                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-23-2003

McGinnis v. OH Cslty Ins Co
Precedential or Non-Precedential: Non-Precedential

Docket 02-2802




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Recommended Citation
"McGinnis v. OH Cslty Ins Co" (2003). 2003 Decisions. Paper 534.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/534


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                                                    NOT PRECEDENTIAL


  UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT




                             No. 02-2802




                       VINCENT M cGINNIS;
                       MELISSA McGINNIS,
                                        Appellants

                                  v.

            OHIO CASUALTY INSURANCE COMPANY




            On Appeal from the United States District Court
                 for Eastern District of Pennsylvania
                       (D.C. No. 01-cv-00118)
                District Judge: Hon. J. Curtis Joyner


              Submitted Under Third Circuit LAR 34.1(a)
                           May 22, 2003

Before: SCIRICA, Chief Judge, SLOVITER and NYGAARD, Circuit Judges

                        (Filed: May 23, 2003)




                     OPINION OF THE COURT
SLOVITER, Circuit Judge.

       In this appeal, the insureds, Vincent and M elissa McGinnis (hereafter referred to

as McGinnis), seek a new trial following a jury verdict in favor of the defendant, their

insurance company, Ohio Casualty Insurance Company. Because we conclude that the

jury instructions were adequate and we find no other error, we will affirm.

                                              I.

                                   Facts and Procedure

       McGinnis owns a building located at 3759 Main Street in Manayunk, a section of

Philadelphia. The building, which houses the McGinnis retail furniture store, was built in

the side of a cliff of solid rock in 1880 and was purchased by McGinnis in 1988. The

property was insured by Ohio Casualty Insurance Co. (hereafter “Ohio”).

       On September 16, 1999, Hurricane Floyd struck the Delaware Valley. McGinnis

filed a claim with Ohio for damages caused by the hurricane. The parties were able to

agree as to some portions of the loss but were unable to agree on the damage that

McGinnis contends was caused when a boulder from the rock face behind the property

was dislodged as a result of Hurricane Floyd and hit the back of the building. M cGinnis

contends that, as a result, the back of the showroom becomes wet when it rains and there

is black mold and mildew. A contractor estimated that removal of the boulder behind the

building would cost $558,000. Ohio contends that the damage claimed did not exist, if it

did exist it didn’t occur at the time of the hurricane, and even if it did exist and occurred



                                              2
during the hurricane, it was not covered by the insurance policy. The District Court

reserved legal issues for itself and left the factual issues for the jury, which decided in

favor of Ohio. McGinnis appeals.

                                              II.

                                         Discussion

       Although McGinnis presents four separate arguments, his principal argument is

that the District Court erred by providing the jury flawed and incomplete instructions and

a confusing and incorrect verdict form. Question 1 of the verdict form reads, “Did the

plaintiffs prove by a preponderance of the evidence that during the policy period of

January 1, 1999 to January 1, 2000 they suffered physical loss or damage to their building

(as defined by the Policy) caused by a falling rock?” App. at 3. The jury answered “no”

to this interrogatory. App. at 3. The jury was instructed that if they answered in the

affirmative they were to proceed to the second question. Because they did not answer in

the affirmative, they did not proceed to the other questions.

       McGinnis had requested the court to add to the language of Question 1 “as a result

of the hurricane,” which the court denied. McGinnis argues this constituted error on the

part of the District Court because without this language the question itself is misleading

and confusing. We disagree. The central issue was a factual one. Question 1 was

designed to determine whether the jury found as a matter of fact that there was damage to

the building caused by a falling rock. There was no ambiguity in the language.



                                               3
Moreover, it was not necessary for the judge to have added the language “as a result of

the hurricane” because that was the basis of all the testimony. In fact, in his opening,

McGinnis’ counsel stated:

                       If you find that it’s just a coincidence that this boulder
              fell on the day of the worst hurricane in our area’s certainly
              recent history, do you think that it could have fallen any day,
              it just happened to fall on this one day?

App. II at 92. The jury found that there was no damage caused by a falling rock during

the relevant policy period; therefore, there was no need to consider the additional

questions. Question 1 was both adequate and clear.

       McGinnis’ second argument is that the jury’s negative answer to Question 1 was

contrary to the weight of the evidence. We disagree. Each party presented evidence.

McGinnis presented the testimony of the furniture store manager and apparently the jury

found it to be unpersuasive. This is not contrary to the weight of the evidence as the

manager only testified to what she heard (three crashes outside, two on the roof and the

third on the wall) but she never saw one or more boulders fall. McGinnis also presented

testimony of two contractors, who each conceded that he did not see any damage to the

back of the building. Ohio presented as an expert witness a civil engineer who also

testified he found no damage to the back wall by the rock fall. Even if one accepts the

testimony of McGinnis’ witnesses, there was, at most, conflicting testimony and the jury

could decide. It also could have taken into consideration that the building was erected in

1880. Based on this evidence, the jury could reasonably have found that the appellants

                                               4
did not bear their burden of proving that the damage was caused by the rock hitting the

building.

       The final two arguments presented by McGinnis are that the District Court erred

by dismissing a claim of bad faith against Ohio and by allowing Mr. Robert Neef, an

owner of a disaster restoration firm, to testify as to his personal opinions concerning the

cause of the damage.1 The District Court did not err in entertaining Ohio’s Rule 50

motion at the conclusion of McGinnis’ case on bad faith and adequately explained its

decision dismissing the bad faith claim. Finally, we see nothing improper in Neef’s

response to the District Court’s clarification of Ohio’s counsel’s question that asked,

“What did you tell Mr. Landow?” and Neef responded:

                     My personal reaction? It was very dangerous back
              there. There was a lot of debris that had fallen over the years,
              there was an incredible amount of dirt, soil. There were
              rocks. There was a lot of -- it was something I had never seen
              before.

App. II at 225. This was merely Neef’s observation and there was no reason for prior

qualification of Neef to respond.




   1
       McGinnis also argues that the District Court erred by not permitting introduction
into evidence correspondence between insurance adjusters. The District Court properly
held that any probative value of the evidence for the factual questions before the jury was
outweighed by prejudice to Ohio.

                                              5
                                         III.

                                     Conclusion

    For the reasons set forth, we will affirm the judgment of the District Court.




TO THE CLERK:

           Please file the foregoing opinion.


              /s/ Dolores K. Sloviter
                  Circuit Judge
