Porter v. Grand Casino of Miss., Inc.

• Decision Date: 16 September 2014
• Docket Number: No. 2012–CA–01793–COA.,2012–CA–01793–COA.
• Citation: 138 So.3d 952
• Court: Mississippi Court of Appeals
• Parties: Cherri R. PORTER, Appellant v. GRAND CASINO OF MISSISSIPPI, INC.–BILOXI, State Farm Fire and Casualty Company, and Max Mullins, Appellees.

138 So.3d 952

Cherri R. PORTER, Appellant

v.GRAND CASINO OF MISSISSIPPI, INC.–BILOXI, State Farm Fire and Casualty Company, and Max Mullins, Appellees.

No. 2012–CA–01793–COA.

Court of Appeals of Mississippi.

May 13, 2014.

Rehearing Denied Sept. 16, 2014.

James Eldred Renfroe, attorney for appellant.

Vincent J. Castigliola Jr., Pascagoula, Kasee Sparks Heisterhagen, John Patrick Kavanagh Jr., attorneys for appellees.

Before GRIFFIS, P.J., ISHEE and MAXWELL, JJ.

MAXWELL, J., for the Court:

¶ 1. Among its many destructive acts, Hurricane Katrina unmoored a casino barge, carrying it into Cherri R. Porter's beachfront home. According to Porter, this was a covered event under her all-risk homeowner's insurance policy, which did not expressly exclude “barges.” When coverage was denied, Porter sued her insurance company and insurance agent. She also sued the casino for negligence. The circuit court found none of Porter's claims could survive summary judgment. After de novo review, we reach the same conclusion.

¶ 2. Porter's homeowner's policy clearly and unambiguously excluded not only loss caused by water but also “loss [that] would not have occurred in the absence of” water. While Porter claims the “true cause” of the loss of her home was “the barge,” she cannot show that the loss of her home would not have occurred in the absence of water—specifically the storm surge that carried the barge into her home. Thus, her claim that her insurer improperly denied her coverage must fail.

¶ 3. Likewise, her claim that her insurance agent was negligent in procuring her coverage fails. Porter simply has no evidence that she asked her agent to obtain any coverage other than what her homeowner's policy clearly provided.

¶ 4. She also has no evidence to create a jury issue on her negligence claim that the casino breached its duty to her as its neighbor. While Porter did submit an affidavit by an engineering expert, the expert did not opine that the casino acted unreasonably in light of the foreseeable risks associated with a hurricane. And contrary to Porter's assertion, the fact that the barge broke free during the hurricane, in and of itself, is not evidence the casino negligently designed and maintained the barge's mooring system. Because we find Porter failed to establish the essential element of breach, her negligence claim fails as a matter of law.

¶ 5. We thus affirm the circuit court's grant of summary judgment in favor of all three defendants.

Background Facts and Procedural History

¶ 6. Porter's home on East Beach Boulevard, Biloxi, Mississippi, was destroyed during Hurricane Katrina. According to Porter, the destruction occurred when the barge operated by Grand Casino of Mississippi, Inc.–Biloxi came loose from its moorings and allided with her home.

¶ 7. Porter made a claim under her “all-risk” homeowner's insurance policy with State Farm Fire and Casualty Company. But her policy expressly excluded loss caused by wind or water damage—as well as “loss [that] would not have occurred in the absence of [an] excluded event[ ].” Because any loss caused by the barge would not have occurred in the absence of an excluded event—specifically the flood of storm surge that broke Grand Casino's barge from its moorings—State Farm denied coverage.

¶ 8. Porter sued State Farm for bad-faith denial of coverage and negligence in issuing her policy. She included a claim against State Farm agent Max Mullins, alleging Mullins negligently issued her a substandard policy and violated statutory trade practices. Porter also named Grand Casino as a defendant, alleging it had been negligent in its design and maintenance of the barge's mooring system.¹

¶ 9. In 2009, State Farm and Mullins succeeded in having the claims against them dismissed on summary judgment. Porter had admitted there was no other explanation for the barge's movement other than the forces of wind and water. Because the policy clearly and unambiguously excluded loss caused by water, the trial court found State Farm was entitled to a judgment in its favor. And since Mullins had never made contrary representations to Porter, the trial judge found Mullins was also entitled to a judgment in his favor.

¶ 10. Porter appealed. But because the grant of summary judgment in State Farm's and Mullins's favor was not a final judgment, as it left pending the claims against Grand Casino, the Mississippi Supreme Court dismissed the appeal. SeeM.R.C.P. 54(b) (designating any order that adjudicates the liabilities of fewer than all the parties as nonfinal, subject to revision until all liabilities between all parties are resolved, unless certified as final).

¶ 11. In 2012, Grand Casino was also granted summary judgment in its favor. In dismissing Grand Casino, the circuit court cited a decision by this court addressing a factually similar scenario—a casino barge that was unmoored during Katrina. In that case, we held the duty the casino owed its land-based neighbors “only required that they use reasonable measures and did not require that they take additional measures for the unforeseen.” Bay Point High & Dry, L.L.C. v. New Palace Casino, L.L.C., 46 So.3d 821, 825 (¶ 13) (Miss.Ct.App.2010). The circuit court found Porter could not establish a jury question over whether Grand Casino failed to meet this duty.² The undisputed evidence showed the safety measures Grand Casino took were designed to withstand a hurricane equaling in severity the worst hurricane then on record. And the fact that Grand Casino did not anticipate Hurricane Katrina's record-setting forces is not evidence that Grand Casino breached a duty owed to Porter.

¶ 12. With all claims against all defendants disposed of, both the 2009 and 2012 summary-judgment orders became final and appealable. SeeM.R.C.P. 54(b). Porter timely appealed both judgments.³

Discussion

¶ 13. Grants of summary judgment are reviewed de novo. Bradley v. Kelley Bros. Contractors, Inc., 117 So.3d 331, 336 (¶ 21) (Miss.Ct.App.2013). We perform the exact same analysis as the trial court—“look[ing] at ‘all evidentiary matters' in the record to see if there is any genuine issue of material fact and if the movant is entitled to a judgment as a matter of law.” Id. (quoting Titan Indem. Co. v. Estes, 825 So.2d 651, 654 (¶ 11) (Miss.2002)). We view the evidence produced at the summary-judgment stage in the light most favorable to Porter, the nonmovant, giving Porter the benefit of any doubt. Seeid.

¶ 14. As summary-judgment movants, State Farm, Mullins, and Grand Casino each had a burden to persuade the court there were no genuine issues of material fact and each was entitled to a judgment as a matter of law. See Karpinsky v. Am. Nat'l Ins., 109 So.3d 84, 88 (¶ 11) (Miss.2013). Porter had a burden too. Because Porter, as the plaintiff, would have borne the burden of proof at trial, she had to produce evidence at the summary-judgment stage establishing a triable fact issue on each element of each claim. Seeid.

¶ 15. We acknowledge Porter has presented evidence, through an expert opinion, that her home was destroyed when the casino's barge allided with her house. But like the circuit court, we do not find this evidence, even when viewed in her favor, satisfies her burden of production and saves her from summary judgment being entered against her.

I. No Coverage Under State Farm Policy

¶ 16. Porter's homeowner's policy covered all risks unless the risk was specifically excluded. See Coastal Hardware & Rental Co., LLC v. Certain Underwriters at Lloyds, London, 120 So.3d 1017, 1024 (¶ 29) (Miss.Ct.App.2013) (citing Robichaux v. Nationwide Mut. Fire Ins., 81 So.3d 1030, 1039 n. 5 (Miss.2011)) (contrasting an all-risk policy with a named-perils policy). In Porter's claim for bad-faith denial of coverage, while she bears the burden to prove she had a right to recover under the policy, it is State Farm's burden as the insurer to prove a policy exclusion applied. Seeid. (citing Tuepker v. State Farm Fire & Cas. Co., 507 F.3d 346, 356 (5th Cir.2007)).

¶ 17. To meet this burden, State Farm pointed to its policy language: “We do not insure under any coverage for any loss which would not have occurred in the absence of ... Water Damage, meaning: ... flood, surface water, waves, tidal water, tsunami, seiche, overflow of a body of water, or spray from any of these, whether driven by wind or not[.]” State Farm argued, and the circuit court agreed, Porter's loss would not have occurred without “storm surge—essentially a massive wall of water[ ]pushed ashore by Hurricane Katrina's winds.” ⁴ So the policy exclusion applied.

¶ 18. Porter insists State Farm did not meet its burden—and thus was not entitled to summary judgment—because the policy did not exclude the “true cause” of her loss. As she sees it, the “true cause” of the destruction of her home was “the barge.” But based on the undisputed events, the barge in and of itself could not have been the cause.

¶ 19. By definition, a “cause” is “[t]he producer of an effect[.]” ⁵ And to produce an effect requires force. To take Porter's argument to its logical conclusion, the barge would have had to have generated its own force to be the “true cause” of the damage, which it obviously did not. So unquestionably, the barge's allision with Porter's home could not have occurred without the forces of wind and water.

¶ 20. While her expert avoided mention of storm surge, he did say that the barge “allided” with Porter's house. “Allide” is a nautical term, used to describe when a moving object traversing across water hits a stationary object. Thus, boats and barges “allide,” while trains, planes, and automobiles “collide.” So by specifically alleging the damage to her home was caused when the barge “allided” with her house, Porter necessarily conceded the barge was carried or propelled by water to get to her house. Because her house was normally situated on dry land, the only explanation of the presence of water in her yard was the...