IN THE SUPREME COURT OF MISSISSIPPI
N O. 2012-CT-01793-SCT CONSOLIDATED WITH:
N O. 2010-CT-00307-SCT CHERRI R. PORTER

v. GRAND CASINO OF MISSISSIPPI, INC.- BILOXI, STATE FARM FIRE AND CASUALTY COMPANY

, AND MAX MULLINS ON WRIT OF CERTIORARI DATE OF JUDGMENT: 09/25/2012 TRIAL JUDGE: HON. LAW RENCE PAUL BOURGEOIS, JR. COURT FROM W HICH APPEALED: HARRISON COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: JAMES ELDRED RENFROE ROY J. PERILLOUX ATTORNEYS FOR APPELLEES: VINCENT J. CASTIGLIOLA, JR. JOHN PATRICK KAVANAGH, JR. KASEE GARNET SPARKS HEISTERHAGEN NATURE OF THE CASE: CIVIL - INSURANCE DISPOSITION: AFFIRMED - 01/07/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: EN BANC. KING, JUSTICE, FOR THE COURT: ¶1. Cherri Porter’s b e a c h f ront vacation h om e was com p letely destroy ed during Hurricane Katrina. P orter c laim ed the destruction was the result of a b arge, owned b y Grand Casino of Mississippi, Inc.–Biloxi ( Grand Casino), breaking f ree f rom its m oorings and a lliding with her hom e. Because Porter’s all-risk insurance policy excluded f rom coverage d am age causedby water or windstorm , State Farm Fire and Casualty C o m pany ( State Farm ) denied Porter’s claim

. Porter f

iled suit a gainst the insurance agent who m aintained the policy , Max Mullins, against State Farm , and against Grand Casino. The trial c ourt granted s um m a r y judgm ent in f avor o f each def

endant, and the Court of

Appeals af

f irm e d. Porter f

iled a petition f

or writ of certiorari claim ing genuine issues of f act existed as to each def

endant, and we granted her petition. FACTS AND PROCEDURAL HISTORY ¶2. The pertinent f

acts can be taken f

r om the Court of

Appeals opinion:
Po r t e r ’ s hom e on East Beach Boulevard, Biloxi, Mississippi, was destroy ed during Hurricane Katrina. According to Porter, the destruction o ccurred when the barge operated b y Grand Casino o f M i s s issippi, Inc.–Biloxi cam e loose f rom its m oorings and allided with her hom e. Porter m ade a claim under her “all-risk” hom eowner’s insurance policy with State Farm Fire and Casualty Com p any . But her policy e xpressly excluded loss caused by wind or w ater dam age—as well as “loss [ that] would n ot have occurred in the absence of [ an] excluded event[ ].” Because any loss caused by the barge wou l d n ot have occurred in t he absence of an excluded event—specif

i cally the f

l ood o f storm s urge that broke Grand Casino’s barge f rom its m oorings—State Farm denied coverage.
Porter sued State Farm f or bad-f aith denial of co v e r a g e and negligence in issuing her policy

. She included a claim against State Farm agent Max Mullins, alleging Mullins negl i g ently issued her a substandard p olicy a nd violated sta tutory trade practices. P orter also nam ed Grand Casino as a def endant, alleging i t had b een n egligent in its design a n d m aintenance of the barge’s m ooring sy stem

. In 2 009, State Farm and Mullins succeeded in h aving the claim s against them dism i ssed on sum m ary judgm ent. Porter had adm itted there w a s n o other explanation f

or t he barge’s m ovem ent other than the f o rces of wind and water. Because the policy c learly and unam biguously excluded loss caused by water, the trial c ourt f

o und S t a t e F a r m was entitled to a judgm ent in its f a vor. A nd since Mullins had never m ade contrary representations to Porter, the trial judge

2f

ound Mullins was also entitled to a judgm ent in his f avor. Porter appealed. But because the g rant of sum m a ry j udgm ent in State Farm ’s and Mullins’s f

avor was n ot a f

inal j u d gm ent, as it l ef

t pending t he claim s against Grand Casino, t he Mississippi Suprem e Court dism issed the appeal.

.

. . In 2012, the Grand Casino was also g ranted sum m ary judgm ent in its f a v or. .

. . . The c i r c u i t c o u rt f

ound Porter could not establish a jury question over whether G rand Casino f ailed to m eet [ its] duty

. The undis p u t e d evidence showed the saf

ety m easures Grand Casino took w ere d esigned to withstand a hurricane equaling in severity the worst hurricane then on record. . . .
W i th al l c l a i ms against a ll def endants disposed o f

, b oth t he 2009 and 2012 sum m ary -judgm ent o rders becam e f inal and appealable. See M.R.C.P. 5 6(b). Porter tim e ly

appealed both judgm ents. Porter v. Grand Casino of Mississippi, Inc.-Biloxi , 138 So. 3d 952 (Miss. Ct. App. May 13, 2014). Af ter the Court of Appeals denied Porter’s m o tion f o r rehearing, Porter f

iled a petition f or writ of certiorari with this Court. ¶3. Caesars E ntertainm ent Operating Com pany , Inc., i n c l u d i n g i t s a ffi l i ate Grand Casinos of Mississippi, I nc., f

i led f or relief under Chapter 11 of the B an k r u p t c y C o de with the Bankruptcy Court f

or the Northern District o f I llinois. On March 25, 2015, this Court stay ed the appeal pursuant to 11 U

. S

. C

. § 362(a). On October 2, 2015, Grand C asino and Porter entered an agreed order to lif t the stay f or purposes of

this appeal. DISCUSSION ¶4. A trial c ourt’s grant or denial of sum m ary judgm ent is reviewed de novo. Eli Invs., LLC v. Silver Slipper Casino V enture, LLC

, 118 So. 3d 151, 154 (Miss. 2013). Sum m ary judgm ent is proper “if the pleadings, depositions, answers to interrogatories and adm issions

on f ile, together w i t h t h e af

f i davits, if any , show that there i s no g enuine i ssue as to any

3m aterial f

act and that the m oving party is e ntitled to a j udgm ent as a m atter of law.” M.R.C.P. 56(c). The evidence is v iewed in the light m ost f avorable to the opposing party

. Id. T he party opposing the m otion m

ust be diligent and, by

allegations or denials, m

ust s et f o rth specif

ic f acts showing there are genuine issues f o r trial. Davis v. Hoss , 869 So. 2d 397, 401 (Miss. 2004). I. State Farm ¶5. The interpretation of an insurance p olicy is a q uestion of law. Corban v. U nited Servs. Auto. Ass’n , 20 So. 3 d 6 01, 609 (Miss. 2009) (citations om itted). Insurance policies are interpreted and c onstrued liberally in f avor of the i nsured. J & W Foods Corp. v. S tate Farm
Mut. Auto. Ins. Co. , 723 So. 2d 550, 552 (Miss. 1998). I f the words of an insurance policy

are clear and unam

biguous, they m

ust be interpreted a s written. United States Fid. & Guar. Co. v. Martin , 998 So. 2d 956, 963 (Miss. 2008). ¶6. Porter had an all-risk hom e owner’s insurance policy with State Farm , which covered all risks except those s pecif ically excluded u nder the policy

. S ee Jef f rey Jackson, M

ississippi Insurance Law and Practice § 15:17 (201 4 )

. Porter contends t hat State Farm denied her claim in bad f aith, arguing that t he barge was the true cause of the destruction of

her hom e and, because loss f

rom debris is not specif

ically excluded in her i nsurance policy , S tate Farm should have covered the loss. However, Porter’s insurance policy clearly stated:
We d o n o t insure under any c overage f or any loss which would not have occurred in t he absence of one or m ore of the f ollowing excluded e vents.

. . . W a ter Dam age, m eaning: (1) f l ood, surf ace water, waves, tidal water, tsunam i, seiche, overf

low of a body of water, or spray f rom any o f these, a ll whether driven by wind or not. . . .

4The insurance p o l i cy additionally excluded “ loss r esulting directly or indirectly f rom windstorm

or hail.” ¶7. I n C

o r b a n , t h e h o me owner’s i nsurance policy excluded loss caused di r e c t l y o r indirectly by water dam age but covered l oss caused b y wind dam age. Corban , 20 So. 3d 601, 616 (Miss. 2009). Hurricane Katrina dam aged t he insured’s h o m e , and t he insurance

com pany denied coverage because the policy excluded dam age caused by f lood and because the policy contained an anticoncurrent cause (ACC) clause which e xc l u d e d loss caused directly or indirectly by f lood, “regardless of a n y o t her cause or event contributing concurrently or in any sequence to the loss.” I d. at 612. This C ourt f

ound that “wind dam age that pr e c e d e s t he arrival of the storm surge and dam a ge that happens a f t er the storm surge arrives are separate losses f rom separate causes. . . .” Id. a t 617 (quoting D ickinson v. Nationwide Mut. Fire Ins. Co. , 2008 W L 1 9 1 3 9 5 7, * 6 (S.D. M iss. April 25, 2008)). The wind dam age, a c overed l oss, was not caused directly or i ndirectly by the s t o rm surge; theref ore, this C ourt rem anded the case to allow a j ury to determ ine which l osses were caused by wind and which losses were caused by f lood. Id. ¶8. The instant c ase is distinguishable. Under P orter’s policy , State Farm excluded f rom
coverage both l oss caused b y wind dam age and loss caused b y water dama g e . A l t h o u gh Porter’s policy does include an ACC clause, t he p olicy f irst unam biguously states that any loss t hat would not have occurred absent water dam age i s not covered. Porter argues that the expert af f idavit s he produced specif ically states that the hom e was destroy ed by the barge and

not by any other m eans. Yet t he barge, without any other m eans, could n ot h ave allided with

5Porter’s hom e. I t is illogical to interpret the language “we do not insure under any coverage

f or any loss which would n ot h ave occurred i n the absence of

. . . [ w]ater dam age” to m ean that debris in a storm surge, which indisputably i s an uncovered loss, would be c overed when

water caused the debris to allide with the property

. (Em phasis added.) Loss f

rom w aterborne debris cannot occur in the absence of water. ¶9. Further, the insurance policy ’s ACC clause states, “[ w]e do not insure f or such loss regardless of

: . . . wh e t h e r other causes acted concurrently or in any sequence with the excluded event t o produce the loss. . . .” Unlike the wind dam age in Corban , the barge did

not act independently to cause loss, but instead operated in conjunction with the storm surge
to dam age Porter’s hom e. The applicat i o n o f the ACC clause d oes not provide a genuine issue of f act. ¶10. Porter additionally a rgues that there is am b iguity b ecause the policy covers loss f rom im p act b y a v e h i c le, and that the barge becam e a v ehicle when it broke f ree f rom its

m oorings. This provision, u n d e r c o v e r a g e fo r personal property , expressly states that vehicles

are insured, “except as provided in Section 1 - Losses Not Insured.” Section 1 e xcludes f rom
coverage loss that would not have occurred in the absence of water. The plain l anguage of the policy states that loss which would not have occurred in the absence of water dam age is

not covered. Even in construing the language i n f avor of Porter, t his is n ot am biguous. The barge was not an independent c ause but worked in conjunction with the storm surge to allide with Porter’s hom e, and the l oss of the propert y w o u ld not have occurred absent water d a ma ge. Thus, the loss unam biguously was not covered u nder Porter’s all-risk policy , an d

6this issue cannot survive sum m ary judgm ent. II. Max Mullins ¶11. On certiorari, Porter d id not argue any error r egarding the claim s against Mullins. “If

an appellant f

ails t o support h e r. . . allegation of error with argum ent or authority , this Court need not consider the issue.” Christm as v. State , 10 S o. 3d 4 13, 423 (Miss. 2009) (quoting Pier re v . State , 607 S o. 2d 43, 48 (Miss. 1992)).Theref o re, the issue i s considered abandoned, and this Court need not address it. III. Grand Casino ¶12. Porter next contends that Grand Casino was negligent in m ooring its barge and that the b arge was t he proxim ate cause of the destruction of her hom e . T h e e l e ments of negligence are well-establish e d : d u t y or standard of care, breach of that d uty or standard, proxim ate causation, and dam ages or injury

. Lyle v. Mladnich , 584 So. 2d 397, 399 (Miss. 1991). ¶13. It is undisputed that Grand Casino owed a duty to property owners in close proxim ity to take reasonable m e asures to prevent f o reseeable injuries in the event of a hurricane. See Eli Invs., LLC v

. Silver Slipper C

asino V enture, L LC

, 118 So. 3d 151 (Miss. 2013); Bay Point H igh and Dry, LLC v. New Palace Casino, LLC , 46 So. 3d 821, 824 (Miss. Ct. App. 2010). This Court next looks to determ ine whether Porter e stablished a genuine issue of f act as to whether Grand Casino breached this duty

. ¶14. Porter argues t hat the i nstant case is com parable to Eli , in which this Court reversed

sum m ary judgm ent because af f idavits produced by e a c h p a r ty established a b attle of the

7experts a nd created genuine issues of f act. E li , 118 So. 3d at 155. Af

ter a casino b arge was
torn f rom its m oorings during Hurricane Katrina and allided with a hotel owned by Eli, Eli f iled suit and produced an expert af f idavit in answer to sum m ary j udgm ent, s t a t i n g t h at Hurricane Katrina’s storm surge was f oreseeable in light of

prior storm

history

. Id. at 153, 155. The a f

f idavit was supported by statistics citing storm s with s urges greater t han f if teen f eet prior t o Katrina. Id. The casino provided an af f idavit f rom a n expert who opined that the casino w as adequately mo o r ed to com ply with licensing regulations and that the barge did

not break f

ree f rom its m o orings until storm surge reached higher than f if teen f e et. Id. This Court held that t here was a g enuine issue of f act as to whether the casino h a d b r e ached its duty a n d reversed sum m ary judgm ent. Id. at 156. ¶15. In contrast, t he Court of Appeals in Bay P o i n t a f f irm ed sum m ary judgm ent af ter f inding that the expert af

f idavits f ailed to establish a m aterial issue of f act as t o whether the casino had b reached its duty when the ba r g e c a m e l o o s e f rom its m oorings and struck a

m arina. Bay Point , 46 So. 3d at 827. The casino produced an expert af f idavit stating that the barge was m o ored in a m anner t hat exceeded r egulation standards. I d. at 824, 825. Bay Point’s expert acknowledged that the designs m et r egulation standards b ut suggested that the standards should be doubled. Id. a t 825. Bay Point argued that the c asino had f ailed to take additional m easures t o prevent the barge f rom c o m ing loose. I

d. T h e c asino subm itted a report stating that Hurricane Katrina f ar exceeded Hurricane Cam i lle in dam age to property and p roduced a storm surge eight t o ten f eet higher than C am ille’s. Id. at 825, 826. The court f ound that there was no genuine issue of m aterial f a c t beca u se the c asino h ad produced

8evidence that Hurricane Katrina was unf oreseeable and that t he casino h ad taken r easonable

m easures to prevent f

oreseeable injuries in the event of a hurricane. Id. at 826. ¶16. H e r e , t o p r o v e G rand Casino m et i ts duty to take r easonable m easures to preve n t f o r e s e e able injuries, Grand Casino provided the a f f idavits of two experts stating that the casino had exceeded the Com m iss i o n ’ s l i c ensing regulations by m ooring the barge to withstand seventeen-f

oot tidal surges. Porter did not provide an af f idav i t f rom a

m eteorologist s t ating that a s torm surge of m ore than f if teen f eet was f oreseeable. Although Porter’s sole expert stated that n o evidence w as produced that G rand Casino had perf orm ed annual structural i nspections on the m oorings, he did not opine that the barge had been torn f ree f rom its m oorings as a result. He also did not take the position that the barge cam e loose bef ore the tidal surge reached f i f teen f e et. Porter’s expert m erely concluded that no heavy

storm m ooring plan was subm itted, and the absence of a plan is a deviance f rom custom ary practice. 1 However, a gain, there was no contention that a heavy storm m ooring p lan would have prevented the casino f rom com i ng unm oored during Hurricane Katrina.

1 P o rter’s ex p ert af

f id av it stated : [ I] w as ask ed to rev iew th e an n u al in sp ectio n s an d h eav y s to r m m o o rin g p lan o f th is D ef en d an t. . . . [ I] t is m y e x p ert o p in i o n th at n o ev id en ce t h a t a n y an n u al stru c tu ral in sp ectio n s w ere p erf

o rm ed o n an y m arin e stru ctu res in clu d in g b u t n o t lim ited to , b reastin g d o lp h in s, m o o rin g d o lp h in s, b o l l a r ds , m onopol e s , fl oa tin g d o c k s, cells an d o t h er m o o rin g d ev ices. T h at n o h eav y

sto rm m o o r in g p lan w as su b m itted b y th is D e f e n d an t an d th e ab sen ce o f

a p lan is a d ev ian ce f

ro m th e cu sto m ary p ractice.
P o rter’s ex p ert d id n o t state t h at th e ab sen ce o f ev id en ce o f stru c tu ral in s p ectio n s o r th e lack o f su b m issio n o f a h eav y s to rm m o o rin g p lan c o n trib u ted to th e b arg e b reak in g aw ay f ro m its m o o rin g s o r th at G ran d C asin o w as n e g lig en t in m ain tain in g its m o o r in g s. 9¶17. Porter did n ot establish a battle of the e xperts. A n expert af f idavit c o ncluding that no evidence w as produced showing annual s tructural inspections or a heavy storm m ooring plan f ails t o establish an issue of m a terial f act a s to whether Grand Ca s i n o breached its duty to Porter to take r easonable m easures to prevent f oreseeab l e i njury

. T heref ore, sum m ary judgm ent was appropriate on this issue. CONCLUSION ¶18. B e c a

u s e P o r t e r ’ s a l l

- r i s k i n s u

r a n c e p o l i c y unam

biguously excluded fr o m c o v e r a g e l o s s that w ould not have occurred absent water dam age, no genuine issue of m aterial f act existed

as to Porter’s b a d- f

a ith denial o f coverage claim against State Farm

. Additionally , Porter f ailed to produce suf

f icient evidence s howing a genuine i s sue of f a ct as to whether Grand Casino b reached its duty t o take reasonable m easures to prevent f oreseeable i n

j u ry . W e af f irm the decisions of

the trial court and of

the Court of

Appeals as to all issues. ¶ 19. AFFIRMED. WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, PIE R C E AND COLEMAN, JJ., CONCUR. KITCHENS , J . , D ISSENTS WITH SEPARATE WRITTEN OPINION. MAX W ELL, J., NOT PARTICIPATING. KITCHENS, JUSTICE, DISSENTING: ¶20. B e c a u s e C h e r r i P o rter’s hom eowners’ insurance policy provided coverage f or a barge’s crashing into h e r h om e and the q uestion of whether a storm such as Hurricane Katrina was f

oreseeable is a n issue of m aterial f a c t best lef

t f or determ ination by a jury , I respectf ully dissent.
I. Cherri Porter’s hom eow ners’ i nsurance p olicy provided coverage for the event of a barge alliding w i th her house.

1 0¶21. The int e r p r e t a t i o n o f an insurance policy i s a question of law which we review de

novo . N oxubee Cty. Sch. Dist. v. U nited Nat’l Ins. C

o. , 883 So. 2d 1159, 1166 (Miss. 2004). ¶22. W h en i nterpreting i nsurance contracts, “[ e]xclusions and lim itations o n coverage are . . . construed in f

avor of the insured. Language in exclusionary clauses m

u st be ‘clear and

unm istakable,’ a s those c lauses are strictly i nterpreted.” United States Fid. & Guar. Co. v. Martin , 998 So. 2d 956, 963 (Miss. 2008) (internal citations om itted). ¶23. P o r t e r c o n t r a c t e d with State F arm Fire and Casualty Com pany f or a n a l l

- r i s k hom eowners’ insurance policy

. This policy covered all risks or p erils, unless the risk was specif ically excluded. State Farm cont e n d s t h a t t h e f ollowing provision excluded the dam age caused by a barge that crashed into Porter’s hom e: “W e d o not insure under any c overage f or
any loss which would not have occurred in the absence of

. . . W ater D am age, m eaning: . .

. f lood, s urf ace water, waves, tidal water, tsunam i, seiche, overf low o f a b ody of water, or
spray f rom any of these, whether driven by wind or not[ .]” ¶24. In Corban v. United Services Autom obile Association , 20 So. 3d 601 (Miss. 2009), the C orbans f

iled suit against United Services Autom obile Association (USAA), arguing that
U S A A f r a udulently denied their claim s based on dam age that their hom e had sustai n e d d u r i n g H u r r i c a n e K a t r ina. Their hom eowners’ insurance p olicy excluded l osses due to “wate r dam ages,” and c ontained an “ anticoncurrent cause ” ( “ A C C ” ) p r o v i s i o n . T h e p o l i c y , h o w e v e r , did not contain an exclusion f or dam ages caused by

wind. ¶25. In response to USAA’s m otion f or sum m ary j udgm ent, the circuit c ourt f ound that the policy “bars coverage f

o r water dam age and only the water d am age, whether occurring alone

1 1or in any

order with another cause.” Id. at 612. ¶26. This Court considered the ACC provision and f ound a jury

question, reasoning: [ T]he f acts p resented in the case sub judice do not reveal a claim by either party that a n indivisible f orce (wind and f

lood), occurring at the sam e tim e, caused direct phy s ical dam age resulting in sim ultaneous loss to the property

. Based upon the record as it now stands, and as presented by both parties, the subject perils acted in s equence, not concurrently , i.e., at dif f e r ent tim es, causing dif

f erent dam age, resulting in separate losses. I t is o nly when the t wo perils c onverge at the sam e point in tim e , contem poraneously and operating in conjunction , t h at there is a “concurrent” cause or e vent. If the wind peril causes dam age resulting in a loss either bef ore or af ter the water p eril ( “f

lood”) causes dam age resulting in a loss, t he losses a re not “concurrent.” O n l y if it can be proven that the perils (wind and f lood) contem

poraneously converged, operating in conjunction t o cause l oss, that the “concurrent” provision will apply . In that circum s tance, the policy clearly excludes coverage.

. . . Based on the evidence thus f ar presented, t he sam e loss with m u ltiple causes is not at issue h ere. Thus, a f inder of f act m u st determ ine what losses, if any , were caused by wind , a nd what losses, if any , were caused by f lood. If the property suf

f ered dam age f

rom wind, and sep a r a tely was dam aged by f l ood, the insured i s e ntitled to be com pensated f

or those losses caused b y wind. Any loss caused by

“[ f lood] dam age” is excluded. Id. at 6 14-15, 616; see also Robi c h a u x v . Nationwide Mut. Fire Ins. Co. , 81 So. 3d 1030 (Miss. 2011) (holding that sum m ary judgm ent was im pro p e r b e cause genuine issues of

m aterial f

act rem ained with respect t o whether structures a n d p e r s o n al property were dam aged by

wind prior to the storm surge). ¶27. In the present case, the insurance policy contained the f ollowing A CC clause: “[ w]e do not insure f

or such loss regardless of : . . . whether other causes acted concurrently or in
any sequence with the excluded event to produce t he l oss.” Porter has adduc e d p r o o f t hat the d am age to her hom e was not f rom f looding b ut instead f

rom the c ollision of Grand Casino’s b arge w i t h h e r house. The violent c o llision of an oceangoing barge w ith one’s

1 2house does n ot f it any reasonable def

inition of “water dam age” under the policy at hand or under a n y com m only understood def i nitio n o f “water dam age.” C onsistent with our determ inations in Corban and Robichaux that there was a genuine issue of m aterial f act f or

a jury to determ ine whether the dam age to the those policy h olders’ hom es w a s caused by wind or water, a jury in this case should b e t r u s t e d t o a scertain the dif f erence between dam age caused by water and d a m age caused b y a vessel’s crashing into an insu r e d’s residence. Clearly , this is a genuine issue of m aterial f act that is appropriate f

or resolution by a jury

. II. Whether G rand Casino w as negligent in m ooring i ts casino barge and failed to p revent foreseeable dam ages in the event of a hurricane is a question of fact w hich is best left for determ ination by a jury . ¶28. The C ircuit Court of the Second Judicial D i s t r i c t o f H a r rison County granted sum m ary judgm ent in f

avor of Grand Casino, f

inding that the storm surge f rom Hurricane Katrina was unf oreseeable and an “Act of God.” ¶29. In reviewing a lowe r c o u r t ’ s g r a n t of sum m ary judgm ent, this Court e m ploy s a de

novo standard of

review. Anglado v. Leaf River Forest Prods ., 716 So. 2d 543, 5 47 (¶ 13) (Miss. 1998). Rule 56 o f t h e Rules of C ivil P rocedure provides the basis f or sum m ary judgm ent: The judgm ent sought shall be rendered f orthwith if the pleadings, d epositions, answers to interrogatories and adm issions on f i le, together with the af

f idavits, if any , show that there i s no genuine issue as to any m a terial f act and that the m oving party

is entitled to judgm ent as a m atter of law. ¶30. This Court w ill consider all of the evidence bef o r e t h e t r i a l court in the light m ost

1 3f

avorable to the nonm oving party

. Palm er v . A n d e r son Infirm ary Benevolent Ass’n , 656 So. 2d 790, 794 (Miss. 1995). ¶31. To succeed on a claim f or negligence, the plaintif f m ust prove duty , breach, causation and injury

. Meena v. Wilburn , 603 So. 2d 866, 869 (Miss. 1992). ¶32. The m aj o r i t y d e c l a r es that Grand Casino “owed a duty to property owners in close proxim ity to take r easonable m easures t o prevent f oreseeable i n

j uries in the event of a h u r r i cane.” The m ajority goes on to f ind, however, that t he h arm in this case, t h e G r a n d C a s i n o barge’s com ing unm oored during the storm surge and striking Porter’s house, wa s unf oreseeable. ¶33. U nder our well-established precedent, f o r a person or entity to be l iable f or another’s injury , the cause of injury m ust be of such character and done under such circum s tances that the actor reasonably should have anticipated som e injury as a probabl e r e s u l t

. Mauney v. Gulf Ref. Co. , 193 Miss. 421, 9 So. 2d 780, 7 81 (1942). Stated dif f erently , f or a party to be liable, t he injury m

ust be a f oreseeable result of negligent conduct. See id. T his Court has adopted a broad def

inition of foreseeability , holding sim p ly that things are f

oreseeable if they

are “ not unf

oreseeable.” Billups Petroleum Co. v. Entrekin , 2 09 Miss. 302, 3 13, 46 So. 2d 781, 784 ( 1950) (“It i s n o def e nse that the liability is seen to extend b ey ond t he risk.

. . . The

test is not alway s whether an intervening or act i v a t i n g c a u s e is f o reseeable if it be not unf oreseeable.”). This Court has expressly rejected the argum ent that there is n o negligence bec a u s e t h e injury rarely occurs, or never bef ore occurred. Gulf Ref. Co. v. William s , 183 Miss. 723, 185 So. 234, 235 (1938) (citing Crawford v . C ity of Meridian , 174 Miss. 875, 165

1 4So. 612 (1936)). W ith regard to f oreseeability , the “inquiry is n ot whether the thing is to be f oreseen or anticipated a s one which will probably happen,

. . . but w hether it is like ly to happen, even though the likelihood m ay not b e suf f icient t o am ount to a c o mp a r a t i v e
pro b a b i l i t y .” William s , 185 So. at 236. This C ourt also h as held that def endants “cannot
escape liability because a particular injury could not be f oreseen, if some injury o ught to have be e n r e a s o nably anticipated.” Delta Elec. Power Ass’n v. Burton , 240 Miss. 209, 126 So. 2d 258, 261 (1961) (em

phasis added). ¶34. Foreseeability i s r e l e v a n t t o b o t h t h e d u t y a nd proxim ate cause elem ents of a negligence claim

. Rein v. B enchm ark Constr. Co. , 8 65 So. 2 d 1134, 1 143 (Miss. 2004). The dif f erence between def

ining the issue of f

oreseeability a s one of duty or of proxim ate cause is the standard of review that we apply

. Id. We r e v i e w questions of duty de novo because duty is a m atter of law; but we review f orseeability a s it relates to p roxim ate causation under

a clearly e rroneous standard, because it generally is c onsidered an issue of f act that is best decided by

a jury

. Id. ¶35. Here it i s indisputable that Grand C a s i n o h a d a l e g a l d u t y t o p r o tect against f oreseeable dam ages in the event of a hurricane. ¶36. Turning to the elem ent of breach, Porter argues that Grand C asino breached its duty

to protect ag a i n s t f

o r e s e e able dam ages in the event of a h urricane b y allowing i ts barge to

com e unm oored f

r om its dock during Hurricane Katrina. This Court has addressed alm ost identical f

acts to the ones in this case in E li Investm ents, LLC v. S i l v e r S l i p per Casino
V enture, LLC

, 118 S o. 3d 151 (Miss. 2013). In that case, Eli Investm e n t s s ued Silver

1 5Slipper Casino Venture and Si l ver Slipper Gam bling (collectively “Silver Slipper”), and Broadwater Developm ent to recover dam ages that bef ell Eli’s hotel when Silver Slipper’s casino cra s h ed into it d

uring Hurricane Katrina. Id. a t 152. The trial c ourt granted Silver Slipper’s and B roadwater ’ s m o tions f or sum m a ry judgm e n t, f

i nding that Hurricane Katrina’s

storm s urge was unf

oreseeable. Id. at 153-54. This Court disagreed, f inding that “that Eli has of f ered suf f icient proof to c reate a genuine d ispute of m aterial f act r egarding Silver Slipper’s breach of its duty to take reasonable precautions to p rotect those in close p roxim ity to the . . . Casino during Hurricane Katrina.” Id. at 155. ¶37. P o r

t e r h a s produced evidence that Grand C asino had not p erf orm ed m andat o r

y , a n n u a l saf ety inspections o n its m ooring sy stem and that Grand C asino did not have a heavy -storm

m ooring plan, which was a d eviation f rom c ustom ary practice. However, the gravam en of Porter’s com

plaint a lleges a cause of action under t he d octrine o f sic utere t uo ut alienum non laedas , or the o bligation to use one’s p roperty in s u ch a m a nner that it does not disturb others. See Southland Co. v. Aaron , 221 Miss. 5 9, 72 So. 2d 161, 166 (1954). N egligence,

as pled in P o r t e r ’ s com

plaint, is used in the broad s ense of lack of d ue care in the use and

care of Grand Casino’s property

. If Grand Casino had a duty of due care in the m a intenance of its p roperty , particularly t o prevent f o reseeable dam ages in the event of a hurricane, and its barge becam e unm oored during the course of Hurricane K atrina, t here necessarily exists

a q u estion of f

act regarding whether Grand Casino breached i ts duty o f c are. T hus, Porter has alleged suf

f i cient f acts t o establish a genuine issue of m aterial f act regarding whether Grand Casino breached its duty

of care.

1 6¶38. Grand Casino has produced af f idavits f rom t wo experts who aver that G rand Casino took reasonable m e asures to prevent f oreseeable injuries because i t h ad exceeded the Mississippi Gam ing Com m ission’s regulations by m ooring its barge so that the barge could withstand a seventeen-f

oot-high storm surge. H owever, in Eli Investm e nts , we held that “alleged c om

pliance with Gam ing Com m ission [ m ooring-related] regulations does not
autom atically shield [ casinos] f rom liability .” Eli Investm ents , 118 So. 2d at 1 55. “ [ S]tate boards a nd com m is s i o n s a r e creatures of statute and have n o powers other t han those delegated to [ them ] by

the Legislature.” Howard v . Estate of Harper , 947 So. 2d 854, 859 (Miss. 2006) (citin g M

a s o n ite Corp. v. State Oil & Gas Bd. , 2 40 So. 2d 446, 449 (Miss. 1970)). I n Eli , we f

ound that the Gam ing Com m ission’s m ooring-related regulations were “enacted m erely as a condition of li c e n s u r e, not as a conclusive s tandard of care f or all casinos in all circum stan c es.” Eli , 118 So. 3d at 155. Theref ore, by producing expert af f idavits say ing that Gr a

nd Casino had exceeded Gam ing Com m ission m ooring regulations, Grand Casino has not p roven that it satisf ied i ts duty to prevent f

oreseeable dam a ges in the event of a hurricane. ¶39. So our analy sis turns to whether Hurricane Katrina was an event extrem e enough to qualif y i t as an Act o f God, th e r e b y r e l i e v ing Grand Casino o f liability

. The Act of God def ense is an af

f irm ative def

ense to the elem ent of causation. “ N o one is liable f or an injury proxim ately caused by an act o f God[ .]” City of Jackson v. Brum m ett , 224 Miss. 501, 80 So. 2d 827, 829 (1955). An Act of God is an injury due exclusively to f orces of nature, without hum an intervention, which c o uld not have been prevented by the use of due care and

1 7reasonable f oresight. Id. The Act of God def ense applies to “events in nature so extraordinary that the history of clim atic variations and other conditions in the particular locality af f ords

no reasonable warning of t hem

. ” McFarland v. Entergy Mississippi, Inc. , 919 So. 2d 894, 904 ( Miss. 2006). However, an injury which could have been prevented t hrough the use of ordinary care i s not an Act of God which would absolve the tortf easor of liability

. City of Hattiesburg v. Hillm an , 222 Miss. 443, 76 So. 2d 368, 370 (1954). ¶40. Porter has produced evidence that Hurricane Katrina was a Category Three hurricane which caused a storm surge of twenty -one to twenty -f i ve f eet and that m

ultiple storm s have hit the Gulf Coast with com parable s torm surges: Hurricane Andrew ( seventeen f eet storm surge), H urricane Opal (twenty f eet storm s urge), Hurricane Ivan (f i f teen f eet storm surge), and Hurricane Cam ille (twenty -f ive f eet storm surge). Although an i ssue of f act exists about whether H urricane Katrina was an unprecedented event in term s of its destructiveness, it is unreasonable to suggest, as a m atter of law, that a Cat e g o r y Three hurricane’s hitting the Mississippi G ulf Coast was unf oreseeable. Porter has p resented suf f icient evidence to create

a g enuine issue of m aterial f act regarding w h ether, through the use of ordinary care, Grand Casino could h ave avoided its barge’s com ing unm oored d uring H urricane Katrina. Donald

v. Am oco Prod. Co. , 735 So. 2d 161, 174 (Miss. 1 999) (“W hile d uty a n d c a u s a t i o n both involve f oreseeability , duty is an issue of l a w , a n d c a usation is g enerally a m atter f or the jury .”). ¶41. Finally , Grand Casino’s barge f orcef ully struck Porter’s hom e, causing dam ages. ¶42. Ultim ately , P orter has articulated a prima facie c l aim that Grand Casino was negligent

1 8in f

a i ling to m oor its barge so as to ensure it would rem a in m oored during a hurricane, and this case should be subm itted to a jury

. CONCLUSION ¶43. In sum m ary , a loo s e b a r g e ’ s d e s t r u c t i o n o f a n o n s h o r e dwelling i s not f airly characterized as “water dam age” under t he term s o f Porter’s hom eowners’ insurance policy

. Further, Grand Casino had a duty to prevent f o reseeable dam ages in t he event of a hurricane.
W h ether H urricane Katrina was su ch an unf oreseeable circum s tance t hat Grand Casino is relieved o f liability is a question of f act f or t he jury to decide, not a question of law f or this Court’s resolution. I respectf ully dissent.

1 9