Shelter Mut. Ins. Co. v. Simmons, Civil Action No. 3:06-C136 HTW-LRA.

• Court: United States District Courts. 5th Circuit. Southern District of Mississippi
• Citation: 543 F.Supp.2d 582
• Docket Number: Civil Action No. 3:06-C136 HTW-LRA.
• Parties: SHELTER MUTUAL INSURANCE COMPANY, Plaintiff v. William SIMMONS and Ann Simmons, Defendants.
• Decision Date: 19 February 2008

543 F.Supp.2d 582 SHELTER MUTUAL INSURANCE COMPANY, Plaintiff
v.
William SIMMONS and Ann Simmons, Defendants. Civil Action No. 3:06-C136 HTW-LRA. United States District Court, S.D. Mississippi, Jackson Division. February 19, 2008.

Robert Bradley Best, Jonathan S. Masters, Holcomb Dunbar, P.A. Oxford, MS, for Plaintiff.

James L. Quinn, James L. Quinn, Attorney, Hattiesburg, MS, for Defendants.

MEMORANDUM OPINION AND ORDER

HENRY T. WINGATE, Chief Judge.

Before the court are the cross-motions of the parties for summary judgment

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brought pursuant to Rule 56(b) and (c)¹ of the Federal Rules of Civil Procedure [docket ##'s 50 & 52]. Each party herein contends it is entitled to a judgment on the papers and without the benefit of a trial. This court's subject matter jurisdiction is predicated on diversity of citizenship as provided by Title 28 U.S.C. § 1332.² In a diversity action, this court is bound to apply the same law that a state court of the forum would apply. Erie R.R. Company v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). The forum state in this case is Mississippi. In obedience to the Erie Doctrine, this court must deduce Mississippi's ultimate position on the issue now presented to this court from the current body of Mississippi law on insurance policy language, applicable Fifth Circuit opinions, if any, decisional law of other states and decisional law from other federal courts. See Helene Curtis Industries, Inc. v. Pruitt, 385 F.2d 841, 848 (5th Cir. 1967).

Background

The plaintiff Shelter Mutual Insurance Company ("Shelter Mutual"), filed the instant lawsuit seeking an interpretation of the homeowner's policy issued to the defendants, William Simmons and Ann Simmons. The parties agree that Shelter Mutual issued homeowner policy number 23-71-4476119-2 covering the Simmonses' home in Columbia, Mississippi. The parties also agree that the policy covered the subject property on August 29, 2005, the date Hurricane Katrina caused significant damage to the defendants' real property, including damage to the drive and structures appurtenant to it. Consequently, the Simmonses filed a claim for damage to their property under the policy. After adjusting the claim, Shelter Mutual tendered payments under the "dwelling" section of the policy in the amount of $140,731.94. Shelter Mutual also tendered the full policy limits under the "other structures" section of the policy in the amount of $34,650.00. In addition, Shelter Mutual paid $1,686.49 for personal property damages.

The subject driveway stretches across the property and encompasses approximately 8,500 square feet. The estimate, submitted by the Simmonses, calls for the removal and replacement of each brick paver, for a cost of $82,857.00.

Shelter Mutual says it gave the Simmonses cash benefits for the driveway damage under the "other structures" coverage section of the policy. Shelter Mutual says the Simmonses have exceeded their available limits under the "other structures" coverage section and are now attempting to recover additional sums under the "dwelling" coverage section of the policy.

The Simmonses strongly disagree, contending that coverage for the driveway exists under the "dwelling" coverage section, for which limits of liability have not

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been exhausted. The Simmonses argue that the driveway and structures appurtenant to the drive are a part of the residence premises which include the main dwelling, the grounds and other structures at the location.

For the reasons that follow, this court finds that the summary judgment motion submitted by Shelter Mutual is well taken and should be granted.

The Shelter Mutual Policy

The following clauses in the subject policy......

SECTION 1 — PROPERTY PROTECTION

COVERAGE A — DWELLING INSURING AGREEMENTS

1. We cover accidental direct physical loss to the following property, except for those perils and losses excluded under the heading "Exclusions Applicable to Coverages A & B."

(a) Your dwelling, including building structures attached to it, at the residence premise, but only if that dwelling is used principally as a private residence. If a building structure is connected to the dwelling by only a utility line or fence, it will not be considered attached to the dwelling for purposes of this coverage.

COVERAGE B — OTHER STRUCTURES INSURING AGREEMENTS

1. We cover accidental direct physical loss to other structures which are permanently attached to the residence premises but not attached to your dwelling, except for those perils and losses excluded under the heading "Exclusions Applicable to Coverages A & B." If a structure is connected to the dwelling by only a utility line or fence, it will not be considered attached to the dwelling for purposes of this coverage.

Summary Judgment Jurisprudence

Summary judgment is appropriate where the facts and law as represented in the pleadings, affidavits and other summary judgment evidence show that no reasonable trier of fact could find for the nonmoving party as to any material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corporation v. Catrett, 477 U.S. 317, 323-25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Martinez v. Schlumberger, Ltd., 338 F.3d 407, 411 (5th Cir. 2003); Terrebonne Parish Sch. Bd. v. Mobil Oil Corp., 310 F.3d 870, 877 (5th Cir. 2002). "A fact is `material' if it `might affect the outcome of the suit under governing law.'" Bazan v. Hidalgo County, 246 F.3d 481, 489 (5th Cir.2001). The nonmoving party may not rest upon mere allegations or denials in the pleadings but must present affirmative evidence, setting forth specific facts, to show the existence of a genuine issue for trial. See Celotex Corporation, 477 U.S. at 322-23, 106 S.Ct. 2548; Anderson, 477 U.S. at 257, 106 S.Ct. 2505; Matsushita Electric Industrial Company v. Zenith Radio Corp., 475 U.S. 574, 585-86, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). All the evidence must be construed "in the light most favorable to the non-moving party without weighing the evidence, assessing its probative...