IN THE SUPREME COURT OF MISSISSIPPI NO CA CONSOLIDATED WITH 2012-CA-01793

Transcription

1 E-Filed Document Oct :12: CA COA Pages: 10 IN THE SUPREME COURT OF MISSISSIPPI NO CA CONSOLIDATED WITH 2012-CA CHERRI R. PORTER vs. VS. MAX MULLINS, STATE FARM FIRE AND CASUALTY COMPANY AND GRAND CASINO OF MISSISSIPPI, INC. - BILOXI APPELLANT APPELLEE APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL DISTRICT OF HARRISON COUNTY, MISSISSIPPI JUDGE LAWRENCE PAUL BOURGEOIS, JR. PRESIDING APPELLANT'S REPLY BRIEF James Eldred Renfroe, MSB Renfroe & Perilloux, PLLC Attorneys Attomeys for Appellant/Plaintiff 648 Lakeland East Drive Ste A Flowood, MS Phone I Facsimile: jrenfroe@mslawfirm.biz

2 TABLE OF AUTHORITIES CASES: Bay Point High and DIY, LLC v. New Palace Casino, 46 So.3d 821 (Miss.App.20 I 0)... 3, 4 Brossard v. State Farm Fire & Cas. Co., 523 F.3d 618 (5 th Cir.2008)... 2 Commercial Union Ins. Co. v. Byrne, 248 So.2d 777 (Miss.1971)... 2 Corban v. United Services Automobile Association, 20 So.3d 60 I (Miss.2009)... I, 2 Eli Investments, LLC v. Silver Slipper Casino Venture, LLC, 118 So.3d 151 (Miss.2013)... 3,4,5,6,7 Hill v. Mills, 26 So.3d 322 (Miss.20 I 0)... 6 J&W Foods v. State Farm Mutual Ins. Co., 723 So.2d 550 (Miss.l998)... 2 Lyle v. Mlandinich, 584 So.2d 397 (Miss.1991)... 5 Rein v. Benchmark Constr. Co., 865 So.2d 1134 (Miss.2004)... 4 Ritchie v. Smith, 311 So.2d 642, (Miss.l975)

3 REPLY ARGUMENT TO STATE FARM FIRE AND CASUALTY COMPANY Argument of Appellee, State Fann Fire and Casualty Company, is based upon the facts of numerous cases examined by Courts in regards to the infamous wind v. 'water issue and the anticoncurrent causation ("ACC") language maintained in their policies. This however is not applicable to the Porter matter, in that P0l1er's home was not destroyed by wind or water or any combination tbereof, but her home was destroyed by the allision with the Grand Casino. Porter acknowledges though not agreed to, that this argument would apply if the home was destroyed only by the events of the wind or water; however, as noted in State Farm's brief, it was destroyed by the barge which (State Fann's brief page 13-14) is not a specifically covered peril. State Farm relied upon Corban v. United Services Automobile Association to state that the stolid surge is plainly encompassed within the flood provisions of the policy; however, this too simply overlooks the basic question at hand. The question this COllli should decide is whether the allision with a still standing object renders the policy applicable, not whether the storm surge or wind destroyed the home. Of course, flood damage to any contents or items in the curtilage of tbe home would be applicable to a flood insurance policy; however, what has been presented to the lower court and now to this Court is the fact of the un-refilted affidavit that the walls and home were still standing when the barge struck it which constitutes a covered peril or at least an issue that should be determined by a jury. In plain language, as the policy does not specifically omit the destruction by water borne objects, then it is up to Cherri to prove the home was still standing in spite of the water and it is up to State Farm to prove that the home would have or was destroyed by wind and water. As Corban states, "(i)fthe insured property is separately damaged by a covered or -1-

4 excluded peril, the ACC clause is inapplicable." Corban v. United Services Automobile Association, 20 So.3d 60 I (Miss.2009). Once Cherri showed the home was still standing, applying the water and wind exclusion by interpretation by State Farm constitutes a self serving interpretation of the policy in regards to its ambiguity. This is improper by State Fann as ambiguity is to be construed against the issuer of the policy. J&W Foods v. State Farm Mutual Ins. Co., 723 So.2d 550,552 (Miss.l998). The issue before all courts in Cherri's case is causation of the ultimate destruction of her home and causation is an issue of fact to be tried before ajury. Once Cherri showed the existence ofa loss under her policy, then the burden shifts to State Farm to show the UIlanlbiguous exception. Brossard v. State Farm Fire & Cas. Co., 523 F.3d 618 (5 th Cir.2008) (Construing Miss. Law). As stated, the argument of State Farm and the reasoning of the lower court that waterborne object was the end result ofthe destruction begs the question in that waterborne objects are an excluded peril which they are not. Should this rational be followed, then the proverbial pandora's box will be open and "but for" approach will be applied to all insurance policy determinations, a practice that is not applicable to interpreting contracts of adhesion. State Farm has the burden to prove the applicability of the exclusion, which they have not done. Commercial Union Ins. Co. v. Byrne, 248 So.2d 777, 782 (Miss.1971). REPLY ARGUMENT TO MAX MULLINS Max Mullins argues in his brief that there existed no reliance by Cherri Porter in the procurement of adequate coverage; however, this is contrary to the record. The record clearly indicates and is un-refuted that Cherri specifically asked whether or not she should up her coverage on the home or add additional coverage ( R. 372-Case#201 0-CA-00307). Once Cherri -2-

5 did this the response of Mullins was paramount to the liability in question. Mullins responded by stating no that she had exactly what she needed (R. 372-Case#201 0-CA-00307). The end result was that this response served as a poison pill for her coverage as soon as the home was destroyed, State Farm denied coverage based on the ACC clause of wind and water. Mullins was in a position of trust for Cherri. He was her agent on other policies and she trusted him, but to no avail. This trust was broken as the end result was a denial of coverage, a result facilitated by Mullins actions. The duty of the insurance agent is one to exercise reasonable diligence in obtaining a policy that meets the insures requests. Ritchie v. Smith, 311 So.2d 642, 646 (Miss.1975). By failing to do this, Mullins failed to meet the request of Cherri. The question of fact before this Court and the lower comi is whether the intended request is reasonable in nature. This question is one that is offact and must survive summary judgment and be submitted to a jury. REPLY ARGUMENT TO GRAND CASINO OF MISSISSIPPI, INC.-BILOXI Appellee, Grand Casino, asserted in their reply brief the allegations of "Act of God" defense; however, such does not take into consideration that the underlying case for which the trial court based it's decision was one derived specifically from the "Act of God" defense, that being Bay Point High and Dry, LLC v. New Palace Casino ( R ) and further argued by Grand Casino in their motion for summary judgment (R ). This however, needs not to be specifically addressed as Bay Point has now been specifically distinguished by this Court on July 25,2013, by the case of Eli Investments, LLC v. Silver Slipper Casino Venlllure, LLC, 118 So.3d 151 (Miss 2013) with the result in overtuming the lower court's decision in Porter's case as Eli events and circumstances are identical to that of Porter's case. -~- "

6 As stated in Eli Investments, LLC, to prove negligence, the plaint has the burden to establish (I) the existence of a duty owed to it by the defendant; (2) a breach of that duty; (3) a causal connection between the breach of duty and the alleged injury to plaint; and (4) the injury and damages. Id at 155, quoting Rein v. Benchmark CansO. Co., 865 So.2d 1134, (Miss.2004 ). As explored in Eli, if the Appellant supports a triable issue offact regarding each of these elements, then summary judgment must be reversed. Appellant, Cheni R. Porter would point out as done in the initial brief prior to the ruling of Eli that her situation is substantially different from that of Bay Point. In Bay Point the unmoored casino was located in the back bay and therefore the argument of foresee ability that such would break free and allide with a structure during Hurricane Katrina was substantially scrutinized by the Mississippi Court of Appeals; however, like Eli Porter's residence was located on U.S. Highway 90 (Beach Blvd.) on the main portion of the Gulf as well as the fact that the Grand Casino was moored directly on the Gulf, both facts that are identical that of Eli. The trial court in Porter stated that the case is "virtually indistinguishable from another lawsuit involving the brealmway of a casino barge" (R. 113). The case the trial court specifically enumerated was that of Bay Point wherein the Mississippi Court of Appeals ruled that the foresee ability of the barge brealdng free was not one that could have been ascertained due to the location. Cheni R. Porter's case though is not analogous to that of Bay Point, but that of Eli. In Eli, the Mississippi Supreme Court examined whether the Silver Slipper s breach of duty to tal(e reasonable precautions to protect those in close proximity to the President Casino -4-

7 was reasonable and prudent and if the arguments of appellants in that case constituted a issue of fact. The Grand Casino as exhaustively argued in its reply brief focused primarily on the reasonableness of their compliance with coast guard and gaming regulations. This is the issue that Grand Casino promulgated, an issue that Eli addressed and remanded for a determination of a trier of fact. Cherri R. Porter proffered in rebuttal to the motion for summary judgment the affidavit of Roy M. Carubba, PE 1 ( R ) as a rebuttal to the affidavits submitted wherein Carubba stated with a certainty that the moorings showed no evidence of inspections and that there existed no heavy mooring plan by the Grand Casino. Such constitutes a material breach in standard of care and ultimately resulted in the Grand Casino breaking free of its moorings and alliding with Porter's home. This at bare minimum constitutes a material issue of fact and as cited in Eli "(w)hehter the defendant breached its duty to the plaintiff is a question of fact." Eli at I 55 citing Lyle v. A1/andinich, 584 So.2d 397, 400 (Miss. 1991). As with Eli, Cherri R. Porter furnished an affidavit as stated previously that the moorings in question were inadequate in nature and as an end result did not constitute reasonable care. As with Eli, the Grand Casino furnished rebuttal affidavits that contradicted Porter's affidavit that alleged that the moorings were proper in nature. When this occurs this results in a triable issue of fact to be submitted to a jury. The Eli court stated "differing opinions establishes a 'battle of experts' on the issue of whether Silver Slipper took reasonable steps to secure the President Casino to prevent 1 It is important to note that the Grand Casino never took the deposition of Roy Carubba, though such was disclosed previously. The Grand Casino asserted tersely that Plaintiff never took the deposition of their inspectors; however, such names were never disclosed to Plaintiff until the time of the motion for smnmary judgment. -5-

8 foreseeable hann to nearby property owners." Eli Investments, LLC v. Silver Slipper Casina Venuture, LLC, 118 So.3d 151, 156 (Miss 2013). The Eli court stated specifically that the "winner in a battle of experts is to be decided by the jury." Id at 156, citing Hill v. Mills, 26 So.3d 322, 330 (Miss.2010). It is undisputed that there exists some form of duty of the Grand Casino to its neighbors. The question primarily focused on by the Grand Casino and that of Porter is was their vessel adequately moored and maintained to withstand the force of Katrina, a force that Grand Casino exhaustively maintained was not foreseeable though examined in Eli. As with the Eli court, Cherri R. POlier has shown that there exists a material issue of fact in regards to the mooring of the Grand Casino and as with Eli, this Court should reverse the granting of a summary judgment and remand this matter for a trial by jury to solve the issue raised on whether the Grand Casino was adequately moored. CONCLUSION Cherri Porter reasserts that State Farm Fire and Casualty Company and Max Mullins assertion that the events and circumstances that caused the destruction of Cherri Porter's home is not based upon applicable law. Furthelmore, State Fann Fire and Casualty Company and Max Mullins proffered no defense or causation of the true source of the destruction, but only asserted that "it must have happened because of the hurricane" type defense as well as proffering no expert as to the cause of the destruction. Cherri Porter has levied a viable and founded theory and evidence to prove that the home was, in fact, destroyed by a covered peril and at bare minimum has lodged enough offactual proof to render the true destruction a question for ajury. As such, Appellant requests that the summary granted in favor of State Farm Fire and Casualty -6-

9 Company and Max Mullins be set aside and that this matter be remanded for a trial by jury. Cherri Porter further asserts that in light of the recent Supreme Court decision in Eli Investments, LLC v. Silver Slipper Casino Venllture, LLC, 118 So.3d 151 (Miss 2013) (as both Eli and Porter's case are identical in location and events and allegations) and in reliance upon the evidence presented, this Court should set aside the summary judgment and that this matter be remanded for a trial by jury. This the 29 day of October lsi Janles Eldred Renfroe James Eldred Renfroe, MSB Renfroe & PeriIIoux, PLLC Attorney for Appellant/Plaintiff 648 Lakeland East Drive Ste A Flowood, MS Phone Facsimile: I 0 I 4 jrenfroe@mslawfirm.biz -7-

10 CERTIFICATE OF SERVICE I, James Eldred Renfroe, do hereby certify that I have this date caused the above and foregoing to be filed with the Mississippi State Supreme Comi Clerk through MEC, have served all parties of record via MEC and have cause a copy of each to be mailed to the following, first class mail, postage pre-paid. Hon. John Kavanaugh Hon. Ricardo A. Woods Hon. Kasee Sparks Heisterhagen Burr & Forman, LLP PO Box 2287 Mobile AL Attorneys for Grand Casino of Mississippi, Inc. - Biloxi Hon. Vincent Castigliola, Jr. Bryan, Nelson, Schroeder, Castigliola & Banahan, PLLC PO Drawer 1529 Pascagoula MS Attorneys for State Farm Fire and Casualty Company and Max Mullins Hon. Lawrence P. Bourgeois, Jr. Circuit Court Judge Harrison County, Mississippi PO Box 1461 Gulfport MS Trial Judge Hon. Kathy Gillis Mississippi Supreme Court Clerk Via Hand Delivery This the 29 day of October Is James Eldred Renfroe Hon. James Eldred Renfroe -8-