Robichaux v. Nationwide Mut. Fire Ins. Co., et al.


<- Return to Search Results


Docket Number: 2010-CA-00109-SCT
Linked Case(s): 2010-CA-00109-SCT
Oral Argument: 10-04-2011
 

 

* This video is best viewed in the most current version of Google Chrome, Internet Explorer with Windows Media Player plug-in, or Safari (Mac Users).


Supreme Court: Opinion Link
Opinion Date: 12-15-2011
Opinion Author: Kitchens, J.
Holding: Affirmed in Part, Reversed in Part and Remanded

Additional Case Information: Topic: Insurance - Policy ambiguity - Anti-concurrent causation clause - Acceptance of flood insurance proceeds - Burden of proof - Detrimental reliance
Judge(s) Concurring: Waller, C.J., Carlson and Dickinson, P.JJ., Randolph, Lamar, Chandler, Pierce and King, JJ.
Procedural History: Summary Judgment
Nature of the Case: CIVIL - INSURANCE

Trial Court: Date of Trial Judgment: 09-30-2009
Appealed from: Jackson County Circuit Court
Judge: Billy G. Bridges
Disposition: Granted summary judgment in favor of Nationwide and Fletcher Insurance.
Case Number: 2006-00,303(1)

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Michael Robichaux, as the personal representative of Mary Robichaux, deceased, and Michael Robichaux, Individually




BRANDON CURRIE JONES WILLIAM HARVEY BARTON DAVID WAYNE BARIA MARCIE FYKE BARIA



 
  • Appellant #1 Brief

  • Appellee: Nationwide Mutual Fire Insurance Company and Jay Fletcher Insurance H. MITCHELL COWAN JANET D. McMURTRAY DANIEL F. ATTRIDGE CHRISTOPHER LANDAU KENNETH S. CLARK  

    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.

    Topic: Insurance - Policy ambiguity - Anti-concurrent causation clause - Acceptance of flood insurance proceeds - Burden of proof - Detrimental reliance

    Summary of the Facts: Following the destruction of their home in Hurricane Katrina, Michael and Mary Robichaux filed suit against their insurers, Nationwide Mutual Fire Insurance Company, and their insurance agent, Jay Fletcher Insurance. The plaintiffs sought declaratory and injunctive relief, including indemnity under the insurance contract, compensatory and punitive damages, specific performance of the insurance contract, attorneys’ fees, and court costs and expenses for what they alleged were uncompensated, covered losses under their homeowners’ policy. Also included in the complaint were claims of fraud and bad faith by the insurer and its agent. The trial court granted summary judgment in favor of Nationwide and Fletcher Insurance. The Robichauxes appeal.

    Summary of Opinion Analysis: Issue 1: Policy ambiguity The Robichauxes argue that the policy’s anti-concurrent clause, when read in conjunction with the hurricane endorsement provision, creates an ambiguity that should be resolved in their favor. The trial court found that “Plaintiffs’ policy only covers damage caused exclusively by wind.” Based on a reading of the plain language of the homeowners’ policy, it is clear that flooding is excluded from the policy. Even in the hurricane endorsement, coverage does not extend to “loss caused by flooding, including but not limited to flooding resulting from high tides or storm surges.” Thus, there is no ambiguity in the policy that could be interpreted in favor of the Robichauxes. Issue 2: Anti-concurrent causation clause The trial court found that there was “no genuine dispute that the damage to Plaintiffs’ home was caused by excluded flooding.” The trial court based this conclusion on the Robichauxes’ designated expert’s opinion that the residence was destroyed by flooding, an opinion shared by the defendants’ expert engineer who opined that the residence and other structures were destroyed by storm surge. However, the trial court erred in concluding that no genuine issue of material fact existed as to whether wind damaged the property prior to its destruction by storm surge. Whether Nationwide had a duty of indemnity under the policy for wind damage, if any, occurring prior to the storm surge presents a triable issue of fact. The evidence shows that not all of the damage to the Robichaux residence was caused by the simultaneous convergence of wind and water; accordingly, the ACC clause was inapplicable. Issue 3: Acceptance of flood insurance proceeds Nationwide and Fletcher Insurance argue that the trial court properly concluded that the Robichauxes’ acceptance of flood insurance proceeds under the flood insurance policy precluded them from further recovery under the homeowners’ policy. The flood policy paid $136,500 for flood damage to the building and $70,400 for flood damage to the contents of the home (amounts which constituted the policy limits). Michael Robichaux testified that $136, 500 in flood insurance proceeds for the property was far less than the value of his home, which he estimated to be $185,000. The Robichauxes continue to argue that, just as Michael Robichaux testified in his deposition, the property was worth $185,000. However, even at that value, $185,000 minus the land value of $53,860 is $131,140. The Robichauxes received $136,500 for the loss of their dwelling. Thus, even when viewing the evidence in the light most favorable to the Robichauxes, they still are precluded from again recovering for the loss of the dwelling, as they already have been compensated for the full value of their home. Double recovery for the same harm is not permissible. As to Coverage B under the homeowners’ policy, “Other Structures,” the trial court found that, since the Robichauxes had been compensated above and beyond the value of their dwelling by $23,360, the surplusage effectively served to compensate them for their other structures, which the trial court found to be valued at $5,000. Along with a shed, there was evidence of a detached two-car garage in the back yard, which also was reduced to a slab. However, the record does not show that the payment of $136,500 for flood damage was intended to compensate for losses to other structures. Accordingly, the trial court erred in barring recovery for Coverage B based on compensation received for the Robichaux dwelling. The question of whether wind damaged the other structures on the property prior to the flood damage, given that there is evidence that the Robichauxes remain uncompensated under Coverage B, presents a triable issue of fact. As to Coverage C, personal property, the Robichauxes received $70,400 for the contents of their home under the flood policy. The total amount of damages to personal property, however, was $186,144. Since the Robichauxes have not been compensated for the full value of their personal property, the case is remanded to the trial court for a jury trial on the issue of whether wind damaged the Robichauxes’ personal property prior to the flood damage. Issue 4: Burden of proof Nationwide concedes that, once the Robichauxes showed an accidental, direct, physical loss to the dwelling and other structures, Nationwide had the burden of proving that the damage was caused by an excluded peril, namely flooding. However, Nationwide argues that it met its burden of showing that the damage was caused entirely by an exclusion under the policy. Under all-risk coverage, the insured has the initial burden to prove that the loss occurred. Thereafter, the burden shifts to the insurer, as in an all-risk policy where an exclusion is specifically pleaded as an affirmative defense the burden of proving such affirmative defense is upon the insurer. Upon remand, Nationwide has the burden of proving that the other structures under Coverage B were damaged by an excluded peril. The converse is true with regard to the Robichauxes’ burden of proving that personal property under Coverage C suffered accidental, direct, physical loss as a result of one of the enumerated perils, namely windstorm. Issue 5: Detrimental reliance The Robichauxes argue that they detrimentally relied on the misrepresentations of Fletcher Insurance by not increasing the amount of coverage under their flood policy based on Fletcher Insurance’s representation that such an increase was not necessary with a hurricane endorsement in place under the subject policy. The trial court found that the Robichauxes failed to show they detrimentally relied on the representations of Fletcher Insurance because the couple maintained that at all times they had purchased as much flood coverage as they could afford. The policy at issue clearly excludes storm surge under the hurricane endorsement provision. Thus, the claim against Fletcher Insurance fails as a matter of law, as knowledge of an insurance policy is imputed to an insured regardless of whether the insured read the policy.


    Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court