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Terrell v. Daddio

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

March 20, 2017




         This 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:

         The 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 estate.[1]

         The 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.[2] 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.

         The 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.

         The 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.

         The 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., ¶¶ 17-18.

         The 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.

         Finally, 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., ¶ 20.

         The 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.

         Specifically, 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 (Count XIII).

         Garrison 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).

         The 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)).

         Garrison 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.

         Then, 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 ...

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