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Marisco v. Allstate Ins. Co.

Court of Appeals of Mississippi

August 19, 2014

WAYNE MARISCO AND SANDY MARISCO, APPELLANTS
v.
ALLSTATE INSURANCE COMPANY, APPELLEE

COURT FROM WHICH APPEALED: PEARL RIVER COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 08/20/2012. TRIAL JUDGE: HON. PRENTISS GREENE HARRELL. TRIAL COURT DISPOSITION: GRANTED APPELLEE'S MOTION FOR SUMMARY JUDGMENT AND DENIED APPELLANTS' MOTION FOR SUMMARY JUDGMENT.

AFFIRMED IN PART, AND REVERSED AND REMANDED IN PART.

FOR APPELLANTS: TINA LORRAINE NICHOLSON.

FOR APPELLEE: DAN W. WEBB, PAUL NATHAN JENKINS JR.

BEFORE IRVING, P.J., BARNES AND FAIR, JJ. LEE, C.J., BARNES, ISHEE, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR. GRIFFIS, P.J., AND ROBERTS, J., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

OPINION

Page 1170

NATURE OF THE CASE: CIVIL - INSURANCE

IRVING, P.J.

¶1. Aggrieved from the denial of coverage and benefits by their insurance carrier, Allstate Insurance Company (Allstate), Wayne and Sandy Marisco appeal the grant of a motion for summary judgment in favor of Allstate by the Pearl River County Circuit Court. The Mariscos argue that the circuit court erred by: (1) supplementing the appellate record with

Page 1171

evidence not presented to the trial court, (2) denying the Mariscos' objection to evidence, (3) allowing Allstate to supplement its motion for summary judgment, (4) granting Allstate's motion for summary judgment, (5) denying the Mariscos' motion for summary judgment as to " Allstate's Liability for Coverage on the Insured Dwelling," and (6) conducting an ex parte investigation into the facts of the case. We affirm in part and reverse and remand in part for further proceedings.

FACTS

¶2. On October 24, 2010, the Marisco family returned to their home in Poplarville, Mississippi, following a weekend vacation in Church Hill, Mississippi, to find that their home had been burglarized and vandalized. The vandals broke the plumbing, causing the entire house to flood. The Mariscos notified the authorities and filed a claim with Allstate the same day.

¶3. Since the house was uninhabitable, the Mariscos rented a trailer where Wayne planned to stay, with his son, as they rebuilt the house. The rest of the family would stay at Sandy's mother's house. When Wayne realized the insurance process would take longer than anticipated, he approached Ryan Richard (Ryan), a friend, to lease Ryan's house at 100 Bill Dyess Road, McNeill, Mississippi, for three months at a cost of $7,040. Allstate agreed to pay the rental cost under the Additional Living Expenses (ALE) portion of the Mariscos' policy and issued an ALE check for $7,040, made payable to the Mariscos and Ryan. Prior to the Mariscos moving in, a disagreement arose between Ryan and the Mariscos about the terms of the lease, namely that Ryan would remain in the house. Subsequently, the lease was abandoned. Wayne returned to the trailer, and eventually joined his family at his mother-in-law's house. Following the collapse of the lease agreement, Wayne agreed to pay Ryan half the amount of the ALE check for improvements made to the house in the anticipation of the rental agreement.

¶4. Allstate, suspicious of foul play, investigated the Mariscos to determine whether the Mariscos were entitled to a payout based on their all-risks policy. According to Allstate, during its investigation, there were numerous discrepancies in the information provided by the Mariscos. Allstate conducted two Examinations Under Oath (EUO) of Wayne and one of Sandy. On February 16, 2011, during Wayne's first EUO, Allstate informed Wayne that his insurance policy required him to produce any witnesses that Allstate deemed material and requested that Wayne produce Ryan for an EUO. Wayne responded, " Okay." When Wayne was asked during the second EUO, on June 13, 2011, if he had communicated with Ryan after his initial EUO, Wayne stated that he had talked to Ryan and told him that Allstate wanted to interview him, but Ryan had declined. During the second EUO, Wayne identified disturbances and suspicious activity leading up to the reported vandalism incident. When asked if he knew anyone that could be a suspect, Wayne stated that several people were " pointing to a certain boy" named Jonathan Sones.

¶5. On August 24, 2011, the Mariscos brought suit against Allstate for (1) the full costs of repairs to the insured dwelling; (2) the full costs of replacing personal property; (3) compensatory damages for emotional distress and Allstate's invasion of the Mariscos' privacy; (4) consequential damages incurred by the Mariscos including, but not limited to, the loss in value of their home and property; (5) attorney's fees, litigation expenses, and interest; and (6) punitive damages for bad-faith breach

Page 1172

of the insurance contract and other tortious conduct. In their lawsuit against Allstate, the Mariscos included several additional parties, including Otis Stanley Graham (Graham). They alleged that Graham participated in the vandalism of their home. Graham ...


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