                  IN THE COURT OF APPEALS 04/09/96
                                   OF THE
                          STATE OF MISSISSIPPI
                              NO. 94-CA-00019 COA

JULIE HEINRICH-DOWNS

APPELLANT

v.

ALLSTATE INSURANCE COMPANY

APPELLEE



THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND

MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B



TRIAL JUDGE: HON. EUGENE M. BOGEN

COURT FROM WHICH APPEALED: LEFLORE COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT:

LEMAN D. GANDY

ATTORNEYS FOR APPELLEE:

JOSEPH L. MCCOY AND GARY SILBERMAN

NATURE OF THE CASE: INSURANCE CLAIM FOR VANDALISM DENIED BY INSURER

TRIAL COURT DISPOSITION: GRANTED PARTIAL SUMMARY JUDGMENT AS TO
PUNITIVE DAMAGES AGAINST

INSURER AND DIRECTED VERDICT FOR INSURER BECAUSE OF LACK OF PROOF OF
DAMAGES



BEFORE THOMAS, P.J., COLEMAN, AND McMILLIN, JJ.

COLEMAN, J., FOR THE COURT:
Julie Heinrich-Downs (Heinrich) filed a claim with her insurer, Allstate Insurance Company (Allstate)
, for an alleged act of vandalism to her swimming pool. Allstate denied coverage because the damage
to the swimming pool did not appear to be the result of vandalism. The trial court granted Allstate’s
motion for summary judgment as to punitive damages because it found that Allstate had an arguable
basis for denying the claim. Later the trial court also directed a verdict for Allstate based on
Heinrich’s failure to prove damages. We quote from Heinrich’s brief to state the five issues which she
argues require the reversal of the trial court’s judgment:

                      I. The trial court erred in granting Appellee’s pretrial motion for summary
                      judgment as to punitive damages.



                      II. The trial court erred in sending the jury out at the close of Appellant’s case-
                      in-chief, and granting a directed verdict in favor of Appellee without a motion
                      for directed verdict having been made.



                      III. The trial court erred in failing to allow the jury to determine whether
                      Appellant’s pool damage was caused by vandalism or natural causes which
                      constituted a question of fact and not a question of law.



                      IV. The trial court erred in sustaining Appellee’s objections to all of
                      Appellant’s testimony by Appellant’s lay witnesses and expert witness relative
                      to the cause of the pool damage, the cost to repair the pool at the time of the
                      vandalism and the cost to repair the pool damage at the time of trial.



                      V. The trial court erred in denying Appellant’s motion for new trial.



We resolve these issues adversely to Heinrich and affirm the trial court’s final judgment in favor of
Allstate.

I. FACTS

On December 10, 1990, Julie and John Heinrich filed a claim with their insurance carrier, Allstate
Insurance Company, concerning damage to their swimming pool’s vinyl liner. The Heinriches
contended that the small hole punctured in the liner was the result of vandalism and therefore covered
under their homeowners’ insurance policy. On December 12, 1990, policeman Stacy Walker
investigated a reported attempted burglary at the Heinrich’s home; however, the Heinriches made no
mention of vandalism to their swimming pool to officer Walker at that time. Afterwards, on
December 15, 1990, policeman Mark Miller investigated an alleged attempted burglary at the
Heinriches’ residence at which time the Heinriches stated that they suspected that their pool had been
vandalized.

An Allstate representative, Bruce Haralson, made an on-site inspection of the Heinriches’ swimming
pool on December 13, 1990 and found that regarding the hole in the pool’s liner "something had
pushed it out from the side and had left more like--not a cut but actually something that had been
pushed out of it and left a lot of jagged marks around the side of it." Haralson further determined that
the pool damage was not the result of vandalism, but rather was long-term damage from the rotting
of the pool’s wooden walls. Haralson determined that this rotting had been caused by below-surface
water damage connected with prior improper emptying, shifting ground, and freeze damage. Allstate
therefore denied the Heinrich’s claim.

On July 1, 1991, Julie Heinrich filed a Complaint against Allstate Insurance Company and Billy
Walker Insurance, Inc., seeking $1,500,000 in actual damages and $3,000,000 in punitive damages.
Allstate removed the case to federal court by notice of removal on July 30, 1991; however, on April
12, 1993, the case was remanded to state court by memorandum opinion and order of final judgment
remanding action to state court because a lack of diversity arising from the Mississippi Defendant,
Billy Walker Insurance, Inc.

II. TRIAL

Upon remand to state court, the circuit court held a pretrial motion hearing wherein it granted the
defense’s motion to dismiss Billy Walker Insurance, Inc. as a party defendant. The court then heard
the Defendant’s motion for partial summary judgment as to punitive damages. A pretrial order
entered during this case’s removal to federal court contained the following stipulation by Julie
Heinrich-Downs and Allstate:

           On the basis of inspections, interviews with the Heinrichs, and police reports, Allstate
           concluded that the pool damage was unlikely to be the result of the suspected vandalism,
           but rather was long-term damage from rotting from below-surface water damage
           connected with prior improper pool emptying, shifting ground and freeze damage, and
           denied the Heinrich’s claim.



Pursuant to this stipulation, the trial court held that Allstate had an arguable basis for denying the
claim and, therefore, granted the defendant’s motion for partial summary judgment as to punitive
damages.

At trial, Leman Gandy represented the Appellant, Julie Heinrich-Downs, and Joseph McCoy
represented Allstate. At the close of the Plaintiff’s case-in-chief, the trial court instructed the jury to
retire to the jury room. After the jury retired, the trial judge and the litigants’ attorneys engaged in a
conference at the bench. We quote selectively from the record to relate what happened during this
bench conference.

                       Judge: I’m going to let him take up his motion here in the courtroom so we
                       don’t have to go back there where we’ll be kind of crowded, and we can do
                     just as easily here.



                     Mr. McCoy: It’s going to be very short, Your Honor.



The judge asked Gandy, Ms. Heinrich’s counsel, "What evidence is there that there was vandalism
here . . . ?" Mr. Gandy replied:

          The hole did not come in by itself. I think Mr. Barrentine [Plaintiff’s expert] and
          everybody else proved that somebody took this object and jabbed it -- moved the cover
          back and jabbed the sharp object to let the water leak out gradually . . . from under this
          pool.



The judge then stated, "All right, assuming you’re correct about that, what are her damages?"



The judge and Mr. Gandy then discussed further whether any evidence had been presented
concerning proof of damages by the Plaintiff. Following their conversation, the trial court stated:

          Well, Counsel, I think what we’ve got here is a failure of proof. I think -- even assuming
          that there is sufficient evidence to go forward on the issue of vandalism, and I don’t think
          there is, but we’ll assume that for the sake of the motion, there’s not proof as to her
          damages. Mr. Barrentine did not testify that the damage shown in these photographs
          resulted from any act of vandalism and specifically from this hole that you say was
          punched into the vinyl liner. . . . He didn’t even testify as to how much it would cost to
          repair that hole.



The record discloses that the judge stated, "I think the law compels that I direct a verdict for the
defendant."

After the conclusion of the conference at the bench, the jury returned to the courtroom. The trial
judge explained that the Defendant had moved for a directed verdict and that he had granted that
motion "as in my judgment the evidence offered on behalf of the plaintiff in the case was legally
insufficient to support any judgment or verdict in her favor." Heinrich moved for a new trial, which
the trial court denied, and she appealed.

III. ISSUES AND THE LAW

                     I. The trial court erred in granting Appellee’s pretrial Motion for
                     Summary Judgment as to punitive damages.
A. Standard of Review

The Mississippi Supreme Court provided the following standard by which it reviews the issue of
whether a trial court erred when it granted summary judgment in Seymour v. Brunswick Corp., 655
So. 2d 892 (Miss. 1995):

           We employ a de novo standard of review in reviewing a lower court's grant of summary
           judgment. Thus, we use the same standard that was used in the trial court. We must
           review all evidentiary matters before us in the record: affidavits, depositions, admissions,
           interrogatories, etc. The evidence must be viewed in the light most favorable to the
           nonmoving party who is to be given the benefit of every reasonable doubt. The burden of
           demonstrating that no genuine issue of material fact exists is on the moving party.
           However, this burden on the moving party is one of production and persuasion, not of
           proof. A motion for summary judgment lies only when there is no genuine issue of
           material fact, and the moving party is entitled to a judgment as a matter of law. This Court
           does not try issues on a [R]ule 56 motion, it only determines whether there are issues to
           be tried. In reaching this determination, this Court examines affidavits and other evidence
           to determine whether a triable issue exists, rather than for the purpose of resolving that
           issue.

Id. at 894-95 (citations omitted).



We begin our consideration of this issue by quoting the following stipulation which Heinrich and
Allstate included in the pretrial order entered in this case before the United States District Court
remanded it to the Leflore County Circuit Court:

           On the basis of inspections, interviews with the Heinrichs, and police reports, Allstate
           concluded that the pool damage was unlikely to be the result of the suspected vandalism,
           but rather was long-term damage from rotting from below-surface water damage
           connected with prior improper pool emptying, shifting ground and freeze damage, and
           denied the Heinrich’s claim.



Standard Life Ins. Co. of Indiana v. Veal, 354 So. 2d 239, 248 (Miss. 1977), a "seminal" case on the
award of punitive damages against an insurance company, established the following rationale for
awarding punitive damages against an insurance company:

           This case demonstrates the necessity of awarding punitive damages when an insurance
           company refuses to pay a legitimate claim, and bases its refusal to honor the claim on a
           reason clearly contrary to the express provisions of its own policy. If an insurance
           company could not be subjected to punitive damages it could intentionally and
           unreasonably refuse payment of a legitimate claim with veritable impunity. To permit an
           insurer to deny a legitimate claim, and thus force a claimant to litigate with no fear that
           claimant's maximum recovery could exceed the policy limits plus interest, would enable
           the insurer to pressure an insured to a point of desperation enabling the insurer to force an
           inadequate settlement or avoid payment entirely. . . .

           Of course, if an insurance company has a legitimate reason or an arguable reason for
           failing to pay a claim, punitive damages will not lie . . . .



The operative sentence for the purpose of this opinion is the last sentence, "Of course, if an insurance
company has a legitimate reason or an arguable reason for failing to pay a claim, punitive damages
will not lie . . . ." The application of this sentence to the stipulation which we earlier quoted would be
sufficient to affirm the trial court’s grant of partial summary judgment on Heinrich’s claim for
punitive damages. After all, the stipulation states that "[o]n the basis of inspections, interviews with
the Heinriches, and police reports, Allstate concluded that the pool damage was unlikely to be the
result of the suspected vandalism, but rather was long-term damage from rotting from below-surface
water damage connected with prior improper pool emptying, shifting ground and freeze damage ."
The stipulation establishes that Allstate investigated the claim of the Heinriches, their insureds, and
concluded that the cause of the damage to the swimming pool was not vandalism, which its
homeowners’ policy covered, but other causes, i.e., "long-term damage from rotting from below-
surface water damage connected with prior improper pool emptying, shifting ground and freeze
damage not covered by the policy." Indeed, the record reveals that earlier in 1990, the Heinriches
filed a claim for damage to their pool’s vinyl lining caused by freezing water, and that Allstate denied
coverage for that damage. The Heinriches demonstrated their acquiescence in Allstate’s denial of
their claim by the husband’s buying a vinyl patch and repairing the lining which the freezing water
had damaged. Thus the stipulation establishes to this Court’s satisfaction that Allstate had an
arguable reason to deny the Heinriches’ claim for vandalism which they made of December 10, 1990.

Heinrich argues that notwithstanding the above quoted stipulation, "she did not stipulate that
Allstate’s denial of her claim constituted a legitimate, arguable reason for denial." She then argues
that in Andrew Jackson Life Ins. Co. v. Williams, 566 So. 2d 1172 (Miss. 1990), the Mississippi
Supreme Court held that "the matter of punitive damages can be a jury question of fact,
notwithstanding the possibility that the claim for benefits was denied on an arguable basis." If
Heinrich is to prevail on this her first issue, she must do so on the basis of this argument, i.e., "the
matter of punitive damages can be a jury question of fact, notwithstanding the possibility that the
claim for benefits was denied on an arguable basis."

Andrew Jackson Life Ins. Co. v. Williams involved a claim for benefits made by an employee whose
employer had permitted two of Andrew Jackson’s agents to solicit policies from its employees during
working hours. Id. at 1174. The evidence established some egregious representations which these
agents made to persuade the employees to convert their coverage to Andrew Jackson. One of the
agent’s representations was that the employee could immediately terminate existing life insurance
coverage because the employee and employee’s spouse would be immediately covered under Andrew
Jackson’s policy. Id. Williams’ wife died soon after he applied for coverage and after he had canceled
his previous coverage. Id. at 1175. Andrew Jackson denied coverage for reasons that seemed
reasonable and thus arguable, but its agents’ gross mis-representations provided the foundation for
Andrew Jackson’s arguable reasons to deny coverage. Andrew Jackson Life Ins. Co., at 1187.
The trial judge granted a punitive damages instruction, and the jury returned a verdict of an award of
$250,000 for punitive damages against Andrew Jackson. Id. at 1177. The Mississippi Supreme Court
affirmed the trial court’s granting of the punitive damages instruction and the amount of the punitive
damages award. Heinrich correctly notes that the Mississippi Supreme Court opined that "the matter
of punitive damages can be a jury question of fact, notwithstanding the possibility that the claim for
benefits was denied on an arguable basis." We quote more fully from the opinion:

           Conversely, Mississippi law has evolved to a point of recognition that submission of the
           punitive-damages issue may be submitted -- notwithstanding the presence of an arguable
           basis. Aetna Cas. & Surety Co., 487 So. 2d at 834 ("[U]nder some contrived or specious
           defense, an insur[er] may be entitled to have the jury pass upon the issue of liability under
           the contract, yet not thereby insulate itself against [submission of] a punitive damage claim
           based upon bad faith."); Blue Cross & Blue Shield of Miss., 466 So. 2d at 833 (Hawkins,
           J., denying petition for reh'g) ("There may be . . . reasons not yet encountered which will
           give an insurance carrier a defense on the contract itself, and yet nevertheless the carrier
           should be subject to [submission of] a bad faith claim."). This Court will not attempt to
           hypothesize "all such extreme factual situations" which could constitute exceptions. Aetna
           Cas. & Surety Co., 487 So. 2d at 834. Some examples may be conceived through
           inference from, and analogy of, factual circumstances attendant cases which were
           previously before this Court.



Id. at 1186 (alterations in original).



The Mississippi Supreme Court then discussed the opposite of this circumstance, i.e., "an act of bad
faith alone cannot be deemed sufficiently tortious to warrant imposition of punitive damages liability."
Id. at 1187. For example:

           "[O]rdinary torts, the product of forgetfulness, oversight, or the like, do not "rise to the
           heightened level of an independent tort" which warrant imposition of punitive-damages
           liability. State Farm Fire & Cas. Co., 477 So .2d at 250, quoted in Pioneer Life Ins. Co.
           of Ill., 513 So. 2d at 930 (case in which this Court reversed punitive-damages award
           because insurer's "failure to pay the claim ... was a mere clerical error and an honest
           mistake"); Mississippi Farm Bureau Mut. Ins. Co., 492 So. 2d at 932-33; Aetna Cas. &
           Surety Co., 487 So. 2d at 832-33; see American Sec. Ins. Co., 486 So. 2d at 1227 ("[C]
           lerical error or honest mistake" constitutes a defense to imposition of punitive damages
           "though objectively speaking the insurer has no arguable reason for failure to honor a just
           claim."); Southern United Life Ins. Co., 481 So. 2d at 769 (Notwithstanding absence of an
           arguable basis, punitive damages may be unjustified in a case involving an "honest mistake
           or oversight--ordinary or simple negligence--not reaching the heightened status of an
           'independent tort."); Consolidated Am. Life Ins. Co. v. Toche, 410 So. 2d 1303, 1304
           (Miss.1982) ("[P]unitive damages will not lie ... in cases of simple negligence involving
           miscalculation of premiums or benefits").
Andrew Jackson Life Ins. Co., at 1187-88 (alterations in original). We conclude our consideration of
Andrew Jackson with this quotation about "bad-faith-plus":

          Restated, the law requires a finding of "bad faith-plus "-- based upon a preponderance of
          the evidence -- before punitive damages may be awarded. Generally speaking, this simply
          means that punitive damages may not be awarded "in the absence of finding an
          independent tort separate from the breach of contract."



Id. at 1188 (citations omitted). The Mississippi Supreme Court then recited various examples of "bad
faith-plus."

With this discussion of Andrew Jackson for background we consider what Heinrich offered to
counter Allstate’s motion. She offered:

                     1. Plaintiff Julie Heinrich’s affidavit in which related: (1) reporting to the
                     Greenwood Police Department the vandalism and attempted burglaries at her
                     and her late husband’s home on December 12 and 15, 1991, (2) her report of
                     the vandalism to Bruce Haralson, "who came to [their] residence and took
                     pictures of the vandalism" but made no other reply, (3) her automobile trip to
                     Jackson to discuss her claim with a representative of Allstate and to present a
                     letter from Bill Barrentine in which he wrote that "the pool damage was caused
                     by vandalism," and (4) her subsequent submission of police reports about the
                     attempted burglaries and actual vandalism on December 12 and 15, which
                     Allstate insisted on getting.



                     2. Affidavit of Greenwood Police Officer Stacy Walker in which he stated that
                     he had investigated "an attempted burglary at [affiant’s] residence on
                     December 12, 1990," and to which he attached a copy of his case report which
                     related "the results of [his] investigation." This report describes attempted
                     burglary as the primary offense without reference to any kind of vandalism.



                     3. Affidavit of Greenwood Police Officer Mark W. Miller in which he stated
                     that he had investigated "an attempted burglary at [affiant’s] residence on
                     December 15, 1990," and to which he attached a copy of his case report which
                     related "the results of [his] investigation." This report stated that "[t]he latest
                     incident involved a damaged swimming pool lining . . . ."



To support its motion for partial summary judgment, Allstate submitted the affidavit of its senior
claims adjuster, Bruce Haralson, who described in some detail his investigation of the Heinriches
December 10, 1991, claim for this damage to their swimming pool caused by vandals and earlier
claims as well. We quote the paragraph in which he related his conclusion about the cause of damage
to the Heinrich’s swimming pool:

           After my inspection of the damages on [December 13, 1990] I concluded that water in the
           pool had gotten behind the liner as a result of earlier hole or holes in the liner that the
           insured may not have repaired or did not properly repair. Further, the damage to the wood
           layer forming the wood wall on one side of the pool showed evidence of long term
           damage likely, making it apparent that water had been behind the wall for some time.
           Cracks around the pool perimeter also indicated that there was some shifting off the
           ground; the insured further documented this by stating that there was other such damage
           to the interior, for example walls showing settlement cracks.



We now return to the task of determining whether "there are issues to be tried" with regard to
Heinrich’s claim for punitive damages against Allstate. The law determines what those issues are. Our
understanding of Andrew Jackson is the following: Without bad faith on the part of the insurer, there
can be no punitive damages, but even bad faith alone may not justify the award of punitive damages,
i.e., where the bad faith results from mere clerical error. For an insurer’s bad faith to justify the award
of punitive damages, it must be accompanied by "more," that is to say, an independent tort separate
from the breach of contract.

Did the affidavits which Heinrich submitted in opposition to Allstate’s motion for partial summary
judgment on the issue of its liability for punitive damages create material issues of fact about
Allstate’s bad faith plus an independent tort? Heinrich’s pleadings and response fail to suggest in
what manner Allstate committed a tort independently of the breach of the homeowner’s insurance
policy with which Heinrich has charged it. We think that at most Heinrich’s argument on this issue is
that Allstate ought to have accepted unquestioningly her claim, and because it did not accept it,
Allstate was guilty of bad faith. Ergo, Allstate’s bad faith, and only its bad faith, merited an award of
punitive damages.

Such an argument ignores the premise with which we began our consideration of this issue, which
was that there can be no bad faith if the insurer has an arguable reason to deny coverage. Clearly
Allstate had arguable reasons to deny Heinrich’s claim. Bruce Haralson expressed those reasons in
the paragraph of his affidavit which Allstate submitted to support its motion for partial summary
judgment on the issue of punitive damages. We find Heinrich’s affidavits relevant to the issue of
whether any of the damage to her swimming pool was the result of vandalism -- but nothing more.
The issue of whether the damage to the swimming pool was caused by an act of vandalism was
reserved for resolution by the trial which ensued.

We conclude our consideration of this issue by holding that Heinrich failed to demonstrate that there
was a material issue of fact which was relevant to the issue of whether Allstate could be liable for the
payment of punitive damages to her. Thus, we affirm the trial court’s granting of Allstate’s motion
for partial summary judgment on the issue of punitive damages.
                       II. The trial court erred in sending the jury out at the close of Appellant’s
                       case in chief, and granting a directed verdict in favor of Appellee without
                       a motion for directed verdict having been made.



Heinrich attempts to merge two matters into this one issue. At first, Heinrich questions the propriety
of the lower court directing a verdict on its own initiative for the defendant. Heinrich then attempts to
argue that sufficient factual issues existed at the close of her case-in-chief so as to preclude a directed
verdict. As a result, we shall address both matters.

Heinrich alleges that because Allstate made no motion for a directed verdict then the trial court
committed reversible error by directing a verdict of its own accord. The pertinent portion of the
discussion transpiring at the court below is as follows:

           THE COURT: Well, Counsel, I think what we’ve got here is a failure of proof. I think--
           even assuming that there is sufficient evidence to go forward on the issue of vandalism,
           and I don’t think there is, but we’ll assume that for the sake of the motion, there’s not
           proof as to her damages. Mr. Barrentine did not testify that the damage shown in these
           photographs resulted from any act of vandalism and specifically from this hole that you
           say was punched into the vinyl liner. He didn’t testify to that. He didn’t even testify as to
           how much it would cost to repair that hole.



           COUNSEL FOR PLAINTIFF (Mr. Gandy): Your Honor, if I recall, I believe the record
           will show, that upon their objection, we approached the bench and I believe, Your Honor,
           the instruction to me was the only thing he can say is how much it would cost to put that
           patch on there. That’s the reason I elected not to--



           THE COURT: I said at that point, at this point. He was never asked whether he made an
           examination to determine whether any of the other damage reflected in the photographs
           that were admitted into evidence resulted from this hole that you say was punched into the
           vinyl liner.

           I think the law compels that I direct a verdict for the defendant. I don’t think I’ve got any
           choice, and I’m going to order that that be done.



The Mississippi Supreme Court has dealt with a similar situation in South Central Bell Telephone
Co., Inc. v. Parker, 491 So. 2d 212, 215 (Miss. 1986). In Parker, the trial judge directed a verdict
when the record did not reflect that the court reporter had transcribed a motion for directed verdict.
Id. However, the parties for whom court directed the verdict alleged that they moved for a directed
verdict during an unrecorded discussion. Id. The supreme court observed:
           It is obvious from the record here that the lower court and the attorneys were under the
           impression that motions for directed verdicts had been made, but that the motions were
           not recorded by the court reporter. The appellants' attorney did not object to the manner
           in which the directed verdicts were granted, or that no motions for directed verdicts were
           made by the appellees' attorney.



Id. The supreme court "carefully scrutiniz[ed] the record and discussions between the court and the
attorneys" and held that the trial court "properly entered" the directed verdicts even though the
motions for directed verdicts did not appear in the record. Id. at 215-16.

In the case at bar, Allstate does not contend that it formally made a motion for directed verdict after
Heinrich rested her case. However, we repeat a portion of what we quoted earlier from the record
after Heinrich had rested:

           THE COURT: I’m going to let him take up his motion here in the courtroom so we don’t
           have to go back there where we’ll be kind of crowded, and we can do just as easily here.



           MR. McCOY: It’s going to be very short, Your Honor.



Pursuant to this and the rest of the record from which we earlier quoted, we see that Allstate’s
counsel intended to move for a directed verdict and that Heinrich’s counsel responded to the trial
court’s questions and expressions of concern about the failure of her proof of damages as though he
knew and understood that Allstate had in fact moved for a directed verdict. Quite clearly, Heinrich’s
and Allstate’s counsel and the trial court were aware that a directed verdict was being granted in
favor of Allstate, yet Heinrich’s counsel failed to object to the trial court’s granting Allstate’s motion
for directed verdict in the absence of Allstate’s having insured that its motion for directed verdict was
included in the record.

In Hill v. Acord, 259 So. 2d 472, 474 (Miss. 1972), the Mississippi Supreme Court refused to
reverse the trial court when it erroneously set aside a default judgment because the appellant did not
make a timely objection after the court made its ruling. Likewise, in the case at bar, Heinrich’s failure
to object timely precludes her from raising this issue on appeal. See Dillon v. Allen-Parker Co., 78
So. 2d 357, 360 (Miss. 1955).

                      III. The trial court erred in failing to allow the jury to determine whether
                      Appellant’s pool damage was caused by vandalism or natural causes,
                      which constituted a question of fact and not a question of law.



In response to Heinrich’s argument on this issue, Allstate emphasizes that in ruling on its motion for
directed verdict, the trial court assumed that an issue of fact had been created concerning causation.
The trial court granted a directed verdict for Allstate because "[t]here’s not proof as to her damages."
In Thomas v. Global Boat Builders & Repairmen, Inc., 482 So. 2d 1112 (Miss. 1986), David
Thomas, owner of a shrimp trawler, sued a boat repairer and an electric company for damages which
the trawler sustained when it came into contact with a power line while it was being repaired and
damages for emotional trauma he experienced from his witnessing a carpenter lying unconscious after
he had been electrocuted. Id. at 1114. The two tests for determining the amount of damage to
Thomas’s trawler were the value before and the value after the damage and the cost of repair. Id. At
trial, Thomas testified that the boat’s value was $68,000 before the accident, but the trial court
sustained the defendants’ objection to that testimony. Id. Thomas offered absolutely no evidence
about the value of the boat after it had been damaged; neither did he offer evidence of the cost of
repairing the boat. Id. At the conclusion of plaintiff Thomas’s case, the trial court granted the
defendants’ motions for directed verdicts because Thomas had failed to establish his damages under
either test for determining damage to personal property. On appeal, the Mississippi Supreme Court
affirmed the trial court’s directed verdict for the defendants. Id. at 1117. That court observed:

           Therefore we must conclude that even if Thomas's testimony as to the fair market value of
           his boat just prior to the accident was competent, he only furnished a part of the equation.
           No attempt was made to complete it. The person who is "it" in "Pin the Tail on the
           Donkey" knows as much about the task he is called upon to perform as this jury would
           have known had it been asked to assess damages and fair compensation in this case. When
           the plaintiff, as in this case, only puts on proof of one of the factors in the equation for
           assessing damages, a circuit judge has no choice but to direct a verdict for the defendant.
           There was no guide whatever given to the jury to make a fair assessment of damage.



Id. at 1116. The supreme court next described a plaintiff ‘s burden to establish her damages as
follows:

           When a plaintiff has available to [her] sources and means whereby damages may be
           calculated to a fair degree of certainty, as in this case, and [she] does not secure for trial
           such available proof, the circuit judge is perfectly correct in presuming if the plaintiff had
           any actual proof of damages [she] would have come forward with it. And, in such a case
           as this, the circuit judge was unquestionably correct in directing a verdict for the
           defendants.



Id. at 1117.



Thomas controls our decision on this issue. The record demonstrates that the trial court’s finding that
Heinrich failed to prove her damages was correct. So then was its directing a verdict for Allstate on
this ground alone. It matters not whether the damage to Heinrich’s pool was the result of vandalism
or natural causes without proof of damages.
                      IV. The trial court erred in sustaining Appellee’s objections to all of
                      Appellant’s testimony by Appellant’s lay witnesses and expert witness
                      relative to the cause of the pool damage, the cost to repair the pool at the
                      time of the vandalism and the cost to repair the pool damage at the time
                      of trial.



In this issue, Heinrich consolidates various matters in a piecemeal. Accordingly, we address each
matter which she raises. First, Heinrich notes that she and her husband purchased a policy from
Allstate to provide coverage for their swimming pool. Heinrich alleges that Bruce Haralson did not
adequately inspect the damage nor did he examine police reports filed by the Heinriches. She cites as
error the trial court’s denial of testimony relating to burglaries in the neighborhood and attempted
burglaries at the Heinriches’ home. On these points, we defer to "the trial judge as to whether or not
such testimony is material and meets the test of substantial similarity of conditions to the issue."
Mississippi Power & Light Co. v. Shepard, 285 So. 2d 725, 740 (Miss. 1973). Moreover, any
argument as to causation becomes moot because of Heinrich’s failure to prove the value of her
damages.

                      V. The trial court erred in denying Appellant’s Motion for New Trial.

Concerning this issue, we note that a motion for a new trial is addressed to the sound discretion of
the trial court. Bell v. City of Bay St. Louis, 467 So. 2d 657, 660 (Miss. 1985). Moreover, such a
motion "may be granted only if the trial judge in the exercise of his sound discretion is of the opinion
that the verdict is contrary to law or the weight of the evidence." Id. For the reasons set forth in this
opinion, we find that the trial court properly denied Heinrich’s motion for new trial.




IV. Conclusion

This Court finds that Allstate had arguable reasons to defend Heinrich’s claim for damage to her
swimming pool under the homeowners’ policy which it issued to her and her late husband. Those
arguable reasons were: (1) that the damage resulted from an earlier freezing of the water in the pool
and (2) rotting wood in the walls and supports of the pool’s walls which rotting could not have been
caused by the one hole in the pool’s lining which Heinrich claimed had been caused by an act of
vandalism. Allstate would have been vulnerable to an award of punitive damages only if it had dealt
in bad faith with the Heinriches and had committed a tort in conjunction with its bad faith denial of
their claim. Heinrich’s complaint at best charged Allstate with bad faith; it did not charge Allstate
with having committed a tort in conjunction with its bad faith treatment of its insureds, the
Heinriches. The evidence which Heinrich submitted in opposition to Allstate’s motion for partial
summary judgment rose no higher than to support her claim that a vandal had damaged the lining of
the swimming pool. It did not support the proposition that Allstate had dealt in bad faith with her,
much less that Allstate had done more by committing some tort independent of the bad faith itself.
Thus, we find that the trial court correctly granted Allstate’s motion for partial summary judgment on
the issue of punitive damages.

The remainder of Heinrich’s issues attack the propriety of the trial court’s granting a directed verdict
after she rested her case in chief. Even though Allstate failed to move for a directed verdict formally
for the record, a review of what transpired in the record after Heinrich rested her case satisfies this
Court that Heinrich’s counsel understood that he was opposing Allstate’s motion for directed verdict
and that he responded to the trial court’s questions and concerns about granting Allstate’s motion for
directed verdict as well as the state of the record would permit him to do. Of equal importance is the
fact that Heinrich’s counsel did not object to the trial court’s granting Allstate’s motion for directed
verdict because Allstate had failed to move specifically for it.

The trial court’s reason for granting Allstate’s motion for directed verdict was Heinrich’s complete
failure of proof of the value, or amount, of the damage to the swimming pool which vandalism
caused. We affirm the trial court’s granting Allstate’s motion for directed verdict on the basis of
Heinrich’s failure to prove those damages. Heinrich’s failure to prove the value of the damage to the
swimming pool renders moot all issues about whether the trial court erred by not allowing the jury to
decide if vandalism caused the damage to the Heinrich’s swimming pool. Had the trial court
submitted this issue to the jury, its twelve members would have been playing pin the tail on the
donkey with the amount of their verdict had they found that the damage to the pool was caused by
vandalism. We affirm the final judgment of the trial court.

THE JUDGMENT OF THE CIRCUIT COURT OF LEFLORE COUNTY IS AFFIRMED.
APPELLANT IS TAXED WITH THE COSTS OF THIS APPEAL.



FRAISER, C.J., BRIDGES AND THOMAS, P.JJ., BARBER, DIAZ, KING, McMILLIN,
PAYNE, AND SOUTHWICK, JJ., CONCUR.
