Trapani, et al. v. Treutel, et al.
| Docket Number: | 2011-CA-00092-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 04-24-2012 Opinion Author: Carlton, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Insurance - Damages - Hearsay - M.R.E. 803(6) - Relevance - Best evidence - M.R.E. 1002 - Expert testimony - M.R.E. 702 - Waiver Judge(s) Concurring: Irving and Griffis, P.JJ., Barnes, Roberts, Maxwell, Russell and Fair, JJ. Non Participating Judge(s): Lee, C.J., and Ishee, J. Procedural History: Directed Verdict Nature of the Case: CIVIL - INSURANCE |
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| Trial Court: |
Date of Trial Judgment: 12-16-2010 Appealed from: Hancock County Circuit Court Judge: Roger T. Clark Disposition: DIRECTED VERDICT GRANTED TO APPELLEES Case Number: 09-0233 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Anthony Trapani, Jolynne Trapani and Trapani's Eatery, Inc. |
GERALD MAPLES
CARL DWIGHT CAMPBELL III |
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| Appellee: | David Treutel and Treutel Insurance Agency, Inc. | PAUL J. DELCAMBRE JR. PATRICIA ANN BAILEY | ||
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 - Damages - Hearsay - M.R.E. 803(6) - Relevance - Best evidence - M.R.E. 1002 - Expert testimony - M.R.E. 702 - Waiver |
| Summary of the Facts: | Jolynne and Anthony Trapani owned Trapani’s Eatery, Inc., a restaurant located in Bay St. Louis. Prior to its destruction by Hurricane Katrina, the restaurant was located in a building along Beach Boulevard in Bay St. Louis at a lower-risk “C” flood zone. After observing the devastation after Hurricane Ivan, Jolynne testified that she contacted her insurance company, Treutel Insurance Agency, to inquire about increasing the current coverage limits on the restaurant. Over the course of three or four meetings from late May to early July 2005, insurance agent David Treutel and Jolynne discussed a series of changes to the restaurant’s policies. Jolynne testified that she saw a need to increase the wind/hail policies coverage limits, and she asked that David make the following changes, among others: to increase the structure coverage from $149,477 to $300,000; to increase the contents coverage from $76,794 to $150,000; and to increase the business interruption coverage from $35,000 to $300,000. On August 29, 2005, Hurricane Katrina devastated Bay St. Louis, leaving virtually nothing remaining of Trapani Eatery’s structure. Jolynne claims that after Katrina, she learned for the first time that David had failed to increase the wind policy’s limits on the structure, contents, business interruption, as she requested. David claims that he made the following changes after his meeting with Jolynne in the summer of 2005: he increased the limits of coverage under the fire insurance policy to $150,000 for personal property and to $200,000 for loss of business income; and he increased the windstorm insurance policy coverage from $35,000 to $200,000 for loss of business income. David states that the Trepanis also had purchased flood insurance for the first time — $100,000 of coverage on the building and $100,000 for their personal property. David further states that he did not increase the limits of coverage for the building and the personal property under the windstorm policy. David also states that he did not increase the limit of coverage for the building structure under the fire insurance policy. The Trapanis filed suit against Treutel. During the trial, the circuit judge struck one of the Trapanis’ exhibits in its entirety and also redacted two of the Trapanis’ exhibits. Additionally, the circuit judge disqualified the Trapanis’ expert, Peter Quave, after finding that Quave lacked sufficient training and experience in property and casualty insurance sales to qualify as an expert. After the Trapanis rested, Treutel moved for a directed verdict claiming the Trapanis had failed to prove that they had suffered any damage proximately caused by the acts of Treutel. The circuit judge granted the motion. The Trapanis appeal. |
| Summary of Opinion Analysis: | Issue 1: Damages The Trapanis argue that the circuit judge erred by directing a verdict for Treutel after he determined the Trapanis had failed to present sufficient proof of their losses and that the Trepanis had suffered any damage proximately caused by the acts of Treutel. The Trapanis admitted at trial that their account records existed and were available to document income and expenses for the purposes of establishing the elements of a claim for loss of business income, but the Trapanis failed to produce these records and also failed to offer the account records into evidence at trial. Instead, the Trapanis offered evidence of gross sales and sought to establish expenses and profit through the testimony of Jolynne at trial. The record shows that the Trapanis’s losses, which they established at trial, amounted to less than the amount of compensation they received from the insurance policies. It is absolutely incumbent upon the party seeking to prove damages to offer into evidence the best evidence available as to each and every item of damage. If he has records available, they must be produced. While certainty is not required, a party must produce the best that is available to him. Here, the Trapanis failed to provide sufficient proof, as required by their insurance policy, to support their claim for damages. Despite the accounting records’ admitted availability, the records — which would have documented all of the income and expenses necessary to establish the elements of a claim for loss of business income — were not produced or offered into evidence by the Trapanis. Issue 2: Hearsay The circuit judge ordered the redaction of a portion of the Trapanis’ exhibit fifteen. Specifically, the judge ordered the removal of page five of that exhibit, a letter written by the Trapanis that was attached to a Small Business Administration Disaster Business Loan Application. The Trapanis argue that the redaction of this letter was error and that the letter should have been admitted under the business records exception found in M.R.E. 803(6). The Trapanis’ letter to the SBA in exhibit fifteen did not have any support or documentation from the contractors for their estimates. Therefore, the circuit judge did not abuse his discretion in redacting the letter from exhibit fifteen due to his determination that the letter contained hearsay statements. Issue 3: Relevance The Trapanis argue that circuit judge erred in ordering the redaction of portions of exhibit sixteen, which the Trapanis labeled “Asset Detail,” listing a number of items described as contents of the restaurant. Specifically, the circuit judge ordered the redaction of all items that he found were leasehold improvements and not assets. The Trapanis argue that these items should not have been redacted, as they contained some evidence as to the loss to the building’s fixtures, as well as the structure itself. The leasehold improvements the circuit judge redacted from exhibit sixteen included items such as construction, flooring, concrete, and plumbing. The items redacted do not fall under the definition of business personal property pursuant to the insurance policy and therefore, there was no abuse of discretion in the circuit judge’s redaction of these items from exhibit sixteen. Issue 4: Best evidence The Trapanis argue that the circuit court improperly excluded exhibit seventeen, which contained daily receipts from the Trapanis’ restaurant, after determining that the receipts were not the best evidence of business income, as defined by the insurance policy. They argue that the best-evidence rule, M.R.E. 1002, does not preclude a witness from testifying from personal knowledge. Although the Trapanis had access to bills, monthly expenses, and other items prepared by an accountant — the best evidence of loss of business income — the Trapanis failed to produce these documents at trial. Although the Trapanis bore the burden of proving loss of business income, Jolynne only provided testimony as to the gross sales. There was no abuse of discretion by the circuit judge in excluding exhibit seventeen after determining the Trapanis failed to present the type of proof required by the insurance policy regarding their claim for loss of business income. Issue 5: Expert testimony The Trapanis argue that the circuit judge erred in ruling that the Trapani’s proposed insurance expert, Quave, could not testify regarding the lack of diligence on the part of David in securing Jolynne’s allegedly requested increases in the policies. Expert testimony is admissible pursuant to M.R.E. 702 if it is relevant and reliable. The witness must be qualified by virtue of his or her knowledge, skill, experience or education, and the witness's scientific, technical or other specialized knowledge must assist the trier of fact in understanding or deciding a fact in issue. An expert's testimony is limited to matters within his demonstrated area of expertise. Treutel objected to Quave’s testimony on the ground that Quave lacked the requisite qualifications to render an opinion on insurance-agency operations — namely, that Quave had never worked as a casualty underwriter. The circuit judge in this case committed no abuse of his discretion by excluding Quave’s testimony after finding him unqualified to testify as an expert. Issue 6: Waiver The Trapanis argue that the circuit judge improperly shifted the burden to them to prove that they could have recovered for wind damages if David had placed the requested windstorm limits of $300,000 on the structure and contents. The Trapanis argue that because Treutel did not refuse to pay policy limits on wind damage, it waived any dispute as to causation. The insured bears the burden of proving that his property suffered accidental, direct, physical loss as a result of one of the enumerated perils, namely windstorm. Additionally, the plaintiff bears the burden of proving the elements for a negligence claim, including damages. Here, there was no abuse of discretion by the circuit judge in finding that the Trapanis failed to provide sufficient admissible evidence that they sustained damages in excess of the amount Treutel paid the Trapanis under the insurance policy. |
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