Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Hoover v. United Services Auto. Ass'n

Supreme Court of Mississippi

November 7, 2013

Dr. Jack HOOVER and Margaret Ann Hoover
v.
UNITED SERVICES AUTOMOBILE ASSOCIATION.

Page 637

[Copyrighted Material Omitted]

Page 638

David Neil Harris Jr., Clyde H. Gunn, III, Christopher Collins Van Cleave, William Corban Gunn, Biloxi, attorneys for appellants.

Charles Patrick Copeland, Ridgeland, Charles G. Copeland, Rebecca Suzanne Blunden, Ridgeland, attorneys for appellee.

EN BANC.

Page 639

RANDOLPH, Presiding Justice.

¶ 1. This case arises out of an alleged breach of contract and bad-faith denial of Dr. Jack and Margaret Hoover's homeowner's insurance claim against United Services Automobile Association (" USAA" ) following Hurricane Katrina (" Katrina" ). The trial judge granted USAA's motion for directed verdict as to the Hoovers' claims for: (1) the unpaid portion of losses; (2) mental anguish and emotional distress; and (3) punitive damages. The trial court further determined tat there were issues of fact for the jury as to whether the Hoovers' roof structure was damaged, and as to the Hoovers' claim for additional living expenses (" ALE" ). The jury found for the Hoovers and returned a verdict of $81,342.97 in compensatory damages. The Hoovers appealed and USAA cross-appealed.

FACTS

¶ 2. The Hoovers presented evidence that they incurred $240,917.56 in costs to repair their property for losses inflicted by Katrina and $1,342.97 for ALE. The Hoovers also claimed an " additional $80,000 in future cost to replace ... [the] roof structure." [1] USAA provided homeowners' insurance for the Hoovers.[2] USAA posited that the majority of the Hoovers' loss occurred on the lower floor of the home and was the result of excluded storm surge. USAA limited the " covered loss" to $56,748.17 and made payments totaling that amount over time. USAA denied that the Hoovers' roof structure needed to be replaced and that coverage extended to ALE.

¶ 3. On August 11, 2008, the Hoovers filed a complaint against USAA in the Circuit Court of Jackson County alleging, inter alia, breach of contract and tortious bad-faith breach of contract. USAA filed its " Answer and Defenses [,]" and raised, as its seventh affirmative defense, that the " damages for which Plaintiffs seek recovery were either caused or contributed to by excluded water damage as defined in the policy."

¶ 4. A four-day jury trial was held before the Honorable Frank Vollor. Following the close of the Hoovers' case-in-chief, USAA moved for a directed verdict on all claims. The trial court granted USAA's motion as to the Hoovers' claims for mental anguish and emotional distress.

¶ 5. At the close of all evidence, the trial court ruled that " the only evidence present [was] that the damage to the lower part of the floor was done by the storm surge[,]" and, thus, did not allow that issue to go to the jury. However, the trial court determined that whether the roof structure was damaged was " still in dispute[,]" and " allow[ed] that [issue] to go to the jury [,]" along with the ALE claim. The jury awarded the Hoovers $81,342.97 in compensatory damages.[3] Thereafter, the trial court denied the Hoovers' claim for punitive damages. Final judgment was entered on September 2, 2011.

ISSUES

¶ 6. On appeal, the Hoovers raise the following issues, restated as follows:

Page 640

I. Whether the trial judge erred by granting directed verdict in favor of USAA regarding the contractual damages in the amount of $240,917.56.
II. Whether the trial judge erred by granting directed verdict in favor of USAA regarding the Hoovers' mental-anguish and emotional-distress claims.
III. Whether the trial judge erred by granting a directed verdict in favor of USAA regarding the Hoovers' punitive-damages claims.

¶ 7. On cross-appeal, USAA raises the following issues:

IV. Whether the trial judge failed to properly apply the Daubert standards to Dr. Ralph Sinno's testimony that the Hoovers' roof structure was damaged.
V. Whether the trial judge erred in allowing Sinno to testify as to the cost of replacing the roof structure.

ANALYSIS

I. Whether the trial judge erred by granting directed verdict in favor of USAA regarding the contractual damages in the amount of $240,917.56.

¶ 8. The standard of review for the trial court's grant or denial of a motion for directed verdict is de novo. Braswell v. Stinnett, 99 So.3d 175, 177-78 (Miss.2012) (citing Thompson v. Nguyen, 86 So.3d 232, 236 (Miss.2012)).

¶ 9. In Corban v. United Services Automobile Association, 20 So.3d 601, 619 (Miss.2009), this Court unanimously held that:

[w]ith respect to the " all-risk" coverage of " Coverage A-Dwelling" and " Coverage B-Other Structures," the Corbans are required to prove a " direct, physical loss to property described." Thereafter, USAA assumes the burden to prove, by a preponderance of the evidence, that the causes of the losses are excluded by the policy, in this case, " [flood] damage. " USAA is obliged to indemnify the Corbans for all losses under " Coverage A-Dwelling" and " Coverage B-Other Structures" which USAA cannot establish, by a preponderance of the evidence, to have been caused or concurrently contributed to by " [flood] damage."

(Emphasis added.) In the case sub judice, several facts are uncontradicted. The Hoovers had a USAA " all-risk" homeowners' policy that was in effect at the time of Katrina.[4] The proof presented by the Hoovers is that they suffered $240,917.56 in " direct physical loss" to their dwelling and other structures as a result of Katrina. The Hoovers satisfied the burden required by Corban. [5] The Hoovers were entitled to payment for those losses, unless USAA could " prove, by a preponderance of the evidence, that the causes of the losses are excluded by the policy, in this case, ‘ flood damage.’ " Id.

¶ 10. Nevertheless, at the close of all evidence, the trial court granted a directed verdict for USAA as to the unpaid portion of the Hoovers' dwelling losses. The trial court stated, in pertinent part,

the proof is overwhelming that the lower part [of the house] was involved in a surge. There's nothing to contradict

Page 641

that. So the Court finds that the evidence— that's the only evidence present, that the damage to the lower part of the floor was done by the storm surge, saltwater surge, which I understand a lot of the testimony comes from Dr. Hoover himself.... The court thinks the plaintiff should have had to put on something to show it was other than surge.

(Emphasis added.)

¶ 11. USAA acknowledges the standard set forth in Corban but argues that it met its burden of proof " through documents, its own investigation, and the cross examination of [Dr. Hoover] that the lower part of the house was damaged by storm surge flooding, not wind." USAA contends that, " at that point, the burden shifted back to the Hoovers to put on some proof to create an issue of fact," and the Hoovers failed to meet the burden to put on contradictory evidence.

¶ 12. In support of its argument that the burden shifted back to the Hoovers, USAA cites Bayle v. Allstate Insurance Co., 615 F.3d 350 (5th Cir.2010). In Bayle, a Katrina case, the Fifth Circuit held that if the insurer " make[s] out a prima facie case that the cause of the uncompensated or under-compensated damage was excluded from coverage[,]" then " the burden shifts to the insured to present evidence demonstrating there remains a material issue of fact." Id. at 359. USAA's reliance on Bayle is unavailing, as that case applied ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.