                  IN THE SUPREME COURT OF MISSISSIPPI

                             NO. 2010-CA-00109-SCT

MICHAEL ROBICHAUX, AS THE PERSONAL
REPRESENTATIVE OF MARY ROBICHAUX,
DECEASED, AND MICHAEL ROBICHAUX,
INDIVIDUALLY

v.

NATIONWIDE MUTUAL FIRE INSURANCE
COMPANY AND JAY FLETCHER INSURANCE

DATE OF JUDGMENT:                     09/30/2009
TRIAL JUDGE:                          HON. BILLY G. BRIDGES
COURT FROM WHICH APPEALED:            JACKSON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:             BRANDON CURRIE JONES
                                      WILLIAM HARVEY BARTON
                                      DAVID WAYNE BARIA
                                      MARCIE FYKE BARIA
ATTORNEYS FOR APPELLEES:              H. MITCHELL COWAN
                                      JANET D. McMURTRAY
                                      DANIEL F. ATTRIDGE
                                      CHRISTOPHER LANDAU
                                      KENNETH S. CLARK
NATURE OF THE CASE:                   CIVIL - INSURANCE
DISPOSITION:                          AFFIRMED IN PART, REVERSED IN PART
                                      AND REMANDED - 12/15/2011
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE CARLSON, P.J., RANDOLPH AND KITCHENS, JJ.

      KITCHENS, JUSTICE, FOR THE COURT:

¶1.   Following the destruction of their home in Hurricane Katrina, Michael and Mary

Robichaux filed suit on October 26, 2006, in the Circuit Court of Jackson County,

Mississippi, against their insurers, Nationwide Mutual Fire Insurance Company
(“Nationwide”) and their insurance agent, Jay Fletcher Insurance (“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.

¶2.    The trial court ultimately granted summary judgment in favor of Nationwide and

Fletcher Insurance based on the Robichauxes’ failure to establish a genuine issue of material

fact that the home was damaged by wind, which was covered by the subject policy, rather

than its having been destroyed by flood, which the trial court found was excluded under the

policy. Alternatively, the trial court found that the Robichauxes had failed to show they had

suffered uncompensated losses due to their having received compensation under their flood

policy. Aggrieved, the Robichauxes timely filed this appeal.

¶3.    This Court finds that the trial court erred in granting summary judgment on the issue

of whether the Robichauxes suffered uncompensated, wind damage to structures other than

their dwelling, and to personal property. Accordingly, we remand for further proceedings

consistent with this opinion.




                                             2
                                Facts and Procedural History

¶4.    Mary and Michael Robichaux 1 owned a home at 1907 Washington Avenue,

Pascagoula, Mississippi, located a few hundred feet from a canal and one block north of the

Gulf of Mexico. The home was destroyed during Hurricane Katrina on or about August 29,

2005. At the time of the loss, the residential property was insured by Nationwide under a

policy with the following coverage limits: $131,000 for dwelling, $13,100 for other

structures, $97,405 for personal property, and $26,200 for loss of use. In addition to the

homeowners’ policy, the Robichauxes had purchased from Nationwide a hurricane rider

entitled Hurricane Coverage and Deductible Provision Endorsement (hereinafter “hurricane

endorsement”), which covered damage occurring as a result of a “windstorm during a

hurricane.” This coverage encompassed damage to the interior and to personal property

inside the property “caused by rain, snow, hail, sand or dust if direct force of the windstorm

first damages the building causing an opening through which the above enters and causes

damage.” The hurricane endorsement covered damage to the dwelling and other structures,

as well as personal property.

¶5.    The Robichauxes reported the loss to Nationwide and made a claim under the policy.2

After an initial investigation, which included a site visit by a claims adjuster, Nationwide


       1
        Plaintiff Mary Robichaux died on May 8, 2010. A motion was filed with this Court
on October 28, 2011, to substitute for Mary Robichaux her personal representative, Michael
Robichaux. This Court granted that motion on November 14, 2011. Robichaux v.
Nationwide Mut. Fire Ins. Co., 2010-CA-00109-SCT (Order, November 14, 2011). Because
both appellants participated in the trial court proceedings, for the purposes of this opinion,
they are referred to collectively herein as the Robichauxes.
       2
        To date, Nationwide has paid the Robichauxes $2,500 to cover living expenses
incurred during its investigation of the claim and $500 for food loss.

                                              3
sent a letter to the Robichauxes informing them that a question had arisen as to coverage,

namely whether flood or surge damage had caused destruction of their real and/or personal

property. Nationwide retained an engineer with HAAG Engineering to inspect the property,

review photographs, and prepare a damage assessment report based on the investigation. This

report, which included photographs of the remaining concrete slab foundation and

neighboring properties, FEMA tidal surge data, and evidence showing the proximity of the

property to the Gulf of Mexico, concluded that the Robichaux home and garage were

destroyed by the hurricane’s storm surge. On March 24, 2006, in reliance on the claims

adjuster’s report and the engineering investigation and reports, as well as the flood exclusion

and anti-concurrent language in the subject policy, Nationwide denied the Robichauxes’

claim based on a finding that the loss was caused by water or water-borne material as defined

by the policy.

¶6.    Prior to this determination by Nationwide regarding the homeowners’ policy, the

Robichauxes had filed a claim under their flood insurance policy, a policy available through

the National Flood Insurance Program. The flood policy paid $136,500 for flood damage to

the dwelling and $70,400 for flood damage to the contents of the home, amounts which

constituted the policy limits. Subsequently, as part of a newly instituted company policy

regarding Katrina slab cases, Nationwide conducted a reassessment of all information

pertaining to the Robichauxes’ claims and tendered checks in the amount of $37,266.66

($30,790.63 in potential dwelling damage and $6,476.03 in potential damage to other

structures), which were returned uncashed by the couple eight months later.




                                              4
¶7.    On October 26, 2006, the Robichauxes brought suit in the Circuit Court of Jackson

County against Nationwide and its agent, Fletcher Insurance, in which the plaintiffs sought

declaratory and injunctive relief, including damages 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, as well as fraud on the part of their insurer

and its agent. On November 27, 2006, Nationwide filed a Notice of Removal from the circuit

court to the United States District Court for the Southern District of Mississippi. The federal

district court remanded the case to the Circuit Court of Jackson County on May 21, 2007,

after which the Robichauxes filed a First Amended Complaint on September 29, 2008.

¶8.    Nationwide and Fletcher Insurance filed their Defenses and Answer on October 3,

2008. The Robichauxes designated William Mott, an engineering expert; Rocco Calaci, a

meteorology expert; and Donald Dinsmore, an insurance expert.3 Nationwide and Fletcher

Insurance designated three engineering experts with HAAG Engineering Company, an

additional engineering expert in the field of structural engineering, building inspection and




       3
         The trial court found Donald Dinsmore’s expert opinion on replacement costs failed
to meet the standard for expert opinions under Daubert v. Merrell Dow Pharmaceuticals,
Inc, 516 U.S. 869, 116 S. Ct. 189, 133 L. Ed. 2d 126 (1995), and was irrelevant and
inadmissible. The trial court refused to consider Dinsmore’s opinion that the replacement
costs of the property totaled $240,695.




                                              5
mechanical engineering, an insurance expert, and two experts in meteorology and storm tide

analysis.

¶9.    The Robichauxes filed a Motion for Partial Summary Judgment, and Nationwide and

Fletcher Insurance filed a Motion for Summary Judgment. The motions were set for hearing

before Special Circuit Court Judge Billy G. Bridges on September 2, 2009. At the hearing,

the trial court initially granted the Robichauxes’ motion, but upon reconsideration withdrew

judgment in favor of the plaintiffs and ruled in favor of Nationwide and Fletcher Insurance.

The trial court issued its Findings of Fact, Conclusions of Law and Judgment denying the

Robichauxes’ Motion for Partial Summary Judgment and granting summary judgment in

favor of Nationwide and Fletcher Insurance on October 5, 2009. Aggrieved by the judgment

in favor of the defendants, the Robichauxes filed this appeal.

                                       DISCUSSION

¶10.   The interpretation of insurance policy language is a question of law. Lewis v. Allstate

Ins. Co., 730 So. 2d 65, 68 (Miss. 1998). Questions of law are reviewed de novo. Lowe v.

Lowndes County Bldg. Inspection Dep’t, 760 So. 2d 711, 712 (Miss. 2000).

¶11.   Summary judgment shall be rendered “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to judgment as a

matter of law.” Miss. R. Civ. P. 56(c). “The evidence must be viewed in the light most

favorable to the party against whom the motion has been made. If in this view the moving

party is entitled to judgment as a matter of law, summary judgment should forthwith be

entered in his favor. Otherwise the motion should be denied.” Brown v. Credit Center, Inc.

                                               6
444 So. 2d 358, 362 (Miss. 1983). This Court conducts a de novo review to determine

whether the trial court properly granted a motion for summary judgment. Conrod v. Holder,

825 So. 2d 16, 18 (Miss. 2002) (citation omitted).

¶12.   For our review, the Robichauxes raise the following issues:

       1.     Whether the “Hurricane Coverage and Deductible Provision” and the
              “Anti-Concurrent Causation Provision” or “Weather Conditions”
              Exclusion create an ambiguity that should be resolved in favor of the
              insureds.

       2.     Whether in considering an “All Risk” homeowners’ policy containing
              an ACC clause, the insurance company bears the burden of establishing
              causation for that part of the loss that is excluded.

       3.     Whether the trial court erred in its interpretation of the ACC clause.

       4.     Whether the insurance company’s adjustment of the claims of its
              policyholders is relevant to that company’s treatment of policyholders
              with like policies in the same geographical area.

       5.     Whether the trial court erred in dismissing Plaintiffs’ claims against Jay
              Fletcher Insurance.

We decline to address the appellants’ issue four, given that it is not dispositive of the case

and because, as the ultimate gatekeeper of admissibility of relevant evidence under

Mississippi Rule of Evidence 401, the trial judge should determine its relevance. See Dep’t

of Human Servs. on Behalf of Adams v. Rains, 626 So. 2d 136, 140 (Miss. 1993) (“The

admission of relevant evidence is left largely to the discretion of the trial judge.”) (citation

omitted).

¶13.   Nationwide and Fletcher Insurance raise the issue of whether the Robichauxes are

precluded as a matter of law from double recovery, given that they were compensated for




                                               7
losses caused by flood damage to their dwelling and contents by their federal flood insurance

policy.

          WHETHER THE HURRICANE ENDORSEMENT AND THE ANTI-
          CONCURRENT CAUSATION PROVISION IN THE SUBJECT POLICY
          WHEN READ TOGETHER CREATE AMBIGUITY.

¶14.      The Robichauxes argue that the policy’s anti-concurrent clause (ACC), when read in

conjunction with the hurricane endorsement provision, creates an ambiguity that should be

resolved in their favor. Nationwide and Fletcher Insurance contend that the trial court did

not base its decision on the language contained in the ACC clause, but rather on the

Robichauxes’ failure to create a genuine issue of material fact that a covered cause or event,

namely wind, caused damages that remained uncompensated, as they have received the full

value of their property under their flood insurance policy.

¶15.      Ambiguity exists in an insurance contract when the policy can be interpreted as having

two or more reasonable meanings. Mississippi Farm Bureau Cas. Ins. Co. v. Britt, 826 So.

2d 1261, 1265 (Miss. 2002). When the words of an insurance policy are plain and

unambiguous, the Court will afford them their plain, ordinary meaning and will apply them

as written. Lewis v. Allstate Ins. Co., 730 So. 2d 65, 68 (Miss. 1998). Where policy

language is ambiguous and unclear, it must be resolved in favor of the insured. Id. “Further,

provisions that limit or exclude coverage are to be construed liberally in favor of the insured

and most strongly against the insurer.” Id. (citing Nationwide Mut. Ins. Co. v. Garriga, 636

So. 2d 658, 662 (Miss. 1994)).

¶16.      The subject policy contains the following ACC or weather conditions exclusion,

entitled Property Exclusions:

                                                8
       1.     We do not cover loss to any property resulting directly or indirectly
              from any of the following. Such a loss is excluded even if another peril
              or event contributed concurrently or in any sequence to cause the loss.
              ...
              b) Water or damage caused by water-borne material. Loss resulting
              from water or water-borne material damage described below is not
              covered even if other perils contributed, directly or indirectly to cause
              the loss. Water and water-borne damage means:

              1) flood, surface water, waves, tidal waves, overflow of a body of
              water, spray from these, whether or not driven by wind.
              ...
       2.     We do not cover loss to any property resulting directly or indirectly
              from the following if another excluded peril contributes to the loss:
              ...
              c) Weather conditions, if contributing in any way with an exclusion
              listed in paragraph 1 of this Section.

The hurricane endorsement reads, in pertinent part, as follows:

       HURRICANE COVERAGE

       Coverage under this policy includes loss or damage caused by the peril of
       windstorm during a hurricane. It includes damage to a building’s interior or
       property inside a building, caused directly by rain, snow, hail, sand or dust if
       direct force of the windstorm first damages the building causing an opening
       through which the above enters and causes damage.

       Hurricane coverage does not include loss caused by flooding, including but not
       limited to flooding resulting from high tides or storm surges.

Under this provision, windstorm is defined as “wind, wind gust, hail, rain, tornadoes or

cyclones caused by or resulting from a hurricane.”

¶17.   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



                                              9
high tides or storm surges.” Thus, there is no ambiguity in the policy that could be interpreted

in favor of the Robichauxes. Accordingly, the Robichauxes’ first point of error is without

merit.

         WHETHER THE TRIAL COURT ERRED IN INTERPRETING THE ANTI-
         CONCURRENT CAUSATION CLAUSE.

¶18.     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.

Summary judgment on this issue runs afoul of this Court’s holding in Corban v. United

Services Automobile Association, 20 So. 3d 601 (Miss. 2009).

¶19.     In Corban, this Court interpreted an ACC clause with language identical to the subject

policy. Id. at 612. In that case, this Court stated:

         The ACC clause applies only if and when covered and excluded perils
         contemporaneously converge, operating in conjunction, to cause damage
         resulting in loss to the insured property. If the insured property is separately
         damaged by a covered or excluded peril, the ACC clause is inapplicable. If
         damage is caused by a covered peril, the insured is entitled to indemnification
         for the covered loss, as the insured's right to recover for the loss has vested.

Id. at 616. The evidence in the present case shows that not all of the damage to the

Robichaux residence was caused by the simultaneous convergence of wind and water;

                                               10
accordingly, the ACC clause was inapplicable. In fact, Nationwide’s own engineering expert

noted wind damage to the roofs of two neighboring properties and opined that wind damage

to the Robichaux home “would have been limited to cladding items such as roof shingles.”

Moreover, the Robichauxes’ engineering expert opined that, prior to the storm surge, the

property sustained wind damage to the roof before the structure was pushed down by the

storm surge. Viewing the evidence in the light most favorable to the Robichauxes, there is

evidence that wind damage occurred prior to the storm surge’s destruction of the property.

¶20.    Alternatively, the trial court held that the Robichauxes had failed to establish that their

losses were uncompensated, given that they had accepted proceeds under their flood policy.

Thus, while a genuine issue of material fact may exist as to whether wind had damaged the

dwelling, other structures, and personal property prior to the flood damage, this Court must

determine whether the trial court was correct in finding that the Robichauxes failed to prove

that their losses were uncompensated.

        WHETHER THE ROBICHAUXES WERE COMPENSATED FOR THE
        FULL VALUE OF THEIR PROPERTY AND THUS PRECLUDED FROM
        DOUBLE RECOVERY UNDER THE SUBJECT POLICY.

¶21.   Finally, 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. This estimate was based on the sale of a


                                               11
neighbor’s property; however, the neighbor’s testimony was that his property had sold for

$165,000. In ascertaining a value for the dwelling, the trial court assessed the value of the

Robichaux dwelling at $165,000 minus the value of the land, $53,860, which the trial court

gleaned from tax records, for a total of $111,140. Thus, the court found that, even if the

Robichauxes could have proven that wind had damaged their dwelling, they were precluded

from collecting under Coverage A of the homeowners’ policy because they had received the

full value of their dwelling from proceeds paid under their flood policy.

¶22.   In their reply brief, the Robichauxes continue to argue that, just as Michael Robichaux

testified in his deposition, the property was worth $185,000. Generally, “[i]ndividuals may

testify as to the value of their own property.” Regency Nissan, Inc. v. Jenkins, 678 So. 2d 95,

101 (Miss. 1995). However, even if this Court accepts that value, $185,000 minus the land

value of $53,860 is $131,140. As previously stated, 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. This Court has held

“that ‘[t]here can be but one satisfaction of the amount due the plaintiff for his damages’. . .

Thus, double recovery for the same harm is not permissible.” City of Jackson v. Estate of

Stewart ex rel. Womack, 908 So. 2d 703, 711 (Miss. 2005) (quoting Medlin v. Hazlehurst

Emergency Physicians, 889 So. 2d 496, 500 (Miss. 2004)).

¶23.   Because the trial court found the replacement cost opinion was based on estimated

square footage costs provided the expert by the Robichauxes’ counsel, the replacement cost

estimate by Don Dinsmore in the amount of $ 240,695 was excluded by the trial court on the

                                              12
basis that it was irrelevant, inadmissible, and failed to meet the requisite standards under

Daubert v. Merrell Dow Pharmaceuticals, Inc, 516 U.S. 869, 116 S. Ct. 189, 133 L. Ed.

2d 126 (1995). The Robichauxes argue in their reply brief that the trial court erred in

excluding Dinsmore’s opinion. Nationwide and Fletcher Insurance argue that, since the

Robichauxes failed to raise this issue in their opening brief, they are procedurally barred from

raising this argument in their reply brief. See Paw Paw Island Land Co., Inc. v. Issaquena

and Warren Counties Land Co., LLC, 51 So. 3d 916, 928 (Miss. 2010) (citing Overstreet

v. Allstate Ins. Co., 474 So. 2d 572, 577 (Miss. 1985) (“As it is improper to raise new

arguments in a reply brief, the Court is under no obligation or duty to consider such

argument.”)). Moreover, the Robichauxes fail to cite any authority in support of their

premise, and they do not address the trial court’s finding that the expert’s estimate was based

on information obtained from the Robichauxes’ counsel. Thus, this Court should not address

this contention of error. See Smith v. Dorsey, 599 So. 2d 529, 532 (Miss. 1992) (“The failure

to cite any authority can be treated as a procedural bar, and this Court is under no obligation

to consider the assignments.”).

¶24.   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 $5,000.4 Along with a shed, there was

evidence of a detached two-car garage in the back yard, which also was reduced to a slab.




        4
            $5,000 was the amount paid by the couple in 1994 to construct a shed.

                                              13
However, the record does not show that the payment of $136,500 for flood damage was

intended to compensate for losses to other structures. In fact, the estimate prepared by the

flood insurance adjuster was described as an “estimate to replace the dwelling,” with no

mention of other structures. Due to the policy limits’ having been exceeded, the estimate did

not include many of the replacement costs for “the exterior, interior, and ceilings along with

the roof structure and detached garage.” The adjuster’s report stated: “Since this has not been

included in our estimate should additional evidence come forth that indicates there may have

been some wind damage it allows for payment in these areas.” 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 such, this Court remands this issue to

the trial court for a jury determination of whether wind damaged the other structures prior to

their destruction by storm surge.

¶25.   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. As previously discussed, a genuine issue of material fact

exists as to whether wind caused damage to the Robichauxes’ property prior to its having been

damaged by the storm surge. Since the Robichauxes have not been compensated for the full

value of their personal property, we remand this case to the trial court for a jury trial on the

issue of whether wind damaged the Robichauxes’ personal property prior to the flood damage.

       WHETHER THE INSURED HAD THE BURDEN OF PROOF IN


                                              14
       ESTABLISHING CAUSATION FOR THE PORTION OF THE LOSS THAT
       IS EXCLUDED UNDER THE SUBJECT POLICY.

¶26.   As to Coverage A, Dwelling, and Coverage B, Other Structures, the policy states: “We

cover accidental direct physical loss to property described in Coverages A and B except for

losses excluded under Section 1– Property Exclusions.” Thus, in drafting the policy, the

parties created all-risk coverage for the dwelling and other structures. Conversely, Coverage

C, Personal Property, provides coverage for nine enumerated causes of loss, including

windstorm or hail, which makes this coverage a named perils, or specific perils, policy.5

¶27.   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 contends

that it met its burden of showing that the damage was caused entirely by an exclusion under

the policy. The Robichauxes argue that the trial court, contrary to this Court’s holding in

Corban, 20 So. 3d at 619, erroneously assigned them the burden of proving that the cause of

damages to their dwelling and other structures was wind. As recognized by this Court in

Corban, 20 So. 3d at 618:

       Under [All-Risk] coverage, the insured has the initial burden to prove that the
       loss occurred. Thereafter, the burden shifts to the insurer, as [i]n 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 . . . .

(internal citations omitted).



        5
        “‘Named perils’ or ‘specific perils’ policies provide coverage only for the specific
risks enumerated in the policy and exclude all other risks. ‘All-Risk’ policies provide
coverage for all risks unless the specific risk is excluded.” 7 Stephen Plitt, Daniel
Maldonado, & Joshua D. Rogers, Couch on Insurance § 101:7 (3d ed. 2006).

                                               15
¶28.   Given that this case is to be remanded on the issue of whether wind was a proximate

cause of damage prior to the destruction of the other structures and personal property by storm

surge, we address the Robichauxes’ argument only to reiterate that, 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.

       WHETHER PLAINTIFFS’ CLAIMS AGAINST FLETCHER INSURANCE
       WERE IMPROPERLY DISMISSED.

¶29.   The Robichauxes assert that “Fletcher Insurance represented to Plaintiffs that they had

full and comprehensive insurance coverage under the subject policy and hurricane

endorsement for any and all damage that is typically caused by a hurricane, including damage

proximately and effectively caused by hurricane wind and damage caused from storm surge

proximately caused by hurricanes.” Moreover, the Robichauxes contend 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.

¶30.   As previously discussed, the policy at issue clearly excludes storm surge under the

hurricane endorsement provision. Thus, the claim against Fletcher Insurance fails as a matter



                                              16
of law, as “knowledge of an insurance policy is imputed to an insured regardless of whether

the insured read the policy.” Mladineo v. Schmidt, 52 So. 3d 1154, 1161 (Miss. 2010)

(quoting Oaks v. Sellers, 953 So. 2d 1077, 1083-84 (Miss. 2007)). This Court recognized

in Mladineo that agents who offer advice to insureds regarding the sufficiency of their

coverage have a duty to exercise reasonable care. Mladineo, 52 So. 3d at 1162. The plaintiffs

in Mladineo were told by their agent that they were not in a flood plain and were advised not

to procure flood insurance. Id. That was incorrect, as a portion of the plaintiffs’ property was

located in a flood plain and was damaged by storm surge. Id. at 1157. This Court recognized

that the plaintiffs could not have known their property was located in a flood plain by reading

their policy; thus, even though they were imputed with the knowledge of the policy’s contents,

an issue of material fact existed as to whether they detrimentally relied on their agent’s

misrepresentation regarding their lack of need of flood insurance. Id. at 1163-64. Ultimately,

this Court found that summary judgment was improper on the plaintiffs’ negligent

misrepresentation claim against their insurance agent. Id. In doing so, this Court emphasized,

“We are not carving out an exception to the duty to read. These alleged omissions and

misrepresentations are not barred by the imputed knowledge of the policy because they are

not misrepresentations that would have been disclosed by reading the policy.” Id. at 1162-63

(citing Ballard v. Commercial Bank of DeKalb, 991 So. 2d 1201, 1207 (Miss. 2008)

(internal quotations omitted).

¶31.   The present case is distinguishable from Mladineo in that the Robichauxes could have

ascertained that their hurricane policy and homeowners’ policy did not cover flood damage,

including damage caused by storm surge, by simply reading their policy. Plaintiffs concede

                                              17
they have held a homeowners’ policy with Nationwide for thirteen years. As previously

discussed, this Court found the language of the policy to be unambiguous as to the exclusion

of flood damage. “This Court has held as a matter of law that an insured is charged with the

knowledge of the terms of the policy upon which he or she relies for protection.” Id. (citing

Atlas Roofing Mfg. Co., Inc. v. Robinson & Julienne, Inc., 279 So. 2d 625, 629 (Miss.

1973)). The Robichauxes are imputed with the knowledge that their homeowners’ policy and

hurricane endorsement excluded flooding and storm surge. We affirm the trial court’s grant

of summary judgment in favor of Fletcher Insurance.

                                       CONCLUSION

¶32.     As genuine issues of material fact exist as to whether structures under Coverage B of

the subject policy and personal property under Coverage C of the subject policy were

damaged by wind prior to the destructive force of the storm surge, summary judgment was

improperly granted in part. This Court hereby remands these issues to the trial court for a jury

trial.

¶33.     However, summary judgment was properly granted to Fletcher Insurance, as the

plaintiffs’ claims against their agent fail as a matter of law, based on their imputed knowledge

of the subject policy. Accordingly, we affirm in part. Upon remand, Nationwide is the only

remaining defendant.

¶34.     AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

    WALLER, C.J., CARLSON AND DICKINSON, P.JJ., RANDOLPH, LAMAR,
CHANDLER, PIERCE AND KING, JJ., CONCUR.




                                              18
