Opinion
No. 8841.
May 26, 1982.
APPEAL FROM 28TH JUDICIAL DISTRICT COURT, LaSALLE PARISH, STATE OF LOUISIANA, HONORABLE EDWIN R. HUGHES, J.
Conner, Martinez Miles, William W. Miles and Joseph P. Williams, Jr., Metairie, for defendants-appellants.
Wm. Henry Sanders, Jena, for plaintiff-appellee.
Before GUIDRY, STOKER and LABORDE, J.
This is a suit to recover medical expense benefits due under a hospitalization insurance policy issued to plaintiff, Sherry Joubert, by the defendant, Business Insurance Life of America (hereafter BILA). Additionally, plaintiff sought penalties and attorney's fees pursuant to LSA-R.S. 22:657(A). The trial court rendered judgment in favor of plaintiff and against BILA awarding Joubert $2,306.14 in insurance benefits, $2,306.14 in penalties under LSA-R.S. 22:657(A), and $2,000.00 in attorney's fees. Defendant appeals from the trial court's judgment, only insofar as it awarded plaintiff penalties pursuant to LSA-R.S. 22:657(A), contending that penalties should have been awarded pursuant to the provisions of LSA-R.S. 22:658. In brief, plaintiff urges that defendant's appeal is frivolous, and as such, she is entitled to an award for frivolous appeal. Since plaintiff-appellee has not answered the instant appeal, we do not consider this issue.
The sole issue on appeal is whether penalties should be awarded to the plaintiff pursuant to LSA-R.S. 22:657(A) which governs so-called "health and accident contracts" or under LSA-R.S. 22:658 which pertains to insurance policies other than life and health and accident contracts.
We considered this very issue in two recent cases. Relying upon Rudloff v. Louisiana Health Services and Indemnity Company, 385 So.2d 767 (La. 1980) wherein our Supreme Court, on rehearing, specifically overruled its prior holding in Tabb v. Louisiana Health Services and Indemnity Company, 361 So.2d 862 (La. 1978), our court in Lucito v. Louisiana Hospital Service, Inc., d/b/a Blue Cross of Louisiana, 392 So.2d 700 (La.App. 3rd Cir. 1980) and, most recently in Thompson v. Business Insurance Life of America (the defendant in the instant case), 413 So.2d 331 (La.App. 3rd Cir. 1982) held that the definition of health and accident policies under Louisiana law includes hospitalization policies, thus, the assessment of penalties in cases involving hospitalization insurance is governed by LSA-R.S. 22:657(A).
For the reasons assigned in the aforecited cases, the judgment appealed from is affirmed. All costs of this appeal are assessed to the defendant, Business Insurance Life of America.
AFFIRMED.