Porter v. Grand Casino of Mississippi, Inc.
| Docket Number: | 2012-CA-01793-COA Linked Case(s): 2012-CA-01793-COA ; 2012-CT-01793-SCT ; 2012-CT-01793-SCT CONSOLIDATED WITH NO. 2010-CT-00307-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 05-13-2014 Opinion Author: Maxwell, J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Insurance - Policy exclusion - Allision - Negligent procurement of insurance - Negligence Judge(s) Concurring: Irving and Griffis, P.JJ., Barnes, Ishee, Roberts, Carlton and Fair, JJ. Non Participating Judge(s): Lee, C.J. Dissenting Author : James, J. Without Separate Written Opinion Procedural History: Summary Judgment Nature of the Case: CIVIL - INSURANCE |
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| Trial Court: |
Date of Trial Judgment: 09-25-2012 Appealed from: HARRISON COUNTY CIRCUIT COURT Judge: LAWRENCE PAUL BOURGEOIS JR. Disposition: Granted summary judgment to appellees Case Number: A2402-2006 |
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| Consolidated: Consolidated with 2010-CA-00307-COA Cherri R. Porter v. Max Mullins, State Farm Fire and Casualty Company and Grand Casino of Mississippi, Inc.- Biloxi; Harrison Circuit Court 2nd District; LC Case #: A2402-2006-009; Ruling Date: 08/27/2009; Ruling Judge: Lawrence Bourgeois, Jr. | ||
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Cherri R. Porter |
JAMES ELDRED RENFROE |
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| Appellee: | Grand Casino of Mississippi, Inc.- Biloxi, State Farm Fire and Casualty Company, and Max Mullins | VINCENT J. CASTIGLIOLA JR., KASEE SPARKS HEISTERHAGEN, JOHN PATRICK KAVANAGH JR. |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Insurance - Policy exclusion - Allision - Negligent procurement of insurance - Negligence |
| Summary of the Facts: | After Hurricane Katrina unmoored a casino barge which carried it into the beachfront home owned by Cherri Porter, Porter filed suit against her insurance company, State Farm Fire and Casualty Company, and insurance agent Max Mullins. She also filed suit against the casino (Grand Casino of Mississippi, Inc.–Biloxi) for negligence. The circuit court granted summary judgment to the defendants. Porter appeals. |
| Summary of Opinion Analysis: | Issue 1: Insurance coverage Porter’s homeowner’s policy covered all risks unless the risk was specifically excluded. Her policy included the language: “We do not insure under any coverage for any loss which would not have occurred in the absence of . . . Water Damage, meaning: . . . flood, surface water, waves, tidal water, tsunami, seiche, overflow of a body of water, or spray from any of these, whether driven by wind or not[.]” The circuit court held that the policy exclusion applied. Porter argues that the policy did not exclude the “true cause” of her loss, which was the casino barge. However, contrary to her argument, the barge was not in and of itself the cause of the loss. Porter’s expert said that the barge allided with Porter’s house. “Allide” is a nautical term, used to describe when a moving object traversing across water hits a stationary object. Thus, Porter conceded that the barge was carried or propelled by water to get to her house. The barge was a concurrent cause coupled with the excluded storm surge, which makes the barge also an excluded cause of loss under the clear and unambiguous language of the policy. Issue 2: Negligent procurement of insurance Porter argues that her insurance agent was negligent, because the loss of her house by the barge’s allision should have been covered under her all-risk policy with State Farm. While Mississippi does recognize claims against insurance agents for negligent procurement of insurance, the tort involves claims that the agent failed to procure coverage or failed to provide the coverage requested by the insured. In this case, the agent did not fail to procure coverage or to provide any coverage requested by Porter. Thus, her claim against him for negligent procurement of insurance fails as a matter of law. Issue 3: Negligence Porter argues that Grand Casino’s negligent mooring of its barge proximately caused the destruction of her home. The casinos owe a duty to property owners in close proximity to take reasonable measures to prevent foreseeable injuries in the event of a hurricane. Here, the affidavit of Porter’s expert does not contradict Grand Casino’s evidence that it acted reasonably. Porter’s expert, who never inspected the barge or mooring system after the hurricane, offered no opinion that the magnitude of storm surge that dislodged the barge was reasonably foreseeable. He also did not state that the barge’s mooring system was unreasonably designed. Thus, the circuit court did not err. |
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