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Kennett v. USAA General Indemnity Co.

United States District Court, E.D. Louisiana

July 15, 2019


         SECTION: M (2)

          ORDER & REASONS


         Before the Court is plaintiff Dale A. Kennett's renewed motion for judgment as a matter of law, or, alternatively, for a new trial, [1] to which defendant USAA General Indemnity Company (“USAA”) responds in opposition, [2] and in further support of which Kennett replies.[3] Having considered the parties' memoranda and the applicable law, the Court issues this Order & Reasons.

         I. BACKGROUND

         This 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 use.[4] Under “Section I - Property We Cover, ” the policy delineates “Coverage A - Dwelling Protection” in pertinent part as follows:

         We cover:

1. The dwelling on the “residence premises” shown in the Declarations, including structures attached to the dwelling; ….[5]

         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 the Declarations.”[6]

         The 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 building.”[7]

         The policy does not provide coverage “for damage consisting of or caused directly or indirectly by any of the following”:

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; ….[8]

         On March 28, 2016, the premises located at 705 Virginia Avenue was damaged by fire allegedly caused by arson.[9] The policy was then in effect. USAA rejected Kennett's claim related to the loss.[10] Kennett sued USAA, claiming that USAA wrongfully denied coverage for the total loss of his property.[11] 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, [12] and so was not covered by USAA's policy.


         Kennett 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.[13]

         In 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 loss.[14]

         III. LAW & ANALYSIS

         A. Judgment as a Matter of Law

         Rule 50 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).

         Judgment 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)).

         “[W]hen 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 Cir. 2014)).

         B. Motion ...

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