Flo Richmond v. Horace Mann Insurance Co

Filing

Case: 09-30706

Document: 00511204185

Page: 1

Date Filed: 08/16/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-30706 S u m m a r y Calendar August 16, 2010 Lyle W. Cayce Clerk

F L O ANN RICHMOND, P la in t if f ­ A p p e lla n t v. H O R A C E MANN INSURANCE COMPANY, D e fe n d a n t ­ A p p e lle e

A p p e a l from the United States District Court fo r the Eastern District of Louisiana U S D C No. 2:07-CV-5086

B e fo r e BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges. P E R CURIAM:* H u r r ic a n e Katrina damaged the home of appellant Flo Ann Richmond. Richmond filed a claim with her homeowner's insurance provider, appellee H o r a c e Mann Insurance Company. Horace Mann disputed the claim, and

R ic h m o n d filed suit. After a jury trial, Richmond appealed. She argues that the t r ia l court committed plain error by favoring the defense, and that the evidence d id not support the jury's verdict. Finding that the trial court did not commit

Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5T H CIR. R. 47.5.4.

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Case: 09-30706

Document: 00511204185

Page: 2

Date Filed: 08/16/2010

No. 09-30706 p la in error and the evidence supported the jury's verdict, we AFFIRM. I. FACTUAL AND PROCEDURAL BACKGROUND I n September 2005, soon after Hurricane Katrina, Richmond notified H o r a c e Mann of structural damage to her home. After sending an adjuster to R ich m on d 's home, Horace Mann issued a $17,616.33 structural damage payment in October 2005. Richmond hired a public adjuster to provide further

in fo r m a t io n regarding damage to her home. As a result, Horace Mann issued an a d d it io n a l $12,000 check for structural damage. I n May 2007, Richmond demanded policy limits from Horace Mann in the a m o u n t of $149,200 for structural damage (minus the amounts already paid) and $ 8 9 ,5 0 0 in damage to contents. She did not specify which contents were

d a m a g e d . Horace Mann sent Richmond a proof of loss and contents inventory fo r m for her to complete. She did not respond. Richmond filed suit against Horace Mann. At trial, Richmond admitted t h a t she had no photographs or other documentation of any lost or damaged c o n t e n t s , either before or after the storm. She stated that the storm destroyed a ll of her documents, credit card statements, and cancelled checks, which might o t h e r w is e have corroborated her claim for damaged contents. During the trial, the district court actively questioned witnesses. It asked R ic h m o n d 's expert witness questions about bricks, eventually concluding the e x p e r t did not know about bricks in the New Orleans area; asked Richmond d e t a ile d questions about the contents of her house; and asked Richmond n u m e r o u s questions about why she did not inform an adjuster about damage to c e r t a in ostensibly valuable contents of her home. At the conclusion of this last lin e of questioning, Richmond broke down in tears, prompting the district court t o take a recess. At the close of trial, the district court instructed the jury to disregard any p o s s ib le prejudice or opinions the jury may have felt the district court exhibited

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Case: 09-30706

Document: 00511204185

Page: 3

Date Filed: 08/16/2010

No. 09-30706 w h e n he questioned the witnesses. The jury returned a $14,000 verdict in favor o f Richmond as to her claim for structural damage. The jury concluded that R ic h m o n d was not entitled to any amount for damage to contents. Richmond t im e ly appealed. II. ANALYSIS A. C o n d u c t of the Trial Court A trial court "shall exercise reasonable control over the mode and order of in t e r r o g a t in g witnesses and presenting evidence so as to . . . make the in t e r r o g a t io n and presentation effective for the ascertainment of the truth, . . . [a n d ] avoid needless consumption of time . . . ." FED. R. EVID. 611(a). Under F e d e r a l Rule of Evidence 614(b), "[t]he court may interrogate witnesses, whether c a lle d by itself or by a party." If a party wishes to object to the court's

in t e r r o g a t io n of a witness, it may do so immediately or as soon as the jury is not p r e s e n t . FED. R. EVID. 614(c). Here, Richmond did not object at all, so our appellate review is for plain e r r o r . FED. R. EVID. 103(d). Under the plain error standard, we will reverse only if "(1) there is an error, (2) that is clear or obvious, and (3) that affects [a party's] s u b s ta n t ia l rights." United States v. Ferguson, 211 F.3d 878, 886 (5th Cir. 2000); s e e also Septimus v. Univ. of Houston, 399 F.3d 601, 606­07 (5th Cir. 2005) (a p p ly in g plain error review in a civil case). Even if these factors are met, "the d e c is io n to correct the forfeited error is within the sound discretion of the court, a n d the court will not exercise that discretion unless the error seriously affects t h e fairness, integrity, or public reputation of judicial proceedings." Ferguson, 2 1 1 F.3d at 886 (citing United States v. Olano, 507 U.S. 725, 735­36 (1993)). W e must determine whether the district court "stray[ed] from neutrality" in its interactions with witnesses, United States v. Lankford, 196 F.3d 563, 573 (5 t h Cir. 1999) (quotation omitted), to such an extent that it committed plain e r r o r . We find that it did not. It is true that the district court seemed to question 3

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Document: 00511204185

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Date Filed: 08/16/2010

No. 09-30706 R ic h m o n d 's witnesses more actively than Horace Mann's witnesses, and that its q u e s t io n in g seemed to point out flaws in Richmond's case. However, "[t]he mere fa c t that there were more interruptions on one side or the other" and "[t]he ju d g e 's elicitation of `damaging information' in the course of questioning w it n e s s e s " are "insufficient to demonstrate that the judge was engaged in m i s c o n d u c t ." Id. at 572­73 (finding no misconduct when the trial court

in t e r r u p t e d the defendant's examination of key witnesses almost sixty times, w h il e only interrupting the Government's examination of the same witnesses t w e n t y times); see also McMillan v. Castro, 405 F.3d 405, 412 (6th Cir. 2005) (fin d in g no misconduct even when the trial court's questioning "bordered on c o n d e s c e n d in g " ). Instead, the district court's questions were more focused on a s c e r ta in i n g the truth and "avoid[ing] needless consumption of time." FED. R. E VID. 611(a) F in a lly , we note that the district court's jury instruction would have helped t o cure any perceived prejudice. See Lankford, 196 F.3d at 573 (explaining that ju r y instructions can "operate against" a finding of judicial misconduct). B. S u f f i c i e n c y of the Evidence A p p e lla t e review of factual findings underlying a jury verdict is very d e fe r e n t ia l. Ham Marine, Inc. v. Dresser Indus., Inc., 72 F.3d 454, 459 (5th Cir. 1 9 9 5 ). "Unless the evidence is of such quality and weight that reasonable and im p a r t ia l jurors could not arrive at such a verdict, the findings of the jury must b e upheld." Id. H e r e , there was ample evidence for the jury to find that Richmond should n o t receive any compensation for damage to contents. First, more than a year a n d a half passed between the time Richmond filed her initial claim and the time s h e filed a claim for damage to contents. Even when she did file a claim, she did n o t respond to Horace Mann's request for more detailed information. Also, R ic h m o n d failed to provide sufficient evidence of the contents, despite numerous 4

Case: 09-30706

Document: 00511204185

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Date Filed: 08/16/2010

No. 09-30706 o p p o r t u n it ie s to do so. She had no photographs of the contents from before the h u r r ic a n e and took no photographs of the damaged contents before throwing t h e m out. She had no documentation of having purchased the contents: she s t a te d that this documentation was destroyed during the hurricane, but she did n o t explain why she was unable to procure duplicate statements from her credit c a r d company or cancelled checks from her bank. Finally, she provided no

d o c u m e n t a t io n of having replaced any of the damaged items after the storm. III. CONCLUSION B e c a u s e the trial court did not commit plain error and the evidence s u p p o r te d the jury's verdict, we AFFIRM.

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