1 Pursuant to 5 TH C IR . R. 47.5, the Court has determined that this opinion should not be

published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R.

47.5.4. UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 00-60259

HOUSTON COMPRESS, INC.,

Plaintiff-Appellant,

VERSUS

UNDERWRITERS AT LLOYDS, LONDON,

Defendant-Appellee.

Appeal from the United States District Court

For the Northern District of Mississippi

(1:99-CV-24-S-D)

December 6, 2001

Before KING, Chief Judge, and DUHÉ and BENAVIDES, Circuit Judges.

PER CURIAM: 1

Appellant Houston Compress (“Houston”) sued its insurer, Appellee Underwriters at Lloyds,

London (“Lloyds”), alleging that Lloyds breached its insurance agreement in bad faith when it denied

Houston’s claim for physical damage to its building No. 6. At the close of Houston’s case in chief

the di st rict court granted Lloyd’s Motion for Judgment as a Matter of Law, concluding that2

Houston’s loss was not covered by the insurance agreement. After careful study of the record, we

conclude that issues of fact preclude the Motion. We, therefore, vacate and remand.

FACTS

Houston had for years insured its cotton storage buildings with Lloyds of New York. It is

disputed whether this coverage contained a deductible and whether it excluded damage caused by rot.

In 1997 Hollingsworth, a local independent agent who had not represented Houston before,

persuaded Houston to let him place the coverage with a company other than Lloyds of New York.

Houston agreed on condition that the coverage with the new company be exactly the same as the old

coverage. Houston provided Hollingsworth a copy of its 1996-1997 Lloyds of New York policy.

Hollingsworth discussed the matter with Phillips, a Lloyds general agent. Phillips contacted Lloyds

which issued a binder which allegedly contained a $25,000 deductible for wind damage, a $5,000

deductible for other causes of damage, and an exclusion for damage caused by rot. No policy was

ever produced.

Shortly after the binder became effective a water pipe burst in building No. 6 which was one

of the insured buildings. At that time Houston noted that a roof support had cracked which may have

caused the pipe to burst. This was not reported to Lloyds.

Shortly thereafter, wind damage to another building was reported to Lloyds which assigned

Edwards, an independent adjuster, to investigate. Houston then reported to Edwards that building

No. 6 had also sustained wind damage. Estimated repair to both buildings was less than $25,000 and

Lloyds denied the claim based on the binder’s alleged wind damage deductible. Houston then told3

Edwards that the damage to building No. 6 may have been caused by surface water washing soil away

from the roof support causing t he roof damage. Houston was informed that this would be flood

damage which was not covered.

Some months later Houston reported that the previous damage to bui lding No. 6 was the

result of the water line breaking, causing a stream of water to hit a roof support post, moving it from

its foundation causing the roof to sag which, in turn, caused water to accumulate on the roof. At trial

this was the testimony produced by Houston, but it was contradicted by Houston’s earlier answers

to wri tten interrogatories. The estimated cost of repair was $20,109. Lloyds hired an engineer to

inspect and he concluded that the collapse of the building was the result of rot. Since damage caused

by rot was allegedly excluded in the binder, Lloyds denied the claim.

ANALYSIS

We review de novo grant of moti ons for judgment as a matter of law at the close of the

plaint iff’s case in ch i ef, applying the same legal standard as the district court. We consider all

evidence in the light most favorable to the non-movant and draw all inferences in the non-movant’s

favor. If there is no legally sufficient evident iary basis for a reasonable fact finder to find for the

nonmovant, judgment as a matter of law is appropriate. T exas Beef Group v. Winfrey

, 201 F.3d 680,

687-88 (5 th Cir. 2000)(citations omitted).

Houston bore the burden to prove that Hollingsworth was Lloyds’ agent and, if so, the scope

of that agency. These are questions of fact. S ee Booker ex rel. Certain Underwriters at Lloyd’s v.

Pettey

, 770 So.2d 39, 45 (Miss. 2000); Knight v. Sheppard Bldg. Supply, Inc.

, 537 So.2d 1355, 13584

(Miss. 1989). The evidence is in conflict as to what Phillips agreed would be the terms of the new

policy, and it is in conflict as to what the terms of the old coverage were. Additionally, it is

undisputed that Phillips had no contact with Houston. From this evidence contrary inferences can

be drawn: Since there was no direct contact a fact finder could conclude that Phillips made no direct

express representations to Houston. Or, a fact finder could conclude that by failing to meet with

Houston and allowing Hollingsworth to do so, Phillips may have indicated his willingness to allow

Hollingsworth to handle the matter. Possibly a fact finder could conclude t hat the ability to bind

Lloyds and even to modify the binder was within the scope of Hollingsworth’s apparent authority.

See generally Pasco Enters., Inc. v. Southland Ins. Agency, Inc., 408 So.2d 63, 68 (Miss. 1982).

There is also dispute in the evidence concerning the terms of the binder. Houston offered

exhibit P-20B which is a single-page document which Houston contends is the binder. It does not

contain a wind damage deductible. In fact, it does not describe the insured premises and refers to an

allegedly attached quote. Houston attached to its complaint a four-page document which does seem

to be the binder and which is in accord with some of the testimony of Mr. Stone as to the terms of

the binder he received, but at odds with other of his testimony. The evidence is in dispute as to which

document actually represents the agreement of the parties.

Likewise, we find the evidence in conflict as to the cause of the building’s collapse, and the

extent of the loss, both of which bear on the issue of coverage under the binder.

The district court undertook to resolve the conflicts in the evidence which it indeed could

have done at the close of all the evidence. However, it was, in our view error to rule that the

evidence at the close of the plaint iff’s case in chief, when viewed in the light most favorable to the

non-movant, was such that no reasonable jury could find for the non-movant.5

VACATED and REMANDED.