Before Thomas, P.j., Diaz, And Herring, JJ.
The opinion of the court was delivered by: Herring, J.
Brennan v. Webb, 96-CA-00574-COA, __ So. 2d __
DATE OF JUDGMENT: 04/12/96
TRIAL JUDGE: HON. BILL JONES
COURT FROM WHICH APPEALED: JACKSON COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - INSURANCE
TRIAL COURT DISPOSITION: JURY VERDICT IN FAVOR OF, APPELLEE
1. This appeal comes to us from the Circuit Court of Jackson County, Mississippi, where a jury returned a verdict in favor of the Appellee/Defendant J. W. Webb, and against Russell H. Brennan and Darlene M. Brennan. The Brennans claimed that Webb negligently caused them to be without homeowner's insurance coverage resulting in a financial loss incurred by them when their home was destroyed by fire. On appeal, the Brennans claim that the trial court erred when it excluded their expert witness from testifying on the issues of damages and in failing to grant and deny certain jury instructions. We reverse and remand for further proceedings for the reasons stated in this opinion.
2. The facts of this case are quite simple. On September 26, 1991, Mr. Brennan filled out an application for a homeowner's insurance policy at the office of J. W.Webb, a licensed insurance agent working exclusively with State Farm Fire and Casualty Company. He was assisted in completing the application by Beth Hundscheid Shull, one of Webb's employees. In his application, Brennan represented that he had never previously filed for a loss on an insurance policy, and that he had never previously been refused renewal of an insurance policy. Both of these representations by Mr. Brennan were false. In 1990, the Brennan home was burglarized and a claim was filed on the Brennans' homeowner's insurance policy with United States Fidelity and Guaranty Company (USF&G) in the amount of approximately $15,000. Furthermore, the Brennans filed a claim in 1989 with USF&G for a property loss by theft in regard to property taken from Mr. Brennan's motor vehicle. According to the record, USF&G informed the Brennans in July, 1991, that their policy would not be renewed effective August 21, 1991. In an effort to explain his misrepresentations on his State Farm insurance application, the Brennans claim that Mr. Brennan completed his application at a time when he was mentally ill and under the influence of alcohol. They claim that he did not intend to answer the questions falsely.
3. On March 19, 1992, the Brennan home was destroyed by a fire apparently caused by pans of grease left on the Brennans' kitchen stove. After the loss, State Farm discovered the two misrepresentations found in the Brennans' application for homeowner's insurance. Based upon these misrepresentations, State Farm filed a declaratory action in the Circuit Court of Jackson County, Mississippi, seeking an adjudication that it could deny coverage on the Brennan homeowner's policy. State Farm was successful in securing the requested declaratory judgment, and the Brennans were left without insurance coverage on their fire loss. Thereafter, the Brennans filed this action against Webb, asserting that he negligently allowed them to be left without insurance coverage. More specifically, the Brennans assert that Webb allowed an unlicensed employee, Beth Hundscheid Shull, to take the insurance application from Mr. Brennan at a time when he was mentally unstable and intoxicated. The Appellants claim that Ms. Shull was negligent in failing to recognize Mr. Brennan's condition and that he was incapable of giving accurate answers to the questions posed in the insurance application. After a trial on the merits, a jury returned a verdict in Webb's favor and denied any relief to Mr. and Mrs. Brennan. They now appeal to this Court.
4. The Appellants raise four issues on appeal which we take verbatim from their brief:
I. WHETHER THE TRIAL COURT ERRED IN NOT ALLOWING PLAINTIFF'S WITNESS, MARK MOHLER, TO TESTIFY AT THE TRIAL.
II. WHETHER THE TRIAL COURT ERRED IN REFUSING TO GIVE PLAINTIFF'S JURY INSTRUCTION NO. P-10 TO THE JURY.
III. WHETHER THE TRIAL COURT ERRED IN REFUSING TO GIVE PLAINTIFF'S JURY INSTRUCTION NO. P-3 TO THE JURY.
IV. WHETHER THE TRIAL COURT ERRED IN GIVING DEFENDANT'S JURY INSTRUCTION ...