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Scottsdale Insurance Co. v. Deposit Guaranty National Bank

January 26, 1999

SCOTTSDALE INSURANCE COMPANY APPELLANT
v.
DEPOSIT GUARANTY NATIONAL BANK APPELLEE



Before McMILLIN, P.j., Coleman, And Southwick, JJ.

The opinion of the court was delivered by: Southwick, J.

DATE OF JUDGMENT: 12/10/96

TRIAL JUDGE: HON. ROBERT LEWIS GIBBS

COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT

NATURE OF THE CASE: CIVIL - INSURANCE

TRIAL COURT DISPOSITION: SUMMARY JUDGMENT GRANTED ON LIABILITY IN FAVOR OF APPELLEE; $28,000 IN DAMAGES AWARDED TO APPELLEE AFTER BENCH TRIAL ON DAMAGES

AFFIRMED

¶1. Deposit Guaranty National Bank was the mortgagee and loss payee under a binder providing builder's risk insurance on a home purchased by JoAnn Jenkins. After the expiration date of the binder the home was destroyed by a tornado. The insurer, Scottsdale Insurance Company, refused to pay because the loss occurred after the binder terminated. Since it had not received notice of cancellation, Deposit Guaranty brought suit against Scottsdale. Summary judgment was entered in favor of Deposit Guaranty on the issue of liability. A bench trial as to damages resulted in an award to the bank of $28,000 under a formula set forth in the policy. Scottsdale appeals the grant of summary judgment as to liability but raises no separate issue as to amount of damages. We affirm.

FACTS

¶2. In 1988 JoAnn Jenkins purchased a house located on Old Canton Road in Jackson that had been built in the 1960's for former Mississippi Governor Ross Barnett. As part of the purchase, she was required to move the house. She placed it on land adjacent to Highway 49 north of Jackson. Jenkins obtained a construction and renovation loan from Deposit Guaranty National Bank. She also applied for builder's risk insurance with Statewide Insurance Company. A binder in the amount of $100,000 was subsequently issued by Scottsdale through its agent, Statewide. The binder was to provide coverage from July 25, 1988, through January 25, 1989. Deposit Guaranty National Bank was listed as the mortgagee and loss payee on the binder.

¶3. Pursuant to the binder, a policy was later issued which covered the property from July 25, 1988 through October 25, 1988. *fn1 Deposit Guaranty was not listed as either the mortgagee or loss payee on the policy. On March 2, 1989, a Deposit Guaranty loan officer circulated a memo indicating that coverage had lapsed under the policy. He then procured $26,000 in replacement coverage through the bank's blanket insurance provider, Whitehall Insurance Brokers, Inc. On March 4, the second floor of the home was destroyed by a tornado. At the time of the loss, Jenkins's loan had been in default for two months.

¶4. Jenkins notified Scottsdale of the loss. It refused to pay because the loss occurred after the expiration date of the policy. Deposit Guaranty filed suit against Statewide and Scottsdale, alleging that they had failed to comply with a statutory requirement that at least ten days notice be given a mortgagee before an insurance policy is canceled. Statewide's motion for summary judgment was granted; Scottsdale's motion was denied. Summary judgment was entered in Deposit Guaranty's favor as to Scottsdale's liability, though the bank had not filed a summary judgment motion. Following a bench trial on damages, Deposit Guaranty was awarded $28,000.

DISCUSSION

¶5. The Court employs a de novo standard of review to a lower court's grant of summary judgment. Rockwell v. Preferred Risk Mutual Insurance Co., 710 So.2d 388, 389 (Miss. 1998). Summary judgment is appropriate if the evidence before the Court--admissions in the pleadings, answers to interrogatories, depositions, affidavits, etc.--shows that there is no ...


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