Porter v. Grand Casino of Mississippi, Inc.- Biloxi
| Docket Number: | 2012-CT-01793-SCT
CONSOLIDATED WITH NO. 2010-CT-00307-SCT Linked Case(s): 2012-CA-01793-COA ; 2012-CA-01793-COA ; 2012-CT-01793-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 01-07-2016 Opinion Author: King, J. Holding: Affirmed. |
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| Court of Appeals: |
Opinion Link Opinion Date: 05-13-2014 |
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| Additional Case Information: |
Topic: Insurance - All-risk homeowner's policy - Anticoncurrent cause clause - Water damage - Damage from barge - Allision - Storm surge - Negligence - Proximate causation - Foreseeable injuries Judge(s) Concurring: Waller, C.J., Dickinson and Randolph, P.JJ., Lamar, Pierce and Coleman, JJ. Non Participating Judge(s): Maxwell, J. Dissenting Author : Kitchens, J. 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: HON. LAWRENCE PAUL BOURGEOIS, JR. Disposition: Granted summary judgment in favor of each defendant Case Number: A2402-2006 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Cherri R. Porter |
JAMES ELDRED RENFROE, ROY J. PERILLOUX |
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| Appellee: | Grand Casino of Mississippi, Inc.- Biloxi, State Farm Fire and Casulty Company, and Max Mullins | VINCENT J. CASTIGLIOLA, JR., JOHN PATRICK KAVANAGH, JR., KASEE GARNET SPARKS HEISTERHAGEN |
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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 - All-risk homeowner's policy - Anticoncurrent cause clause - Water damage - Damage from barge - Allision - Storm surge - Negligence - Proximate causation - Foreseeable injuries |
| Summary of the Facts: | Cherri Porter’s beachfront vacation home was completely destroyed during Hurricane Katrina. Porter claimed the destruction was the result of a barge, owned by Grand Casino of Mississippi, Inc.–Biloxi, breaking free from its moorings and alliding with her home. Because Porter’s all-risk insurance policy excluded from coverage damage caused by water or windstorm, State Farm Fire and Casualty Company denied Porter’s claim. Porter filed suit against the insurance agent who maintained the policy, Max Mullins, against State Farm, and against Grand Casino. The trial court granted summary judgment in favor of each defendant, and the Court of Appeals affirmed. Porter filed a petition for writ of certiorari which the Supreme Court granted. |
| Summary of Opinion Analysis: | Porter had an all-risk homeowner’s insurance policy with State Farm, which covered all risks except those specifically excluded under the policy. Porter argues that State Farm denied her claim in bad faith, arguing that the barge was the true cause of the destruction of her home and, because loss from debris is not specifically excluded in her insurance policy, State Farm should have covered the loss. However, her policy clearly stated that “We do not insure under any coverage for any loss which would not have occurred in the absence of one or more of the following excluded events. . . . Water Damage, meaning: (1) flood, surface water, waves, tidal water, tsunami, seiche, overflow of a body of water, or spray from any of these, all whether driven by wind or not. . . .” The insurance policy additionally excluded “loss resulting directly or indirectly from windstorm or hail.” Although Porter’s policy does include an anticoncurrent cause clause, the policy unambiguously states that any loss that would not have occurred absent water damage is not covered. The barge, without any other means, could not have allided with Porter’s home. Loss from waterborne debris cannot occur in the absence of water. And, the barge did not act independently to cause loss, but instead operated in conjunction with the storm surge to damage Porter’s home. Thus, the application of the ACC clause does not provide a genuine issue of fact. Porter also argues that there is ambiguity because the policy covers loss from impact by a vehicle, and the barge became a vehicle when it broke free from its moorings. The plain language of the policy states that loss which would not have occurred in the absence of water damage is not covered. Even in construing the language in favor of Porter, this is not ambiguous. The barge was not an independent cause but worked in conjunction with the storm surge to allide with Porter’s home, and the loss of the property would not have occurred absent water damage. Porter also argues that Grand Casino was negligent in mooring its barge and that the barge was the proximate cause of the destruction of her home. Grand Casino owed a duty to property owners in close proximity to take reasonable measures to prevent foreseeable injuries in the event of a hurricane. To prove Grand Casino met its duty to take reasonable measures to prevent foreseeable injuries, Grand Casino provided the affidavits of two experts stating that the casino had exceeded the Commission’s licensing regulations by mooring the barge to withstand seventeen-foot tidal surges. Porter did not provide an affidavit from a meteorologist stating that a storm surge of more than fifteen feet was foreseeable. Porter’s expert merely concluded that no heavy storm mooring plan was submitted, and the absence of a plan is a deviance from customary practice. However, there was no contention that a heavy storm mooring plan would have prevented the casino from coming unmoored during Hurricane Katrina. Therefore, summary judgment was appropriate on this issue. |
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