     Case: 12-60209     Document: 00511943057         Page: 1     Date Filed: 08/02/2012




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                           August 2, 2012

                                     No. 12-60209                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



VERLENA SEXTON-WALKER,

                                                  Plaintiff - Appellant
v.

ALLSTATE INSURANCE COMPANY,

                                                  Defendant - Appellee



                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                           USDC No. 4:10-cv-104-DAS


Before SMITH, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
        Plaintiff-Appellant Verlena Sexton-Walker sued Allstate Insurance
Company (“Allstate”) for its failure to pay her homeowner’s claim for water
damage to her property. The district court granted summary judgment in favor
of Allstate and Sexton-Walker appealed.              For the reasons that follow, we
AFFIRM.




        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                       No. 12-60209

                                    BACKGROUND
       On July 3, 2009, Verlena Sexton-Walker submitted an application to
Allstate Insurance Company to insure her premises in Greenville, Mississippi.
On February 19, 2010, she submitted a claim for water damage to the property.
Allstate investigated the claim and in so doing discovered that Sexton-Walker
had misrepresented information in her application. Allstate then rescinded
Sexton-Walker’s policy and denied coverage.1 On August 16, 2010, Sexton-
Walker filed the instant suit. Allstate moved for summary judgment, which the
magistrate judge granted. Sexton-Walker subsequently appealed.
                                     DISCUSSION
                                             A.
       “We review a district court’s grant of summary judgment de novo, applying
the same standards as the district court.” Estate of Bradley ex rel. Sample v.
Royal Surplus Lines Ins. Co., 647 F.3d 524, 528 (5th Cir. 2011). Summary
judgment is warranted under Rule 56(a) of the Federal Rules of Civil Procedure
when evidence reveals no genuine dispute regarding any material fact and that,
therefore, the moving party is entitled to judgment as a matter of law. See FED.
R. CIV. P. 56(a). Initially, the moving party bears the burden of demonstrating
the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). It is then up to the nonmoving party, going beyond the
pleadings, to point to “specific facts showing that there is a genuine issue for
trial.” Id. at 324 (internal quotation marks omitted). Under Rule 56, the party
asserting that a fact “is genuinely disputed must support the assertion by[] . . .

       1
         Allstate concluded that the damage to Sexton-Walker’s property had been caused
when the plumbing inside her mobile home froze. In rescinding Sexton-Walker’s policy and
denying coverage, Allstate also concluded that Sexton-Walker had misrepresented information
during the claims process and that the damage had been caused by an excluded peril. Because
Sexton-Walker has failed to create a genuine issue of material fact as to whether she
misrepresented information in her application, we do not address Allstate’s additional reasons
for rescinding the policy and denying coverage.

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                                  No. 12-60209

citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations,
stipulations . . . , admissions, interrogatory answers, or other materials.” FED.
R. CIV. P. 56(c)(1). Although, in reviewing a grant of summary judgment, we
examine the evidence in the light most favorable to the nonmoving party,
Addicks Servs., Inc. v. GGP-Bridgeland, LP, 596 F.3d 286, 293 (5th Cir. 2010),
and draw any reasonable inferences in favor of that party, Gowesky v. Singing
River Hosp. Sys., 321 F.3d 503, 507 (5th Cir. 2003), conclusory or
unsubstantiated allegations alone are insufficient to defeat summary judgment,
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
                                       B.
      In the present case, Allstate maintains that it is entitled to summary
judgment because it rescinded Sexton-Walker’s policy and denied coverage after
it learned that she had made material misrepresentations in her policy
application. Under Mississippi law, a material misrepresentation in a policy
application entitles the insurer to rescind the policy. See State Life Ins. Co. v.
O’Brien, 921 F. Supp. 420, 424 (S.D. Miss. 1995). A misrepresentation is
material if it affects (1) the acceptance of the risk or (2) the hazard assumed by
the company. See id. Allstate points to three misrepresentations Sexton-Walker
made in her initial application for insurance: (1) that the property to be insured
was on a solid and continuous foundation; (2) that the home was not regularly
unoccupied; and (3) that she had made no prior claims within the previous five
years.
      As part of the insurance application Sexton-Walker was required to
complete, she was asked whether “the dwelling [to be insured was] on a solid and
continuous foundation.” She answered “YES.” However, in its investigation,
Allstate discovered that the insured property was a mobile home and therefore
not on a solid and continuous foundation. Moreover, Sexton-Walker, in a

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                                  No. 12-60209

deposition, conceded that the property was not on a solid and continuous
foundation. Allstate also learned that Sexton-Walker worked as a teacher in
Detroit and, as Sexton-Walker conceded in an examination under oath, “mostly
live[d]” in Michigan, even though Sexton-Walker, as part of her insurance
application, answered “NO” when asked whether “the residence [to be insured
is] regularly unoccupied during the day or evening by all adult occupants in the
household.” Finally, Allstate discovered nine instances in which Sexton-Walker
made property claims in the five years preceding her application despite
answering “NONE” when asked to describe her five-year loss history at any
residence.
      In its motion for summary judgment, Allstate submitted photographs of
the insured property, deposition and examination-under-oath excerpts, and a
declaration stating that the company would not have insured the property had
it known any of the information Sexton-Walker misrepresented. Sexton-Walker,
by contrast, has failed to marshal evidence to contradict Allstate’s contentions
and has thus failed to create a genuine issue of material fact. Given that Sexton-
Walker has failed to point to “specific facts showing that there is a genuine issue
for trial,” Celotex, 477 U.S. at 324, as to whether she made material
misrepresentations in her application for insurance, summary judgment in
Allstate’s favor was warranted.
                                CONCLUSION
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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