
    Alfred P. BERCIER, Plaintiff-Appellee, v. HARDWARE DEALERS MUTUAL FIRE INSURANCE COMPANY, Defendant-Appellant.
    No. 3503.
    Court of Appeal of Louisiana, Third Circuit.
    July 13, 1971.
    Voorhies, Labbe, Fontenot, Leonard & McGlasson, by Richard Chappuis, Jr., Lafayette, for defendant-appellant.
    J. Minos Simon and John Rixie Mouton, Lafayette, for plaintiff-appellee.
    Before FRUGÉ, SAVOY and HOOD, JJ-
   SAVOY, Judge.

This is a suit instituted by plaintiff against his insurer to recover $2,000.00 for medical payments under the terms of the policy, and for attorney’s fees and penalties for failure to pay said claim without probable cause. Defendant filed a general denial to the petition.

Prior to trial on the merits, defendant made a tender of $2,000.00 under the medical payments provision of the policy. Plaintiff accepted this sum, but in the signed release, reserved his rights to proceed with his claim for attorney’s fees and penalties.

After a trial on the merits, the district judge awarded plaintiff attorney’s fees of $650.00, and 12% penalties or $240.00, for a total of $890.00. From this judgment defendant has appealed.

The record reveals that plaintiff’s son was killed in an accident while driving plaintiff’s car which was insured by defendant. It was shown that the medical and funeral expenses were in excess of $2,000.00; that proper demand had been made on defendant; and that sixty days had elapsed from the time the demand was made until the suit was filed. Defendant contends that it was not arbitrary or capricious in not making said payment within sixty days for the reason that its branch office in New Orleans told its local adjuster that there was no coverage for the reason that the policy had been cancelled prior to the accident. Defendant also contends that the adjuster contacted plaintiff who also told him that the policy was cancelled. A check with the home office of defendant revealed that the policy was in effect at the time of the accident in the instant case.

We are of the opinion that the judgment of the district court was correct. The defendant had all the information necessary, and the failure to timely pay the claim was due to neglect on its part.

For the reasons assigned the judgment of the district court is affirmed. Defendant to pay costs incurred in this Court.

Affirmed.  