United States District Court, E.D. Louisiana
DALE A. KENNETT
USAA GENERAL INDEMNITY CO., et al.
ORDER & REASONS
W. ASHE UNITED STATES DISTRICT JUDGE.
the Court is plaintiff Dale A. Kennett's renewed motion
for judgment as a matter of law, or, alternatively, for a new
trial,  to which defendant USAA General Indemnity
Company (“USAA”) responds in opposition,
in further support of which Kennett replies. Having considered
the parties' memoranda and the applicable law, the Court
issues this Order & Reasons.
case arises from a dispute about insurance coverage. Kennett
held a homeowner's insurance policy issued by USAA for
property located at 705 Virginia Avenue in Bogalusa,
Louisiana. The policy provides, inter alia, $590,
000 in dwelling coverage, $88, 500 in other structures
coverage, $442, 500 in personal property coverage, and an
unlimited amount for up to twelve months of loss of
Under “Section I - Property We Cover, ” the
policy delineates “Coverage A - Dwelling
Protection” in pertinent part as follows:
1. The dwelling on the “residence premises” shown
in the Declarations, including structures attached to the
policy defines “residence premises” to mean:
1. The one family dwelling, other structures, and grounds; or
2. That part of any other building;
Where you reside and which is shown as the “residence
premises” in the Declarations.
“Residence premises” also means a two, family
dwelling where you reside in at least one of the family units
and which is shown as the “residence premises” in
policy provides “total loss” dwelling coverage
“[i]n the event that your dwelling is completely
destroyed solely by Fire or Windstorm to the extent that it
has lost its identity and specific character as a
policy does not provide coverage “for damage consisting
of or caused directly or indirectly by any of the
d. Vandalism and malicious mischief … and any ensuing
loss caused by any intentional and wrongful act committed in
the course of the vandalism or malicious mischief, if the
dwelling has been vacant for more than 180 consecutive days
immediately before the loss. A dwelling being constructed is
not considered vacant; ….
March 28, 2016, the premises located at 705 Virginia Avenue
was damaged by fire allegedly caused by arson. The policy was
then in effect. USAA rejected Kennett's claim related to
the loss. Kennett sued USAA, claiming that USAA
wrongfully denied coverage for the total loss of his
property. The Court held a jury trial on February
4-6, 2019. At the close of all the evidence, the Court denied
Kennett's motions for judgment as a matter of law. After
a few hours of deliberation, the jury of seven returned a
verdict in favor of USAA, finding that the property at 705
Virginia Avenue was not Kennett's “residence
premises” at the time of the fire,  and so was
not covered by USAA's policy.
has renewed his motions for judgment as a matter of law on
four issues: (1) that the policy was ambiguous with regard to
property covered under dwelling protection; (2) that there
was no evidentiary basis for the jury to find that he did not
“reside” at the premises; (3) that, while not
reached by the jury, there was no evidentiary basis for the
jury to find that the property was vacant for 180 days; and
(4) that, while also not reached by the jury, there was no
evidentiary basis for the jury to find that the damage did
not constitute a “total loss.” In the event his
renewed motion for judgment as a matter of law is denied,
Kennett alternatively moves for a new trial.
opposition, USAA contends that Kennett waived his right to
argue ambiguity in the policy because he did not assert that
ground at trial. USAA also contends that sufficient evidence
supports a reasonable jury's finding that Kennett did not
reside at the premises. USAA further contends that, had the
jury reached the issues, sufficient evidence was presented to
support findings that the premises was vacant for 180 days
prior to the fire and that the damage was not a total
LAW & ANALYSIS
Judgment as a Matter of Law
of the Federal Rules of Civil Procedure requires a party to
“specify the judgment sought and the law and facts that
entitle the movant to the judgment” upon motion at
trial before the jury renders its verdict. Fed.R.Civ.P.
50(a)(2); Puga v. RCX Sols., Inc., 922 F.3d 285, 290
(5th Cir. 2019). “If the pre-verdict motion is denied,
then the party can renew its motion under Rule 50(b). But the
renewed Rule 50(b) is ‘technically only a renewal of
the [Rule 50(a) motion for judgment as a matter of
law].'” Id. (quoting Mozingo v.
Correct Mfg. Corp., 752 F.2d 168, 172 (5th Cir. 1985))
(bracketed language in original). As a consequence,
“[i]f a party fails to move for judgment as a matter of
law under Federal Rule of Civil Procedure 50(a) on an issue
at the conclusion of all of the evidence, that party waives
both its right to file a renewed post-verdict Rule 50(b)
motion and also its right to challenge the sufficiency of the
evidence on that issue on appeal.” Flowers v. S.
Reg'l Physician Servs. Inc., 247 F.3d 229, 238 (5th
Cir. 2001); see also In re Isbell Records, Inc., 774
F.3d 859, 867 (5th Cir. 2014) (“By not raising this
argument at trial or in its Rule 50(a) motion, [the
appellant] has waived its right to bring a Rule 50(b) motion
on this ground.”). The Rule 50(b) waiver is
“designed to prevent a litigant from ambushing both the
district court and opposing counsel after trial.”
Puga, 922 F.3d at 290-91 (citing Quinn v. Sw.
Wood Prods., Inc., 597 F.2d 1018, 1025 (5th Cir. 1979)
(“When a claimed deficiency in the evidence is called
to the attention of the trial judge and of counsel before the
jury has commenced deliberations, counsel still may do
whatever can be done to mend his case. But if the court and
counsel learn of such a claim for the first time after
verdict, both are ambushed and nothing can be done except by
way of a complete new trial. It is contrary to the spirit of
our procedures to permit counsel to be sandbagged by such
tactics or the trial court to be so put in error.”))
(other citation omitted).
as a matter of law under Rule 50 is warranted only where
“the facts and inferences point so strongly and
overwhelmingly in favor of one party that the court concludes
reasonable jurors could not arrive at a contrary
verdict.” Arsement v. Spinnaker Expl. Co., 400
F.3d 238, 248-49 (5th Cir. 2005) (quoting Bellows v.
Amoco Oil Co., 118 F.3d 268, 273 (5th Cir. 1997))
(citing Fed.R.Civ.P. 50(a)). Stated differently, “[a]
jury verdict must be upheld unless there is no legally
sufficient evidentiary basis for a reasonable jury to find as
the jury did.” Heck v. Triche, 775 F.3d 265,
273 (5th Cir. 2014) (quoting Foradori v. Harris, 523
F.3d 477, 485 (5th Cir. 2008)). Thus, to prevail on a Rule 50
motion, “the party opposing the motion must at least
establish a conflict in substantial evidence on each
essential element of [its] claim.” N. Cypress Med.
Ctr. Operating Co. v. Aetna Life Ins. Co., 898 F.3d 461,
473 (5th Cir. 2018) (quoting Goodner v. Hyundai Motor
Co., Ltd., 650 F.3d 1034, 1039 (5th Cir. 2011)).
“‘Substantial evidence is more than a scintilla,
less than a preponderance, and is such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.'” Id. (quoting Conn. Gen.
Life Ins. Co. v. Humble Surgical Hosp., L.L.C., 878 F.3d
478, 485 (5th Cir. 2017)).
evaluating the sufficiency of the evidence, [courts] view all
evidence and draw all reasonable inferences in the light most
favorable to the verdict.” Bryant v. Compass Grp.
USA Inc., 413 F.3d 471, 475 (5th Cir. 2005). However,
“credibility determinations, the weighing of evidence,
and the drawing of legitimate inferences from the
facts” remain within the province of the jury.
Kelso v. Butler, 899 F.3d 420, 425 (5th Cir. 2018)
(quoting Hurst v. Lee Cty., 764 F.3d 480, 483 (5th