APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL

E-Filed Document
Feb 2 2015 16:48:19
2012-CT-01793-SCT
Pages: 9
IN THE SUPREME COURT
COU RT OF MISSISSIPPI
NO. 2010-CA-00307 CONSOLIDATED WITH 2012-CA-01793
2012-CA-O I 793
CHERRI
C HERRI R. PORTER
APPELLANT
vs.
VS.
MAX MULLINS,
MULLiNS, ST
STATE
ATE FARM FIRE
AND
AN D CASUALTY COMPANY
C OMPANY AND
AN D
GRAN D CASINO OF MISSISSIPPI, INC. - BILOXI
GRAND
APPELLEE
APP EAL FROM THE CIRCUIT COURT
APPEAL
OF THE SECOND JUDICIAL DISTRICT
OF HARRISON COUNTY, MISSISSIPPI
JUDGE LA
WREN CE PAUL BOURGEOIS, JR. PRESIDING
LAWRENCE
APPELLANT'S SUI'
SUPPLEMENT
I' LEMENTAL
AL BRIEF
James Eldred Renfroe,
RenfTOe, MSB 10096
Renfroe &
& Perilloux, PLLC
Attorney for Appellant/Plaintiff
648 Lakeland East Drive Ste A
Flowood, MS 39232
Phone 601.932.1011
601.932. 10 II
Phone
60 1.932.10 14
Facsimile: 601.932.1014
Email: [email protected]
IN THE SUPREME COURT OF MISSISSIPPI
NO. 2010-CA-00307 CONSOLIDATED WITH 2012-CA-01793
CHERRI R. PORTER
APPELLANT
vs.
MAX MULLINS, STATE FARM FIRE
AND CASUALTY COMPANY AND
GRAND CASINO OF MISSISSIPPI, INC. - BILOXI
APPELLEE
APPEAL FROM THE CIRCUIT COURT
OF THE SECOND JUDICIAL DISTRICT
OF HARRISON COUNTY, MISSISSIPPI
JUDGE LAWRENCE PAUL BOURGEOIS, JR. PRESIDING
APPELLANT'S SUPPLEMENTAL BRIEF
James Eldred Renfroe, MSB 10096
Renfroe & Perilloux, PLLC
Attorney for Appellant/Plaintiff
648 Lakeland East D1ive Ste A
Flowood, MS 39232
Phone 601.932.l 011
Facsimile: 601.932.1014
Email: [email protected]
TA BLE OF CONTENTS
Table of Authorities ........... . ........... .... .. . ..................... . . .. .. .
III
I. Supplemental Brief in Regard s to Grand Cas ino of Mi ssissippi , inc. - Biloxi ............. 1
n.
Supplemental Briefin Regards
lO
Grand Casino of Mississippi, Inc. - Biloxi ............ 2
Conclusion ......... . ........ . .. . ... , ................................. . . . ..... 3
Cel1ificate of Service . . ..•... .. •.. . .. . ........•..... . .• .... .. •.. . .. . . .. .. ....... 5
II
TABLE OF AUTHORITIES
CASES :
Bay Point High and DIY, LLC v. New Palace Casino, LLC
46 So.3d 821 (Miss.2010) ......................... . ....................... I
COl'hem v. Uniled Services Alitomobile Association
20 So.3d 601 (Miss.2009) .......................... • ......•..... . ... ....... 2
Eli investments, LLC v. Silver Slipper Casino Venture, LLC
118 So. 3d 151 (Miss. 2013) ............................................... 1
J & W Foods Corp. v. Stale Farm MUll/allns. Co
723 So.2d 550, 552 (M iss. 1998) ................................. .. ......... 2
Shaw v. Shaw
603 So.2d 287, 292 (M iss. 1992) quot ing
Estate a/Myers v. Myers, 498 So.2d 376, 378 (Miss. 1986) .......... ..... ... ... . I
III
L
SUPPLEMENTAL BRIEF IN REGARDS TO GRAND
CAS INO OF MISSISSIPPI, INC.-BILOXI
One of the paramou nt concerns this COUl1 should consider is that at the time of the
hearing for the Grand Casino's Motion for Summary Judgment Eli investments did not exist. Eli
Investments, LLC \I, Silver Slipper Casino Venture, LLC, 118 So.3d 15 1 (Miss. 2013) Cherri R.
Porter (hereinafter Porter) correctly argues in her Petition for Certiorari that the Court should
compare the geographic locations of the casino barges at issue. Grand Casino of Mississippi,
Lnc.- Biloxi (hereinafter Grand Casino) rebutted this in their response with the assertion that " the
Missi ssi ppi Supreme Court will not rev iew matters on appeal that were not rai sed at the trial
level." Shcotl v. Shaw, 603 So.2d 287, 292 (Miss. 1992), quoting Es/Ctle of Myers v. Myers, 498
So.2d 376,378 (Miss. 1986).
This argument fa ils in that the Trial COUl1 specifi call y stated that Porter's case is
indistinguishable from BCIY Poin!. Bay Point High {lnd D,y, LLC v. New Palace Casino, LLC. 46
So.3d 821 (Miss.2010). At the time of the hearing, Act of God defense as raised by the Court
only existed in relat ion to Katri na liti gatiol1lhrough Bay Point. Eli investments altered this as it
specificall y changed the interpretation and in fact establi shed the locality of the cas ino being an
important isslIe in regards to the Act of God defense. The Trial COLIrt only had at the time of the
hearing Bay Poinr and as slIch, could not weigh it in regards to Eli inveslmenls.
As poi nted out by this Court in Eli inveSlments, should the Plaintiff proffer a reasonable
theory of neglect or more human interference, then such is prope r to be submined before a jury.
P0l1er's expert specifi cally slaled that there were no annual structura l inspections perform ed on
any marine structures including but not limited to, breasting dolphins, moo ring dolphins,
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bollards, monopoles, floating docks, cells and other mooring devices and that Grand Casino had
no heavy storm mooring plan whic h is a dev iance of the customary practice. (R.93-99Case#20 12-CA-O 1793). The rebuttal to this by the Grand Casino is that they complied with the
Gaming Commission's regulations, a fac t that in of itse lf is incorrect as the regulations are
specific on the category for which the mooring should withstand a hurricane and with that
category being greater than that of Katrina.
II.
SUPPLEMENTAL BRlEF IN REGARDS TO GRAND
CASINO OF MISSISSIPPI, INC.-BILOXI
In applying Corban v. United Servs. Auto. Ass '/1, the Court of Appeals fa iled to properly
apply the standard for concurrent event as testimony proffered by Porter in regards to State Farm
Fire and Casualty Company (here inafter State Farm) as testimony was unrefutted that Porter's
home withstood the stonn surge, an excluded event, but not did not survive the striking by the
barge which is covered 'LInder an al l inclusive policy. The unrebutted affidavit of Roy Carubba,
PE ( R 434 ) speci fi cally states the home was destroyed by the barge and not by any other means.
As acknowledged, the issue of the value of the home once it was destroyed by a covered peril is
an issue that State Farm can present, but it shou ld be properly presented to ajury.
State Farm argues in their response to the writ that the fact that the barge was sent by the
storm surge makes it a
non~covered
peril. The prob lem with this logic is that the pol icy covers
items striking the residence and does not contain the language of how the items were propelled. (
H. 462 ) This Court has repeated ly held Ihal insurance agreements are to be construed against the
insured and any ambiguity is to be construed against the issuer of the po li cy. J&W Foods CO/po
v. Slale Farm MUll/ai Ins. Co, 723 So.2d 550. 552 (Miss. I 998). The agreement (policy)
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submitted by State Farm can not then be altered by such to deny coverage by adding a " but fo r"
argument as propounded by State Faml in regards to the but for the storm surge. the barge wo uld
not have struck the home. At best, the language constitutes an amb iguety and permits Porter to
survive summary judgment.
CON C LUSION
As stated, Appellees assel1ion that the events and circ umstances that caused the
destruction ofCherri R. Porter's home is not based upon applicable law. Grand Casino
Mississippi Inc.· Biloxi reliance upon the "Act of God" theory is not j ust ified especially when
taken into accmmt the factua l evidence pro ffered by Cherri R . Porter in regards to the inspection
and maintenance of the moo rings and as well as the lack of heavy storm mooring plan. Eli
Investments is directly on point to th is case. State Farm Fire and Casualty Company and Max
Mullins proffered no defense or causation of the true source of the destruction, but only asserted
that '-it must have happened because of the hurricane" type defense as well as proffering no
expert as to the cause of the destruction. The fact of both these arguments fail to meet the
requ ired standard for summal), j udgment and at bare minimum Cherri R. Porter has lodged
enough of factual proof to render the true destruct ion a question for a jul)'. As such. Appellant
requests that the summary j udgments granted in this be remanded fo r a trial by jul)'.
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This the 2nd day of February 2015.
J, . s Eldre Renfroe, MSB 10096
Re froe . erilloux, PLLC
Att . Y for Appellant/Plaintiff
648 Lakeland East Dri ve Ste A
Flowood, MS 39232
Phone 601.932.10 I I
Facsimile: 601.932.1014
Email: [email protected]
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CERTIFICATE OF SERVICE
I, James Eldred Renfroe, do hereby certify thal l have this date caused the above and
foregoing to be filed with the Mississippi State Supreme COlin Clerk and have cause a copy of
each to be mailed to the fo ll owing, first class mail , postage
pre~paid.
Han. John Kavanaugh
Hon. Ricardo A. Woods
Han. Kasee Sparks Heisterhagen
Burr & Fonnan, LLP
PO Box 2287
Mob ile AL 36652-2287
Attorneys for Grand Casino of Mississ ippi, Inc. - Biloxi
Han. Vincent Castigiioia, Jr.
Bryan, Nelson, Schroeder, Castigliola & Banahan, PLLC
PO Drawer 1529
Pascagoula MS 39568
Attorneys for Stale Farm Fire and Casualty Company and Max Mullins
I-Ion. Lawrence P. Bourgeois, .Ir.
Circuit Court Judge
Harrison County, Miss iss ippi
PO Box 1461
Gultporl MS 39502-1461
Trial Judge
This the 2"" day o f February 2015.
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