IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2014-CA-00372-COA THE ESTATE OF SYLVIA F. MINOR AND PAUL S. MINOR APPELLANTS

v. UNITED SERVICES AUTOMOBILE ASSOCIATION APPELLEE DATE OF JUDGMENT: 09/20/2013 TRIAL JUDGE: HON. RICHARD TODD BENNETT COURT FROM W HICH APPEALED: JACKSON COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANTS: F. GERALD MAPLES W

. CORBAN GUNN CHUCK R. MCRAE SETH C. LITTLE ATTORNEYS FOR APPELLEE: CHARLES G. COPELAND W A LKER REECE GIBSON REBECCA SUZANNE BLUNDEN TIMOTHY JOHN STERLING NATURE OF THE CASE: CIVIL - INSURANCE TRIAL COURT DISPOSITION: JURY VERDICT OF $1,547,293.37 IN FAVOR OF APPELLANTS; PARTIAL SUMMARY JUDGMENT GRANTED IN FAVOR OF APPELLEE ON ISSUES OF PUNITIVE AND EXTRACONTRACTUAL DAMAGES DISPOSITION: AFFIRMED IN PART; REVERSED AND REMANDED IN PART: 06/27/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC. GRIFFIS, P.J., FOR THE COURT: ¶1. Paul and Sy lvia Minor’s hom e was destr o y e d b y Hurricane Katrina on August 29,
2005. The Minors had a hom eowner’s insurance policy with United Se r vices Autom obileAssocia t i o n (USAA). The policy provided coverage lim its f or: house – $1,028,000, boathouse and shed – $102,800; guest cottage – $ 1 0 8 , 0 0 0 ; detached carport – $41,000; personal p roperty – $771,000; a nd jewelry , watches, f urs, and silverware – $4,000. The policy a lso included a t wo-percent nam ed-storm deductible and covered dam age caused by wind but excluded dam age caused by storm surge or f

l ood. ¶2. The Minors reported their l oss to USAA in January 2006. U SAA assigned adjusters

to i nspect the property and hired a n independent engineering f irm to i nspect the structure to determ ine the extent of d am age a s a result of Hurricane K atrina’s s torm surge or winds.
USAA issued pay

m ents f or t he dam age that it concluded w a s caused by wind and did not pay f or dam a ge it determ ined was caused by storm surge or f

lood. ¶3. The Minors were not s atisf ied with USAA’s pay

m e n ts and claim ed that they suf f ered a total loss caused by wind. The Minors dem anded USAA pay the policy

lim its. ¶4. O n A u g u s t 1 4 , 2008, the M inors f iled a com

p laint in the Circuit C ourt of Jackson County

. The c om

plaint a sked f

o r “m onetary dam ages f

or all losses incurred,” and punitive and extracontractual dam ages due to USAA’s bad-f aith r ef usal t o pay t heir claim f

or benef its under the hom eowner’s policy

. ¶5. On August 9, 2013, USAA served a m otion f o r partial s um m ary judgm ent as to the
M i n ors’ claim s f

o r punitive and extracontractual dam ages. The c ircuit court agreed and granted the m otion. ¶6. The ca s e then w ent t o trial o n all other claim s. A jury returned a v erdict, on Septem ber 20, 2013, in the am ount of $ 1,547,293. 3 7

. Af ter the posttrial m otions were
2denied, the Minors f i led this appeal.
ANALYSIS
I. W hether the circuit court erred b y g ranting the motion for p artial summary judgment on the issue of punitive a nd e xtracontractual damages.
A. Standard of Review ¶7. In Karpinsky v. American National I nsurance Co. , 109 S o . 3 d 8 4, 88-89 (¶¶9-11) (Miss. 2013), the Mississippi Suprem e Court ruled:
I. Standard of Review
W e review t he grant or denial of a m otion f or sum m ary judgm ent de novo, viewing the evidence in the light m ost f avorable to the party against w hom the m otion has been m ade.
II. The Sum m ary

Judgm ent Standard
S u mmary judgm ent is a

ppropriate and shall be r endered if the pleadings, depo s i t i o ns, answers to interrogatories and adm i ssions on f ile, together with the af f idavits, if any , s how that there is no genuine i ssue a s to any m aterial f act and that the m oving party is entitled to judgm ent as a m atter of law. Im portantly , the party opposing sum m ary judgm ent m ay not rest u pon the m ere allegations or denials o f h is pleadings, but his response, by af f idavit or as otherwise provided in this rule, m ust set f orth specif

ic f acts showing that there is a genuine issue f

or trial. If he does not so respond, sum m ary judgm ent, if appropriate, will be entered against him

. This Court has explained that in a sum m ary judgm ent hearing, the burden of producing evidence in support of , or in opposition to, the m o tion is a f unction of Mississippi r

ules regard i n g t h e burden of p roof at t rial on the issues in question. The m ovant bears the burden of persuading the trial j udge that: (1) no genuine issue of m aterial f act exists, and (2) on the basis of the f acts established, he is e ntitl e d t o judgm ent as a m atter o f law. The m o vant bears the burden of production if , at trial, he would bear the b urden of proof on the issue raised. In other words, the m ovant only bears the burden of production where [ h e ] w o u l d bear the burden of proof at trial. Furtherm o re, s um m ary
3j u d gm e nt i s appropriate when the non-m oving party has f ailed to ma k e a showing suf

f icient to establish the existence of an elem ent e s s e n t i a l to the party ’s case, and on which that party will bear the burden of proof at trial. (Internal citations and quotations om itted).

B. USAA’s Motion for Partial Summary Judgment ¶8. USAA served the m otion f or partial sum m ary jud g me n t on the deadline to f ile

m otions set i n the scheduling order. The m o tion was scheduled f or hearing and was rescheduled several tim es. The circuit court heard a r gum ent on the m otion on Septem ber 9 and entered an order granting t he m otion on Septem ber 10, t he sam e day that voir d ire began. Opening statem ents began on Septem ber 11. At the c o nclusion of the trial, the Minors asked the court to reconsider its earlier ruling on the m otion f or partial sum m ary judgm ent, and the court declined. ¶9. USAA’s m otion raised three issues:
1. USAA has had legitim ate and arguable r easons f or handling the Minors’ claim s as it has.
2. USAA never acted w ith m alice, gross n egligence or r eckless disregard f or the Minors’ rights.
3. As a m atter o f law, t he Minors cannot recover extra-contractual dam ages because they cannot pr o v e t hat USAA did not have an arguable basis f

or its actions. ¶10. The Minors’ punitive dam age claim was f or USAA’s a lleged bad-f

a ith f ailure to pay their c laim or its delay in pay m e nt. To prevail, the Minors had to prove that USAA did not have a legitim ate and arguable reason f or how it adjusted and p a i d t h e M i nors’ claim s. According to USAA, the suprem e court has def ined an “arguable reason” as f ollows:

4An arguable reason is one in support of which there is som e credible e vidence.

There m ay well b e evidence t o the contrary

. A person is said to have an arguable reason f

or acting if there is s o m e credible evidence that supports the conclusions on the basis of which he acts. Blue Cross & Blue Shield, Inc. v. Campbell , 466 So. 2d 833, 851 (Miss. 1984). The Court has f urther held:
W e are of the opinion t hat the term “legitim a te or a r guable reason,” although spawning m

uch com m ent in our cases and in brief s and argum ents of counsel, is nothing m ore than an expression i ndicating t h e act or acts of the a lleged tortf easor do not rise t o the heightened level of an indepe n d ent tort. Additionally , the very term expresses the holding of this C ourt establishing a distinction between ordinary torts, the product o f f orgetf u lness, oversight, or the like; and heightened t orts, which are the p r o d u c t o f gross, callous or wanton conduct, or, if intentional, are accom panied by f

raud or deceit.
State Farm Fire & Cas. Co. v. Simpson , 477 So. 2d 242, 250 (Miss. 1985). ¶11. USAA argued that there was no genuine issue as to a m aterial f act in dispute and that it was entitled to a judgm ent as a m atter of law. M.R.C.P. 56(c). T his required that the circuit c o u r t a nd now this Court use the sum m ary -judgm e nt standard to review whether
USAA conducted a tim ely investigation into t he losses, the l oss m echanism s, and t h e M inors’ claim s that arose theref

rom . ¶12. The M in o rs’ property w as signif icantly dam a ged. The M inors did not have f lood insu r a n c e , b u t d i d have a standard hom eowner’s policy

. It contained a water-dam age exclusion that excluded claim s caused by “ f lood, s urf ace water, waves, tidal water, overf low

o f a b o d y of water, or spray f rom any of these, w hether or not d riven by w i nd.” “ S t o r m surge” was contained within the “ water dam age” exclusion. Corban v
. United Servs. Auto.
Ass’n. , 20 So. 3d 6 01, 611 (¶26) (Miss. 2 009) (holding that “ storm surge” is c ontained

5unam

biguously within th e “ water dam age” exclusion of a USAA p olicy , and no other “logical interpretation” exists). During i ts investiga t i o n a n d a d j u s t m ent, USAA s ought to pay the a m ounts that it d eterm ined were owed u nder the policy f or wind-related d am age and not
pay f o r dam age caused by

storm surge. ¶13. USAA explained how it handled the Minors’ claim s. USAA began its investigation af ter t h e M i n o r s reported the claim

. The initial i nvestigation included, b ut was not lim ited

to: a site inspection by a USAA adjuster; discuss i o n s w i t h the Minors, including a request f or an inventory of c ontents; and a n inspection, investigation, and preparation of a report on the loss m echanism s by P T&C, an i ndependent p rof essional engineering f

i r m. USAA specif ically requested that PT&C take the f ollowing action:

a. inspect the structure and

. . . d eterm ine the extent of the d am age as a result of Hurricane Katrina’s storm surge and/or winds, and b. determ ine the f

easibility of repair to the structure as w e l l as the integrity of the structures and f

oundations at the tim e of

PT&C’s inspection.
Af ter inspection, PT&C prepared an assessm ent that concluded:

a. the insured property experienced w i nd-related dam a ge t o the shingles; canopies and/or overhangs; t rim m aterial; window sy stem s; and sof f it and f ascia m aterial around the e a v e s of t he s t ructure as a result of winds, with estim ated speeds above 110 m i les per hour; and b. the r em ainder of the structure was d estroy ed by the estim ated ten (10) f oot storm surge. ¶14. As a r e s u l t o f its investigation a nd the PT&C r eport, USAA adjusted the dwelling/other structures claim and issued a $37,245.86 check to the Minors (which included $2,000 f o r additional l iving expenses). USAA did not subm i t a pay m ent f or the Minors’

6contents claim because it claim ed the Minors had not y et subm itted an inventory

. ¶15. USAA also argues th a t i t r e p eatedly asked the M inors to provide m ore inf orm ation

so U SAA could f

u rther adjust the claim

. Af ter several requests, U SAA a rgues, P aul Minor
f inally subm itted a f

loor plan and several pre-storm photographs of th e house. He also notif ied the USAA adjusters that his house had been e valuated f o r value in the past and that evaluation by vendors f

o r USAA would contain m ore photographs and diagram s. USAA contends it then im m ediately recalled the value evaluations f r om s torage, used the additional
f loor plan and photographs, and reevaluated the estim ates of wind dam a ge based upon this

n e w i n f orm ation. Shortly thereaf ter, USAA updated its original a djustm ent and issue d a supplemental check in the am ount of $194,322.85 f or dam age to the dwelling/other

structures. At this point, USAA had m ade a total dwelling/other structures pay m ent f or wind dam age of

$231,568.71. ¶16. USAA also a rgues t hat the Minors did n ot p resent a contents l ist to USAA u ntil af ter f iling t he com

p laint and in response to discovery . Further, USAA claim ed that t he list did

not give s pecif

ic descriptions of the contents, did not include estim ated purchase p rices, and did not i nclude t he condition of the property

. Nevertheless, USAA eva l u a ted t he contents lists f o r the item s t hat m ay have been dam aged b y wind or windblown r a i n , a n d ma de
pay m ent. ¶17. USAA also a rgued that the Mississippi Suprem e Court decision in United S e r v ices Automobile Association v
. Lisanby , 47 So. 3 d 1172 (Miss. 2010), was “instructive.” USAA asserted t hat, i n L i s a n by , the suprem e court held that USAA had an arguable basis f or its

7denial of a claim

. I d. a t 1 178-79. Thus, USAA argued that the f ollowing f

a cts were suf f i cient f or the Lisanby court to f

ind that USAA had legitim ate and arguable reasons f or its claim s handling:
1. USAA did not arbitrarily declare that the d am age was caused solely by f lood;
2. USAA opened a hom eowners’ claim ; 3. USAA com

pleted its investigation bef ore attributing the m ajority of the dam age to f

lood; and
4. USAA p repared the wind dam a g e e s t im ates af ter receiving the independent engineering report.
In essence, USAA a rgued that t he f acts in this case were t he sam e as in Lisanby ; theref ore, USAA asked the court to f ind that there was n o g e n u i ne issue of a m aterial f act in dispute and USAA was entitled to a judgm ent as a m atter of law. M.R.C.P. 56(c).

C. The Circuit Court’s Findings ¶18. The circuit court agreed with USAA. The court entered an order that f ound: The Minors m a de claim s f or extra-contractual dam ages, including attorney ’s f ees and pun i t i ve dam ages. The undisputed f acts show that USAA had an arguable or reasonable basis f or its claim s decisions. The Mi nors did show credible m aterial proof that USAA did not h ave a r e a sonable or arguable reason to m ake i ts claim s d ecisions. United Servs. A uto. Ass’n v. Lisanby , 47 So. 3d 1172, (Miss. 2010) p rovided this C ourt with the necessary guidance. In Lisanby , the Mississippi Suprem e Court ruled in f avor of USAA on the extracontractual and punitive dam ages claim s based u pon U SA A ’ s sam e claim s h a n d l i n g practices and decisions f or t he s a m e H urricane Katrina. A s a m atter of law, U SAA acted with a n a rguable basis, and w ithout m alice, reckless disregard or gross negligence.
D. This Court’s Analysis

8¶19. A m otion f or sum m ary judgm ent is governed by Mississippi Rule of Civil Procedure 56(c), which provides: The judgm ent sought shall be rendered f orthwith if the pleadings, d epositions, answers t o 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 a judgm ent as a m atter of law. There are two parts to this r ule. First, the court m

ust determi n e t h a t t h e r e i s “no genuine issue as to any m aterial f act.” Id. Sec o n d , t h e court m ust determ ine that the m ovant is “entitled to a judgm ent as a m atter of law.” Id. ¶20. Our review is de novo. B ut we start with the circuit court’s order and consi d e r its
f indings. The order appears to contain an obvious contradiction. ¶21. The circuit court f

ound that “[ t]he undisputed f acts s how t hat U SAA had a n arguable

or r easonable basis f

o r its claim s decisions.” Yet, in the next sentence, the c ourt also f ound

“ [ t ] h e M i n ors did show credible m aterial proof t hat U SAA did not have a reasonable o r arguable reason to m ake its cla im s decisions.” (Em phasis a dded). A s early as Brown v. Credit Center, Inc. , 444 So. 2d 358, 362 (Miss. 1983), the court recognized:
A m otion f

or sum m ary judgm ent lies only where there is no genuine issue of m aterial f act; sum m ary judgm ent i s not a s ubstitute f or the trial of disputed f

act issues. Accordingly , the court cannot try issues of f act on a Rule 56 m otion; it m ay only determ ine whether there are issues to be tried. ¶22. A sum m ary judgm ent m otion requires that t he c i rcuit court and this court consider not

w h ether USAA has presented evidence to prove that it possessed a legitim ate or arg u a b l e bas i s f o r i ts claim s decisions. Instead, we m ust decide whether there is a genuine issue of

a m aterial f

act in d ispute as to whether USAA possessed a l egitim ate or arguable basis f or
9its claim s decisions.

¶23. The circuit c ourt’s f inding t h a t “ [ t ] he M inors did show credible m aterial proof that
USAA did not h a ve a reasonable or arguable reason t o m ake its claim s decisions” leads to the conclusion that this f

inding was and should have been enough to def e at the m otion f

or partial sum m a ry

judgm ent. This f

inding acknowledges that there w a s a genuine issue of a

m aterial f a ct in dispute, which would prohibit the grant of a sum m ary judgm ent under Rule 56(c) of the Mississippi Rules of

Civil Procedure. ¶24. Next, the circuit court relied on Lisanby , to conclude t hat, “[ a]s a m a t t e r of law,
USAA acted with an arguable basis, and without m alice, reckless disrega rd or gross negligence.” Lisanby is indeed “instructive,” but ther e a r e im portant dif

f erences. In Lisanby , the circuit court did not grant a partial sum m ary judgm ent as to punitive o r extracontractual dam ages bef

ore trial. Instead, a f

ter hearing a ll of the evidence presented at trial, the court “declined to subm it the i ssue of punitive dam ages to the jury , but awarded the p laintif f s an additional $302,920.44 in a ttorney s’ f e es and $211,069.47 i n litigation expenses.” Lisanby , 47 So. 3d at 1175 (¶5). ¶25. F urther, the Lisanby court did not rule that USAA’s Hurricane Katrina c l a i m s practices were proper. I nstead, the court m erely af f irm ed the circuit court’s decision to deny
f urther consideration of punitive dam ages because i t f ound: “ [ O]n a

ppeal, the p laintif

f s cite

num erous instances of conduct that they contend s upport a f inding that U SAA acted in bad
f aith. However, m ost of t h e s e a l legations are not supported by the record, and USAA persuasively disputes all of them without response f r o m the plaintif

f s . ” Id. at 1178 (¶19)

1 0(em

phasis added). W e f

ind t hat the circuit court’s f inding that “[ i]n Lisanby , the Mississippi Suprem e Court ruled in f

avor of U SAA on the extra-contractual and p unitive dam ages claim s based upon USAA’s sam e c laim s handling p ractices and decisions f or the sam e Hurricane
K a t rina” was an i ncorrect statem ent of the suprem e court’s r uling in Lisanby

. In f

act, in Lisanby , t he suprem e court held that t he plaintif f s f a iled to present suf

f icient evidence that would allow the punitive- and extracontractual-dam age c l aim s f rom g oing to the jury

. Id.

at 1178-79 (¶¶19-2 4 )

. Hence, t he court af f irm ed the circuit court’s d ecision, af ter hearing evidence at t rial, to deny the plaintif f s a n opportunity to present their punitive-dam age claim and reversed and rendered the award o f attorney ’s f ees and litigation expenses. Id. at 1179 (¶24). Such f

inding does not support the grant of sum m ary judgm ent here. ¶26. Based on our review, we f i nd that there was evidentiary support f o r s e veral issues that would support the Minors’ claim s f or punitive and extracontractual dam ages. W e lim it our discussion to two im

portant issues. ¶27. First, the evidence of USAA’s f ailure to consider the inf

orm a tion that the Minors had provided to USAA in the pre-Katrina underwritin g w a s a genuine issue of m aterial f act in dispute. In paragraph 16 above, we discuss USAA’s contention that “ i t repeatedly requested the Minors t o provide m ore inf orm ation so USAA could f urther a djust the claim ” and then
USAA argued that “af

ter m any requests, Paul Minor

. . . notif ied the USAA adjusters that his house had been evaluated f or value in the past and that evaluat i o n b y vendors f or USAA would contain m ore photographs and diagram s.” ¶28. On at least two occasions bef ore Hurricane Katrina, in 1994 and again in 2001, USAA

1 1sent underwriters to visit the Minors’ property

. The purpose of these visits was f or USAA

to evaluate t h e underwriting risk and determ i ne the a ppropriate prem i um to be charged. Thus, bef ore the storm and the dam age, USAA had a substantial a m ount of inf o rm a tion about the M inors’ property t hat would be, and ultim ately was, usef ul in the a djustm ent of the Minors’ claim s. This w as evidence that USAA h ad detailed inf orm a t i o n i n i t s p ossession
f rom the beginning of the Minors’ claim t h a t i t did n ot use; and h ad USAA used the
inf orm ation in a tim ely m anner, the M inors’ claim s would h ave been paid m u ch sooner. In f act, once USAA used t hi s i n f o r ma t ion, it issued a s upplem ental check f o r d am age to dwelling/other structures. The Minors correctly argue that this inf orm a t ion was at all tim es available to USAA, as it was part of USAA’s corporate records. ¶29. From the tim e the claim was initiated, USAA had in its possession the 1994 and 2001 inspections and appraisal reports that e stablished and set the value o f t he structures and contents; along with detailed d iagram s showing square f ootage of t he h om e, guest house and other structures; in addition to the num erous photograp h s o f these buildings showing the location of all windows ( approxim ately 90) and the unique f loor-to-ceiling glass doors and windows that are 360 degrees around the h ou s e . I n c l u d e d in the appraisal reports were

num erous photographs that depicted the Minors’ personal contents located i n every room in the house and “special f

eatures” that discu s sed the high quality of their personal property , i .e., “antique rugs t hroughout the hom e”; “special m arble”; “f ine arts and e xpensiv e j e w e l r y ” ; and “a collection of

f ine wine” in the wine cellar. ¶30. Also, USAA had an e ngineer’s report e n t ered into i ts I nf orm a tion Managem ent
1 2Sy stem (IMS) b y adjuster Teri B ergstrom that put U SAA on n o t i c e t hat all the window

sy stem s had been dam aged by t h e wind f orces of Katrina, along with her “conf idential” conclusion that this report m a kes U SAA “accountable to replace all the windows and opens”

u p p ay m ent f or “contents in all the room s (the entire house) with windo w s . ” T h e conf idential m em o, which was not entered in the IMS, includ e d a c o m m ent by Bergstrom about what their USAA team leader would think about t he engineer’s w indow observations:
“If we’re pay ing f

or a ll the w indows it would open up contents in a l l the room s with windows. You m ay want t o discuss this with y our te a m leader.” Bergstrom ’s f inal words were, “You know he won’t be happy w/that.” ¶31. Based on this inf

orm ation, i t appears that USAA’s adjuster c oncluded that USAA was accountable to pay f

o r the losses to contents i n the e ntire hom e. Yet USAA d id not m ake a
pay m ent f or l oss of c ontents f

o r a l mo s t f

our y ears, until May 2013, a p proxim a tely three

m onths bef

ore the com m encem ent of the trial, and f or only $67,864.23. ¶32. This is certainly evidence that there is a genuine issue as to a m aterial f a ct i n dispute

as to why USAA h a d e n g ineering inf orm ation in its p ossession, s ince March 2006, that concluded all of the windows in the m ain structure were destroy ed by wind and t hat would

m ake USAA liable f

or all o f the contents in t hose room s; y et no pay m ent was m ade until just bef ore the trial. There was also evidence that there is a genuine issue as to a m aterial f act in dispute a s to why USAA told the Minors, in a letter d ated June 18, 2006, t hat “based on its engineer report” USAA would only consider p ay m ent f o r contents on the southern elevation, when the engineer and the USAA adjuster h ad said the insurance c o m pany was accountable

1 3f

or contents in all of

the room s. ¶33. W e f

ind that this evidence was suf f icient to conclude that t here was a genuine issue of a m aterial f

act i n dispute as to whether USAA had an arguable and legitim a te basis to deny or delay pay m ent to the Minors. ¶34. Second, there was a genuine issue of m aterial f a ct in dispute as to the dam age caused by the storm surge. As discussed in paragraph 14 above, USAA hired PT&C, an independent prof essional e ngineering f

irm , which opined t hat “ the rem ainder of t h e s tructure was destroy ed by the e stim ated ten (10) f oot storm s urge.” There was evidence o f an Elevation Certif icate, dated A pril 2006, that indicated the Minors’ p r o p e r t y was at an e levation of alm ost f i f teen f eet, which w ould have been above the storm surge. In f act, the exact am ount of storm surge was in dispute in this trial. There was evidence at trial t hat the storm surge

was as high as t wenty -one f eet. Regardless, t here was conf licting evidence as to the height of s torm surge and whether t here was a l egitim ate or arguable basis f or USAA to determ ine that a storm surge caused or contributed to the destruction o f the residence. Ultim ately , this was an issue decided by

the jury

. ¶35. To be clear, this Court does not f ind that the Minors are entitled to present their claim s f or punitive or extracontractual dam ages to a jury

. Instead, we m erely f ind t hat t here was a genuine i ssue o f m a terial f act i n dispute and that USAA was not e ntitled to a j udgm ent a s a

m atter of law on this issue b e f ore trial. T hus, we c onclude that it w as reversible error f or the circuit court to grant U SAA’s m o tion f or partial sum m ary judgm ent and dism iss the Minors’

c l a i m f or punitive and extracontractual dam ages b ef ore trial. Theref

ore, we reverse an d

1 4rem and this issue f or f urther proceedings consistent with this opinion.
II. W hether the court erred in giving Jury Instruction D-29b

. ¶36. Next, the Minors a rgue the circuit c ourt was in error w hen it g ave Jury Instruction D29b. They claim that this prevented the possibility of an award of t he p olicy lim its based on a total loss. ¶37. “Jury instructions are within the discretion of t he trial court and the settled standard of review is abuse of discretion.” Melvin v. Cleveland Nursing & Rehab., LLC , 159 So. 3d 623, 626 (¶8) (Miss. Ct. App. 2015). “[ T]he instructions are to be read a s a whole.” Id. “On appeal, [ we] analy

ze whether a jury instruction correctly stated the law and w as supported by the evidence.” Id

. ¶38. USAA subm itted Ju ry In stru ctio n D

- 2 9 , a n d it w a s later w ith d r aw n . T h e co u rt m ad e

m o d if icatio n s, at th e M in o rs’ req u est, in In stru ctio n D -2 9 a. It w as f u rth e r m o d if

ied an d w as
g iv en to th e j u r

y as In s t ru ctio n D -2 9 b

. The f ollowing is J u ry I n s t ruction D-29b, and the jury ’s answers are included and underlined: Please a nswer the f

o l l o wing questions by apply ing the instructions of law given to y ou. Answer the questions i n order. Follow the ins t r u c t i o n s and brackets concerning which questions to answer.
Num ber 1 — Do y ou f

ind by a preponderan c e o f t h e e vidence that U SAA correctly estim a t e d $ 524,606.63 as the total covered dam a g es under the plaintif f s’ insurance polic y and correct[ l y ] tendered $297,432.94 as the total a m ount owed af

ter reductions f

o r the deductible and recoverable depreciation? If y our answer to Question Num ber 1 was y es, then y ou can stop. (YES or NO) No
Num ber 2

— Do y ou f

ind by a preponderance of the evidence that any dam age over and above $288,719.39 was caused to t he Minors’ house solely b y wind

1 5or wind-driven rain? And there’s a place f or y ou to m ark y es o r n o . If y o ur answer to Question Num

ber 1 was n o, t hen y ou skip Question Num ber 3 and go on to 4. If y our answer to Question 2 w as y es, then y ou a nswer Num ber 3. (YES or NO) Yes
N u mb er 3 — W hat additional actual cash v alue d ollar am ount of d am age, i f any , was caused to t he M inors’ h ouse solely by wind or w ind-driven rain? The f igure y ou f

ill in t he b l a n k b e l o w cannot exceed $739,280.61 and there is a blank f or y ou to place the dollar am ount. $ 739,280.61
Num ber 4 — Do y ou f

ind by a preponderance o f [ the] evidence that any dam age over and a

bove $27,797.09 was caused to t he Minors ’ detached carport and guest c ottage solely by wind or w ind-driven r ain? Answer y es or no. If y o ur answer t o Question Num ber 4 w as no, then y ou s kip Question Num ber 5 and go to Question Num ber 6. If y o ur answer t o Question 4 was y es, then y ou answer Num ber 5. (Yes or No) Yes
Num ber 5 — W hat additional actual cash value d ollar a m ount of d a ma g e, if any , w as caused to the Minors’ detached carport and g uest cottage solely by wind or wind-driven rain? The f i gure y ou f

ill in cannot exceed $121,202.91 and there is a blank f

or y ou [ to] place an am ount. $ 121,202.91
Num ber 6 — Do y ou f

ind, by a preponderance o f [ the] evidence, that any dam age o ver and above $208,090.15 w as caused to the Minors’ contents solely by wind or wind-driven rain? A nd there’s a blank f or y o u to answer y es or no. If y our a n s wer to Question 6 was no, skip Question 7 and go on to Question 8. If y our answer to Question 6 was y es, then y ou answer Question 7. (Yes or No) Yes
Num ber 7

— W hat a dditional dollar am ount of d am age, if a ny , was caused to the Minors’ contents solely by wind or wind-driven rain? The f igure y o u f

ill in the blank cannot exceed $562,909.85, and t here’s a b l a n k f or a dollar am ount. $ 562,909.85
Num ber 8

— D o y o u f

ind b y a preponderance of the evidence that the M inors incurred a ny a dditional or increased living expenses over and above $2,000 during the y ear f

ollowing Hurricane Katrina becau s e their Ocean Springs

1 6house was rendered unf it to live in d

ue to d am age c a u s e d s o l ely by w ind or wind-driven rain? And there’s a blank f o r y o u [ to] answer, y es or no. If y o ur answer to Question 8 was no, skip Question 9 and go to Question 10. If y o ur answer to Question 8 was y es, then answer Question 9. (Yes or No) No
Num ber 9 — W hat additional d o l l a r a mount, if any , of a dditional increased living expenses did t he Minors incur within the y ear f o llowing Hurricane Katrina? The f

igure y ou f

ill in the blank below cannot exceed $203,600, and there’s a blank f

or a f igure f or y ou to f

i ll in if that [ i s] appropriate. $ 0
Num ber 10 — Do y o u f

ind by a preponderance of t he e v idence that the M inors incurred any loss of ref

r igerated p roducts because of dam age caused solely by power f ailure or m echanical breakdown ? T h e r e ’ s a blank f or a y es or a no answer. If y our answer to Q u e s t i o n 10 was n o, stop h ere. If y our answer to Question 10 was y es, then answer 11. (Yes or No) Yes
Num ber 11 — W hat additional dollar a m ount o f dam age, if

any , was caused to t he Minors’ ref

r i g e r ated products solely by power f ailure or m echanical breakdown? T he f

igure y ou f

ill in the blank cannot exceed $500, and t here’s a blank f or a dollar am ount. $ 500.00
Num ber 12

— Do y o u f

ind f rom a preponderance o f the evidence that the Minors incurred a loss of the boathouse and shed, as unscheduled structures, caused solely by wind or wind driv e n rain? And there is a blank f or y o u to answ e r y e s o r no. If y o ur answer to [ Q]uestion 12 is n o, then proceed to [ Q]uestion 14, below. If

y ou answer is y es, go to [ Question] 13, below. (Yes or No) Yes
Num ber 1 3 — W hat additional dollar a m ount, if any , was caused to t he M inors as a result of the loss of the boathouse and shed? T he f i g u r e y o u f

ill i n the blank below cannot exceed $102,800.00 $ 102,800.00
Num ber 14

— Do y ou f

ind that the Minors incurred a loss as a result of being charged two deductibles of $20,600.00 f or a t o t a l o f $41,200.00? If y o ur answer is no, proceed no f urther. I f y our answer i s y es, then proceed to question 15, below.

1 7(Yes or No) Yes

Num ber 15 — The Minors were dam aged in the am ount of $ 20,600.00 as a result of being charged twice f

or deductibles. ¶39. The review of

an insurance claim

begins with the wording of the policy

. Corban v. United Servs. A uto. Ass’n , 20 S o. 3d 601, 608 (¶17) (Miss. 2009). Hom eowner’s insurance policies “ty

pically require t hat property losses be c o m puted o n an actual cash value or on a replacem e nt value basis, with the latter coverage being m ore expensive as it allows a m ore
generous valuation.” Jef

f rey J ackson & D. Jason Childress, Mississippi Insurance Law and
Practice § 15:27 (2016). Here, the USAA policy issued to the Minors was a replacem entcost policy

. ¶40. The purpose o f a r eplacem ent-cost policy is “[ t]o protect h om eowners f r om the predicam e nt of not having e nough assets to replace depreciated property that i s destroy ed or dam aged.” Robert H. Jerry II, Un d e r s t a n d i n g Insurance Law § 9 3, at 689 (3d ed. 2002). Replacem ent cost, a s def ined in the policy , is “the cost, at the tim e of loss, of a new i tem identical to the one dam aged, destroy ed or stolen.” I f an identical item is n o l onger available, “replacem ent c ost will be the cost of a new item which is sim i lar to the insured [ item ], and of like quality

and usef ulness.” ¶41. A replacem ent-cost p o l i c y r equires that the hom eowner actually rebuild a hom e in

o r der to receive the replacem ent-cost benef it of the policy

. 5 Jef

f rey E. Thom as & Sus a n Randall, New Appleman o n Insurance Law § 53.05[ 3][ c][ iii] (2016). “Requiring an insured

to r ebuild is designed to avoid the m oral h azard of leaving a n insured in a better situation

1 8af

ter a loss.” Id

. “Mere i ntention to rebuild or replace is not suf f icient to receive proceeds based on replacem ent costs.” Id

. ¶42. Also, “[ u]nder a r eplacem ent cost policy , an insured w ill only receive actual cash value until t he p roperty is actually repaired o r [ r e p l a ced].” I d

. A ctual cash value is the replacem e nt cost o f property , less depreciation.” Mississippi Insurance Law and Practice, at § 15:27. Depreciation “takes into account the age of the property at the t im e of loss, the

extent of its use, its obsolescence, and other f actors af f ecting its value.” Understanding
Insurance Law, at 691. How depreciation is c alculated is a f actor in the determ ination of the hom eowner’s recovery . New Appleman on Insurance Law, at § 5 3.05[ 1]. Here, the Minors’ policy d i d not def

ine depreciation, nor d id i t specif y how depreciation would be calculated. ¶43. Pursuant to the “ Loss Settlem ent” provisions of the Minors’ policy , when a covered property loss occurs under Coverage A (dwelling) or Coverage B (other structures), losses

are settled at replacem e nt cost without deduction f or depreciation, s ubject to the f ollowing: (1) If , at the t i me o f l o s s , t h e a m ount of insurance in this p olicy on the dam aged building is 80% or m ore o f t he f ull replacem e nt cost of the building im m ediately bef o re t he loss, [ USAA] will p ay the cost to repair or replace, a f

ter application of d eductible and without deduction f or depreciation, b ut not m ore than the least of the f ollowing am ounts: (a) t h e l i m i t of liability under this policy that applies to th e building; (b) the r eplacem ent cost of that part of the building dam aged f or like construction and use on the sam e prem ises; or (c) the necessary am ount actually spent to repair or r eplace the dam aged building.

1 9(2) If , at the tim e of loss, the am ount o f insu r a n c e i n t h i s p o l i c y on the dam aged building is less than 80% of the f ull replacem ent cost of the building im m ediately bef ore the loss, [ USAA] will pay the g reater of the f ollowing a m ounts, but not m ore than the lim it of liability u nder this policy that applies to the building: (a) t h e a c t u a l c ash value o f t h a t p a r t o f t h e b u i l d i n g dam aged; or (b) t h a t p roportion of the cost to repa i r o r r e p l a c e , a f t e r application of d e d uctible and without deduction f or depreciation, that p art of the building dam aged , which the total a m ount o f i nsurance in this policy o n the dam aged building bears to 80% of the replacem ent cost of the building.

. . . . (4) [ USAA] will p ay n o m ore than actual cash value of t he dam age unless: (a) actual repair or replacem ent is com plete. . . . (5) You m a y disregard the replacem ent c o st loss settlem ent provisions and m a ke claim u nder this policy f or phy s ical loss to buildings on an actual cash value basis. You m ay then m ake claim s within 180 day s a f ter loss f or any additional liability

on a replacem ent cost basis. ¶44. W h en a covered p roperty l oss occurs under Coverage C ( person a l property ), losses

are settled at f

u ll replacem ent cost without d eduction f o r depreciation, subject to the
f ollowing loss settlem ent procedures: (a) [ I]t is [ USAA’s] option to: (1) replace o r p ay y o u o ur c o st t o r eplace the property with new property of like kind and quality w ithout deduction f or depreciation, or (2) pay y ou the cost to repai r o r r e s t o r e the property to the condition it was in just bef ore the loss, or

2 0(3) pay y ou the n ecessary am ount actually spent to repair or replace the dam aged property

. (b) [ USAA] will p ay no m ore than a ctual cash value until repair or rep l a c e m ent o f the dam aged property is com pleted, unless t he entire loss is less than $500. (c) You m ay m ake a c laim f o r loss on an actual cash v alue basis a nd then m a ke claim within 180 day s af ter the loss f

or any additio n a l l i a b i lity under the term s of

this endorsem ent. ¶45. The Minors argue that Instruction D-29b perem p torily capped a n d l im ited the am ount of dam ages t he jury could award. Specif i cally , they claim t hat Instruction D-29b “incorrectly included $86,947.78 f

or depreciation and deductible” f or the m ain house. 1 The Minors argue that rather than allo w i n g the jury to award the total value owed to the Minors, the circuit

court “invaded the p rovince of the jury a nd preem p ted t heir verdict by incorrectly allowing
USAA to receive credits of the ma i n s t r u c ture f or ‘recoverable depreciation.’” However, such argum ent does not consider the clear and unam biguous policy

language t hat included

a two-percent deducti b l e and required pay m ent of actual cash value unless repair or replacem e nt was com

plete. ¶46. The Minors a l s o a r g ue t hat Instruction D -29b incorrectly included depreciation of $140,225.92 f

or the personal property

. The Minors argue that by i ncorrectly allowing USAA

to depreciate the true v alue of the contents, I nstruction D -29b lef t the M inors with a shortf

all of $ 140,225.92. However, the policy clearly provided f or pay m ent on an actual-cash-value basis. To determ ine the actual cash value, U SAA w as r equired to estim ate replacem ent cost,

1 T h e t o t al am o u n t o f $ 8 6 ,9 4 7 .7 8 in clu d es d ep reciatio n o f $ 6 6 ,3 8 7 .7 7 an d a d ed u ctib le o f

$ 2 0 , 5 6 0

. 2 1less depreciation.

¶47. T h e a mo unts included in Instruction D-29b f or the house and personal propert y represent the estim ated replacem ent cost of the wind-dam aged item s. P ursuant to t he policy , the Minors w ere com

pensated f

o r these wind-dam a ged item s on a n actual-cash-value basis, with depreciation to be paid when replacem ent was com plete. ¶48. There was no evidence t hat the Minors re p a i r e d or replaced the item s to which the recoverable depreciation applies. Thus, the Minors a r e not entitled to r ecover the depreciation. Although the Minors take issue with USAA’s a djustm e n t of t heir claim s, such issue does not af

f ect the plain language of

their policy

. ¶49. U S A A i n s p e c ted the property and issued pay m ent f o r dam age it concluded was cause d by wind. Instruction D -29b asks th e j u r y t o determ ine whether there was any additional dam age caused by wind over and above w hat was already considered by USAA. Although Instruction D -29b l im i ts the am ount of dam ages the jury can award, such limi t a tion was consistent with t he policy language a nd was s upported by the f acts. Thus, we f

ind no error in the circuit court’s decision to give Instruction D-29b.
III. W hether the court erred in failing to correct the judgment to award policy limits. ¶50. During argum ent on their m otion f or a judgm ent notwithstanding the verdict (JNOV), the Minors a sked the court to correct the verdict and to render a judgm ent in t he am ount of the policy lim its. The m otion was denied. ¶51. We a p p l y a d e n ovo standard of review to a circuit court’s d enial of a m otion f o r a

2 2JNOV. Miss. Transp. Comm’n v
. United Assets, L LC , 1 88 So. 3d 508, 514 (¶24) (Miss. 2016). A m otion f

or a JNOV “ tests the legal suf f iciency of the e vidence supporting the verdict.” W

atts v
. Radiator S

pecialty Co. , 990 So. 2d 143, 150 (¶21) (Miss

. 2 008). In reviewing a court’s denial of a mo t i o n f o r a JNOV, “[ w]e are r equired to consider the evidence in the light m ost f avorable to the non-m oving p arty .” McKenzie v. Supervalu, Inc ., 883 So. 2d 1188, 1192 (¶17) (Miss. Ct. App. 2004). “[ I]f the f a cts are so overwhelm ingly
in f a vor of the m o ving party

that a reasonable juror could not have agreed with the verdict

at hand, we m

ust reverse.” Id

. “If there is substantial evidence, however, in support of the verdict, such t h at

. . . reasonable [ people] m a y have reached dif f e r ent conclusions, we m

ust af f irm .” Id

. ¶52. Here, we f

ind suf f icient evidence to support t h e v erdict. T he jury considered the evidence a nd f

ound additional dam age was caused solely by wind or wind-driven rain. The dam ages awarded were consistent with the policy language and supported by the f acts. The
Min o r s ’ r e q u est f

or the policy l im its ignores the clear and unam biguous language in their policy that USAA will pay

no m ore than the actual cash v alue o f the dam age unless actual repair or replacem ent is com plete. Thus, we f

ind no m e r it to this issue. ¶53. Finally , on appeal, the Minors ask this Court to correct the judgm ent by granting an

a d d i t u r i n the am ount of $88,647.75 f or the structures and $140,225.92 f or the personal property

. Thus, the Minors w ant this Court t o award the depreciation am ounts as well as the deductible. As previously discussed, such an award is contrary t o the policy language, as the Minors have neither repaired nor replaced the dam aged property

. Theref o r e , w e f ind the

2 3Minors’ request f o r an additur is not well taken. ¶54. Further, we note that t he Minors did not f ile a m otion f

or an additur or f

or a new trial. Instead, t h e Minors only f iled a m otion f

or a JNOV and requested t hat the court “enter judgm ent in f

avor o f [ the Minor s] in the am ount of $524,606.63.” N ow, on appeal, the Minors argue that they should have been granted an additur of $228,873.67. ¶55. “An additur i s only appropriate when the trial judge m a k es a f inding t hat the dam ages awarded by the jury are i nadequate because the ju r y was ‘inf l uenced by bias, p rejudice, or passion’ or t he award was ‘contrary to the overwhelm ing weight of [ t he] credible e vidence.’” Henson v. Riggenbach , 982 So. 2d 432, 434 (¶9) (Miss. Ct. App. 2007) (citing Miss. Code
Ann. § 11-1-55 (Rev. 2002)). Here, no such f in d i n g was m ade by the circuit court, as the Minors never m oved f

or an additur. ¶56. “Issues raised f

or the f irst tim e on appeal are procedurally b arred f rom review as they have not f irst b een addressed by the trial c ourt.” Burns v. Haynes , 9 13 So. 2d 4 24, 429 (¶18) (Miss. C t. App. 2005). As the Minors f ailed t o raise t his issue bef ore the circuit court, their request f or an additur is procedurally barred. ¶57. THE J UDGMENT O F THE CIRCUIT C O U RT OF JACKSON COUNTY IS AFFIRMED IN PART, A ND REVERSED AND R EMANDED IN PAR T FOR F U R T H E R P R O C E E D I N G S C O N S I S T E N T W I T H T H I S O P I NIO N . A L L C O S T S O F THIS APPEAL ARE ASSESSED ONE-HALF TO T HE APPELLANTS AND ONEHALF TO THE APPELLEE. BARNES A ND WESTBROOKS, JJ., CONCUR. I RVING, P .J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. LEE, C.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J., CONCURS I N PART AND DISSENTS IN P ART WITH SEPARATE WRITTEN OPINION, JO I N E D BY WILSON, J. ISHEE, FAIR AND GREENLEE,

2 4JJ., NOT PARTICIPATING.

CARLTON, J., CONCURRING IN PART AND DISSENTING IN PART: ¶58. I would af

f irm the judgm ent of the circuit court. I theref ore concur in part and dissent
in part f rom the o pinion o f the m ajority

. I s ubm it this s eparate opinion to set f orth m y dissenting view on the application of the law to the f

acts of this case. ¶59. I dissent f

rom t he m ajority ’s f

inding that t he circuit court com m itted r eversible error in granting USAA’s m otion f or partial sum m ary judgm ent and in di s m i s s i ng the Minors’ claim f or punitive and extracontractual dam ages bef ore trial. I respectf

ully subm it that the record ref lects no error i n the circuit court’s grant of sum m ary j udgm ent in f avor o f USAA

or in i ts f inding that the f

acts showed that USAA possessed an arguable, or reasonable, basis
f or its claim s decisions. The record ref lects that the circuit court concluded that as a m atter of l aw, U SAA acted with an arguable basis and without m alice, reckless disregard, or gross negligence. 2 ¶60. Applicable law ref lects that “an arguable reason f or the d enial of an insured’s claim

. . . has been d ef

ined as ‘one in support of which there is som e credible evidence.’” Tipton

v. Nationwide Mut. Fire I ns. , 381 F. Supp. 2 d 572, 579 (S.D. Miss. 2004). A rguable reason still exists even if there is “evidence to t he contrary .” Hood v. Sears Roebuck & Co. , 532 F. Supp. 2d 795, 803 (S.D. Miss. 2005). Jurisprudence a lso ref lects that j u s t b e c a u s e a jury disagrees with the insurance com pany ’s decision regarding coverage does not m ean that the

2 A n y p a r t y t o a c iv il a ctio n m ay m o v e f o r su m m ary j u d g m en t u p o n a claim as to w h ich th e r e is n o g en u in e issu e o f m aterial f a ct an d u p o n w h ich th e m o v in g p arty is en titled to p rev ail as a m atter o f law

. S ee M .R

. C .P . 5 6 (c).

2 5com

pany d id not have an arguable basis. United Servs. Auto. Ass’n ( USSA) v
. Lisanby , 47
So. 3d 1 1 72, 1179 (¶24) (Miss. 2010). 3 Under the applicable law, the plaintif f bears a heavy burden and m

ust establish that the insurance com pany com m itted m ore than m ere negligence in perf orm ing the investigation. Id . at 1178 (¶18). 4 ¶61. In United American Insurance v. Merrill , t he s u p r e m e court cited W indmon v. Mar s h a ll , 926 So. 2 d 867, 872 (Miss. 2006), and Murphree v. Federal Insurance , 707 So. 2d 523, 529 (Miss. 1997), which set f orth established j urisprudence that “if there is a f inding that there was a reasonable arguable basis to deny t he claim then the appellant is not entitled

to have the jury consider any bad f aith award against the insurance com pany .” United Am.
Ins. v. Merrill , 978 So. 2d 6 1 3, 634 (¶105) (Miss. 2007). Further, “the plaintif f h as a heavy burden to dem onstrate to the circuit court that there was n o reasonably arguable basis f or the insurance carrier to deny

the claim .” Blue Cross & B lue Shield of Miss., Inc. v. Campbell , 466 So. 2d 833, 8 44 (Miss. 1984). In the case bef ore us, the record ref

lects credible evidence that USAA possessed an arguable or reasonable b asis f o r the adjustm ent and pay m ent of the Minors’ i nsurance claim s . Theref o re, in accordance with applicable law, no g enuine dispute of m aterial f

act e xists showing that the Minors are n ot entitled to have the jury consider any bad f aith, extracontractual dam a ges, or punitive dam ages. ¶62. Af ter exam ining the a

pplicable law and the evidence in the record, I subm i t that both the law and the record sustain the circuit court’s f indings in support of its d ecision granting

3 S ee a lso S o b ley v. S . N

a t. G a s C o
. , 3 0 2 F

. 3 d 3 2 5 , 3 3 0 (5 th C ir. 2 0 0 2 ).

4 S ee a lso E s sin g er v. L ib erty M

u t. F ire In s. , 5 2 9 F .3 d 2 6 4 , 2 7 1 (5 th C ir. 2 0 0 8 ). 2 6sum m ary judgm ent. 5 A c laim f or extracontractual dam ages requires t hat t he insured prove the insuran c e c o mp a n y a cted in bad f aith a nd l acked an arguable basis w hen it m ade its determ ination regarding t he insured’s claim

. Lisanby , 47 S o. 3d at 1178 (¶18). A s uccessf ul claim f or punitive dam a ges r equires the insured to prove m o re t han the lack of an arguable basis since the insured m ust a lso prove t h at “the insurance com pany acted with m alice or
gross a n d reckless disregard f or the rights of t he i nsured.” U.S. Fid. & Guar. Co. of Miss.

v. Martin , 998 So. 2d 956, 970 (¶48) (Miss. 2008). “[ W ]here there is a legitim ate or arguable basis in t he delay o r denial of pay m ents, there is no valid claim f or p unitive dam ages. ” Miss. Power & Light Co. v. Cook , 832 So. 2d 474, 479 (¶8) (Miss. 2002). 6 ¶63. On app e a l i n seeking reversal o f the sum m ary judgm ent granted below, t he Minors

assert the two f

ollowing argum ents as sup p o r t f o r t heir claim f

o r punitive and extracontractual dam ages: (1) that USAA lacked an arguable basis f or its conclusion that a
storm surge caused or c ontributed to the destruction of t h e M inors’ residence and (2) that
USAA lacked an arguable basis f or its decision to not im m ediately pay the M inors their personal-property l im its. I will separately a d dress the record support f or t he circuit court’s

5 S ee L isa n b

y , 4 7 S o . 3 d at 1 1 8 5 -8 6 (¶5 6 ) (rev er s i n g a j u ry v e rd ict f o r ex traco n tractu al d am ag es af ter f in d in g th at U S A A ’ s r elian ce o n a r ep o rt f ro m an en g in eer, i n f o r ma tio n f

ro m an ad

j u ster, an d in f

o rm a tio n f

r o m th e in s u red p ro v id ed U S A A w ith an arg u ab l e b asis f

o r its d e term in atio n th at o n ly a p o rtio n o f th e i n su red ’s d a m ag e w as cau sed b y w in d ); A n g la d

o v
. L ea f R i ver F o rest P ro d ., In c ., 7 1 6 S o . 2 d 5 4 3 , 5 4 7 (¶1 3 ) (M iss. 1 9 9 8 ) (a d e n o v o stan d ard o f rev iew is ap p lied to th e ap p eal o f a circu it co u rt’s g r an t o f su m m ary j u d g m en t).

6 S ee g en era lly D

. Jaso n C h ild ress, M i ssissip p i In su r a n ce L a w a n d P ra ctice § 1 3 : 1 4 (2 0 1 6 ). 2 7f

indings and g r a nt of sum m ary judgm ent f or the dwelling/other structures claim and the personal-property claim

. ¶64. Regarding the Minors’ dwelling/other structures claim , the record herein supports the circuit c o u r t ’ s determ ination that USAA possessed a n arguable basis when determ ining a
storm s urge caused som e of the dam age, as evidenced by USAA’s reliance on independent

e n g i n e e r r e p o r

t s , a d j u s t m ent inspections, photographs, a nd adjustm ent d e c i s i o n s . 7 T h e r e c o r d
i s u ndisputed t hat Hurricane Katrina hit on August 29, 2005, and that the Minors r e p o r t e d their l oss to USAA on January 16, 2006. The r ecord shows that U SAA im m ediately assigned adjusters to inspect the p roperty an d , w i t h i n a week of the Minors’ claim , USAA hired PT&C, an independent prof essional e ngineering f

irm , to inspect and o f

f er a prof essional opinion as to causation, i.e., wind versus f lood/storm s urge, to determ ine if direct phy sical loss by wind contributed to the d a m age to the residence. U SAA sought c l a r i f i c a t ion f rom P T & C r egarding dam a ge to the window sy stem s, and PT&C subm itted t he enginee r i n g r e p o r t to USAA on March 2, 2006. ¶65. On March 20, 2006, USAA asked the Minors f or a f loor p lan of t he re s i dence but
f ailed to receive t he inf

orm ation f

rom the Minors f

or over s e ven m onth s . D e s p i t e lacking the f loor plan, the record ref

lects that USAA adjusted the loss by rely ing on t he engineer’s report, adjuster inf

orm ation, a nd photographs. The record also ref lects t hat on J une 18, 2006,

7 S ee a lso H o o ver v. U

n ited S e rvs
. A u t o
. A ss'

n , 1 2 5 S o . 3 d 6 3 6 , 6 4 3 (¶2 1 ) (M iss. 2 0 1 3 ) ( co n clu d in g th at U S A A p o ssessed an arg u ab le b asis f o r d en y in g a p o rtio n o f th e H o o v ers’ d am ag es w h erein U S A A relied o n th e in v e stig atio n o f its ad j u sters an d th e rep o rts o f an en g i n eerin g f

i rm in d en y in g asp ects o f

th e claim d eem ed ex clu d ed ). 2 8USAA advised the Minors t hat the m ajority of the dam age to their hom e w as t he result o f

f looding and that an estim ate of the wind dam a ge was created b ased upon i nf orm ation then available. The replacem ent cost f or the covered dam age t o the m ain dwellin g , t h e guest house, and the carport was $55,805.86, and USAA paid the actual cash value of $35,245.86. ¶66. The record f

urther ref lects that USAA inf

orm ed the Minors by l etter dated June 18, 2006, that the d

w elling/other s tructures claim was being held open because USAA had not
y et received the requested f loor p l an, pre-loss photos, and personal-property list. According

to the record, on October 24, 2006, and on Decem ber 5 , 2006, P aul M inor provided the f loor
p l a n f o r the house and a f

ew photos of t he exterior of the hom e a nd explained that t h e

rem ainder of

the photos were lost in the hurricane. ¶67. In response to i n f o r ma t i on p rovided by Paul, USAA then tracked down prior evaluations f

rom 1994 and 2000. Despite still lacking som e requested details, USAA then used th i s new inf

orm ation to estim ate the wind dam age m ore a c curately

. On March 29, 2007, USAA m ade a supplem ental actual-cash-value pay m ent to the Minors of $194,322.85. The record ref

lects that the Minors were advise d t h at the a m ount of $66,387.77 was still available in recoverable depreciation t h a t t h e y could obtain f or the covered dam age upon

com pl e t i o n o f the repairs, in accordance with the term s of t he M inors’ replacem ent-cost policy

. ¶68. The r ecord shows that Minors received total p ay m ents of $229,568.71 f

o r the wi n d dam age to their insured structures. The M inors f ailed to provide any i nf

orm ation to USAA disputing the PT&C engineer repor t u n t i l the M inors presented their e xpert reports as part
2 9of this l awsuit. Clearly , the record supports the circuit court’s f i nding of an arguable basis
in support of USAA’s pay m ent a nd adjustm ent decisions regar d i n g the Minors’ dwelling/other structures claim s given the evidence of USAA’s reliance on the report of an independent engineer, claim s-adjuster inspections, photographs, and inf orm ation provided by the insured. ¶69. W i th respect to the a djustm ent of the Minors’ personal-property claim , the record also supports the circuit court’s determ ination t hat USAA’s d e cisions sim ilarly possessed an

a r g u a ble basis. In a djusting t he Minors’ personal-property c laim , the r ecord ref lects that USAA relied on PT&C’s engineer report, inf orm ation f

rom the adjuster, inf

orm ation f

rom
t he Minors, and photographs to determ ine which room s could h ave had c o ntents da ma g e d b y wind prior to the storm surge of Hurricane Katrina. Moreover, the record ref lec t s t h a t USAA repeatedly r equested a list of the Minors’ dam a ged personal property and that f or three y ears, the Minors f ailed to provide any inf

orm ation about their p ersonal property

. Moreover, the list eventually provided by the Minors f ailed to contain the am ount of detail required under t he policy or in the discovery r equest; specif ically , the list pro v i d e d no quantity , description, actual cash value, and am ount of the loss. The Minors also f ailed to provide a n y bills, receipts, a n d r e l a t e d docum ents to justif y the f igures in the inventory

. USAA even resorted to f

i ling a m otion to com

pel f or the depositions of t he Minors’ children, both of whom possessed knowledge of

the house and its contents prior to the hurricane. ¶70. Despite the lack of required detail, the record shows that USAA adjusted the Minors’ personal-property claim rely ing on inf orm ation about t he dam age to the structure when

3 0determ ining which dam aged contents were covered. Using the independent engineer and the

adjuster reports, U SAA adjusted the Minors’ p ersonal-property claim , p ay ing f or c e r tain item s in room s that had wind-relate d dam age, and the adjuster researched the value of the dam aged item s. As acknowledged by the m ajority opinion , the r ecord ref lects without dispute that the Minors possessed a replacem ent-cost insurance p olicy that excluded dam age caused by water/f

lood or storm surge. The record is also n ot in dispute that the Minors possessed no f

l ood insurance. T he record shows that s ince the cont e n t s h ad not been replaced, USAA provided the policy -m andated actual-cash-value pay m ent. ¶71. Based upon the f

oregoing, the undisputed record ref l ects no u nreasonab l e d e lay by
USAA in the p ay

m e nt of and adjustm ent of the Minors’ personal-property claim

. I n support of the circuit court’s grant of sum m ary judgm ent a n d f i ndings, the record also shows without dispute that USAA possessed an arguable basis f or its pay m ent a nd adjustm ent d ecisions in its reliance upon t he independent engineer reports, pho t o g r a phs, adjuster i nf

orm ation, and
inf orm ation f

rom the Minors, including th e d elinquently provided c ontents l ist t hat lacked the required detail. 8 I theref ore would af

f irm the judgm ent of

the circuit court. WILSON, J., JOINS THIS OPINION.

8 S ee L isa n b

y , 4 7 S o . 3 d a t 1 1 8 5 -8 6 (¶5 6 ) ( rev ersin g a j u ry v e rd ict f o r ex traco n tractu al d am ag es af ter f in d in g th at U S A A ’ s r elian ce o n a r ep o rt f ro m an en g in eer, in f o rm atio n f

ro m an ad

j u s t e r , a n d in f

o rm a tio n f

r o m th e in s u red p ro v id ed U S A A w ith an arg u ab l e b asis f

o r its d eterm i n atio n th at o n l y a p o rtio n o f th e in su red ’s d am ag e w as cau sed b y w in d ). 3 1