United Services Automobile Association v. James Lisanby

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2009-CA-00529-SCT
UNITED SERVICES AUTOMOBILE
ASSOCIATION (“USAA”)
v.
ADMIRAL JAMES LISANBY AND WIFE,
GLADYS LISANBY
DATE OF JUDGMENT: 01/06/2009
TRIAL JUDGE: HON. BILLY G. BRIDGES
COURT FROM WHICH APPEALED: JACKSON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: JANET G. ARNOLD
CHARLES G. COPELAND
W. SHAN THOMPSON
JAMES DENNIS BOONE
ATTORNEYS FOR APPELLEES: DON BARRETT
DAVID M. McMULLAN, JR.
NATURE OF THE CASE: CIVIL - INSURANCE
DISPOSITION: ON DIRECT APPEAL: AFFIRMED IN
PART; REVERSED AND RENDERED IN
PART. ON CROSS APPEAL: AFFIRMED -
11/18/2010
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE CARLSON, P.J., RANDOLPH AND KITCHENS, JJ.
KITCHENS, JUSTICE, FOR THE COURT:
¶1. This case involves an alleged breach of contract and bad-faith denial of a
homeowners’ insurance claim following Hurricane Katrina. The jury awarded the plaintiffs
more than $900,000 in compensatory damages, but the trial judge directed a verdict in favor
of the defendant on the issue of punitive damages. USAA appealed and the Lisanbys cross-
appealed. Because the defendant demonstrated an arguable basis for its denial of claims, the
trial judge erred in submitting the emotional damages claim to the jury and in awarding
attorneys’ fees and litigation expenses to the plaintiffs. Accordingly, the plaintiffs’ cross-
appeal regarding punitive damages and attorneys’ fees necessarily must be denied.
Facts
¶2. Retired Rear Admiral James Lisanby and his wife, Gladys Lisanby, owned a two-story
home and a cottage in Pascagoula, Jackson County, Mississippi. Their property was located
roughly one hundred feet from the Mississippi Sound. As Hurricane Katrina approached, the
Lisanbys fled their home. When they returned a few days later, they found what remained.
The bottom floor of their residence was almost completely gone, and the cottage and garage
were no longer present. The second floor of their home sustained substantially less damage
than the first floor; unlike the furniture that had been on the first floor, the Lisanbys were
able to salvage all of the furniture from the second floor.
¶3. United Services Automobile Association (USAA) provided homeowners’ insurance
for the Lisanbys, with coverage limits of $505,000 for the dwelling, appurtenant structure
limits of $50,500, additional coverage for the cottage of $22,000, personal property limits
of $378,750, and additional living expense limits of $101,000. The Lisanbys also had
$350,000 in flood insurance coverage and were paid the flood policy limits. However, the
insurance carrier maintained that the majority of the damage was caused by storm surge, and
thus was excluded; therefore, USAA paid only $46,354.21 pursuant to the homeowners’
policy.
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¶4. The Lisanbys filed a complaint in the Jackson County Circuit Court against USAA,
alleging breach of contract and bad-faith denial of their claims. They sued for damages for
emotional distress, punitive damages, attorneys’ fees, and expenses.
¶5. After a ten-day trial, the jury returned a unanimous verdict awarding the Lisanbys a
total of $909,641 in compensatory damages. The special verdict apportioned the damages
as follows: $478,141 in additional wind damage to the house; $50,500 for wind damage to
the garage; $197,000 in additional wind damage to the contents of all three buildings;
$12,000 in additional living expenses; nothing in lost rent for the cottage; and $86,000 per
plaintiff for emotional distress. The trial judge declined to submit the issue of punitive
damages to the jury, but awarded the plaintiffs an additional $302,920.44 in attorneys’ fees
and $211,069.47 in litigation expenses.
Issues
¶6. USAA raises numerous points of error on appeal, claiming: (1) the physical facts and
photographic evidence demonstrate as a matter of law that storm surge caused the majority
of the damages, warranting a directed verdict in USAA’s favor, or, in the alternative,
requiring a new trial; (2) the evidence does not support an award for emotional distress; (3)
the trial court erred in granting the Lisanbys’ motion for attorneys’ fees and expenses; (4) the
trial court erred in denying USAA’s motions for a change of venue; (5) the trial court abused
its discretion in admitting evidence of replacement costs; (6) the trial judge erred in denying
USAA’s motions for mistrial; or, (7) in the alternative, cumulative errors warrant reversal.
The Lisanbys cross-appeal, arguing that the trial court erred by failing to allow the jury to
consider punitive damages and in capping attorneys’ fees at one-third of the verdict.
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Discussion
I. The evidence of wind damage was sufficient to support the verdict, and
the verdict was not against the overwhelming weight of the evidence.
¶7. USAA argues that the evidence established, as a matter of law, that storm surge, an
excluded cause, caused the majority of the damage to the Lisanby home, and thus USAA was
entitled to a judgment notwithstanding the verdict. Specifically, USAA argues that, because
the second floor remained intact while the first floor was virtually destroyed, the damage to
the first floor must have been caused by flooding. In the alternative, USAA argues that it is
entitled to a new trial because the overwhelming weight of the evidence points to water
damage.
¶8. The standard of review for the denial of a motion for a judgment notwithstanding the
verdict (JNOV) is de novo. U.S. Fid. and Guar. Co. of Miss. v. Martin, 998 So. 2d 956, 964
(Miss. 2008) (citing Adcock v. Miss. Transp. Comm’n, 981 So. 2d 942, 948 (Miss. 2008)).
“A motion for JNOV is a challenge to the legal sufficiency of the evidence, and this Court
will affirm the denial of a JNOV if there is substantial evidence to support the verdict.” Id.
(quoting Adcock, 981 So. 2d at 948). On appeal, we will “consider the evidence in the light
most favorable to the appellee, giving that party the benefit of all favorable inferences that
may be reasonably drawn from the evidence.” Id. (quoting Spotlite Skating Rink, Inc. v.
Barnes, 988 So. 2d 364, 362 (Miss. 2008)). “In essence, judgments as a matter of law
present both the trial court and the appellate court with the same question – whether the
evidence, as applied to the elements of a party’s case, is either so indisputable, or so
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deficient, that the necessity of a trier of fact has been obviated.” White v. Stewman, 932 So.
2d 27, 32 (Miss. 2006).
¶9. The standard of review for the grant or denial of a motion for a new trial is abuse of
discretion. White v. Yellow Freight Sys., Inc., 905 So. 2d 506, 510 (Miss. 2004) (citing
Green v. Gant, 641 So. 2d 1203, 1207 (Miss. 1994)). As with motions for JNOV, we review
the evidence in the light most favorable to the nonmoving party and will reverse “only when,
upon review of the entire record, we are left with a firm and definite conviction that the
verdict, if allowed to stand, would work a miscarriage of justice.” Id. at 510-11 (citing
Green, 641 So. 2d at 1207-08).
¶10. The Lisanbys’ key expert witness was Dr. Ralph Sinno, a structural engineer. Dr.
Sinno testified that there was “overwhelming” evidence that wind damage had structurally
destroyed the Lisanby home long before water reached the first floor. Dr. Sinno explained
in his trial testimony that the first floor exterior and interior walls were much weaker than
those on the second floor. It was undisputed that hurricane-force winds reached the Lisanby
house far in advance of the storm surge of seawater. Dr. Sinno testified that, once these
winds breached the first floor, they caused a tunneling effect throughout the house, creating
suction and pressure from the inside. According to Dr. Sinno, it was this internal pressure,
and not the storm surge, that first caused significant damage to the house, especially to the
ground floor.
¶11. To refute Dr. Sinno’s testimony, USAA offered its own engineering expert, Dr. Doug
Smith. Dr. Smith opined that storm surge destroyed the garage and cottage and caused the
damage to the first floor. It was Dr. Smith’s opinion that the force of the wind, alone, never
5
exceeded the design load of the first floor walls; therefore, it was his conclusion that water
and not wind had caused the devastating damage.
¶12. At trial and on appeal, the parties argued at length about the amount of water that had
entered the house. The Lisanbys claim that only two feet of water entered the home, while
USAA claims that the storm surge would have resulted in water ten-and-a-half feet deep in
the residential structure. Regardless, as the plaintiffs observe in their brief, the amount of
water that eventually made its way into the house is irrelevant under Dr. Sinno’s theory that
wind had severely damaged the house long before flood waters arrived.
¶13. USAA relies on Johnson v. City of Pass Christian, 475 So. 2d 428 (Miss. 1985) and
Blossman Gas, Inc. v. Shelter Mutual General Insurance Company , 920 So. 2d 422 (Miss.
2006), for their position that a verdict contrary to physical and photographic evidence cannot
stand. In Johnson, 475 So. 2d at 429, the plaintiff sued the city for damages she sustained
in a one-car accident. According to the plaintiff and other witnesses, a hole in the road
caused her to lose control of the vehicle, but no hole was shown in photographs of the
accident scene. Id. at 431. On appeal, this Court affirmed the trial court’s grant of a JNOV
in favor of the defendant, noting that “where the photographs contradict the plaintiff’s
tenuous theory of an accident, the plaintiff’s theory will not support a jury verdict.” Id.
¶14. We find that Johnson is readily distinguishable from the case before us. Unlike the
witnesses in Johnson, here the plaintiffs’ key expert did not dispute the photographic
evidence that showed the state of the house following the storm. Dr. Sinno did not disagree
that the first floor of the house received substantially more damage than the second; rather,
he testified that, in his expert opinion, wind had structurally destroyed the house before the
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storm surge arrived. Unlike Johnson, photographic evidence in this case does not contradict
witness testimony, and we find that the trial judge properly denied USAA’s motion for a
judgment notwithstanding the verdict.
¶15. Blossman, 920 So. 2d 422, also is distinguishable. In Blossman, this Court affirmed
the trial judge’s grant of a new trial to the plaintiff because the evidence was
“overwhelmingly contrary” to the jury’s verdict in favor of the defendant. Id. at 422-23. At
issue in that case was whether the negligent placement of gas lines had caused a house fire.
Id. at 423. The plaintiff insurance company presented uncontradicted evidence that a gas
leak had caused the fire, while the defendant gas company simply maintained that the cause
of the fire was unknown. Id. at 424-25. After the jury returned a verdict in favor of the
defendant, several of the jurors hugged the defendant’s counsel and its corporate
representative. Id. at 425. The trial judge granted the plaintiff’s motion for a new trial,
finding that the verdict was the result of “bias, prejudice and passion.” Id. at 426. Noting
that the “totality of the evidence [was] overwhelmingly in [the plaintiff’s] favor,” and that
“[t]his is not a case where the evidence presented at trial was in dispute and differing
conclusions could be reached,” we held that the trial judge did not abuse his discretion by
granting a new trial for the plaintiff. Id. at 426 (citing McKinzie v. Coon, 656 So. 2d 134,
140 (Miss. 1995)).
¶16. Unlike Blossman, there was no evidence of blatant juror bias in the present case, and
both sides offered reasoned explanations for the damage to the home. The evidence
presented at trial was very much “in dispute and differing conclusions could be reached,”
based on this evidence. Id. at 426. Therefore, viewing the evidence in the light most
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favorable to the plaintiffs, we cannot say that the trial judge abused his discretion in denying
USAA’s alternative motion for a new trial. The plaintiffs and the defendant were allowed
to present their respective theories of the case fully, and the jury, under proper instructions,
resolved the conflicting arguments of the parties in favor of the plaintiffs.
II. Because USAA had an arguable basis for denying the claim, emotional
distress damages should not have been submitted to the jury, and the trial
judge should not have awarded attorneys’ fees and litigation expenses.
¶17. The Lisanbys were awarded damages for emotional distress, attorneys’ fees, and
litigation expenses based on their claim that USAA acted in bad faith when it denied their
claim. USAA argues on appeal that the Lisanbys are not entitled to recover these
extracontractual damages because USAA had an arguable basis for denying the claim.
¶18. Extracontractual damages, such as awards for emotional distress and attorneys’ fees,
are not warranted where the insurer can demonstrate “an arguable, good-faith basis for denial
of a claim.” United Amer. Ins. Co. v. Merrill, 978 So. 2d 613, 627 (citing State Farm Ins.
Co. v. Grimes, 722 So. 2d 637 (Miss. 1998); Standard Life Ins. Co. v. Veal, 354 So. 2d 239
(Miss. 1977)). This Court has said that the “plaintiff bears a heavy burden” of proving that
the denial of an insurance claim was in bad faith. Windmon v. Marshall, 926 So. 2d 867,
872 (Miss. 2006) (citing Blue Cross & Blue Shield v. Campbell, 466 So. 2d 833, 844 (Miss.
1984)). Moreover,
The plaintiff’s burden in proving a claim for bad faith refusal goes beyond
proving mere negligence in performing the investigation. The level of
negligence in conducting the investigation must be such that a proper
investigation by the insurer would easily adduce evidence showing its defenses
to be without merit.
Id. (quoting Liberty Mut. Ins. Co. v. McKneely, 862 So. 2d 530, 534 (Miss. 2003)).
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¶19. On appeal, the plaintiffs cite numerous instances of conduct that they contend support
a finding that USAA acted in bad faith. However, most of these allegations are not supported
by the record, and USAA persuasively disputes all of them without response from the
plaintiffs.
¶20. For example, the plaintiffs claim that USAA concluded on August 29, 2005, that the
damage was caused by flood. The record simply does not support this assertion. Based on
a phone call from Admiral Lisanby to USAA shortly after the storm, the USAA
representative opened both a homeowners’ insurance claim and a flood insurance claim for
the Lisanby property. 1 There is no indication that USAA attributed most of the loss to storm
surge until after it had completed an investigation.
¶21. The plaintiffs also allege that Gary Taylor, USAA’s adjuster, prepared his wind
damage estimate before receiving a report from their engineer. The Lisanbys cite testimony
from Taylor that he did not prepare his estimate until the day he received the report. Nothing
in the record indicates that Taylor had prejudged the claim.
¶22. The plaintiffs further criticized USAA, arguing that, even before its engineering report
was completed, it had “certified to the Federal Government that the cause of the damage to
1
The parties dispute when this telephone call was made and exactly what information
Admiral Lisanby relayed to USAA during this call. According to the USAA representative,
the admiral called from his mobile telephone on August 29, 2005, and said that the roof was
gone, all of the contents of the house were damaged, and the first floor was under six feet
of water. Although telephone records demonstrated that a call was received on August 29,
2005, from the admiral’s mobile telephone, the admiral testified that he did not speak to a
claims representative until the next morning, on August 30. He also denied telling the
USAA claims representative that the roof had been blown off or that there was six feet of
water in his home.
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the Lisanbys’ home was flood.” This is a mischaracterization of the evidence; a flood claim
was made by the Lisanbys, and they have never disputed that they were entitled to flood
damages.
¶23. The plaintiffs also argued that USAA invented an “imaginary five-foot water line” and
“demanded” that Mrs. Lisanby create a list of personal property damaged above and below
this line. Yet, the Lisanbys readily admitted at trial that the admiral was the source of the
five-foot water line.
¶24. In sum, the record supports USAA’s claim that it had “an arguable basis” for denying
the claim. Although the jury ultimately decided that it was wind, and not water, that initially
caused the destruction, the evidence does not establish that USAA acted in bad faith in
denying the majority of the homeowners’ claim. Because USAA had an arguable basis for
its denial, the defendants are entitled to judgment as a matter of law on the issues of
emotional distress damages, attorneys’ fees, and litigation expenses. Merrill, 978 So. 2d at
627.
III. The trial judge did not abuse his discretion in allowing evidence of
replacement costs.
¶25. “The standard of review regarding admission or exclusion of evidence is abuse of
discretion. Where error involves the admission or exclusion of evidence, this Court will not
reverse unless the error adversely affects a substantial right of a party.” Whitten v. Cox, 799
So. 2d 1, 13 (Miss. 2000) (quoting Floyd v. City of Crystal Springs, 749 So. 2d 110, 113
(Miss. 1999)).
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¶26. The parties stipulated to the amount of replacement costs as follows: $1,577,324 for
the dwelling, $45,643 for the garage, and $88,746 for the cottage. Although USAA
stipulated to these amounts, it argued that this evidence was erroneously admitted because,
under the subject homeowners’ policy, the Lisanbys were not entitled to recover replacement
costs. The policy provides that in the absence of replacement, the insured was entitled to the
actual cash value of the damaged or destroyed property. The plaintiffs do not take issue with
the policy language. Instead, they argue that evidence of replacement costs was necessary
to a determination of actual cash value.
¶27. USAA admits that replacement costs are relevant to determining actual cash value,
but argues that it was prejudiced because “plaintiffs were not required by the trial court to
restrict their evidence to actual cash value of the loss.” USAA fails to point to any evidence
in the record that the verdict was based on replacement costs alone, and the evidence adduced
at trial included an actual cash value of $1.6 million. Therefore, we do not find that the trial
judge abused his discretion in admitting evidence of replacement costs.
IV. The trial judge did not abuse his discretion by denying USAA’s
motion for a change of venue.
¶28. USAA argues that the trial court erred by denying its motion for a change of venue
because it contended that it could not receive a fair trial in Jackson County due to community
bias. The Mississippi Constitution guarantees that “the right of trial by jury shall remain
inviolate.” Miss. Const. art. 3, § 31. In addition, the guarantee of due process of law
contemplates a verdict rendered by a fair and impartial jury. Hudson v. Taleff, 546 So. 2d
359, 363 (Miss. 1989) (citing Miss. Const. art. 3, § 14). Thus, trial courts have a duty to
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assure that an impaneled jury is “competent, fair and impartial.” Id. (citing Marshall
Durbin, Inc. v. Tew, 381 So. 2d 152, 154 (Miss. 1980); Miss. Power Co. v. Stribling, 191
Miss. 832, 3 So. 2d 807, 810 (1941)).
¶29. Mississippi Code Section 11-11-51 provides the mechanism whereby a party may seek
to change venue if that party believes that because of “the undue influence of the adverse
party, prejudice existing in the public mind, or for some other sufficient cause to be stated
in the petition, he cannot obtain a fair and impartial trial in the county where the action is
pending.” However, the decision to grant or deny a motion for a change of venue will not
be disturbed on appeal absent an abuse of discretion. Bayer Corp. v. Reed, 932 So. 2d 786,
788 (Miss. 2006) (citing Beech v. Leaf River Forest Prods., Inc., 691 So. 2d 446, 448 (Miss.
1997)).
¶30. Months before trial, USAA filed a motion for a change of venue, arguing that it could
not receive a fair trial in any of the Mississippi Gulf Coast counties because: (1) the majority
of potential jurors were adversely affected by Hurricane Katrina; (2) there had been
widespread negative publicity about insurance companies in general; (3) prominent coastal
residents had filed suit against their homeowners’ insurance companies; and (4) there was
potential for witness and juror intimidation.
¶31. In support of its motion, USAA attached documentation showing that 64% of the
houses in Jackson County had sustained some type of damage from Hurricane Katrina. Also
attached were four political cartoons that were critical of insurance companies’ handling of
Katrina claims, but without any indication of whether or when these cartoons were published.
Another exhibit was of an attorney advertisement soliciting clients who had potential claims
12
against their homeowners’ insurance; the record does not indicate where this advertisement
was published or how many times it may have circulated.
¶32. USAA provided twenty news reports regarding Hurricane Katrina and homeowners’
insurance, but did not provide circulation or viewer numbers for the news outlets.2 Only two
of the articles specifically referred to USAA. One of them mentioned that Mississippi
Attorney General Jim Hood was suing a number of insurance companies, including USAA;
the other article mentioned that USAA was one of several insurance companies being sued
by former-attorney Richard Scruggs.
¶33. Also attached to the motion were two complaints filed against State Farm in the
United States District Court for the Southern District of Mississippi. One of the complaints
was filed by United States Senator Trent Lott, and the other was filed by United States
Representative Gene Taylor, in connection with their respective losses from Hurricane
Katrina.
¶34. USAA also provided four photographs of homemade signs allegedly created and
posted on Gulf Coast properties by disgruntled homeowners. Two of the signs criticized
State Farm Insurance, one took aim at Farm Bureau Insurance, and the other read “Think
Katrina was ‘Ruthless’? Wait Til U Meet Your Ins. Adjuster.”
¶35. Finally, USAA attached an affidavit from Dr. Craig New, a psychologist from Oregon
described as a venue expert. Dr. New had hired an independent company to conduct a
2
Five reports came from television station WLOX, twelve from the South Mississippi
Sun Herald newspaper, one from the Jackson Clarion-Ledger newspaper, one from the
Hattiesburg American newspaper, and one from a magazine entitled Mid-South Super
Lawyers.
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telephone survey of potential jurors in Jackson County and eleven other counties.3 Based on
the responses given, Dr. New opined that USAA could not receive a fair trial in Jackson
County.
¶36. The plaintiffs responded that the majority of the media attention was directed at State
Farm, not USAA, and that no article mentioned the Lisanbys’ case specifically. The
plaintiffs also cited a Fifth Circuit Court of Appeals opinion upholding the decision of a
federal district court for the Southern District of Mississippi which had denied State Farm’s
motion for a change of venue in a very similar, Katrina-related case. Broussard v. State
Farm Fire and Cas. Co., 523 F.3d 618, 631-32 (5th Cir. 2008). The plaintiffs also noted
that USAA recently had tried another Katrina case to verdict in the same district court and
had not requested a change of venue.
¶37. The plaintiffs also attached to their response an affidavit from Dr. W. Martin
Wiseman, the director of the John C. Stennis Institute of Government at Mississippi State
University. Dr. Wiseman questioned Dr. New’s methodology and opined that there was as
great a risk of juror bias in the central and northern counties of Mississippi as in the Gulf
Coast counties. Dr. Wiseman also expressed his opinion that voir dire would be “sufficient
to insure that qualified, unbiased jurors are chosen to serve on this case.”
¶38. The trial judge held a hearing on the motion and heard testimony from USAA’s venue
expert, Dr. New. The trial judge denied the request for a change of venue, reasoning that
3
The interviewees were from Jackson, Hancock, Harrison, Pearl River, Stone, George,
Calhoun, Lafayette, Marshall, Pontotoc, Union, and Yalobusha Counties.
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voir dire examination would be an adequate means to ensure that an impartial jury was
impaneled.
¶39. USAA renewed its motion after the lengthy voir dire, citing its pretrial motion and a
recent article in the Sun Herald newspaper reporting on the Lisanbys’ case. Seven of the
seventy-nine veniremen indicated that they had heard about the case or had read the Sun
Herald article. Only one of the seven served on the jury, and that juror swore during voir
dire that his prior knowledge would have no effect on his ability to render a verdict. The trial
judge again denied USAA’s motion, noting that voir dire had confirmed his prior ruling that
an impartial jury could be impaneled in Jackson County. The judge then struck three
prospective jurors sua sponte, one of whom had expressed a religious aversion to jury duty,
and two of whom had indicated that their personal experiences following Hurricane Katrina
had rendered them biased against USAA. All twelve of the jurors that USAA challenged for
cause were struck, three over the objection of the plaintiffs. In all, fourteen of the seventy-
nine jurors, or approximately eighteen percent, were struck because the trial judge found
them to be biased.
¶40. USAA raised the issue again in its posttrial motion for a new trial. The defendant
cited articles about the case by the Sun Herald newspaper that had been published during
trial and that USAA claimed were favorable to the plaintiffs. USAA also offered an affidavit
from one of its attorneys who claimed that, during USAA’s closing arguments, an audience
member “loudly express[ed] negative comments” about the insurance company. USAA also
offered an affidavit from Dr. Allen R. McConnell, a professor of psychology at Miami
University. Dr. McConnell opined that, based on Dr. New’s pretrial study, the evidence
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attached to USAA’s motion for a change of venue, and the trial transcripts, “it seems
virtually impossible to eliminate the biases . . . if jurors are chosen from residents of Jackson
County.” Finally, USAA argued that the admiral’s prominence in the community, and his
testimony that he was largely responsible for bringing the Northrup Grumman shipyard to
Pascagoula, improperly influenced the jury’s verdict.
¶41. USAA cites Beech, 691 So. 2d at 450, to support its argument that the pervasiveness
of the pretrial publicity and the large number of similar claims in Jackson County rendered
voir dire ineffective at detecting juror bias. Beech involved one of many lawsuits against
companies that allegedly had dumped pollutants into local rivers, causing the fish in those
streams to be contaminated with dioxin. Id at 447. On appeal, the plaintiffs had challenged
the trial court’s decision to transfer venue out of George County. In affirming the transfer
of venue, we rejected the plaintiffs’ claims that the trial court should have conducted voir
dire before issuing its ruling instead of relying solely on the defendants’ petition. Id. at 450.
We found it noteworthy that 750 of the 8,909 residents of George County eligible for jury
duty were plaintiffs in dioxin cases against the same defendants, and even more were
potential plaintiffs in a case against the same defendants in neighboring Jackson County. Id.
In addition, the defendants had provided the trial court more than 300 news articles printed
in local newspapers in the years leading up to trial. Id. The Court also noted that alternatives
to a change of venue, such as an increase in the size of the venire or additional peremptory
challenges, would not have made much of a difference in a county as small in population as
George County. Id. (citing Hudson, 546 So. 2d at 363).
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¶42. We find that the present case is more akin to Bayer v. Reed, 932 So. 2d 786 (Miss.
2006). In Reed, the plaintiff sued the maker of the prescription drug Baycol, seeking to
recover for damages that she allegedly had suffered from taking the drug. Id. at 788. On
interlocutory appeal, this Court affirmed the trial court’s refusal to transfer venue out of
Holmes County despite extensive pretrial publicity and a large number of similar cases also
filed in Holmes County. Id. at 790-91. We noted that “Bayer has presented extensive
evidence that there was pre-trial publicity regarding prescription medication in general;
however, no evidence has been presented to link the publicity specifically with Bayer,
Baycol or this particular lawsuit.” Id. at 790.
¶43. Likewise, with the exception of one article published just before trial, USAA did not
present to the trial court any pretrial news coverage specific to the Lisanbys’ case. Out of
the twenty articles attached to its motion for a change of venue, only two mentioned USAA,
and most of the articles focused on State Farm. Moreover, the number of articles presented
in this case pales in comparison to the nearly 300 articles that were presented to the trial court
in Beech. As for the number of similar claims in Jackson County, USAA provided no such
statistics, and none of the veniremen had filed a lawsuit against his or her homeowners’
insurance carrier.
¶44. USAA also cites King v. Kelly, 234 Miss. 160, 137 So. 2d 808, 813 (1962), to support
its argument that juror bias was so prevalent that it warranted a new trial. However, in King,
sixty-eight percent of the venire had fixed opinions about the case. In the present case, only
eighteen percent of the venire expressed preconceived bias against the insurance company.
See also Hudson, 546 So. 2d at 363 (reversal warranted where forty-eight percent of
17
veniremen had connection with defendant); Seals v. State, 208 Miss. 236, 44 So. 2d 61, 68
(1950) (reversal warranted where sixty-five percent of veniremen believed the defendant was
guilty). We do not find the same sort of statistical lopsidedness in the case before us.
¶45. As for the opinions of USAA’s venue experts, the trial judge did not abuse his
discretion in rejecting their findings. The judge heard live testimony from Dr. New, but
apparently was more persuaded by Dr. Wiseman’s contrary conclusion that an impartial jury
could be obtained through the voir dire process. Indeed, Dr. New’s study supports Dr.
Wiseman’s conclusion that juror bias against insurance companies would be just as prevalent
in the northern counties; the responses to many of the questions posed by Dr. New often did
not differ significantly among residents of the several Mississippi counties he had studied.
As Dr. McConnell’s opinions were largely based on Dr. New’s findings, the trial judge did
not abuse his discretion in rejecting them as a basis for a new trial.
¶46. Regarding USAA’s claim that Admiral Lisanby’s prominence in the community
somehow influenced the jury against the insurance company, only one potential juror
indicated that he knew who the admiral was, and that venire member was struck for other
reasons. In addition, defense counsel asked the venire during voir dire, “does the fact that
[Admiral Lisanby], in some way, worked with or promoted, helped, assisted the shipyard,
does that mean in any way to you whatsoever, I need to do something for the Admiral, I need
to take care of them, I need to give them a little extra edge?” The record does not indicate
that any of the venire members responded affirmatively, and the defendant did not move to
strike any of them for cause on the basis of this inquiry. USAA did not ask the potential
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jurors about any other lawsuits filed by other prominent Gulf Coast citizens, such as Senator
Lott or Representative Taylor.
¶47. Finally, USAA knew well in advance of trial that its motion for a change of venue had
been denied; yet the record does not indicate that the defendant took any significant steps to
ferret out its perceived juror bias beyond its extensive voir dire examination of the venire.
USAA did not request pretrial juror questionnaires, through which it might have posed the
same questions to the venire that Dr. New had asked in his survey. Neither did USAA ask
for additional peremptory challenges or for an increase in the size of the venire. See Hudson,
546 So. 2d at 363. Moreover, individual, sequestered voir dire examination was not
requested by the defendant.
¶48. Based on the record before us, we cannot say that the trial judge abused his discretion
in declining to transfer venue out of Jackson County. The pretrial publicity was not specific
to the Lisanbys’ case, and only two of the twenty articles offered by USAA even mentioned
the defendant by name. The record provides no indication that the trial court was unduly
restrictive in the scope or the length of time allowed for voir dire, and the defendant makes
no complaint in this regard. Furthermore, the trial judge struck all fourteen jurors who
indicated that they might be biased against USAA. We find that the trial judge was correct
in ruling that voir dire examination was an effective method of impaneling a fair and
impartial jury.
V. A mistrial was not warranted.
¶49. USAA argues that the trial judge should have granted a mistrial based on plaintiffs’
counsel’s “send a message” argument and based on the same attorney’s interview with local
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media. Our standard of review regarding the decision to grant or deny a motion for a mistrial
is abuse of discretion. Coho Resources, Inc. v. McCarthy, 829 So. 2d 1, 18 (Miss. 2002).
In addition, “the trial judge is in the best position for determining the prejudicial effect of an
objectionable remark.” Id. Absent “serious and irreparable damage . . . the trial judge should
admonish the jury then and there to disregard the impropriety.” Id. (quoting Roundtree v.
State, 568 So. 2d 1173, 1177-78 (Miss. 1990)).
¶50. USAA cites the following portion of the plaintiffs’ closing arguments to demonstrate
its view that the attorney improperly asked the jury to “send a message” to the defendant.
Plaintiffs’ Counsel: You know, sometimes we feel so powerless. There’s such
an unequal situation between the little policyholder and the big insurance
company. The insurance company –
Defense Counsel: Improper argument, Your Honor.
The Court: I think so.
....
Plaintiffs’ Counsel: The insurance company has the exclusive control,
dominion and power over the evaluation, processing and denying of a claim,
and the people have no voice. But not today. In this one shining moment in
our American system, the people can speak and respond in justice. Today, you
are the voice of the people.
Defense Counsel: Your Honor, that’s totally improper argument.
Plaintiffs’ Counsel: It is not improper.
The Court: I’m going to overrule your objection. Let him get through.
Plaintiffs’ Counsel: Today, you are the voice of the people. Speak. Speak
quickly and speak clearly. If you do today, the people of Jackson County will
be heard.
Defense Counsel: May we approach, Your Honor.
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The trial judge then held an off-the-record bench conference, at the conclusion of which he
instructed the jury to “disregard that last statement made by [plaintiffs’ counsel]. Do not
consider that in your deliberations.” USAA moved for a mistrial, which the trial court
denied, reasoning that the jury would follow his instruction to disregard the statements.
¶51. On appeal, USAA likens these comments of counsel to those made in Janssen
Pharmaceutica, Inc. v. Bailey, 878 So. 2d 31 (Miss. 2004). In Bailey, the plaintiffs sued the
manufacturers of the prescription drug Propulsid. Id. at 35. After the defense rested, the trial
court granted a directed verdict in favor of the defendants on the plaintiffs’ negligent
misrepresentation claims. Id. at 61. Although the only issue remaining before the jury was
the inadequate warning claim, the plaintiffs’ attorney “continuously argued throughout
closing arguments that the campaign [the defendant] developed to promote Propulsid was
false and misleading.” Id. at 62. In addition to the “countless references” to negligent
misrepresentation, the plaintiffs’ attorney also “suggested that the jury should ‘send a
message’ to [the defendants] by basing the amount of damages solely on [their] finances.”
Id. This Court found that “[p]laintiffs’ counsel was making a punitive damages argument
for intentional fraud when the only issue before the jury was a compensatory damages claim
for negligent failure to warn.” Id. This Court concluded that these continued “appeals to
passion and prejudice” warranted reversal. Id. (quoting Shell Oil Co. v. Pou, 204 So. 2d
155, 157 (Miss. 1967)).
¶52. We do not find that the arguments in the present case rise to the level of those
condemned in Bailey. The trial judge sustained USAA’s objection and properly instructed
the jury to disregard the objectionable statements. We cannot say that the judge abused his
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discretion by refusing to grant a mistrial. The trial judge promptly and unequivocally
instructed the jurors not to consider the remarks in question, and they are presumed to have
done so. Parker v. Jones County Cmty. Hosp., 549 So. 2d 443, 446 (Miss. 1989) (citations
omitted).
¶53. USAA also argues that a mistrial was warranted because one of the plaintiffs’
attorneys conducted an interview with a local television station in front of the courthouse and
in view of the jurors as they were recessing between deliberations. When it was brought to
the judge’s attention the following day, the judge individually polled the jurors about the
interview. Every juror but one admitted having seen the interview in progress, but none of
the jurors heard what was being said. The trial judge noted that he had viewed the interview
and declined to grant the defendant’s motion for a mistrial.
¶54. USAA cites Mississippi Rule of Professional Conduct 3.6(a), which prohibits
attorneys’ making “extrajudicial statement(s) that a reasonable person would expect to be
disseminated . . . [and] will have a substantial likelihood of materially prejudicing an
adjudicative proceeding.” The only statement to which USAA points is the plaintiffs’
attorney’s assertion to the reporter that the Lisanbys “should win.” We fail to see how such
a statement, even if overheard by the jurors, would have had “a substantial likelihood of
materially prejudicing” the verdict. Miss. R. Prof. Cond. 3.6(a). Therefore, the trial judge
did not abuse his discretion by refusing to grant a mistrial based on the comments given by
the plaintiffs’ attorney to the reporter.
VI. Absent bad faith, punitive damages are not warranted.
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¶55. On cross-appeal, the plaintiffs argue that the trial judge erred by refusing to hold an
evidentiary hearing before denying their request to move to a punitive damages phase of the
trial. As discussed in Issue II above, the plaintiffs failed to demonstrate bad faith on the part
of the defendant. Because bad-faith denial of their claim was the only basis the plaintiffs
asserted to support punitive damages, this issue is moot.
Conclusion
¶56. For the foregoing reasons, we affirm the judgment in favor of the Lisanbys on their
breach-of-contract claim. However, because the plaintiffs failed to demonstrate that the
defendant acted in bad faith when it denied their claim, we reverse and render judgment in
favor of the defendant regarding the award of extracontractual damages for the infliction of
emotional distress, attorneys’ fees, and litigation expenses.
¶57. ON DIRECT APPEAL: AFFIRMED IN PART; REVERSED AND RENDERED
IN PART. ON CROSS APPEAL: AFFIRMED.
WALLER, C.J., CARLSON AND GRAVES, P.JJ., DICKINSON, LAMAR AND
CHANDLER, JJ., CONCUR. RANDOLPH, J., CONCURS IN RESULT ONLY.
PIERCE J., NOT PARTICIPATING.
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