OF JUDGMENT: 09/26/2017
COUNTY CIRCUIT COURT HON. LILLIE BLACKMON SANDERS
COURT ATTORNEYS SAM S. THOMAS JOSEPH B. MOFFETT DEBORAH
McDONALD OWEN P. TERRY
RANDOLPH, C.J., MAXWELL AND BEAM, JJ.
RANDOLPH, CHIEF JUSTICE.
Dorothy Smith sued Mississippi Farm Bureau Casualty Insurance
Company ("Farm Bureau"), her homeowner's
insurance carrier, after Farm Bureau denied her claim based
on the earth-movement exclusion in the policy. Farm Bureau
filed a motion for summary judgment, which was denied by the
trial court. Farm Bureau filed a petition for interlocutory
appeal by permission, which this Court granted. The Court
finds that the trial court erred in denying Farm Bureau's
motion for summary judgment. The earth-movement exclusion is
unambiguous and excludes coverage for the property damage
suffered by Smith. We reverse and render in favor of Farm
Bureau and dismiss Smith's complaint as to Farm Bureau.
AND PROCEDURAL HISTORY
Smith filed suit against her home builder, Larry Brown, d/b/a
Brown's Construction Company, and Farm Bureau after
learning that her home's foundation was defective. Smith
filed a claim for the repair of the foundation, but Farm
Bureau denied the claim. Smith alleged that Farm Bureau's
refusing to pay for repairs under the terms and conditions of
the policy amounted to breach of contract. She further
alleged that the denial constituted bad faith and tortious
breach of contract. Smith demanded damages to repair the
foundation, damages for inconvenience, anxiety, emotional
distress, extracontractual damages, punitive damages, and
In response, Farm Bureau filed its answer and a motion for
summary judgment, urging that Smith's claim was properly
denied because the foundation defects were not covered under
the policy's earth-movement exclusion. The
earth-movement exclusion reads,
A. We do not insure for loss caused directly or indirectly by
any of the following. Such loss is excluded regardless of any
other cause or event contributing concurrently or in any
sequence to the loss. These exclusions apply whether or not
the loss event results in widespread damage or affects a
2. Earth Movement
Earth Movement means:
a. Earthquake, including land shock waves or tremors before,
during or after a volcanic eruption;
b. Landslide, mudslide or mudflow; c. Subsidence or sinkhole;
d. Any other earth movement including earth sinking, rising
caused by or resulting from human or animal forces or any act
of nature unless direct loss by fire or explosion ensues and
then we will pay only for the ensuing loss.
Bureau argued that the exclusion precludes coverage for any
damage resulting from earth movement, regardless of its
cause. Farm Bureau cited three cases: Rhoden v.
State Farm Fire & Casualty Co., 32
F.Supp.2d 907, 913 (S.D.Miss. 1998); Boteler v.
State Farm Casualty Insurance Co., 876 So.2d
1067 (Miss. Ct. App. 2004); and Hankins v.
Maryland Casualty Co., 101 So.3d 645 (Miss. 2011).
Farm Bureau argued that in all of these cases, the courts
found that an earth-movement exclusion precluded coverage for
damage caused by earth movement. Farm Bureau pointed out that
Smith's proof confirmed that earth movement had caused
her foundation's problems. Because no disputed issue of
fact remained, Farm Bureau sought summary judgment.
Farm Bureau attached seven exhibits to its motion: (1)
Smith's amended complaint; (2) Farm Bureau's answer
and defenses to Smith's amended complaint; (3)
Smith's responses to Farm Bureau's first set of
interrogatories and first request for production of
documents; (4) a two-paragraph letter/"expert
report" authored by Smith's expert witness,
Randy Blanton; (5) Blanton's deposition; (6) Smith's
deposition; and (7) Smith's home insurance policy from
Smith, in her interrogatory responses, identified
"[f]oundation and [s]tructural separation on house[, ]
especially in [m]aster [b]edroom, [m]aster [b]athroom,
[f]ireplace, [p]atio [c]racks and on [m]ason work on outside
of house" as the problems for which she sought payment
from Farm Bureau. She claimed the "[s]tructure falling
in as well as interior" was the cause of such problems.
In both responses, Smith referred to the "Blanton
The "Blanton Report" is a two-paragraph letter
authored by Smith's expert, Randy Blanton, which reads,
Dear Mr. Moffett,
After further inspection of the exterior of Dorothy
Smith's home I found an area around the rear patio that
has some damage, such as brick cracking, doors and windows
separating from brick and etc. I did not notice this on my
first inspection 8 years ago, but this indicates some
foundation problems in my opinion. Just as a rough estimate I
would say to correct this issue cost would be between $45,
000.00 to $50, 000.00 because it is very unlikely to match
existing brick and etc.
This damage could be from faulty design in the foundation or
poor compaction on the fill dirt when the house was first
built or a busted water line that got the ground wet. Until
it is opened up there is really no way to tell.
Randy L. ...