general legal theories, that should not be sufficient. This is a careful distinction that, although sometimes difficult to bring to light, can be done. Below is a discussion of cases that can be illustrative when attempting to make the distinction.
The duty to defend. Louisiana is a fact-pleading jurisdiction. Mere legal conclusions, unsupported by facts, are not sufficient to set forth a cause of action. When it comes to the duty to defend, the defense obligation is to be determined solely by two things: (1) the “four corners” of the petition filed against the insured and (2) the “four corners” of the policy of insurance. An insurer is not obligated to defend the insured when the facts in the petition are unambiguously excluded from coverage.
The importance of facts. Under Louisiana law, the facts alleged in the petition govern the duty to defend, not the legal theories asserted. The Louisiana Supreme Court, in Jackson v. Lajaunie, held as follows:
Since the petition alleged the facts, and the facts showed that coverage was excluded, there was no obligation on the part of the [insurer] to defend [the insured’s] claim.
In 2011, the U.S. District Court for the Eastern District of Louisiana ruled based on the facts alleged, not the possible legal theories advanced. In New Orleans Deli & Dining, plaintiff employees alleged that the defendant restaurant withheld tips. The employees alleged liability on the part of the restaurant based on theories of “breach of contract, negligence, fraud, unjust enrichment, and conversion.” The court ruled that the restaurant’s insurer had no duty to defend:
The alleged acts of implementing the tip policy and taking the tips were done intentionally, not accidentally nor negligently. Thus, plaintiffs’ claims do not sound in negligence, but rather the intentional tort, and intentional acts are excluded by the policy. Therefore, CCC does not owe NODD a duty to defend it in the McCollum litigation.
Also in 2011, the U.S. District Court for the Western District of Louisiana clearly and succinctly stated Louisiana’s law as follows:
It is well settled that the allegations of fact, and not conclusions, contained in the petition determine the obligation to defend.
In that case, QBE Specialty, the plaintiff waste company alleged that the defendant waste company misrepresented facts by forging the signatures of the plaintiff company’s customers on cancellation letters and representing to the public that the defendant company had acquired the plaintiff company. In its decision, the Western District of Louisiana held:
It is clear that forging signatures is an intentional act. In fact, SWDI accuses Boje of participating in a conspiracy to forge these letters. Therefore, the allegation of negligently misrepresenting to SWDI that its customers had cancelled their agreements is a mere conclusion insufficient to trigger coverage under Coverage A of the QBE Policy. The allegations of fact clearly show SWDI is pleading intentional conduct.
. . . The mere pleading of conclusory negligence cannot mask all of the factual allegations of intentional conduct set out in the SWDI petition. Louisiana law is well settled that the factual allegations, not conclusions, are what control an insurer’s duty to defend. In the underlying SWDI action, “intentionally misrepresent[ing] facts regarding SWDI to the public” does not constitute an “occurrence” within the meaning of the policy.
Further, the purpose of intentional injury exclusions is to prevent an insured from acting wrongfully with the security of knowing its insurer will “pay the piper” for the damages. The Western District of Louisiana held that the underlying proceeding was a lawsuit pertaining to the intentional acts of the defendant company. The allegations did not trigger coverage under the policy’s Coverage A or Coverage B. The court concluded that, based on specifically pled factual allegations of intentional conduct, and pursuant to the language of the insurance policy, the insurer did not have a duty to defend the insured in the underlying suit.
Bottom line. Louisiana law is clear that it is the facts alleged that govern the duty to defend, not legal theories that may have been advanced. A careful review of the underlying petition for damages or complaint for facts that, if true, would trigger coverage is necessary. The assertion of vague, general legal theories is not sufficient. However, in our experience, making the distinction between “legal theories” and “facts” is sometimes difficult for judges. Therefore, it may be best to adopt a “better safe than sorry” approach and provide a defense to the insured until counsel obtains a judgment stating there is no duty to defend the insured.
James R. Sutterfield is a partner and Laken N. Davis is an associate at Sutterfield & Webb, LLC, in New Orleans.
 James R. Sutterfield is a fellow of the American College of Coverage and Extracontractual Counsel and a founding member of Sutterfield & Webb, LLC. Laken N. Davis is an associate with Sutterfield & Webb, LLC, in New Orleans. The opinions stated in this paper are those of the authors and should not be attributed either to their law firm or to its clients.
 As a preliminary matter, bad-faith claims in Louisiana are governed exclusively by two revised statutes: Louisiana Rev. Stat. § 22:1973 and Louisiana Rev. Stat. § 22:1892.
 15 William Shelby McKenzie & H. Alston Johnson III, Louisiana Civil Law Treatise: Insurance Law & Practice § 218 (1986).
 See Davis v. Md. Cas. Co., 133 So. 769 (La. Ct. App. 1931) (agreeing with most jurisdictions that an insurer, in the absence of bad faith, was free to settle or litigate as it saw fit without fear of an excess judgment).
 Younger v. Lumbermens Mut. Cas. Co., 174 So. 2d 672 (La. Ct. App. 1965).
 Younger, 174 So. 2d at 675 (quoting 7A Appleman Insurance Law & Practice § 4712 (1962 ed.)).
 Younger, 174 So. 2d at 676.
 Younger, 174 So. 2d at 676.
 Younger, 174 So. 2d at 674; Younger v. Bonin, 149 So. 2d 452 (La. Ct. App. 1963).
 Younger, 174 So. 2d at 674.
 Younger, 174 So. 2d at 677.
 Younger, 174 So. 2d at 677–80.
 See, e.g., Mason v. Bankers Ins. Grp., 134 So. 3d 29 (La. Ct. App. 2014), writ denied, 138 So. 3d 1246 (La. 2014), and writ denied, 138 So. 3d 1250 (La. 2014).
 See, e.g., Cousins v. State Farm Mut. Auto. Ins. Co., 294 So. 2d 272, 277 (La. Ct. App. 1974), writ denied, 296 So. 2d 837 (La. 1974).
 See Trahan v. Cent. Mut. Ins. Co., 219 So. 2d 187 (La. Ct. App. 1969), writ denied, 222 So. 2d 66 (La. 1969).
 Trahan, 219 So. 2d at 188.
 Trahan, 219 So. 2d at 188–89.
 Trahan, 219 So. 2d at 188.
 Trahan, 219 So. 2d at 188.
 Trahan, 219 So. 2d at 194.
 Trahan, 219 So. 2d at 194.
 See 15 William Shelby McKenzie & H. Alston Johnson III, Louisiana Civil Law Treatise: Insurance Law & Practice § 218 (1986).
 Keith v. Comco Ins. Co., 574 So. 2d 1270 (La. Ct. App. 1991), writ denied, 577 So. 2d 16 (La. 1991).
 Keith, 574 So. 2d at 1277–78 (internal citations omitted).
 Smith v. Audubon Ins. Co., 679 So. 2d 372 (La. 1996).
 Smith, 679 So. 2d at 374.
 Smith, 679 So. 2d at 375.
 Smith, 679 So. 2d at 375.
 Smith, 679 So. 2d at 375.
 Smith, 679 So. 2d at 376–77 (internal citations omitted).
 See, e.g., Robin v. Allstate Ins. Co., 870 So. 2d 402 (La. Ct. App. 2004), writ denied, 882 So. 2d 1143 (La. 2004).
 Kelly v. State Farm Fire & Cas. Co., 169 So. 3d 328 (La. 2015).
 Kelly, 169 So. 3d at 332–33 (quoting Kelly v. State Farm Fire & Cas. Co., 582 F. App’x 290, 294 (5th Cir. 2014)).
 Kelly v. State Farm Fire & Casualty Co., 169 So. 3d 328, is the current principal case on Louisiana bad-faith actions. In Kelly, the plaintiff claimant, Kelly, did not seek to recover bad-faith penalties for his own damages. Rather, Kelly had been assigned the rights of the defendant insured, Thomas.
 See Kelly, 169 So. 3d at 333.
 See La. Rev. Stat. § 22:1973(B) (emphasis added).
 See, e.g., Thompson v. GuideOne Mut. Ins. Co., No. 14-2439, 2015 U.S. Dist. LEXIS 106743, at *7 (E.D. La. Aug. 13, 2015) (citing numerous Louisiana cases).
 The remaining sections of Louisiana Rev. Stat. § 22:1973, namely, sections (C) through (F), do not set forth duties of the insurer. Section (C) addresses the amount of penalties that may be assessed. It does not delineate acts that constitute a violation of the statute. Section (D) concerns claims made under health and accident insurance policies. Section (E) has been repealed. Section (F) concerns immunity of the Insurance Guaranty Association Fund.
 See Thompson, 2015 U.S. Dist. LEXIS 106743, at *8.
 Thompson, 2015 U.S. Dist. LEXIS 106743, at *8–9.
 La. Rev. Stat. § 22:1892(A)(1) (emphasis added).
 La. Rev. Stat. § 22:1892(A)(4) (emphasis added).
 La. Rev. Stat. § 22:1892(B)(1) (emphasis added).
 See, e.g., Meckstroth v. La. Dep’t of Transp. & Dev., 962 So. 2d 490, 492 (La. Ct. App. 2007).
 See, e.g., Meckstroth, 962 So. 2d at 492.
 See, e.g., Liberty Mut. Ins. Co. v. Jotun Paints, Inc., 555 F. Supp. 2d 686, 694 (E.D. La. 2008); Vaughn v. Franklin, 785 So. 2d 79, 83–84 (La. Ct. App. 2001), writ denied, 798 So. 2d 969 (La. 2001); Am. Home Assurance Co. v. Czarniecki, 230 So. 2d 253, 259 (La. 1969).
 See Ticknor v. Rouse’s Enters., LLC, 2 F. Supp. 3d 882 (E.D. La. 2014).
 Jackson v. Lajaunie, 270 So. 2d 859, 864 (La. 1972).
 See New Orleans Deli & Dining, LLC v. Cont’l Cas. Co., No. 10-4642, 2011 U.S. Dist. LEXIS 111928, at *1–2 (E.D. La. Sept. 29, 2011).
 New Orleans Deli & Dining, 2011 U.S. Dist. LEXIS 111928, at *2.
 New Orleans Deli & Dining, 2011 U.S. Dist. LEXIS 111928, at *12.
 QBE Specialty Ins. v. Better Waste Disposal, LLC, No. 11-757, 2011 U.S. Dist. LEXIS 126315, at *10 (W.D. La. Nov. 1, 2011) (quotation marks and citation omitted).
 QBE Specialty Insurance, 2011 U.S. Dist. LEXIS 126315, at *10–11.
 QBE Specialty Insurance, 2011 U.S. Dist. LEXIS 126315, at *11–12 (emphasis added) (alteration in original, internal citations omitted).
 QBE Specialty Insurance, 2011 U.S. Dist. LEXIS 126315, at *12 (citation omitted).
 QBE Specialty Insurance, 2011 U.S. Dist. LEXIS 126315, at *12.
 QBE Specialty Insurance, 2011 U.S. Dist. LEXIS 126315, at *15.
 QBE Specialty Insurance, 2011 U.S. Dist. LEXIS 126315, at *15. The Western District of Louisiana also cited Duhon v. Nitrogen Pumping & Coiled Tubing Specialists, Inc., 611 So. 2d 158, 160–61 (La. Ct. App. 1992), which quoted the Louisiana Supreme Court in Jackson v. Lajaunie, 270 So. 2d 859 (La. 1972). The Western District of Louisiana also referred to Pylant v. Lofton, 626 So. 2d 83 (La. Ct. App. 1993), as another example of application of the rule.