United States District Court, N.D. Mississippi
TITAN EXTERIORS, INC. d/b/a TITANROOF PLAINTIFF
CERTAIN UNDERWRITERS AT LLOYD'S, LONDON DEFENDANT
court has before it Plaintiff Titan Exteriors' motion for
partial judgment on the pleadings . Having considered the
matter the court finds that the motion should be granted.
and Procedural Background
Columbus Business Center ("CBC") owned a shopping
center that it insured through a policy (the
"Policy") written by Defendant Certain Underwriters
at Lloyd's, London ("Underwriters"). Compl.
[Doc. No. 1] ¶ 5. This Policy provided that in the event
of a covered loss, Underwriters would "pay the value of
lost or damaged property, or the cost of its repair or
replacement, in accordance with the applicable terms of the
Valuation Condition in this Coverage Form . . . ."
Policy, [Doc. No. 1-1] at pg. 31. The Policy provided that
"the value of Covered Property" would be determined
as "[at] actual cash value as of the time of loss or
damage. . ." Policy, at pg. 32. The Policy did not
define "actual cash value."
April 2014, while CBC's policy with Underwriters was in
effect, the shopping center suffered hail and wind damage,
purportedly resulting in $5, 000, 000 in damages to the
property. Compl. ¶¶ 11, 12. In March 2016, CBC
reported the loss to Underwriters. Id. ¶ 14;
Def.'s Ans. [Doc. No. 6] ¶ 14. CBC then contracted
with Plaintiff Titan Exteriors to repair the damage to the
property. Compl. ¶ 13; Def.'s Ans. ¶ 13.
March 2017, Underwriters notified CBC that they would issue
an actual cash value payment for the damaged property in the
amount of $1, 217, 545.60. Compl. ¶ 16; Def.'s Ans.
¶ 16. In order to reach that figure, Underwriters used
the "replacement cost value less depreciation"
methodology to compute the actual cash value. Compl.
¶¶ 26, 27; Def.'s Ans. ¶¶ 26, 27.
Underwriters first estimated the replacement cost value which
is the cost to repair or replace the damage with new
materials, as $3, 980, 142.81. Compl. ¶ 29; Def.'s
Ans. ¶ 29. Underwriters then subtracted depreciation,
with it calculated as $2, 662, 597.21. Compl. ¶ 30;
Def.'s Ans. ¶30. Finally, it subtracted the
applicable deductible of $100, 000 to reach the actual cash
figure of $1, 217, 545.60. Compl. ¶ 31; Def.'s Ans.
¶ 31. Underwriters informed Titan Exteriors that of the
$2, 662, 597.21 depreciation, $1, 054, 023.63 was for
depreciation of labor. Compl. ¶ 38-39; Def.'s Ans.
2017, CBC assigned its insurance claim to the actual cash
value payment to Titan Exteriors, despite a non-assignment
provision being in CBC's insurance policy. Compl. ¶
18. Underwriters refuses to release the certain insurance
proceeds to Titan Exteriors, because it believes there has
been no valid assignment under the policy, and so Titan
Exteriors filed the present suit. Compl. ¶ 23.
Exteriors has moved for a judgment on the pleadings [Doc. No.
10]. In its motion, Titan Exteriors argues that CBC's
assignment to Titan Exteriors was valid. It then argues that
"actual cash value, " as it is defined in the
policy, is ambiguous in that reasonable minds could differ as
to whether it encompasses the depreciation of labor costs or
materials only. It argues that this ambiguity should be
resolved in favor of the insured, in this case Titan
Exteriors, such that the insurer may not depreciate labor
when calculating the actual cash value under the Policy.
Therefore, Titan Exteriors asks this Court to enter a partial
judgment in its favor in the amount of $1, 054, 023.63, the
amount Underwriters deducted for labor depreciation.
Underwriters has responded, and this matter is now ripe for
Motion for Judgment on the Pleadings Standard
the pleadings are closed-but early enough not to delay
trial-a party may move for judgment on the pleadings."
Fed.R.Civ.P. 12(c). A Rule 12(c) motion is governed by the
same standards as a Rule 12(b)(6) motion. See Brown v.
CitiMortgage, Inc., 472 Fed.App'x. 302, 303 (5th
Cir. 2012) (per curiam) (citing St. Paul Mercury Ins. Co.
v. Williamson, 224 F.3d 425, 440 n.8 (5th Cir. 2000)).
"A motion brought pursuant to [Rule] 12(c) is designed
to dispose of cases where the material facts are not in
dispute and a judgment on the merits can be rendered by
looking to the substance of the pleadings and any judicially
noticed facts." Hebert Abstract Co. v. Touchstone
Props., Ltd., 914 F.2d 74, 76 (5th Cir. 1990) (per
curiam) (citing 5A Charles A. Wright & Arthur R. Miller,
Federal Practice and Procedure § 1367, at 509-10
this case is before the Court pursuant to its diversity
jurisdiction under 28 U.S.C. § 1332, state substantive
law applies. Under Mississippi law, the interpretation of an
insurance policy is a question of law, not one of fact.
Lewis v. Allstate Ins. Co., 730 So.2d 65, 68
(Miss.1998). When interpreting an insurance policy under
Mississippi law, the Court must "look at the policy as a
whole, consider all relevant portions together and, whenever
possible, give operative effect to every provision in order
to reach a reasonable overall result " J & W
Foods Corp. v. State Farm Mut. Auto. Ins. Co., 723 So.2d
550, 552 (Miss. 1998). "[When] the words of an insurance
policy are plain and unambiguous, the court will afford them
their plain, ordinary meaning and will apply them as
written." Noxubee Cty. Sch. Dist. v. United Nat.
Ins. Co., 883 So.2d 1159, 1165 (Miss. 2004).
is ambiguous if it "can be interpreted to have two or
more reasonable meanings." J & W Foods
Corp., 723 So.2d at 552 (citing Ins. Co. of N. Am.
v. Deposit Guar. Nat. Bank, 258 So.2d 798, 800 (Miss.
1972)). "Under Mississippi law, ambiguous and unclear
policy language must be resolved in favor of the non-drafting
party-the insured." Noxubee Cty. Sch. Dist. v.
United Nat. Ins. Co., 883 So.2d 1159, 1165 (Miss. 2004)
(citing Harrison v. Allstate Ins. Co., 662 So.2d
1092, 1094 (Miss. 1995)).
are no disputes about the material facts underlying this
motion. The parties agree that CBC made an attempted
assignment of its insurance claim to Titan Exteriors in June
2017, after CBC reported the loss to Underwriters. The
parties also agree that Underwriters deducted $1, 054, 023.63
for depreciation of labor when determining the actual cash
value of the damaged property. The only two questions before
the Court are questions of law - whether the Policy
prohibited CBC's assignment to Titan Exteriors and
whether the Policy allowed Underwriters to depreciate labor
when computing actual cash value.
Was CBC's assignment to ...