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Burrell v. Allstate Property and Casualty Insurance Co.

United States District Court, S.D. Mississippi, Northern Division

September 29, 2014

SHARON BURRELL, Plaintiff,
v.
ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY; SOUTHERN PROPERTY; RICHARD GILLY; KERRI STEGER; JOHN AND JANE DOES A-H Defendants.

ORDER

CARLTON W. REEVES, District Judge.

Before the Court is Allstate's motion to dismiss or, in the alternative, to compel appraisal and a stay of proceedings. Docket No. 11. The Court held a telephonic hearing this day to consider argument of counsel, then ruled orally. This written ruling follows.

I. Background

According to the complaint, Sharon Burrell's "house and contents were totally destroyed by fire on November 21, 2012." Docket No. 1-1, at 5. Her insurance company's subsequent assessment and payout was too low, she says, so she sued Allstate and two individual employees for negligence, gross negligence, fraudulent misrepresentation, breach of contract, bad faith, and more. Id. at 6, 11-12. She seeks $8 million in compensatory and punitive damages.[1] Id. at 13.

II. Present Arguments

Allstate argues that dismissal without prejudice or a stay is appropriate because Burrell has never satisfied the appraisal clause of the policy. Docket No. 11. It claims it invoked the appraisal clause in September 2013 and hired someone to complete its appraisal, but the plaintiff never did the same within her 20-day window. Id. It filed this motion in December 2013, about two and a half months after invoking the clause.

In response, Burrell has attached her contractor's estimate of repair, Docket No. 15-2, and contends that it was a fair effort to comply with the appraisal policy, which is all that is required by Mississippi law. During the hearing, she added that she was not bound by the appraisal policy because its application would violate her rights under Mississippi Code § 83-13-5. That statute provides that:

When buildings and structures are insured against loss by fire and, situated within this state, are totally destroyed by fire, the company shall not be permitted to deny that the buildings or structures insured were worth at the time of the issuance of the policy the full value upon which the insurance is calculated, and the measure of damages shall be the amount for which the buildings and structures were insured.

Miss. Code Ann. § 83-13-5. Burrell also acknowledges, however, that this provision had not been specifically raised in her briefing.

III. Discussion

Because this case is proceeding in diversity, the applicable substantive law is that of the forum state, Mississippi. Capital City Ins. Co. v. Hurst, 632 F.3d 898, 902 (5th Cir. 2011); Smith v. Goodyear Tire & Rubber Co., 495 F.3d 224, 228 (5th Cir. 2007). State law is determined by looking to the decisions of the state's highest court. St. Paul Fire and Marine Ins. Co. v. Convalescent Services, Inc., 193 F.3d 340, 342 (5th Cir. 1999).

Under Mississippi law,

it is the duty of both parties to an insurance contract which provides for a submission to appraisal, in case of loss, of the question of the amount of loss or damages suffered, to act in good faith and to make a fair effort to carry out such agreement and accomplish its object. And if an appraisal is a condition precedent to an action on the policy, and the failure to secure an award by an appraisal is due to the fault of the insured, the absence of such award is a bar to an action on the policy by him.

Hartford Fire Ins. Co. v. Conner, 79 So.2d 236, 239 (Miss. 1955). The court later clarified that a pause in the proceedings is also appropriate, as it provides the plaintiff an opportunity to "make an effort to comply with the appraisal clause in the policy." Home Ins. Co. v. Watts, 91 So.2d 722, 727 suggestion of error sustained, 93 So.2d 848 (Miss. 1957); e.g., Edwards v. Guideone Mut. Ins. Co., No. 4:09-CV-35-HTW-LRA, 2010 WL 1416473 ...


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