United States District Court, S.D. Mississippi, Western Division
KIM SUSHINSKI TERRELL, NEXT FRIEND OF JIMMY FAY WILTSHIRE SUSHINSKI PLAINTIFF
VINCENT A. DADDIO, LORI S. MILLS DADDIO, AND GARRISON PROPERTY AND CASUALTY INSURANCE COMPANY, A SUBSIDIARY OF USAA CASUALTY INSURANCE COMPANY DEFENDANTS
MEMORANDUM OPINION AND ORDER
BRAMLETTE UNITED STATES DISTRICT JUDGE.
cause is before the Court on defendant Garrison Property and
Casualty Insurance Company (“Garrison”)'s
Motion for Summary Judgment (docket entry 37), Motion to
Strike (docket entry 46), and Motions in Limine (docket
entries 49, 51, 53, 55, 57, 59, 61, 63, 65, 67, 69 and 71).
Having carefully considered Garrison's motions and the
responses of plaintiff Kim Sushinski Terrell, next friend of
Jimmy Fay Wiltshire Sushinski, as well as the memoranda of
the parties and the applicable law, and being fully advised
in the premises, the Court finds as follows:
plaintiff, Kim Sushinski Terrell, brings this action as next
friend of her mother, Jimmy Fay Wiltshire Sushinski, who was
90 years old at the time the Complaint was filed. The
Complaint states that Kim has filed in the Chancery Court of
Pike County, Mississippi, a Petition for her appointment as
Conservator of the Estate of Jimmy Fay Wiltshire Sushinski,
and that she will amend the Complaint to show that she is
proceeding as Conservator of her mother's
plaintiff's Complaint alleges that Jimmy Fay Wiltshire
Sushinski (mother of Lori S. Mills Daddio and Kim Sushinski
Terrell) was owner and occupant of a residential dwelling at
160 West Bay Street, Magnolia, Mississippi, with her husband,
Steve Sushinski, who died in 2013 following an extended
illness. Before the death of Mr. Sushinski, Mrs.
Sushinski invited her daughter Lori S. Mills Daddio, and
Lori's husband Vincent A. Daddio, to move in with Mr. and
Mrs. Sushinski, in order for Lori to help care for Mr.
Sushinski, and because the Daddios had suffered financial
misfortune. Complaint, ¶¶ 4-5.
Complaint further alleges that some time prior to the Daddios
moving into the dwelling, Mrs. Sushinski had obtained an
insurance policy insuring her home for $45, 000.00. Mrs.
Sushinski was the only loss payee under the policy. According
to the plaintiff, the Daddios “fraudulently and
secretively obtained another insurance policy” from
Garrison in the amount of $275, 000.00. Complaint,
¶¶ 6, 8. The Complaint alleges that Garrison
“wrote the excessive fire insurance coverage ($275,
000.00) on the house without benefit of an appraisal of any
type, in violation of Section 83-13-5, Miss. Code
Anno.” Complaint, ¶ 9. The policy also increased
personal property protection coverage to $222, 750.00.
Id., ¶ 10. The plaintiff alleges that Mrs.
Sushinski had no knowledge that the Daddios had obtained the
additional insurance. Id., ¶ 11.
plaintiff further alleges that the Daddios, “or either
of them acting in concert, set fire to the residence[,
]” and that the Daddios “had opportunity and
motive to set the fire, for their personal financial
gain.” Id., ¶¶ 13-14. According to
the plaintiff, Garrison “made no efforts to investigate
the fire or the cause of its origin, even though the recent
increase in policy limits and the distressed financial
circumstances of [the Daddios] should have triggered an
investigation. The insurance company did not require an
investigation of the cause and origin of the fire, and [the
Daddios] refused an investigation of the cause and origin of
the fire when requested by the Magnolia Fire Chief to do
so.” Id., ¶ 16.
Complaint also alleges that the Daddios “made material
misrepresentations in Proof of Loss Statements submitted by
them regarding the contents, the ownership of the contents,
the extent of the fire damage to the building, and their
intention to rebuild the house rather than completely
demolish it[;]” and that after July 15, 2013, Garrison
issued checks for living expenses for the Daddios without the
knowledge or consent of Mrs. Sushinski. Id.,
plaintiff further alleges that at the request of the Daddios,
Garrison made Electronic Fund Transfers into Vincent
Daddio's account maintained at Garrison's parent
company, USAA Casualty Insurance Company
(“USAA”). According to the plaintiff,
“Garrison knew, or should have known, that these funds
were to be paid jointly to Jimmy Fay Wiltshire Sushinski,
” and that Mrs. Sushinski “was not aware of the
electronic fund transfers [totaling over $133, 634.22], did
not consent to them, and should have been notified by
Garrison that such payments were being made solely to Vincent
Daddio.” Id., ¶ 19.
the plaintiff alleges that checks in the amount of $290,
000.00 were made payable to the Daddios and Mrs. Sushinski,
and that “[e]ach of these checks were forged by the
Daddio Defendants with the signature of Jimmy Fay Wiltshire
Sushinski[, ]” and that Garrison “knew, or should
have known, about the obvious forgery of Jimmy Fay Wiltshire
Sushinski's signature on the checks.” Id.,
plaintiff asserts claims against Garrison for negligence and
other acts and omissions for its failure “to exercise
reasonable diligence and care in its acts and omissions in
the issuance of the fire policy, its failure to investigate
the fire loss claim, its payments [to the Daddios] and its
failure to determine whether the policyholder (member),
Vincent A. Daddio, had an insurable interest in the real and
personal property insured under the policy.”
Id., ¶ 21.
the Complaint includes Seven Counts against Garrison:
violation of Miss. Code Ann. § 83-13-5 (negligence
per se)(Count I); unauthorized deposits into USAA
Account No. 4799 without authorization from Mrs. Sushinski
(Count II); failure to investigate materially false
information provided at the time of issuance of the Fire
Policy (Count III); failure to exercise reasonable diligence
in investigation of fire loss (Count IV); failure to detect
forgery of checks in payment of fire loss (Count V); payments
to Daddios after Garrison had been expressly directed not to
make payments (Count VI); negligent failure to determine that
Vincent A. Daddio had no insurable interest at the time of
fire loss (Count VII); and a claim for punitive damages
moves for summary judgment as to all Counts. Federal Rule of
Civil Procedure 56 provides that “[t]he court shall
grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). “Where the burden of production at trial
ultimately rests on the nonmovant, ‘the movant must
merely demonstrate an absence of evidentiary support in the
record for the nonmovant's case.'” Cuadra
v. Houston Indep. Sch. Dist., 626 F.3d 808, 812
(5th Cir. 2010)(quoting Shields v. Twiss,
389 F.3d 142, 149 (5th Cir. 2004)). However,
“if the movant bears the burden of proof on an issue,
either because he is the plaintiff or as a defendant he is
asserting an affirmative defense, he must establish beyond
peradventure all of the essential elements of the
claim or defense to warrant judgment in his favor.”
Fontenot v. Upjohn Co., 780 F.2d 1190, 1194
(5th Cir. 1986). If the movant meets his burden,
the nonmovant must go beyond the pleadings and point out
specific facts showing the existence of a genuine issue for
trial. Cannata v. Catholic Diocese of Austin, 700
F.3d 169, 172 (5th Cir. 2012)(citation omitted).
“An issue is material if its resolution could affect
the outcome of the action.” Sierra Club, Inc. v.
Sandy Creek Energy Assocs., L.P., 627 F.3d 134, 138
(5th Cir. 2010)(quoting Daniels v. City of
Arlington, Tex., 246 F.3d 500, 502 (5th Cir.
2001)). “An issue is ‘genuine' if the
evidence is sufficient for a reasonable jury to return a
verdict for the nonmoving party.” Cuadra, 626
F.3d at 812 (citation omitted).
Court is not permitted to make credibility determinations or
weigh the evidence. Deville v. Marcantel, 567 F.3d
156, 164 (5thCir. 2009)(citing Turner v.
Baylor Richardson Med. Ctr., 476 F.3d 337, 343
(5th Cir. 2007)). When deciding whether a genuine
fact issue exists, “the court must view the facts and
the inferences to be drawn therefrom in the light most
favorable to the nonmoving party.” Sierra
Club, 627 F.3d at 138. However, “[c]onclusional
allegations and denials, speculation, improbable inferences,
unsubstantiated assertions, and legalistic argumentation do
not adequately substitute for specific facts showing a
genuine issue for trial.” Oliver v. Scott, 276
F.3d 736, 744 (5th Cir. 2002) (citing Sec.
& Exch. Comm'n v. Recile, 10 F.3d 1093, 1097
(5th Cir. 1993)).
contends that the plaintiff's claims stem from the
Sushinski family's decision to allow one family member,
Lori Daddio, to handle the claim with Garrison. Lori lived in
the house, and was the named insured under the policy. She
was authorized to act on her mother's behalf “in
all matters pertaining to the insurance” pursuant to
the Policy's language, and she was her mother's agent
under a written and signed Power of Attorney. Lori was the
sole family member who contacted Garrison, and she and her
husband Vincent worked with Garrison for a year presenting
claims, providing information needed to adjust the claims,
and answering Garrison's questions. During that year,
Garrison paid $419, 326.51 of the $427, 634.04 that was
ultimately paid for the losses. No other family member
attempted to contact Garrison during that time.
just before the final $8, 307.53 payment was issued (for
recoverable depreciation for certain damaged contents
belonging to Lori and Vincent), Lori told the family that she
had gambled away much of the claims proceeds. Following that
revelation, other family members accused Lori and/or Vincent
of arson, of forging signatures on some of the claims ...