Robichaux v. Nationwide Mut. Fire Ins. Co.

• Decision Date: 15 December 2011
• Docket Number: NO. 2010-CA-00109-SCT,2010-CA-00109-SCT
• Court: Mississippi Supreme Court
• Parties: MICHAEL ROBICHAUX, AS THE PERSONAL REPRESENTATIVE OF MARY ROBICHAUX, DECEASED, AND MICHAEL ROBICHAUX, INDIVIDUALLY v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY AND JAY FLETCHER INSURANCE

MICHAEL ROBICHAUX, AS THE PERSONAL REPRESENTATIVE OF MARY ROBICHAUX,

DECEASED, AND MICHAEL ROBICHAUX, INDIVIDUALLY

v.NATIONWIDE MUTUAL FIRE INSURANCE COMPANYAND JAY FLETCHER INSURANCE

NO. 2010-CA-00109-SCT

SUPREME COURT OF MISSISSIPPI

Dated: December 15, 2011

DATE OF JUDGMENT: 09/30/2009

TRIAL JUDGE: HON. BILLY G. BRIDGES

COURT FROM WHICH APPEALED: JACKSON COUNTY CIRCUIT COURT

ATTORNEYS FOR APPELLANTS: BRANDON CURRIE JONES WILLIAM HARVEY BARTON DAVID WAYNE BARIA MARCIE FYKE BARIA

ATTORNEYS FOR APPELLEES: H. MITCHELL COWAN JANET D. McMURTRAY DANIEL F. ATTRIDGE CHRISTOPHER LANDAU KENNETH S. CLARK

NATURE OF THE CASE: CIVIL - INSURANCE

DISPOSITION: AFFIRMED IN PART, REVERSED IN PART AND REMANDED - 12/15/2011

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

BEFORE CARLSON, P.J., RANDOLPH AND KITCHENS, JJ.

KITCHENS, JUSTICE, FOR THE COURT:

¶1. Following the destruction of their home in Hurricane Katrina, Michael and Mary Robichaux filed suit on October 26, 2006, in the Circuit Court of Jackson County, Mississippi, against their insurers, Nationwide Mutual Fire Insurance Company("Nationwide") and their insurance agent, Jay Fletcher Insurance ("Fletcher Insurance"). The plaintiffs sought declaratory and injunctive relief, including indemnity under the insurance contract, compensatory and punitive damages, specific performance of the insurance contract, attorneys' fees, and court costs and expenses for what they alleged were uncompensated, covered losses under their homeowners' policy. Also included in the complaint were claims of fraud and bad faith by the insurer and its agent.

¶2. The trial court ultimately granted summary judgment in favor of Nationwide and Fletcher Insurance based on the Robichauxes' failure to establish a genuine issue of material fact that the home was damaged by wind, which was covered by the subject policy, rather than its having been destroyed by flood, which the trial court found was excluded under the policy. Alternatively, the trial court found that the Robichauxes had failed to show they had suffered uncompensated losses due to their having received compensation under their flood policy. Aggrieved, the Robichauxes timely filed this appeal.

¶3. This Court finds that the trial court erred in granting summary judgment on the issue of whether the Robichauxes suffered uncompensated, wind damage to structures other than their dwelling, and to personal property. Accordingly, we remand for further proceedings consistent with this opinion.

Facts and Procedural History

¶4. Mary and Michael Robichaux¹ owned a home at 1907 Washington Avenue, Pascagoula, Mississippi, located a few hundred feet from a canal and one block north of the Gulf of Mexico. The home was destroyed during Hurricane Katrina on or about August 29, 2005. At the time of the loss, the residential property was insured by Nationwide under a policy with the following coverage limits: $131,000 for dwelling, $13,100 for other structures, $97,405 for personal property, and $26,200 for loss of use. In addition to the homeowners' policy, the Robichauxes had purchased from Nationwide a hurricane rider entitled Hurricane Coverage and Deductible Provision Endorsement (hereinafter "hurricane endorsement"), which covered damage occurring as a result of a "windstorm during a hurricane." This coverage encompassed damage to the interior and to personal property inside the property "caused by rain, snow, hail, sand or dust if direct force of the windstorm first damages the building causing an opening through which the above enters and causes damage." The hurricane endorsement covered damage to the dwelling and other structures, as well as personal property.

¶5. The Robichauxes reported the loss to Nationwide and made a claim under the policy.² After an initial investigation, which included a site visit by a claims adjuster, Nationwidesent a letter to the Robichauxes informing them that a question had arisen as to coverage, namely whether flood or surge damage had caused destruction of their real and/or personal property. Nationwide retained an engineer with HAAG Engineering to inspect the property, review photographs, and prepare a damage assessment report based on the investigation. This report, which included photographs of the remaining concrete slab foundation and neighboring properties, FEMA tidal surge data, and evidence showing the proximity of the property to the Gulf of Mexico, concluded that the Robichaux home and garage were destroyed by the hurricane's storm surge. On March 24, 2006, in reliance on the claims adjuster's report and the engineering investigation and reports, as well as the flood exclusion and anti-concurrent language in the subject policy, Nationwide denied the Robichauxes' claim based on a finding that the loss was caused by water or water-borne material as defined by the policy.

¶6. Prior to this determination by Nationwide regarding the homeowners' policy, the Robichauxes had filed a claim under their flood insurance policy, a policy available through the National Flood Insurance Program. The flood policy paid $136,500 for flood damage to the dwelling and $70,400 for flood damage to the contents of the home, amounts which constituted the policy limits. Subsequently, as part of a newly instituted company policy regarding Katrina slab cases, Nationwide conducted a reassessment of all information pertaining to the Robichauxes' claims and tendered checks in the amount of $37,266.66 ($30,790.63 in potential dwelling damage and $6,476.03 in potential damage to other structures), which were returned uncashed by the couple eight months later.

¶7. On October 26, 2006, the Robichauxes brought suit in the Circuit Court of Jackson County against Nationwide and its agent, Fletcher Insurance, in which the plaintiffs sought declaratory and injunctive relief, including damages under the insurance contract, compensatory and punitive damages, specific performance of the insurance contract, attorneys' fees, and court costs and expenses for what they alleged were uncompensated, covered losses under their homeowners' policy, as well as fraud on the part of their insurer and its agent. On November 27, 2006, Nationwide filed a Notice of Removal from the circuit court to the United States District Court for the Southern District of Mississippi. The federal district court remanded the case to the Circuit Court of Jackson County on May 21, 2007, after which the Robichauxes filed a First Amended Complaint on September 29, 2008.

¶8. Nationwide and Fletcher Insurance filed their Defenses and Answer on October 3, 2008. The Robichauxes designated William Mott, an engineering expert; Rocco Calaci, a meteorology expert; and Donald Dinsmore, an insurance expert.³ Nationwide and Fletcher Insurance designated three engineering experts with HAAG Engineering Company, an additional engineering expert in the field of structural engineering, building inspection andmechanical engineering, an insurance expert, and two experts in meteorology and storm tide analysis.

¶9. The Robichauxes filed a Motion for Partial Summary Judgment, and Nationwide and Fletcher Insurance filed a Motion for Summary Judgment. The motions were set for hearing before Special Circuit Court Judge Billy G. Bridges on September 2, 2009. At the hearing, the trial court initially granted the Robichauxes' motion, but upon reconsideration withdrew judgment in favor of the plaintiffs and ruled in favor of Nationwide and Fletcher Insurance. The trial court issued its Findings of Fact, Conclusions of Law and Judgment denying the Robichauxes' Motion for Partial Summary Judgment and granting summary judgment in favor of Nationwide and Fletcher Insurance on October 5, 2009. Aggrieved by the judgment in favor of the defendants, the Robichauxes filed this appeal.

DISCUSSION

¶10. The interpretation of insurance policy language is a question of law. Lewis v. Allstate Ins. Co., 730 So. 2d 65, 68 (Miss. 1998). Questions of law are reviewed de novo. Lowe v. Lowndes County Bldg. Inspection Dep't, 760 So. 2d 711, 712 (Miss. 2000).

¶11. Summary judgment shall be rendered "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Miss. R. Civ. P. 56(c). "The evidence must be viewed in the light most favorable to the party against whom the motion has been made. If in this view the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his favor. Otherwise the motion should be denied." Brown v. Credit Center, Inc.444 So. 2d 358, 362 (Miss. 1983). This Court conducts a de novo review to determine whether the trial court properly granted a motion for summary judgment. Conrod v. Holder, 825 So. 2d 16, 18 (Miss. 2002) (citation omitted).

¶12. For our review, the Robichauxes raise the following issues:

1. Whether the "Hurricane Coverage and Deductible Provision" and the "Anti-Concurrent Causation Provision" or "Weather Conditions" Exclusion create an ambiguity that should be resolved in favor of the insureds.

2. Whether in considering an "All Risk" homeowners' policy containing an ACC clause, the insurance company bears the burden of establishing causation for that part of the loss that is excluded.

3. Whether the trial court erred in its interpretation of the ACC clause.

4. Whether the insurance company's adjustment of the claims of its policyholders is relevant to that company's treatment of policyholders with like policies in the same geographical area.

5. Whether the trial court erred in dismissing Plaintiffs' claims against Jay Fletcher Insurance.

We decline to address the appellants' issue four, given that it is not dispositive of the case and because, as the ultimate gatekeeper of admissibility of relevant evidence under Mississippi Rule of Evidence 401, the trial judge should determine...