                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2011-CA-01486-SCT

DR. JACK HOOVER AND MARGARET ANN
HOOVER

v.

UNITED SERVICES AUTOMOBILE
ASSOCIATION


DATE OF JUDGMENT:                         08/31/2011
TRIAL JUDGE:                              HON. FRANK G. VOLLOR
COURT FROM WHICH APPEALED:                JACKSON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:                 DAVID NEIL HARRIS, JR.
                                          CLYDE H. GUNN, III
                                          CHRISTOPHER COLLINS VAN CLEAVE
                                          WILLIAM CORBAN GUNN
ATTORNEYS FOR APPELLEE:                   CHARLES PATRICK COPELAND
                                          CHARLES G. COPELAND
                                          REBECCA SUZANNE BLUNDEN
NATURE OF THE CASE:                       CIVIL - INSURANCE
DISPOSITION:                              ON DIRECT APPEAL: AFFIRMED IN PART,
                                          REVERSED IN PART, AND REMANDED.
                                          ON CROSS-APPEAL: AFFIRMED -
                                          11/07/2013
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




      EN BANC.

      RANDOLPH, PRESIDING JUSTICE, FOR THE COURT:

¶1.   This case arises out of an alleged breach of contract and bad-faith denial of Dr. Jack

and Margaret Hoover’s homeowner’s insurance claim against United Services Automobile

Association (“USAA”) following Hurricane Katrina (“Katrina”). The trial judge granted
USAA’s motion for directed verdict as to the Hoovers’ claims for: (1) the unpaid portion of

losses; (2) mental anguish and emotional distress; and (3) punitive damages. The trial court

further determined that there were issues of fact for the jury as to whether the Hoovers’ roof

structure was damaged, and as to the Hoovers’ claim for additional living expenses (“ALE”).

The jury found for the Hoovers and returned a verdict of $81,342.97 in compensatory

damages. The Hoovers appealed and USAA cross-appealed.

                                          FACTS

¶2.    The Hoovers presented evidence that they incurred $240,917.56 in costs to repair their

property for losses inflicted by Katrina and $1,342.97 for ALE. The Hoovers also claimed

an “additional $80,000 in future cost to replace . . . [the] roof structure.” 1 USAA provided

homeowners’ insurance for the Hoovers.2 USAA posited that the majority of the Hoovers’

loss occurred on the lower floor of the home and was the result of excluded storm surge.

USAA limited the “covered loss” to $56,748.17 and made payments totaling that amount

over time. USAA denied that the Hoovers’ roof structure needed to be replaced and that

coverage extended to ALE.




       1
       At various points, we will refer to the “roof structure.” This is not to be confused
with roof shingles. USAA paid to reshingle the roof on both the dwelling and the cabana.
The “roof structure” refers to the actual roof framing of the dwelling, which USAA denied
was damaged by Katrina.
       2
        The pertinent coverage limits were $264,000 for the dwelling, $26,400 for other
structures (10% of limit of liability for dwelling), and $52,800 for loss of use.

                                              2
¶3.    On August 11, 2008, the Hoovers filed a complaint against USAA in the Circuit Court

of Jackson County alleging, inter alia, breach of contract and tortious bad-faith breach of

contract. USAA filed its “Answer and Defenses[,]” and raised, as its seventh affirmative

defense, that the “damages for which Plaintiffs seek recovery were either caused or

contributed to by excluded water damage as defined in the policy.”

¶4.    A four-day jury trial was held before the Honorable Frank Vollor. Following the close

of the Hoovers’ case-in-chief, USAA moved for a directed verdict on all claims. The trial

court granted USAA’s motion as to the Hoovers’ claims for mental anguish and emotional

distress.

¶5.    At the close of all evidence, the trial court ruled that “the only evidence present [was]

that the damage to the lower part of the floor was done by the storm surge[,]” and, thus, did

not allow that issue to go to the jury. However, the trial court determined that whether the

roof structure was damaged was “still in dispute[,]” and “allow[ed] that [issue] to go to the

jury[,]” along with the ALE claim. The jury awarded the Hoovers $81,342.97 in

compensatory damages.3 Thereafter, the trial court denied the Hoovers’ claim for punitive

damages. Final judgment was entered on September 2, 2011.

                                           ISSUES

¶6.    On appeal, the Hoovers raise the following issues, restated as follows:




       3
           The verdict was comprised of $80,000 to repair the damaged roof and $1,324.97 in
ALE.

                                               3
      I.     Whether the trial judge erred by granting directed verdict in favor of
             USAA regarding the contractual damages in the amount of
             $240,917.56.
      II.    Whether the trial judge erred by granting directed verdict in favor of
             USAA regarding the Hoovers’ mental-anguish and emotional-distress
             claims.
      III.   Whether the trial judge erred by granting a directed verdict in favor of
             USAA regarding the Hoovers’ punitive-damages claims.

¶7.   On cross-appeal, USAA raises the following issues:

      IV.    Whether the trial judge failed to properly apply the Daubert standards
             to Dr. Ralph Sinno’s testimony that the Hoovers’ roof structure was
             damaged.
      V.     Whether the trial judge erred in allowing Sinno to testify as to the cost
             of replacing the roof structure.

                                       ANALYSIS

      I.     Whether the trial judge erred by granting directed verdict in favor of
             USAA regarding the contractual damages in the amount of
             $240,917.56.

¶8.   The standard of review for the trial court’s grant or denial of a motion for directed

verdict is de novo. Braswell v. Stinnett, 99 So. 3d 175, 177-78 (Miss. 2012) (citing

Thompson v. Nguyen, 86 So. 3d 232, 236 (Miss. 2012)).

¶9.   In Corban v. United Services Automobile Association, 20 So. 3d 601, 619 (Miss.

2009), this Court unanimously held that:

      [w]ith respect to the “all-risk” coverage of “Coverage A-Dwelling” and
      “Coverage B-Other Structures,” the Corbans are required to prove a “direct,
      physical loss to property described.” Thereafter, USAA assumes the burden to
      prove, by a preponderance of the evidence, that the causes of the losses are
      excluded by the policy, in this case, “[flood] damage.” USAA is obliged to
      indemnify the Corbans for all losses under “Coverage A-Dwelling” and
      “Coverage B-Other Structures” which USAA cannot establish, by a


                                             4
       preponderance of the evidence, to have been caused or concurrently
       contributed to by “[flood] damage.”

(Emphasis added.) In the case sub judice, several facts are uncontradicted. The Hoovers had

a USAA “all-risk” homeowners’ policy that was in effect at the time of Katrina.4 The proof

presented by the Hoovers is that they suffered $240,917.56 in “direct physical loss” to their

dwelling and other structures as a result of Katrina. The Hoovers satisfied the burden

required by Corban.5 The Hoovers were entitled to payment for those losses, unless USAA

could “prove, by a preponderance of the evidence, that the causes of the losses are excluded

by the policy, in this case, ‘flood damage.’” Id.

¶10.   Nevertheless, at the close of all evidence, the trial court granted a directed verdict for

USAA as to the unpaid portion of the Hoovers’ dwelling losses. The trial court stated, in

pertinent part,

       the proof is overwhelming that the lower part [of the house] was involved in
       a surge. There’s nothing to contradict that. So the Court finds that the evidence
       – that’s the only evidence present, that the damage to the lower part of the
       floor was done by the storm surge, saltwater surge, which I understand a lot of
       the testimony comes from Dr. Hoover himself . . . . The court thinks the
       plaintiff should have had to put on something to show it was other than surge.

(Emphasis added.)




       4
      The pertinent language of the Hoovers’ USAA homeowners’ policy is identical to
the USAA policy considered by this Court in Corban.
       5
      In its brief, USAA acknowledged that the Hoovers had met their burden under
Corban.

                                               5
¶11.   USAA acknowledges the standard set forth in Corban but argues that it met its burden

of proof “through documents, its own investigation, and the cross examination of [Dr.

Hoover] that the lower part of the house was damaged by storm surge flooding, not wind.”

USAA contends that, “at that point, the burden shifted back to the Hoovers to put on some

proof to create an issue of fact,” and the Hoovers failed to meet the burden to put on

contradictory evidence.

¶12.   In support of its argument that the burden shifted back to the Hoovers, USAA cites

Bayle v. Allstate Insurance Co., 615 F. 3d 350 (5th Cir. 2010). In Bayle, a Katrina case, the

Fifth Circuit held that if the insurer “make[s] out a prima facie case that the cause of the

uncompensated or under-compensated damage was excluded from coverage[,]” then “the

burden shifts to the insured to present evidence demonstrating there remains a material issue

of fact.” Id. at 359. USAA’s reliance on Bayle is unavailing, as that case applied Louisiana

law. Id. USAA cites no authority under Mississippi law for the proposition that the burden

of proof shifts back to the insured.

¶13.   In Broussard v. State Farm Fire & Casualty Co., 523 F. 3d 618, 627 (5th Cir. 2008),

the same court noted that “[t]he Mississippi Supreme Court has not explicitly addressed the

‘shifting back’ theory when considering an ‘open peril’ policy.” 6 In Broussard, State Farm

argued, inter alia, that “under the dwelling coverage, once it advance[d] evidence to establish



       6
         See Eric M. Holmes, Appleman on Insurance § 192.09 (2d ed. 2008) (“‘Open peril’
coverage is . . . typical of coverage for dwellings and other structures on insured property .
. . .”).

                                              6
its affirmative policy exclusion defenses, the burden shifts back to the Broussards to prove

that there is an exclusion to the defenses or to segregate covered from non-covered

damages.” Id. at 626. State Farm’s argument mirrored the one advanced by USAA in this

case. After a thorough examination of Mississippi caselaw, the Broussard court rejected

State Farm’s “shifting back theory” as the rule in Missisissippi. Id. at 627. Appleman on

Insurance refers to Broussard as “[t]he signature case on allocation of burden of proof for

hurricane damages.” Eric M. Holmes, Appleman on Insurance § 192.09 (2d ed. 2008).

¶14.   In Grace v. Lititz Mutual Insurance Co., 257 So. 2d 217, 219, 224-25 (Miss. 1972)

(citing Commercial Union Insurance Co. v. Byrne, 248 So. 2d 777, 781 (Miss. 1971)), this

Court stated, “[t]he rule is well established in this state that where the question presented to

the jury was whether the loss was due to windstorm or water, the entire question of proximate

cause is treated as one of fact independent of the explicit application of any rule of law.”

(Emphasis added.) Broussard interpreted “State Farm’s ‘shifting back’ theory . . . to be the

sort of ‘rule of law’ which would operate in many cases to take the issue of causation away

from the jury.” Broussard, 523 F. 3d at 627. The Broussard court stated, “the ultimate

allocation of wind and water damages under the Broussard’s dwelling coverage is a question

of fact for the jury.” Id. This statement is consistent with this Court’s holding in Corban that

the issue of whether the damage was caused by wind or excluded storm surge is “a question

of fact for the jury.” Corban, 20 So. 3d at 619.

¶15.   The trial court’s finding that the Hoovers “should have put on something to show that

it was other than surge” was erroneous and in conflict with this Court’s prior decisions,

                                               7
including Corban. USAA bears the burden to prove, by a preponderance of the evidence, that

the loss was caused by, or concurrently contributed to, by an excluded peril. This issue of

fact is one for the jury, and the burden of proof does not shift to the Hoovers.7 Therefore, the

trial court erred in granting a directed verdict as to the Hoover’s unpaid damages.

       II.    Whether the trial judge erred by granting directed verdict in favor of
              USAA regarding the Hoovers’ mental-anguish and emotional-distress
              claims.

¶16.   “[I]nsurers have a duty ‘to perform a prompt and adequate investigation and make a

reasonable, good faith decision based on that investigation[,]” and failure to perform this duty

may render the insurer liable for extracontractual damages. Broussard, 523 F. 3d 627-28

(quoting Liberty Mut. Ins. Co. v. McKneely, 862 So. 2d 530, 535 (Miss. 2003)). However,

“[e]xtracontractual damages, such as awards for emotional distress and [mental anguish] . .

. are not warranted where the insurer can demonstrate ‘an arguable, good-faith basis for

denial of a claim.’” United Serv. Auto. Ass’n v. Lisanby, 47 So. 3d 1172, 1178 (Miss. 2010)

(quoting United Am. Ins. Co. v. Merrill, 978 So. 2d 613, 627)). The “‘plaintiff bears a heavy




       7
        The dissent articulates a scholarly analysis of federal procedure, yet the “tennis
match” scenario it advances is not the law in this case. Contrary to the dissent’s contention
that we conflate the burdens of production and persuasion, Corban addressed both. The
insured bears the burden of producing evidence to make out a prima facie case of a “direct,
physical loss to property described.” Corban, 20 So. 3d at 619. The insured also bears the
burden of persuasion on this issue. The insurer bears the burden to produce evidence to
support its affirmative defense “that the causes of the losses are excluded by the policy.” Id.
The insurer also bears the burden of persuasion on its affirmative defense. These are the
respective burdens under Corban and its progeny which create an issue of fact for the jury.

                                               8
burden’ of proving that the denial of an insurance claim was in bad faith.” Id. (quoting

Windmon v. Marshall, 926 So. 2d 867, 872 (Miss. 2006)).

       The plaintiff's burden in proving a claim for bad faith refusal goes beyond
       proving mere negligence in performing the investigation. The level of
       negligence in conducting the investigation must be such that a proper
       investigation by the insurer would easily adduce evidence showing its defenses
       to be without merit.

Lisanby, 47 So. 3d at 1178 (quoting Windmon, 926 So. 2d at 872).

¶17.   Citing Lisanby, the trial court granted USAA’s motion for directed verdict on the

issue of mental anguish and emotional distress because “[USAA] had an arguable reason for

the denial of the claim.” The Hoovers argue that the trial court erred in granting directed

verdict because “[USAA] failed to present any evidence that any investigation was conducted

regarding the losses USAA alleged were excluded from coverage.”

¶18.   On September 23, 2005, insurance adjuster Michael Long inspected the Hoovers’

home. According to Long’s report, “the dwelling sustained approximately 4 f[ee]t of water

inside due to storm surge.” Long’s “estimate include[d] repairs only to damages [he] was

clearly able to determine were due to wind.” Long determined that the roofs on the dwelling

and cabana needed to be replaced, along with fencing and the back-yard playhouse. Long

also included interior water damage to the ceilings in his estimate. However, Long did not

include damage to the pool liner “as it was not clear if wind caused the damage.” Long did

not establish a reserve for ALE.

¶19.   On September 24, 2005, USAA hired an engineering firm, SEA, Ltd., to inspect the

Hoovers’ home. USAA’s request to SEA stated, in pertinent part, “[p]lease inspect and offer

                                             9
a professional opinion regarding causation, i.e., wind vs. flood surge. We need to know if

direct physical loss by wind contributed to the destruction and/or damage to the building. If

yes, please identify the related building damage.” On October 2, 2005, SEA engineer Richard

Schimizze conducted an inspection and submitted a detailed report to USAA.8 SEA opined

that

       about 3 [feet] of floodwater had inundated the home. All material damage
       located below the first-floor ceiling in the home was the result of the
       floodwater and was clearly not related to the high winds. All damage to the
       roofs of both structures was directly caused by the high winds of the storm.
       Water damage at or above the first-floor ceiling in the home was indirectly
       caused by the high winds that penetrated the enclosure and allowed rainwater
       to enter the upper portions of the structure . . . . [T]he pool damage was caused
       by the large volume of floodwater produced by the hurricane surge.

¶20.   Thereafter, Dr. Hoover presented USAA with additional information pertinent to the

cause of his loss that he requested USAA consider. Inter alia, Hoover sent USAA a weather

report from AccuWeather and the report of Dr. Ralph Sinno, which opined that the Hoovers’

roof structure was damaged by wind, and he continued to seek payment for ALE. On each

occasion, USAA forwarded the information to SEA and requested an updated report. SEA

issued new reports which affirmed its initial opinion as to Hoovers’ damage and disputed Dr.

Sinno’s opinion that the roof structure had been damaged.

¶21.   The record supports the trial court’s finding that USAA had an “arguable basis” for

denying a portion of the Hoovers’ damages. USAA relied on the investigation of its adjusters


       8
       The SEA report is dated January 25, 2006. However, the report indicates that its
findings were communicated verbally to Long on October 10, 2005, and to “Bill McNamara
of USAA” on October 11, 2005.

                                              10
and the reports of SEA in denying certain aspects of the claim which were deemed excluded.

As such, the trial court did not err in granting a directed verdict on this issue.

       III.   Whether the trial judge erred by granting a directed verdict in favor of
              USAA regarding the Hoovers’ punitive-damages claims.

¶22.   In order to recover punitive damages, the Hoovers “must show that [USAA] denied

the claim (1) without an arguable or legitimate basis, either in fact or law, and (2) with malice

or gross negligence in disregard of the insured’s rights.” Broussard, 523 F. 3d at 628

(quoting U.S. Fid. & Guar. Co. v. Wigginton, 964 F. 2d 487, 492 (5th Cir. 1992)). The trial

court found that USAA had an “arguable basis” for denying part of the Hoovers’ claim. We

can discern no error by the trial court in granting a directed for USAA on the issue of

punitive damages.

                                         Cross-appeal

       IV.    Whether the trial judge failed to properly apply the Daubert standards
              to Dr. Ralph Sinno’s testimony that the Hoovers’ roof structure was
              damaged.

¶23.   This Court has stated:

       [T]he admission of expert testimony is within the sound discretion of the trial
       judge . . . . Therefore, the decision of a trial judge will stand unless we
       conclude that the discretion was arbitrary and clearly erroneous, amounting to
       an abuse of discretion. Mississippi law requires the trial court to ensure that
       proposed [expert] testimony satisfies Rule 702 . . . . In McLemore, this Court
       adopted the Daubert/Kumho Tire rule as the standard for admissibility of
       expert witness testimony.

Rebelwood Apartments RP, LP v. English, 48 So. 3d 483, 494 (Miss. 2010) (citing Miss.

Transp. Comm'n v. McLemore, 863 So. 2d 31, 34 (Miss. 2003); Kumho Tire Co., Ltd. v.


                                               11
Carmichael, 526 U.S. 137, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999); Daubert v. Merrell

Dow Pharms., Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993))

¶24.   Rule 702 provides:

       [i]f scientific, technical, or other specialized knowledge will assist the trier of
       fact to understand the evidence or to determine a fact in issue, a witness
       qualified as an expert by knowledge, skill, experience, training, or education,
       may testify thereto in the form of an opinion or otherwise, if (1) the testimony
       is based upon sufficient facts or data, (2) the testimony is the product of
       reliable principles and methods, and (3) the witness has applied the principles
       and methods reliably to the facts of the case.

Miss. R. Evid. 702 (emphasis added).

¶25.   “[A]n expert’s qualification and reliability of testimony are separate questions.”

Rebelwood, 48 So. 3d at 494 (citing Bullock v. Lott, 964 So. 2d 1119, 1129 (Miss. 2007)).

On this issue, USAA’s argument to the trial court and this Court revolves around the

“reliability” of Dr. Sinno’s testimony, and not his qualifications.9 USAA challenged Dr.

Sinno’s testimony because he “[had] not done a technical structural inspection of [the]

house.” Thus, USAA argues that Dr. Sinno’s testimony failed to meet the requirement of

Rule 702 in that it was not “based upon sufficient facts or data” and he did not “apply the

principles and methods reliably to the facts of the case.” Miss. R. Evid. 702.

¶26.   Dr. Sinno’s testimony reveals that he did not inspect the Hoovers’ home before

issuing his report that the roof structure had been damaged and would require replacement.


       9
        The trial judge found Dr. Sinno was “eminently qualified” to testify. Dr. Sinno has
had a lengthy career in the field, including being a professor of engineering for twenty-four
years. He is a fellow with the American Society of Civil Engineering and has spent years
researching, testing, and writing on “wind loading.”

                                               12
But, his testimony clearly exemplifies the basis of his knowledge and subsequent opinion.

Dr. Sinno had spent years researching “wind loading,” and in 2005 was the first “in the

world” to duplicate hurricane wind in the laboratory and study its effect on structures. He

testified, “everything I am going to talk about today is actually test results, test products, not

theory . . . .” Dr. Sinno possessed the information regarding wind velocities that the Hoover

home would have encountered, and based on his research regarding wind loading on

structures, he was qualified to give his opinion on the effects that winds would have had on

the Hoovers’ roof structure. Moreover, USAA cross-examined Dr. Sinno regarding his

methods, his findings, and the fact that he had never inspected the home prior to writing his

report. USAA also countered Dr. Sinno’s testimony with that of its own expert.

¶27.   Although Dr. Sinno did not inspect the Hoover home prior to issuing his report, he did

inspect it prior to testifying at trial. He testified that the findings of his inspection supported

the conclusion of his report. Because his report was not admitted as evidence, USAA can

only claim that his testimony at trial was not based on sufficient facts or data. The fact that

Dr. Sinno did inspect the house prior to testifying negates USAA’s argument that his

testimony lacked a sufficient basis because he failed to inspect. Therefore, the trial court did

not abuse its discretion in allowing Dr. Sinno’s testimony on this issue.

       V.      Whether the trial judge erred in allowing Sinno to testify as to the cost
               of replacing the roof structure.

¶28.   On this issue, USAA challenges both Dr. Sinno’s qualifications and reliability. First,

USAA argues that Dr. Sinno is not an expert on the cost to repair residential roofs. On voir


                                                13
dire, Dr. Sinno testified that, as an engineering professor, he taught classes in which

curriculum included construction-cost estimation, itemizing costing and other kinds of

costing, inter alia. His qualifications as a structural engineer were properly presented to the

trial court. The trial judge did not abuse his discretion by allowing Dr. Sinno to provide

expert testimony as to the cost to replace the roof structure.

¶29.   Second, USAA argues that Dr. Sinno did not have a reliable basis based on the facts

of the case to form his opinion as to the cost to replace the roof. Specifically, USAA argues

that Dr. Sinno “fail[ed] to include essential facts” such as “board feet of lumber, pounds of

nails, man hours,” etc. Dr. Sinno testified that he used a cost-plus estimate based on known

values to arrive at his calculations. He assessed that it would cost $40 per square foot to

replace the roof, and multiplied this by the total square footage of the house. Although this

was not the method USAA suggests he should have used, Dr. Sinno nonetheless used an

accepted method for estimating the cost to repair the roof. Moreover, USAA cross-examined

Dr. Sinno about this method of determining cost. The trial court did not abuse its discretion

in concluding that Dr. Sinno was qualified to provide expert testimony as to the cost to repair

the Hoovers’ roof, and that his method was based on sufficient facts to meet the requirements

or Rule 702.

                                      CONCLUSION

¶30.   Based on this analysis, the trial court applied an incorrect legal standard and

improperly shifted the burden of proof to the Hoovers. We reverse the trial court’s grant of

a directed verdict as to the unpaid damages, and remand the case for a jury to determine

                                              14
whether USAA proved by a preponderance of the evidence that the unpaid loss was caused

by excluded storm surge. The trial court did not err in directing a verdict for USAA as to the

Hoovers’ claims for mental anguish, emotional distress, and punitive damages. Therefore,

on direct appeal, we affirm in part, reverse in part, and remand. The trial court did not err in

admitting the expert testimony of Dr. Sinno as to whether the roof structure was damaged or

the cost to repair such damage. Therefore, on cross-appeal, we affirm.

¶31. ON DIRECT APPEAL: AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED. ON CROSS-APPEAL: AFFIRMED.

     LAMAR, KITCHENS, CHANDLER, PIERCE AND KING, JJ., CONCUR.
DICKINSON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY
COLEMAN, J. COLEMAN, J., DISSENTS WITH SEPARATE WRITTEN OPINION
JOINED BY DICKINSON, P.J. WALLER, C.J., NOT PARTICIPATING.

       DICKINSON, PRESIDING JUSTICE, DISSENTING:

¶32.   The majority incorrectly concludes that the trial judge “improperly shifted the burden

of proof to the Hoovers.” This did not happen. To say that the “burden of proof” never

leaves the party asserting a claim or defense is not to say that the defending party never has

a burden.

¶33.   The burden of proof is actually divided into two burdens or parts: The burden to

produce evidence, and the burden to persuade. The trial of an issue – whether a claim or

defense – proceeds in three stages. In stage one, the party asserting a claim or defense has

the burden of producing enough credible evidence to establish a prima facie case for the

claim or defense.



                                              15
¶34.   Once this burden – which never moves from the party asserting the claim or defense

– is met, the trial of the issue moves to stage two, in which the defending party has the

burden of producing evidence sufficient to create a jury issue. When a defending party fails

to meet this burden – that is, fails to produce evidence sufficient to create a jury issue – the

party asserting the claim or defense is entitled to a directed verdict on the claim or defense.

¶35.   Finally, during stage three, the party asserting the claim or defense has the burden of

persuading the jury that the evidence supports the claim or defense by the applicable

standard, whether preponderance of the evidence, clear and convincing evidence, or beyond

a reasonable doubt.

¶36.   USAA asserted a defense, claiming that a policy exclusion applied. During stage one,

it certainly produced sufficient evidence to support the defense. During stage two, the

Hoovers not only failed to produce evidence sufficient to create a jury issue as to USAA’s

defense, they failed to produce any evidence at all. Therefore, the issue never made it to

stage three.

¶37.   The trial judge, who clearly recognized that USAA had the burden of proof correctly

observed that – because USAA had produced sufficient, competent, credible evidence to

support its policy exclusion – it had, as a matter of law, met its burden of proof, absent some

contrary proof from the Hoovers. The trial judge’s position is perfectly supported by the

Fifth Circuit’s opinion in Bayle v. Allstate Insurance Co.10



       10
            Bayle v. Allstate Ins. Co., 615 F.3d 350, 359 (5th Cir. 2010).

                                               16
¶38.   Had the Hoovers met their burden of production – that is, had they come forward with

contrary proof – a jury issue would have been created, and the issue would have been

submitted to the jury for decision. But the burden of persuasion still would have been on

USAA. The majority forgets that USAA always had the burden of producing proof sufficient

to establish a prima facie case, and it confuses the Hoovers’ burden of producing evidence

in order to create a jury issue, with USAA’s burden of persuasion.

¶39.   Justice Coleman’s opinion – that the Hoovers’ failure to produce any contrary

evidence properly resulted in a directed verdict on the issue – is exactly correct, under the

facts of this case. But I wish to point out that there may be cases where the evidence

supporting an exclusion presented by the insurance company is so thin and lacking in

credibility that a trial judge would be justified in submitting its credibility to the jury, even

in the absence of contrary evidence. Stated another way, a policyholder may demonstrate

that a jury question has been created in two ways: (1) by producing contrary evidence, or (2)

by persuading the trial judge that the jury should be allowed to decide whether the insurance

company’s uncontradicted evidence is so lacking in credibility that it ought to be rejected.

In either case, the burden to produce evidence establishing a prima facie case, and the burden

of persuasion remains always with an insurance company as to its affirmative defenses.

       COLEMAN, J., JOINS THIS OPINION.

       COLEMAN, JUSTICE, DISSENTING:

¶40.   Burden of proof is a broad phrase, and its meaning encompasses at least two subsets

– the burden of persuasion and the burden of production. The majority’s analysis and result

                                               17
would be correct were the issue in the case the burden of persuasion – which never left

USAA as to its affirmative defense. However, the burden of production did indeed move to

the plaintiff once USAA produced competent evidence supporting its affirmative defense.

Because I believe the majority wrongly conflates the two different burdens in a way that

leads to an incorrect result and statement of the law, I respectfully dissent.

¶41.   There exist at least two categories of burdens of proof, “the device to compel evidence

and the device to deal with uncertainty,” and until the end of the nineteenth century courts

indeed referred to both with the single phrase “burden of proof.” See 21B Charles Alan

Wright & Arthur R. Miller, Federal Practice & Procedure, Evidence § 5122 (2d ed. 1987).11

However, in later decades various terms emerged for them as it became clear that distinction

between the two indeed had a difference. Id. “One burden is that of producing evidence,

satisfactory to the judge, of a particular fact in issue. The second is the burden of persuading

the trier of fact that the alleged fact is true.” McCormick on Evidence § 336 (Kenneth S.

Broun, et al., eds., 7th ed. 2013).



       11
          We often cite with approval Wright and Miller’s encyclopedic work on federal civil
procedure. See Indemnity Ins. Co. of North America v. Guidant Mut. Ins. Co., 99 So. 3d
142, 154 (¶ 34) (Miss. 2012) (citing Wright and Miller for the proposition that oral testimony
may be admitted at a hearing on a motion for summary judgment); Jackson Public Sch.
Dist. v. Head, 67 So. 3d 761, 767 (¶ 23) (Miss. 2011) (citing Wright and Miller to support
holding that, in the context of a motion to dismiss for want of prosecution, any prejudice
resulting from the delay must be weighed against the preference for a decision on the
merits); see also Calvert v. Griggs, 992 So. 2d 627, 631-632 (¶ 10) (Miss. 2008). Finding
a paucity of cases from our own state’s jurisprudence explaining the difference, I now turn
to their thorough treatment of the history and practical effects of burdens of proof and
presumptions.

                                              18
¶42.   We ascribe standards of proof to the burden of persuasion, e.g., beyond a reasonable

doubt and by a preponderance of the evidence, because in doing so courts and legislatures

can match the difficulty of the burden to the importance of any public policies that might be

affected. 21B Fed. Prac. & Proc., Evid. § 5122 (2d ed. 1987). The standards of proof reflect

that one party – usually the plaintiff but the defendant in most affirmative defenses – must

persuade the trier of fact of the truth of disputed facts to the assigned degree. Id.

¶43.   The burden of production, on the other hand, differs significantly in nature. It “refers

to the obligation of the party to produce enough evidence at trial to justify sending the case

to the jury.” Id. “The party who fails to satisfy [the burden of production] will be sanctioned

by the court’s entry of a directed verdict in favor of her opponent.” Id.; see also McCormick

on Evidence § 336 (Kenneth S. Broun, et al., eds., 7th ed. 2013) (“The burden of producing

evidence is a critical mechanism in a jury trial, as it empowers the judge to decide the case

without jury consideration when a party fails to sustain the burden.”). Wright and Miller list

the following distinctions between the burdens of persuasion and production:

       • The burden of production is in the hands of the judge; the jury enforces the
         burden of persuasion.

       • The sanction for failure to carry the burden of production is a directed
         verdict for the adversary; the sanction for failure to carry the burden of
         persuasion is a jury verdict for the opposing party.

       • The judge must instruct the jury on the burden of persuasion; the jury never
         need hear about the burden of production.

       • The burden of production can arise each time the party with the production
         burden rests which may be several times during the trial; the burden of


                                              19
          persuasion comes into play only once—when the case is submitted to the
          jury.

       • Since it can only arise once, it is sometimes said that the burden of
         persuasion never shifts. On the other hand, writers suppose that the burden
         of production can shift back and forth as the parties take turns introducing
         evidence. . . .

       • Finally, the two burdens of proof are related in that the burden of production
         normally falls on the party with the burden of persuasion. On the other
         hand, unless the burden of production is satisfied, the burden of persuasion
         will never arise because the judge will take the case from the jury.

21B Fed. Prac. & Proc., Evid. § 5122 (2d ed. 1987) (citations omitted).

¶44.   “It is recognized that as to any given issue the burden of persuasion and the burden

of production of evidence generally both fall on the same party at the beginning of trial, that

the burden of persuasion does not thereafter shift, but that the burden of production may shift

back and forth as each side produces evidence, takes advantage of presumptions or the like.”

Simpson v. Home Petroleum Corp., 770 F.2d 499, 503 (5th Cir. 1985). “[I]t is everywhere

agreed that the other burden, i.e., the burden of producing evidence . . . , may and often does

shift back and forth between the parties like a tennis ball in play . . . .” Id. (quoting Ray,

Texas Law of Evidence § 46 (3rd ed. 1980)).

¶45.   As noted above, not many Mississippi cases discuss the distinction between the

burdens of production and persuasion, but our courts have not left the tablet wholly blank.

We have, for example, used the two phrases in a manner consistent with the above discussion

in cases involving will contests. In Clardy v. National Bank of Commerce of Mississippi,

555 So. 2d 64 (Miss. 1989), we wrote:


                                              20
       Once the proponent has shouldered his burden of production such that he has
       made out a prima facie case, the burden of production shifts to the contestants.
       What is critical for present purposes is that the burden of persuading the trier
       of fact on the issues of due execution and testamentary capacity rests on
       proponent throughout and never shifts to the contestants.

Id. at 66. The idea of having two types of burden of proof – one which shifts and the other

which cannot – is not wholly new to Mississippi law.12

¶46.   Turning to the case sub judice, I agree with the majority’s analysis as applied to the

burden of persuasion, but I disagree that the burden of production does not shift. In holding

that Mississippi prohibits burden-shifting, the majority relies upon the following language

from Corban v. United Services Automobile Association, 20 So. 3d 601 (Miss. 2009):

       This Court finds that with respect to the “all-risk” coverage of “Coverage
       A-Dwelling” and “Coverage B-Other Structures,” the Corbans are required to
       prove a “direct, physical loss to property described.” Thereafter, USAA
       assumes the burden to prove, by a preponderance of the evidence, that the
       causes of the losses are excluded by the policy, in this case, “[flood] damage.”
       USAA is obliged to indemnify the Corbans for all losses under “Coverage
       A-Dwelling” and “Coverage B-Other Structures” which USAA cannot
       establish, by a preponderance of the evidence, to have been caused or
       concurrently contributed to by “[flood] damage.”

Id. at 619 (¶ 51). It is clear that the Corban Court, in writing about the burden of proving

facts by a “preponderance of the evidence” referred to what has come to be known over the

past century or more as the burden of persuasion, discussed above. Standards of proof do not

apply to the burden of production. 21B Fed. Prac. & Proc., Evid. § 5122 (2d ed. 1987).


       12
         Accordingly, elucidating the distinctions is not a mere scholarly pursuit based only
on federal civil procedure, but it is a more full explication of something that already exists,
obscured in the background though it may be, in our state’s jurisprudence and must be fully
understood to reach the correct holding in the case sub judice.

                                              21
¶47.   With respect, the majority again misses the importance of the distinction when it

refuses to find persuasive the Fifth Circuit’s opinion in Bayle v. Allstate Insurance Co., 615

F.3d 350 (5th Cir. 2010). Clearly, when the Bayle Court wrote that the burden shifted to the

insured “to present evidence demonstrating there remain[s] a material issue of fact,” Id. at

359 (emphasis added), it wrote of the burden of producing evidence and not the burden of

persuading the finder of fact.

¶48.   The majority incorrectly writes that the argument of State Farm in Broussard v. State

Farm Fire and Casualty Co., 523 F.3d 618 (5th Cir. 2008), mirrored that of USAA here.

In Broussard, the trial court granted a directed verdict against State Farm, and State Farm

argued that it had produced evidence that created an issue of fact. Id. at 625. State Farm was

not arguing that it had met its burden of production and that the plaintiffs had failed to

produce evidence creating an issue of fact, which is USAA’s argument in the instant case.

In any event, when making its Erie guess regarding the correct burdens of proof, the

Broussard Court relied on “the rule that causation is a fact question for the jury.”

Broussard, 523 F.3d at 627. Accordingly, the Broussard Court concerned itself primarily

with the burden of persuasion. The jury never concerns itself with the burden of production.

21B Fed. Prac. & Proc., Evid. § 5122 (2d ed. 1987).

¶49.   When the trial judge stated his understanding that “the plaintiff should have to had to

put on something to show it was other than surge,” he was not incorrectly reassigning the

burden of persuasion. He did not say he would require the plaintiffs to convince the jury by

a preponderance of the evidence that conflicting evidence showed the damage was caused

                                             22
by something other than surge. Rather, he was correctly observing that when the insurer

provided credible proof of causation, the burden of production of evidence moved to the

plaintiff to create an issue of fact. DeLaughter v. Womack, 250 Miss. 190, 211-212, 164 So.

2d 762, 771 (1964) (after plaintiff made out prima facie case of negligence, defendants were

required to produce evidence to the contrary), overruled on other grounds by Hall v. Hilbun,

466 So. 2d 856, 866 (Miss. 1985); see also McCormick on Evidence § 336 (Kenneth S.

Broun, et al., eds., 7th ed. 2013) (“Clearly, the principal significance of the burden of

persuasion is limited to those cases in which the trier of fact is actually in doubt [as to the

truth of a disputed fact issue]”). Because the plaintiff failed to produce competent, contrary

evidence, there existed no disputed facts as to which the trier of fact needed to be persuaded

by a preponderance of the evidence. The trial court correctly analyzed that the plaintiffs had

not done so, that no issues of material fact existed for the jury, and entered judgment in favor

of the insurer as required by law.

¶50.   Although I agree with the majority’s analysis of the other issues raised by the

appellants, pursuant to the above analysis I would affirm the trial court. Accordingly, I

dissent.

       DICKINSON, P.J., JOINS THIS OPINION.




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