DR KURT GITTER AND ALICE YELEN v. PRIVILEGE UNDERWRITERS RECIPROCAL EXCHANGE PURE LISA VICKNAIR HUB INTERNATIONAL GULF SOUTH LIMITED HUB AND ABC INSURANCE COMPANY (2026)

This is a Hurricane Ida (“Ida”) insurance coverage case. Plaintiffs—Dr. Kurt Gitter and his wife, Alice Yelen (the “Gitters”)¹ —seek reimbursement from defendant—Underwriters Reciprocal Exchange (“PURE”), the Gitters’ insurer—for Ida-related property damages. Following a four-day bench trial, the trial court rendered judgment in the Gitters’ favor and against PURE for $1,009,561.93.² PURE appeals. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

When Ida made landfall in South Louisiana, on August 29, 2021, the Gitters had two insurance policies with PURE: (i) a High Value Homeowner's policy (the “Homeowner's Policy”); and (ii) an Art and Jewelry Collections policy (the “Art Policy”).

The Homeowner's Policy covered the Gitters’ two residences located at #9 and #11 Bamboo Road in New Orleans. The Homeowner's policy contained a separate “Hurricane or Named Storm” deductible for each property—#11 Bamboo Road's deductible was $44,758.17; #9 Bamboo Road's deductible was $13,889. The two residences are located adjacent to each other, separated by just a walkway and a roundabout driveway. The #11 Bamboo Road residence was built in the 1930s; the #9 Bamboo Road residence was built in the 1960s. Dr. Gitter acquired #11 Bamboo Road in the 1980s; Mrs. Yelen-Gitter acquired #9 Bamboo Road in the 1990s. Since acquiring the properties, the Gitters have used #11 Bamboo Road as their primary residence and #9 Bamboo Road as an art gallery-study center for their world-renowned, fine art collection.

The Art Policy covered the Gitters’ extensive fine art collection that is located throughout the world. The Art Policy contained an exclusion for fine art stored outside during any named storm; but it contained no deductible. At the time Ida made landfall, 1,700 pieces of the Gitters’ fine art collection were located at the Bamboo Road residences; some of the art pieces were located outside.

Three weeks before Ida made landfall (on August 6, 2021), the Gitters flew to New York City, New York (“NYC”), where they own an apartment, to celebrate the Jewish high holidays. The Gitters remained in NYC until three weeks after Ida (until September 19, 2021). Although the Gitters have a staff who help them with the Bamboo Road residences, no one was present at either residence during Ida.

Ten days after returning to New Orleans (on September 29, 2021), the Gitters made their initial Ida claim under the Homeowner's Policy only. Their initial claim was for exterior damage only to #9 Bamboo Road—side facia and roof damage—and exterior and interior damage to #11 Bamboo Road—roof damage and ceiling cracks.

In response, PURE immediately assigned a third-party field adjuster to the Gitters’ claim, Chad Hernandez. The next day—September 30, 2021—Mr. Hernandez inspected the Bamboo Road residences. The repair estimates PURE received from Mr. Hernandez were below the storm deductible for each residence. In October 2021, PURE sent the Gitters disclaimer letters stating their Ida-related damages fell below the storm deductible for each residence and requesting that if they disagree, to “provide this information immediately for [PURE's] prompt review.” The disclaimer letters were sent on October 4, 2021, for #9 Bamboo Road; on October 21, 2021, for #11 Bamboo Road. As discussed elsewhere in this opinion, PURE's policies contain a provision requiring the member ³ to submit a proof of loss within 180 days of its request.

In January 2022, PURE received a letter from a law firm—McClenny Moseley & Associates (“MMA”)—purporting to represent the Gitters. PURE, on at least thirteen occasions in January and February 2022, unsuccessfully attempted to contact MMA regarding the Gitters’ claim. According to the Gitters, Dr. Gitter attempted to contact PURE during this time period, but PURE would not talk to him because they were under the misimpression he was represented by MMA.⁴ But Dr. Gitter testified that he never signed anything retaining MMA to represent the Gitters. Meanwhile, in February 2022, the Gitters’ insurance agent—Ms. Vicknair—confirmed to PURE's adjuster—Jimmy Wolterman (“Mr. Wolterman”)—that the Gitters were satisfied with PURE's determination and that they did not intend to pursue the claim.

Six months later, in August 2022, the Gitters’ attorney-son—Douglas Gitter (“Doug Gitter”)—sent a letter of representation, on his parents’ behalf, to PURE. But no claim information was attached to the letter of representation; instead, the letter stated that the Gitters still were gathering information and would forward it when available. Subsequently, in November and December 2022, the Gitters submitted to PURE three types of claims under the Homeowner's Policy:

• The Kotter Estimates Claim—A claim was made based on two estimates prepared by the two building consultants the Gitters retained—Jim and Don Kotter; the Kotter Estimates initially totaled $1,047,120.53—$672,971.44 for #11 Bamboo Road; $374,149.09 for #9 Bamboo Road;

• The American Express Claim—An Additional Living Expenses (“ALE”) claim was submitted in the form of Dr. Gitter's American Express credit card statements; on these statements, Dr. Gitter personally circled specific charges that he related to Ida; and

• The Miscellaneous Ida Expenses Claim—A single-page document titled “Ida Damages” listing cleanup and other expenses Dr. Gitter related to Ida; these expenses included pool cleaning, yard cleaning, tree removal, and asphalt driveway crack repair.

In December 2022, PURE assigned a new adjuster to the Gitters’ Homeowner's Policy claim—Mr. Wolterman. Shortly thereafter, Mr. Wolterman inspected the two Bamboo Road residences with Doug Gitter, Jim Kotter, and Keith O'Donnell—a building consultant with JS Held that PURE retained. Thereafter, both PURE and the Gitters retained their own engineer to inspect the Bamboo Road residences and to opine on causation. PURE retained Jared Bordelon of Leonard C. Quick & Associates, LLC; the Gitters retained Dr. Neal Hall (“Dr. Hall”).

In January 2023, Mr. Bordelon provided PURE with his reports, expressing his opinion that the damages to the Bamboo Road residences listed on the Kotter Estimates were unrelated to Ida. Shortly thereafter, Mr. O'Donnell wrote to Mr. Wolterman stating he agreed with Mr. Bordelon's conclusions.

Dr. Hall issued his reports relating certain damages to the Bamboo Road residences listed on the Kotter Estimates to Ida. Based on Dr. Hall's reports and conclusions, the Kotter Estimates were revised and reduced; in June 2023, to $762,324.38—$538,960.70 for #11 Bamboo Road; $223,363.68 for #9 Bamboo Road.

Meanwhile, PURE assigned a separate adjuster to handle the Gitters’ Art Policy claim that they initially submitted in December 2022. This claim was for damages to eight pieces of art work located at the Bamboo Road residences; only one of these pieces was located inside #11 Bamboo Road at the time of Ida. Given most of the artwork that the Gitters’ Art Policy claim included was located outside, the Gitters were notified that the Art Policy exclusion barred most of the claim. PURE, however, agreed to cover the Gitters’ claim for damage to their outdoor art under the contents portions of the Homeowner's Policy. But, as noted elsewhere in this opinion, that policy had storm deductibles. As a result, in 2023, PURE determined that $856.22 was due for #11 Bamboo Road, over and above the storm deductible; $2,361 was due for #9 Bamboo Road. Only the one piece of artwork that was inside the Bamboo Road residence and sustained damage—the Uncle Jack Dey painting—was handled under the Art Policy.

Unable to reach an agreement with PURE, the Gitters, in July 2023, filed this suit. In their petition, the Gitters asserted three causes of action: (i) breach of contract; (ii) bad faith damages for violations of La. R.S. 22:1892 and 22:1973; and (iii) negligent misrepresentation.

In February 2025, a four-day bench trial was held in this matter. At the close of the Gitters’ case,⁵ the trial court granted PURE's motion for involuntary dismissal as to two of the Gitters’ claims—bad faith claims under La. R.S. 22:1973 and La. R.S. 22:1892, and negligent misrepresentation—leaving only their breach of contract claim. At the close of the evidence, the trial court took the case under advisement. Six months later, in August 2025, the trial court rendered judgment in the Gitters’ favor against PURE, for $1,009,561.93—$597,712.92 under the Homeowner's Policy; $411,849.01 under the Art Policy. In the written reasons for judgment, the trial court observed as follows how most of the damages under the Homeowner's Policy were calculated:

Dr. Hall testified that there were areas of damage to the dwellings that the Kotters had originally included in their estimates that he, Dr. Hall, did not feel were causally related to Hurricane Ida. The Court finds, more probably than not, the estimate for the damage to the dwelling of #9 Bamboo Road should be reduced to $50,000 for exacerbations of preexisting wear and tear damage to #9 Bamboo Road. At #11 Bamboo, in light of Dr. Hall's opinions and conclusions, and the estimate for the damage to the dwelling of #11 Bamboo Road was reduced to $480,605.92.

At trial, Dr. Hall testified that he did not have a causation opinion as to the damage to the shutters at #11 Bamboo Road, and as such, that $24,694.50 total from the Kotters’ dwelling estimate at #11 Bamboo must be deducted.

As discussed elsewhere in this opinion, the award under the Art Policy was primarily for the packing and storing of the 1,700 pieces of artwork at the Bamboo Road residences during the repair period; the award for that item totaled $403,299.01. The remaining amount of the award under the Art Policy was for the damage to the one piece of art that was located inside the Bamboo Road residences at the time of the storm.

This appeal followed.

DISCUSSION

Standard of Review

The governing standard of review in civil cases in Louisiana is well-settled. To the extent the issues raised involve questions of fact, a manifest error standard of review applies; to the extent the issues raised involve a question of law, a de novo standard applies. Spears v. Hall, 25-00195, p. 9 (La. 3/6/26), ___ So.3d ___, ___, 2026 WL 636698, *5.

PURE's Assignments of Error

On appeal, PURE contends that the trial court erred as follows:

• Awarding coverage when the Plaintiffs misrepresented the scope of Hurricane Ida damage in violation of Louisiana law and the policies’ fraud, misrepresentation, and concealment exclusion [“the Fraud Exclusion”];

• Holding that the policy's 180-day proof of loss provision [the “180-day Requirement”] violates public policy under La. R.S. 22:868(B); and

• Awarding costs to pack and store undamaged artwork [“Pack and Store Costs”] under an art policy that covers only “direct and accidental loss.”

PURE contends that the trio of issues it raises are all questions of law, subject to a de novo standard of review. The Gitters counter that PURE waived all of these defenses by failing to timely assert them. We separately address each issue.

Fraud Exclusion

PURE's Homeowner's and Art Policies contain a materially identical fraud, misrepresentation, and concealment exclusion—the Fraud Exclusion; the Homeowner's Policy Fraud Exclusion provides:

With respect to loss caused by a peril other than fire and with respect to all insureds covered under this policy, we provide no coverage for loss if, whether before or after a loss, one or more insureds have:

a. Intentionally concealed or misrepresented any material fact or circumstance;

b. Engaged in fraudulent conduct; or

c. Made false statements; relating to this insurance (the “Fraud Exclusion”).

PURE contends that the Fraud Exclusion applies here and entirely precludes coverage. According to PURE, the Gitters’ fraud consisted of their pattern of submitting pre-existing expenses, routine maintenance, and inflated expenses as an Ida claim—the American Express Claim, the Miscellaneous Ida Expenses Claim; and the Kotter Estimates. Although PURE failed to plead the Fraud Exclusion in its answer as required by La. C.C.P. art. 1005,⁶ PURE contends that it cured this pleading deficiency by including the Fraud Exclusion in the joint pre-trial order. Alternatively, PURE contends that sufficient evidence was introduced at trial, without objection by the Gitters, to enlarge the pleadings and to try its fraud defense—Fraud Exclusion—by implied consent under La. C.C.P. art. 1154.⁷

Pre-Trial Order

One purpose the pretrial order serves is to narrow the disputed issues to be tried. See La. C.C.P. art. 1551; Malloy v. Vanwinkle, 94-2060, p. 3 (La. App. 4 Cir. 9/28/95), 662 So.2d 96, 99. “The parties and their counsel are entitled to rely on the pretrial order.” Id. (citing Cole v. Celotex Corp., 599 So.2d 1058 (La. 1992)). As a commentator has observed, the jurisprudence has recognized that asserting an affirmative defense in a pre-trial order can satisfy La. C.C.P. art. 1005. See Judge Steven R. Plotkin, Retired, 2 La. Prac. Civ. Proc., Art. 1005. Affirmative Defenses (2025 ed.) (observing that “one court has held that asserting an affirmative defense in a pretrial order satisfied the requirement of La. Code Civ. Proc. Ann. art. 1005 that affirmative defenses be specially pleaded” and citing Worley v. Winston, 550 So.2d 694 (La. App. 2d Cir. 1989)). The jurisprudence has recognized that “[a] defense asserted in a pre-trial procedure gives fair notice of the nature of the defense, prevents surprise, and satisfies the duty established in La. C.C.P. art. 1005 to affirmatively assert the defense.” Boudreaux v. State, Dep't of Transp. & Dev., 00-0050, p. 5 (La. App. 1 Cir. 2/16/01), 780 So.2d 1163, 1166.

Here, however, a review of the joint pre-trial order reveals that PURE only mentions the Fraud Exclusion in its recitation of its version of the facts; it quotes the Fraud Exclusion in the fact section outlining the relevant policy provisions. PURE, however, fails to list the Fraud Exclusion in the pretrial order as one of the disputed issues to be tried. Cf. Winter v. F.A. Richard & Associates, Inc., 95-578, pp. 4-5 (La. App. 5 Cir. 11/28/95), 665 So.2d 611, 613 (observing that “the question of the applicability of the credits for the benefit of the tortfeasor was placed at issue in the joint pre-trial order” which listed as a “contested issue” that the plaintiff was contesting the applicability of the credits); see also Genusa v. Robert, 98-449, p. 13 (La. App. 5 Cir. 10/14/98), 720 So.2d 166, 171 (citing Winter and observing that the joint pre-trial order enumerated as “a disputed issue” the plaintiff's entitlement to statutory penalties and, thus, the statutory penalties issue was placed at issue).

PURE included in the joint pre-trial order nothing regarding the who, what, where, and why that factually is alleged to support application of the Fraud Exclusion. See La. C.C.P. art. 856 (providing, in pertinent part, that “[i]n pleading fraud or mistake, the circumstances constituting fraud or mistake shall be alleged with particularity”). Nor does did PURE include in the pre-trial order any of the legal principles governing fraudulent concealment policy exclusions.⁸

Moreover, a review of the voluminous record in this case reflects that PURE first raised the Fraud Exclusion in the joint pre-trial order. The pre-trial order was not filed into the record until two weeks before the trial—in January 2025. Given these circumstances, we conclude that PURE's mere quoting the language of the Fraud Exclusion in the factual section of the pre-trial order was insufficient to provide notice to the Gitters that the Fraud Exclusion was a disputed issue to be tried. This conclusion is buttressed by the trial court's failure to refer to the Fraud Exclusion in its detailed written reasons for judgment. For these reasons, this argument is unpersuasive.

Trial of Fraud Exclusion by Implied Consent

PURE's alternative argument is that the fraud defense—Fraud Exclusion-was tried by implied consent. In support of this argument, PURE cites three ways in which it contends the fraud defense—Fraud Exclusion—was tried by implied consent pursuant to La. C.C.P. art. 1154: (i) witness testimony; (ii) court argument; and (iii) post-trial briefing.

Insofar as post-trial briefing, PURE refers to language in the proposed “Findings of Fact and Conclusions of Law” that it submitted to the trial court after the case was taken under advisement. In this pleading, PURE, for the first time in the record, extensively outlines its factual and legal argument regarding the applicability of the Fraud Exclusion. But PURE's reliance on this post-trial pleading is misplaced. Such a post-trial pleading cannot serve as notice to the opposing party that an issue would be tried.

The second way in which PURE contends the fraud issue was tried by implied consent is in court argument; PURE cites its oral argument on its motion for involuntary dismissal. In its oral argument, PURE emphasizes that it explained how La. R.S. 22:1923 defines a fraudulent insurance act to include presenting an estimate that misrepresents the scope of damages. PURE points out that it identified in its oral argument as examples of fraudulent insurance acts the asphalt driveway repair and debris clean-up charges—included in the Miscellaneous Ida Expenses Claim and Kotter Estimates—and the circled pre-storm New York City expenses—included in the American Express Claim. PURE emphasizes that neither invoking La. R.S. 22:1923’s definition of a fraudulent insurance act nor giving examples of fraud in the record prompted an objection from the Gitters. This argument is unpersuasive. The involuntary dismissal motion was argued after the Gitters rested their case, which was too late to provide notice to the Gitters that the fraud issue would be tried.

Regardless, the focus of PURE's involuntary dismissal motion, and the trial court's ruling on that motion, was on the Gitters’ bad faith penalties claim not PURE's fraud defense. Indeed, in orally addressing the motion for involuntary dismissal, the trial court observed:

But the American Express bills, particularly, had a number of expenditures that predated Hurricane Ida prior to August 29, 2021. Additionally, there were a number of items submitted with the list of expenditures made after the storm that created an issue that warranted further investigation or that precluded a payment. Payments were made for things that were not deemed to be an issue. So on that basis, I don't find the element of bad faith to have been met, especially the one where it's deemed to be—has to be arbitrary and capricious and without probable cause.

The third way in which PURE contends the fraud defense was tried by implied consent is trial testimony. PURE cites the testimony of two witnesses—Dr. Gitter and Jim Kotter. PURE contends that this testimony provided examples of insurance fraud. As to Dr. Gitter, PURE points out that he was questioned, without objection, about his American Express Claim for A.L.E. expenses and his Miscellaneous Ida Expenses Claim. As to Jim Kotter, he was questioned about alleged inflated amounts and transmission of incorrect numbers to PURE as part of the Kotter Estimates. Jim Kotter was also questioned as to whether he was aware of La. R.S. 22:1923’s definition of a fraudulent insurance act.

PURE's reliance on Dr. Gitter's and Jim Kotter's testimony, however, is misplaced. The general rule is that “pleadings may be enlarged by evidence adduced without objection when such evidence is not pertinent to any other issue raised by the pleadings and, hence, would have been excluded if objected to timely.” Roberson v. Provident House, 576 So.2d 992, 995 (La. 1991). Conversely, “[i]f the evidence was admissible for any purpose, it could not enlarge the pleadings without the express consent of the opposing party.” Diesi Leasing, Inc. v. Morrow, 542 So.2d 838, 841 (La. App. 3d Cir. 1989). These two witnesses’ testimony on which PURE relies was relevant to other issues raised by the pleadings; in particular, their testimony was relevant to the Gitters’ claim for bad faith penalties. As a result, the Gitters’ failure to object to this testimony did not result in trial by consent of the fraud defense. Nor did PURE's counsel's brief mention of La. R.S. 22:1923’s definition of a fraudulent insurance act once at trial, in questioning Jim Kotter, result in trial by consent of the fraud defense. See Cooper v. Borden, Inc., 30,292, p. 3 (La. App. 2 Cir. 2/25/98), 709 So.2d 878, 881 (observing that “the brief mentioning of a federal regulation at trial was not sufficient to enlarge the pleadings to incorporate the affirmative defense of federal preemption”).

Nonetheless, even assuming the fraud defense was properly before the trial court, the trial court's silence regarding that the fraud defense in its judgment and reasons for judgment was an implicit rejection of PURE's argument that the exclusion applies and defeats coverage. “ ‘[A] written judgment silent as to an issue [is] to be construed as a rejection of the relief requested on that issue.’ ” Ballanco v. Morvant, 23-0526, pp. 9-10 (La. App. 4 Cir. 1/17/24), 382 So.3d 411, 417-18 (quoting Jackson v. Aramark Healthcare Servs., 17-503, p. 6 (La. App. 3 Cir. 2/7/18), 239 So.3d 878, 884).

The record establishes that the trial court's implicit rejection of the fraud defense is not manifestly erroneous. Smith v. Roussel, 00-1028, p. 4 (La. App. 1 Cir. 6/22/01), 809 So.2d 159, 164 (observing that “[a] trial court's determination of fraud or its absence is a question of fact that will not be disturbed on appeal absent manifest error”). The trial court's finding is supported by the testimony of three witnesses—PURE's adjuster, Mr. Wolterman; Dr. Gitter; and Jim Kotter.

First, Mr. Wolterman was questioned regarding the American Express and the Miscellaneous Ida Expenses Claims; this questioning was in connection with the Gitters’ bad faith claim. Mr. Wolterman testified that he viewed those claims as something that he did not believe were properly sent to him. He explained that “it was very unusual that [the Gitters] were putting items pre-Ida, as well as driveways that had already been disclaimed. I just decided to probably put my efforts towards the actual property claim dealing with the damages on the house and thinking that this might not have supposed to have been sent to me.”

Second, Dr. Gitter, when questioned about the American Express and the Miscellaneous Ida Expenses Claims, acknowledged that he made a mistake in including a claim for Safari Pool expenses that pre-dated Ida in the Miscellaneous Ida Expenses Claim. He testified that it was not intentional. Moreover, explaining these claim submissions, Dr. Gitter testified: “[m]y son [Doug Gitter] sat down and said show me everything that could possibly be associated with the loss, and that's how these lists came about. Some may be wrong, most are right, but they weren't done intentionally to be wrong.” Dr. Gitter further testified: “I admitted that the charge for that pool thing was a mistake on my part. I've been totally honest with you.”

Finally, Jim Kotter was questioned regarding several items on the Kotter Estimates regarding the asphalt driveway repair, debris removal, and tree removal. Jim Kotter acknowledged that those items had been paid for lesser amounts. But he denied intentionally making any mistakes or intentionally inflating any numbers on the estimates.

The jurisprudence has held that “[m]isrepresentations in a proof of loss given to an insurer will void coverage under the policy only if the insured knowingly and intentionally makes such misrepresentations with the intent to deceive and defraud the insurer.” Williams v. United Fire & Cas. Co., 594 So.2d 455, 460 (La. App. 1st Cir. 1991). “Fraud will never be presumed from acts which may be accounted for on the basis of honesty and good faith.” Id. Such is the case here. See Husseiny v. Indep. Fire Ins., CIV. A. 93-1572, 1996 WL 637547, at *3 (E.D. La. Nov. 1, 1996) (finding that “Independent Fire has not carried its burden of proving that the plaintiffs knowingly and intentionally made material misrepresentations regarding their [Hurricane Andrew]claim” despite various errors in the plaintiffs’ submitted claims). This argument is unpersuasive.

Validity of 180-Day Proof-of-Loss Provision

PURE's policies contain a provision requiring a member submit a proof of loss within 180 days of PURE's request. PURE's Homeowner's Policy states that proof of loss must be sent to the insurer within “180 days of [PURE's] request, if the loss results from a catastrophic event for which a state of disaster or emergency was declared pursuant to law by civil officials.”⁹ PURE argues that the trial court erred in awarding damages for claims presented to it more than 180 days after PURE's October 21, 2021 request for proof of loss.

Unlike the Fraud Exclusion, the 180-day proof-of-loss provision was extensively addressed by the trial court in its reasons for judgment and not waived. Invalidating the proof-of-loss provision, the trial court observed:

This Court finds that such a [proof-of-loss] provision violates public policy and is invalid, pursuant to Louisiana Revised Statute 22:868(B) controls․ This Court finds persuasive the decisions of the United States District Court for the Eastern District of Louisiana in Catalnotto v. Geovera Specialty Ins. Co. [CV 23-5396, 2024 WL 1533449, at *4 (E.D. La. Apr. 9, 2024)] and the United States District Court for the Western District of Louisiana in Om Sai Ram Hosp. LLC v. AmGuard Ins. Co. [6:21-CV-02999, 2023 WL 4380762, at *2 (W.D. La. July 6, 2023)] wherein a similar policy provision was invalidated in favor of Louisiana Revised Statute 22:868(B) and “the insured's duty can therefore be met by reporting the loss and allowing initial inspection within the 180 day period,” respectively.

PURE contends the 180-day proof-of-loss provision is valid given that it tracks La. R.S. 22:1264(A), which provides: “[t]he time limit for the submission of proof of loss shall be not less than one hundred eighty days.” According to PURE, the trial court's ruling abandons that statute's plain text and instead relies on two federal cases—Catalnotto and Om Sai. Those cases, PURE contends, improperly conflate La. R.S. 22:868(B)’s two-year prescriptive deadline for filing suit with La. R.S. 22:1264(A)’s distinct 180-day deadline for submitting proof of loss. PURE stresses that these statutes regulate different obligations at different stages of the claims process. By adopting this flawed reasoning, PURE contends that the trial court collapsed two separate statutory schemes into one.

The Gitters counter that PURE seeks to draw a distinction between proof-of-loss deadlines and suit-filing deadlines that may exist in other circumstances but that does not exist here. The Gitters submit that PURE is seeking to use its 180-day proof-of-loss deadline functionally as an 180-day suit-filing deadline. For that reason, the Gitters contend the trial court correctly determined that PURE's 180-day proof-of-loss provision violates public policy under La. R.S. 22:868(B) and is invalid. We agree.

Framing the question presented here, a federal district court observed that the question is whether “if Louisiana law requires that insureds have two years to file suit against an insurer, but a policy forecloses suits, even when filed within two years, where notice wasn't furnished within one year, the policy limits ‘right of action against the insurer to a period of less than twenty-four months.’ ” 700 Camp St., LLC v. Mt. Hawley Ins. Co., 24-CV-3060 (AS), 2024 WL 4300113, at *3 (S.D.N.Y. Sept. 26, 2024) (citing Plain v. Safeco Ins. Co. of Or., 2024 WL 3641364, at *6 (M.D. La. Aug. 1, 2024) (reviewing these decisions)). Put another way, the question is “whether [La. R.S.] 22:1264(A) permits an insurance contract to require an insured provide notice sooner than the two-year prescriptive period or face claim denial.” Catalnotto, 2024 WL 1533449, at *3. Yet another way of posing the question is “how do Louisiana Revised Statutes §§ 22:1264(A) and 22:868(B) co-exist?” Id.

Answering that question, the federal court in Catalnotto cited Estate of Munsterman v. Unitrin Auto & Home Ins. Co., 20-209 (La. App. 3 Cir. 11/18/20), 307 So.3d 297, as providing guidance. There, the federal court observed that “the [Louisiana] Third Circuit affirmed a lower court's finding of coverage despite the insured's failure to notify his insurer of hailstorm damage within the contractually agreed-upon 365 days of the event; sufficient was the suit's filing within two years of the hailstorm.” Catalnotto, 2024 WL 1533449, at *4. Regardless of the parties’ agreement regarding the notice period, the Third Circuit determined that La. R.S. 22:868(B) controlled, observing that “[i]n this case, the statutory authority in La.R.S. 22:868(B), which extends the time to assert a right of action against the insured to two years, invalidates the clause and condition in the policy at issue which limits the time to file a notice of loss to one year.” Munsterman, 20-209, p. 6 (La. App. 3 Cir. 11/18/20), 307 So.3d 297, 301.

Continuing, the federal court observed that, in reaching this result, “[t]he Munsterman court reasoned that party agreement of notice submission faced the same restrictions as those for bringing a court action, namely, being valid only where a statutory prohibition did not so prevent.” Catalnotto, 2024 WL 1533449, at *4. “According to the Third Circuit, the legislature's 2007 extension from one to two years for a right of action in an insurance dispute shows legislative intent to refuse a sooner exclusion of coverage.” Id.

The federal court in Catalnotto further observed that “[r]elying on the reasoning in Musterman, federal district courts have reached the same conclusion that § 22:868(B) invalidates notice-of-claim provisions shorter than two years.” Catalnotto, 2024 WL 1533449, at *4. The federal court also reviewed the legislative history behind the two statutory provisions and concluded that it supported this construction.

Similarly, the federal court in the Om Sai case reached the same result, observing:

Given the evolving nature of hurricane claims and the slow pace of recovery in a disaster area, the court can find no basis for reading either the statute or the policy as limiting the insurer's duty to pay to proofs of loss that are submitted within 180 days so long as the claim is opened and initial proof of loss established within the limitation period. Instead, the two-year limitations period for filing suit appears to provide the appropriate cutoff to establishing a dispute over coverage.

2023 WL 4380762, at *2. In sum, several federal district courts, including Catalnotto and Om Sai, have answered the question by holding that a policy provision cannot serve to reduce an insured's suit-filing deadline to less than twenty-four months.

In addressing this statutory interpretation question—determining how to read La. R.S. 22:1264(A) and La. R.S. 22:868(B) together, we find it appropriate to construe the two statutory provisions as setting forth different time lines. The proof-of-loss time line, under La. R.S. 22:1264(A), sets forth the outer limit for an insured to submit documentation of the insured's claim to its insurer. It is a component of the insurance claims adjustment process—an out-of-court process. It regulates claims submission. In contrast, the suit-filing time line, under La. R.S. 22:868(B), sets forth the outer limit for an insured to file suit if the claims adjustment process is unsuccessful.

As PURE points out, a proof-of-loss deadline is distinct for a suit-filing deadline. But if an insurer's proof-of-loss provision is written or invoked such that it, in effect, reduces the insured's right to sue to less than two years from the date of the loss, the proof-of-loss provision is invalid and the two-year period prevails.

Applied here, the trial court correctly concluded that PURE's 180-day proof-of-loss provision is being invoked such that it, in effect, reduces the Gitters’ right to sue to less than two years from the date of the loss. For this reason, the trial court invalidated the provision.¹⁰ We find no error in this determination.

Direct and Accidental Loss

PURE's final argument is that the trial court erred in awarding the Gitters $403,299.01 under the Art Policy to pack and store their 1,700 pieces of undamaged artwork located at the Bamboo Road residences. PURE contends that this award is erroneous because the Art Policy only covers “direct and accidental loss.” PURE contends that packing and storing costs do not fall within the ambit of “direct and accidental loss.” PURE further contends that this award transforms a valuable policy into a construction-logistics policy. But PURE failed to raise this issue in the trial court.

In the trial court, the issue of how much it would cost to pack and store the artwork located in the Bamboo Road residences during the estimated seven-month repair period was addressed. Summarizing the extensive evidence presented on this issue, the trial court, in its reasons for judgment, observed:

[The Gitters] claim damages, past and future, under the [Art] Policy, as not only was a piece of art water-damaged, but [the Gitters] testified that their strong preference is to arrange for the repairs and construction to both #9 Bamboo Road and #11 Bamboo Road to occur simultaneously, and thus for the entire project to be completed as quickly as possible, given that Plaintiff, Dr. Kurt Gitter, turns eighty-eight (88) years old in March of 2025. Therefore, [the Gitters] introduced testimony from Mr. Patrick Coll, co-owner and operator of Porter Art Services, who was asked to design a plan whereby the 1,700 pieces of the Gitter-Yelen fine art collection would be carefully taken down, packed up, transported off-site to Porter Art Services’ climate-controlled museum-quality storage facility in Harvey, Louisiana, stored for the duration of the construction to both #9 Bamboo Road and #11 Bamboo Road, and then thereafter be returned to the subject properties, unpacked, and rehung.

The packing and transportation estimate totaled $254,427.98, and included $68,673.75 for the unpacking and repacking of the 1,700 piece while in storage for longer than six (6) months, which Mr. Coll explained as necessary protect the art from pH gasses being released from the packing materials and from being trapped inside the packing materials with humid air for an extended period of time, that could damage the encased fine art. Additionally, Mr. Coll testified that the Porter Art Services climate-controlled fine art storage facility in Harvey, Louisiana could store the 1,700 pieces of art for a cost of $21,267.29 per month, and he testified that he charged $2,550.00 to design the plan. Conversely, this Court heard testimony from Margaret Schmitz, the national fine art claims specialist for PURE Art Services and PURE Insurance, who estimated that the packing and transportation of the 1,700 piece Gitter-Yelen collection would cost $185,927.70, an almost identical figure to that of Patrick Coll and Porter Art Services, with two notable exceptions. First, Dr. Schmitz did not feel that the unpacking and repacking of the collection while in storage would be necessary and thus she did not affix an estimated cost for that action, and second, she was unfamiliar with the Porter Art Services facility, and testified she was unaware of any museum-quality fine-art storage facilities in the greater New Orleans area, so she did not submit an estimated cost to actually store the collection. Notably, this Honorable Court heard testimony from building consultant Jim Kotter that the repairs to #9 and #11 Bamboo Road are expected to take between six and eight (6-8) months. Further, this Honorable Court heard testimony from PURE general adjuster Jimmy Wolterman and received into evidence a claim note of PURE's, whereby it was determined that the Collections Policy would be responsible for this cost, not the Homeowners’ Policy.

As the trial court's reasons reflect, the issue of the costs for packing and storing the artwork was extensively addressed at trial. But PURE never raised the issue of whether such costs would be recoverable as a direct and accidental loss under the Art Policy. As the Gitters contend, PURE raises that issue for the first time on appeal.

The well-settled general rule is that “appellate courts will not consider issues raised for the first time in this court, which are not pleaded in the court below and which the district has not addressed.” Geiger v. State ex rel. Dep't of Health & Hosp., 01-2206, p. 11 (La. 4/12/02), 815 So.2d 80, 86; Warner v. Alex Enterprises, Inc., 08-0929, p. 5 (La. App. 4 Cir. 1/28/09), 4 So.3d 922, 925; Bridges v. Chubb Indem. Ins. Co., 24-593, p. 9 (La. App. 5 Cir. 7/2/25), 420 So.3d 71, 79.

The Uniform Rules of the Courts of Appeal similarly provide that “[t]he Courts of Appeal shall review issues that were submitted to the trial court and that are contained in specifications or assignments of error, unless the interest of justice requires otherwise.” La. Unif. R. Ct. App. 1-3. This Court has recognized that “[t]here are, of course, times when ‘the interest of justice clearly requires otherwise’ that we are authorized to decide a civil case based on an issue not raised or addressed by the parties.” Weatherly v. Sanchez, 15-0534, p. 3 (La. App. 4 Cir. 11/25/15), 181 So.3d 218, 221 n.3 (quoting La. Unif. R. Ct. App. 1-3); see also La. C.C.P. art. 2164.¹¹ Such is not the case here.

Given PURE failed to raise the issue of whether the costs to pack and store the Gitters’ undamaged artwork is a covered direct and accidental loss, we decline to decide this issue for the first time on appeal.

DECREE

For the foregoing reasons, the trial court's judgment is affirmed.

AFFIRMED

FOOTNOTES

1.   While this appeal was pending, Dr. Gitter passed away. This Court granted Alice Yehen's motion to substitute herself in her deceased husband's place. See Uniform Rules, Courts of Appeal, Rule 2-9 (providing that “[t]he rules and procedures for substitution of parties provided by La. C.C.P. arts. 801-807 shall regulate the substitution of parties”); see also La. C.C.P. art. 801 (providing that “[w]hen a party dies during the pendency of an action which is not extinguished by his death, his legal successor may have himself substituted for the deceased party, on ex parte written motion supported by proof of his quality”).

2.   The other two defendants—HUB International Gulf South Limited and the Gitters’ insurance agent, Lisa Vicknair (“Ms. Vicknair”)—were dismissed on a peremptory exception of prescription.

3.   PURE refers to its insureds as “members.”

4.   The trial court orally observed, in hearing PURE's motion for involuntary dismissal, that both parties—the Gitters and PURE—were victimized by the MMA's purported representation. The trial court stated that this created a hiatus and a stay in the processing of the Gitters’ claim. The trial court pointed out that Dr. Gitter could not get a response because PURE thought he was represented; and PURE was waiting for MMA to follow up with information, which never arrived.

5.   Because a witness for the defense was taken out of turn, the trial court delayed ruling on PURE's motion for involuntary dismissal until the end of the trial.

6.   La. C.C.P. art. 1005 provides that “[t]he answer shall set forth affirmatively negligence, or fault of the plaintiff and others, duress, error or mistake, estoppel, extinguishment of the obligation in any manner, failure of consideration, fraud, illegality, injury by fellow servant, and any other matter constituting an affirmative defense.” “Generally, an affirmative defense must be pleaded or it is waived.” Fin & Feather, LLC v. Plaquemines Par. Gov't, 16-0256, p. 7 (La. App. 4 Cir. 9/28/16), 202 So.3d 1028, 1033 (quoting Allvend, Inc. v. Payphone Comm'ns Co., 00-0661, p. 6 (La. App. 4 Cir. 5/23/01), 804 So.2d 27, 30).

7.   La. C.C.P. art. 1154 provides in part that “[w]hen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised by the pleading.”

8.   See Chavez v. Homesite Ins. Co., 834 F.Supp. 2d 504, 507 (E.D. La. 2011) (observing that a plaintiff's insurance claim is subject to dismissal for “material misrepresentation” if: “(1) the statements made by the insured were false; (2) the misrepresentations were made with the actual intent to deceive; and (3) the misstatements materially affected the risk assumed by the insurer”); Dean v. State Farm Mut. Auto. Ins. Co., 07-0645, pp. 6-7 (La. App. 4 Cir. 1/16/08), 975 So.2d 126, 131 (holding that the same test applies whether misrepresentations were made in the negotiation of an insurance policy and made after a loss); see also La. R.S. 22:1923 (2)(p) (providing that a fraudulent insurance act includes “[p]resent[ing] to an insurer or insured a statement, estimate, invoice, bid, proposal, proof of loss, or any other document that misrepresents the scope of damages or costs of repairs associated with a property insurance claim”).

9.   PURE's Art Policy likewise contained a similar provision, requiring a member “submit a proof of loss within 180 days of request.”

10.   See La. R.S. 22:868(C) (providing that “[a]ny such condition, stipulation, or agreement in violation of this Section shall be void, but such voiding shall not affect the validity of the other provisions of the contract”).

11.   See also La. C.C.P. art. 2164 (providing that “[t]he appellate court shall render any judgment which is just, legal, and proper upon the record on appeal”).

Judge Rosemary Ledet