Terrell v. Daddio et al
ORDER granting 37 Motion for Summary Judgment; granting 46 Motion to Strike ; finding as moot 49 Motion in Limine; finding as moot 51 Motion in Limine; finding as moot 53 Motion in Limine; finding as moot 55 Motion in Limine; findin g as moot 57 Motion in Limine; finding as moot 59 Motion in Limine; finding as moot 61 Motion in Limine; finding as moot 63 Motion in Limine; finding as moot 65 Motion in Limine; finding as moot 67 Motion in Limine; finding as moot 69 Motion in Limine; finding as moot 71 Motion in Limine Signed by Honorable David C. Bramlette, III on 3/20/2017 (ECW)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
KIM SUSHINSKI TERRELL, NEXT FRIEND OF
JIMMY FAY WILTSHIRE SUSHINSKI
CIVIL ACTION NO. 5:15-cv-50(DCB)(MTP)
VINCENT A. DADDIO, LORI S. MILLS (DADDIO),
AND GARRISON PROPERTY AND CASUALTY
INSURANCE COMPANY, A SUBSIDIARY OF
USAA CASUALTY INSURANCE COMPANY
MEMORANDUM OPINION AND ORDER
This cause is before the Court on defendant Garrison Property
and Casualty Insurance Company (“Garrison”)’s Motion for Summary
Judgment (docket entry 37), Motion to Strike (docket entry 46), and
Motions in Limine (docket entries 49, 51, 53, 55, 57, 59, 61, 63,
65, 67, 69 and 71).
Having carefully considered Garrison’s
motions and the responses of plaintiff Kim Sushinski Terrell, next
friend of Jimmy Fay Wiltshire Sushinski, as well as the memoranda
of the parties and the applicable law, and being fully advised in
the premises, the Court finds as follows:
The plaintiff, Kim Sushinski Terrell, brings this action as
next friend of her mother, Jimmy Fay Wiltshire Sushinski, who was
90 years old at the time the Complaint was filed.
states that Kim has filed in the Chancery Court of Pike County,
Mississippi, a Petition for her appointment as Conservator of the
Estate of Jimmy Fay Wiltshire Sushinski, and that she will amend
the Complaint to show that she is proceeding as Conservator of her
The plaintiff’s Complaint alleges that Jimmy Fay Wiltshire
Sushinski (mother of Lori S. Mills Daddio and Kim Sushinski
Terrell) was owner and occupant of a residential dwelling at 160
West Bay Street, Magnolia, Mississippi, with her husband, Steve
Sushinski, who died in 2013 following an extended illness.2
the death of Mr. Sushinski, Mrs. Sushinski invited her daughter
Lori S. Mills Daddio, and Lori’s husband Vincent A. Daddio, to move
in with Mr. and Mrs. Sushinski, in order for Lori to help care for
Mr. Sushinski, and because the Daddios had suffered financial
Complaint, ¶¶ 4-5.
The Complaint further alleges that some time prior to the
Daddios moving into the dwelling, Mrs. Sushinski had obtained an
insurance policy insuring her home for $45,000.00.
was the only loss payee under the policy.
According to the
plaintiff, the Daddios “fraudulently and secretively obtained
Complaint, ¶¶ 6, 8.
The Complaint alleges that
Garrison “wrote the excessive fire insurance coverage ($275,000.00)
on the house without benefit of an appraisal of any type, in
The plaintiff has not amended her Complaint, and there is no entry on
the docket showing that Kim Sushinski Terrell is proceeding as Conservator of
her mother’s estate.
Although the Complaint alleges that Mr. Sushinski, died in 2013, the
plaintiff, Kim Sushinski Terrell, testified at her deposition that her father
died in April of 2012. Terrell Deposition, p. 35.
violation of Section 83-13-5, Miss. Code Anno.”
Complaint, ¶ 9.
The policy also increased personal property protection coverage to
$222,750.00. Id., ¶ 10. The plaintiff alleges that Mrs. Sushinski
had no knowledge that the Daddios had obtained the additional
Id., ¶ 11.
The plaintiff further alleges that the Daddios, “or either of
them acting in concert, set fire to the residence[,]” and that the
Daddios “had opportunity and motive to set the fire, for their
personal financial gain.”
Id., ¶¶ 13-14.
According to the
plaintiff, Garrison “made no efforts to investigate the fire or the
cause of its origin, even though the recent increase in policy
limits and the distressed financial circumstances of [the Daddios]
should have triggered an investigation.
The insurance company did
not require an investigation of the cause and origin of the fire,
and [the Daddios] refused an investigation of the cause and origin
of the fire when requested by the Magnolia Fire Chief to do so.”
Id., ¶ 16.
The Complaint also alleges that the Daddios “made material
misrepresentations in Proof of Loss Statements submitted by them
regarding the contents, the ownership of the contents, the extent
of the fire damage to the building, and their intention to rebuild
the house rather than completely demolish it[;]” and that after
July 15, 2013, Garrison issued checks for living expenses for the
Daddios without the knowledge or consent of Mrs. Sushinski.
The plaintiff further alleges that at the request of the
Daddios, Garrison made Electronic Fund Transfers into Vincent
Daddio’s account maintained at Garrison’s parent company, USAA
Casualty Insurance Company (“USAA”).
According to the plaintiff,
“Garrison knew, or should have known, that these funds were to be
paid jointly to Jimmy Fay Wiltshire Sushinski,” and that Mrs.
Sushinski “was not aware of the electronic fund transfers [totaling
over $133,634.22], did not consent to them, and should have been
notified by Garrison that such payments were being made solely to
Id., ¶ 19.
Finally, the plaintiff alleges that checks in the amount of
$290,000.00 were made payable to the Daddios and Mrs. Sushinski,
Defendants with the signature of Jimmy Fay Wiltshire Sushinski[,]”
and that Garrison “knew, or should have known, about the obvious
Id., ¶ 20.
The plaintiff asserts claims against Garrison for negligence
reasonable diligence and care in its acts and omissions in the
issuance of the fire policy, its failure to investigate the fire
loss claim, its payments [to the Daddios] and its failure to
determine whether the policyholder (member), Vincent A. Daddio, had
an insurable interest in the real and personal property insured
under the policy.”
Id., ¶ 21.
Specifically, the Complaint includes Seven Counts against
Garrison: violation of Miss. Code Ann. § 83-13-5 (negligence per
se)(Count I); unauthorized deposits into USAA Account No. 4799
without authorization from Mrs. Sushinski (Count II); failure to
investigate materially false information provided at the time of
issuance of the Fire Policy (Count III); failure to exercise
reasonable diligence in investigation of fire loss (Count IV);
failure to detect forgery of checks in payment of fire loss (Count
V); payments to Daddios after Garrison had been expressly directed
not to make payments (Count VI); negligent failure to determine
that Vincent A. Daddio had no insurable interest at the time of
fire loss (Count VII); and a claim for punitive damages (Count
Garrison moves for summary judgment as to all Counts. Federal
Rule of Civil Procedure 56 provides that “[t]he court shall grant
summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”
burden of production at trial ultimately rests on the nonmovant,
‘the movant must merely demonstrate an absence of evidentiary
support in the record for the nonmovant's case.’”
Houston Indep. Sch. Dist., 626 F.3d 808, 812 (5th Cir. 2010)(quoting
Shields v. Twiss, 389 F.3d 142, 149 (5th Cir. 2004)).
the movant bears the burden of proof on an issue, either because he
is the plaintiff or as a defendant he is asserting an affirmative
defense, he must establish beyond peradventure all of the essential
elements of the claim or defense to warrant judgment in his favor.”
Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986). If the
movant meets his burden, the nonmovant must go beyond the pleadings
and point out specific facts showing the existence of a genuine
issue for trial.
Cannata v. Catholic Diocese of Austin, 700 F.3d
169, 172 (5th Cir. 2012)(citation omitted).
“An issue is material
if its resolution could affect the outcome of the action.”
Club, Inc. v. Sandy Creek Energy Assocs., L.P., 627 F.3d 134, 138
(5th Cir. 2010)(quoting Daniels v. City of Arlington, Tex., 246 F.3d
500, 502 (5th Cir. 2001)).
“An issue is ‘genuine’ if the evidence
is sufficient for a reasonable jury to return a verdict for the
Cuadra, 626 F.3d at 812 (citation omitted).
The Court is not permitted to make credibility determinations
or weigh the evidence. Deville v. Marcantel, 567 F.3d 156, 164 (5th
Cir. 2009)(citing Turner v. Baylor Richardson Med. Ctr., 476 F.3d
337, 343 (5th Cir. 2007)).
When deciding whether a genuine fact
issue exists, “the court must view the facts and the inferences to
be drawn therefrom in the light most favorable to the nonmoving
party.” Sierra Club, 627 F.3d at 138.
unsubstantiated assertions, and legalistic argumentation do not
adequately substitute for specific facts showing a genuine issue
Oliver v. Scott, 276 F.3d 736, 744 (5th Cir. 2002)
(citing Sec. & Exch. Comm’n v. Recile, 10 F.3d 1093, 1097 (5th Cir.
Garrison contends that the plaintiff’s claims stem from the
Sushinski family’s decision to allow one family member, Lori
Daddio, to handle the claim with Garrison.
Lori lived in the
house, and was the named insured under the policy.
authorized to act on her mother’s behalf “in all matters pertaining
to the insurance” pursuant to the Policy’s language, and she was
her mother’s agent under a written and signed Power of Attorney.
Lori was the sole family member who contacted Garrison, and she and
her husband Vincent worked with Garrison for a year presenting
claims, providing information needed to adjust the claims, and
answering Garrison’s questions.
During that year, Garrison paid
$419,326.51 of the $427,634.04 that was ultimately paid for the
No other family member attempted to contact Garrison
during that time.
Then, just before the final $8,307.53 payment was issued (for
recoverable depreciation for certain damaged contents belonging to
Lori and Vincent), Lori told the family that she had gambled away
much of the claims proceeds.
Following that revelation, other
family members accused Lori and/or Vincent of arson, of forging
signatures on some of the claims checks, and of fabricating the
gambling losses in order to hide money from the rest of the family.
Garrison asserts that it relied in good faith on the Power of
Attorney given by Mrs. Sushinski to Lori, which provides that “no
person who relies in good faith on the authority of my Agent under
this instrument shall incur any liability to me, my estate or any
(Durable Power of Attorney, Exh. 4 to
Plaintiff’s Motion for Summary Judgment).
states that it was asked to and did provide replacement cost
insurance for the Sushinski house and its contents.
fire, it conducted a thorough investigation, adjusted the claims
and made payments for the losses. Garrison further points out that
no one is claiming that it underinsured the house and its contents,
nor that it underpaid the claims.
The plaintiff claims that Garrison committed a violation of
Miss. Code Ann. § 83-13-5 by overinsuring the house without
However, “[t]he very life of the [valued policy statute] is that
the company shall not receive the premiums on one basis, and pay
losses on another.”
Hartford Fire Ins. Co. v. Shlenker, 32 So.
155, 157 (Miss. 1902). The statute’s purpose is to bar an “insurer
from arguing that the value of the insured property totally
destroyed by fire is less than the amount for which the property
Miss. Farm Bureau Mut. Ins. Co. v. Todd, 492 So.2d
919, 931 (Miss. 1986).
Neither § 83-13-5 nor cases interpreting §
83-13-5 require an appraisal by an insurance company during the
In this case, Garrison did not “receive the
premiums on one basis, and pay losses on another” (Hartford, 32 So.
at 157), and has not argued that “the value of the insured property
totally destroyed by fire is less than the amount for which the
property was insured.” (Todd, 492 So.2d at 931).
record demonstrates that Garrison did just the opposite.
took premiums and paid the dwelling claim without any argument
relating to the value of the subject house.
At best, the plaintiff’s claim is a thinly-veiled claim of
negligent underwriting, which Mississippi law has never recognized
as a viable claim.
But assuming arguendo that the plaintiff can
raise a claim for negligent underwriting, her claim still must
Garrison did what it was requested of it during its
underwriting. Lori, pursuant to the Power of Attorney and with the
consent of her family, asked Garrison to provide replacement cost
coverage for the 3,000 square-foot, five bedroom and three bathroom
house. Garrison underwrote the risk and offered dwelling limits of
Lori (still acting pursuant to the Power of Attorney
and with her family’s consent) accepted the terms. Garrison issued
the subject policy, and Lori began paying the premiums.
these facts, there is no cause of action for negligence.
no breach of duty where an insurer does what it was reasonably
asked to do.
The plaintiff also claims that Garrison placed too
much insurance coverage on the house, making it a temptation for
Garrison’s underwriting caused any loss. Garrison paid proceeds to
the insured based on the amount of insurance requested and issued.
Any damages suffered by the plaintiff were caused by family members
or others, not by Garrison. Additionally, the plaintiff has failed
to allege any facts to show that the fire was incendiary.
of these reasons, Garrison is entitled to summary judgment on this
According to the Complaint, Garrison damaged Mrs. Sushinski
when Garrison electronically deposited claims proceeds into USAA
bank account ending with #4799 without authorization or consent of
and/or notice to Mrs. Sushinski, and without Mrs. Sushinski being
named as a payee.
Garrison contends that the evidence developed
through discovery completely undermines this claim and calls for
summary judgment in favor of Garrison.
First, the family and Mrs.
Sushinski knew about the fire and the insurance.
After the fire,
they consented to and had notice of Lori handling the claims with
The family consented to and had notice of Garrison
working with Lori and Vincent.
Only Lori and Vincent presented
claims to Garrison.
Mrs. Sushinski never personally presented any
claim to Garrison.
Mrs. Sushinski never told Garrison she should
be separately compensated for any part of any loss. Mrs. Sushinski
decided not to personally cooperate with Garrison.
everything to Lori and Vincent Daddio.
Mrs. Sushinski chose to
proceed in this manner, and cannot now claim “foul” on the part of
Garrison when she consented to and had notice of the course of
For these reasons, Garrison is entitled to summary
Additionally, the Power of Attorney was valid and enforceable
at the time that each of the electronic funds transfers occurred.
The Power of Attorney expressly provided that Mrs. Sushinski
authorized Lori to handle the claim with Garrison.
authority to “[t]ake any and all legal steps necessary to collect
any amount or debt owed to [Mrs. Sushinski] or to settle any claim
insurance and annuity contracts;” and “[s]ell, convey, lease,
mortgage, manage, insure, improve, repair, or perform any other act
with respect to any of [Mrs. Sushinski’s] property.”
The Power of
Attorney also provided that Mrs. Sushinski authorized Lori to
“[c]onduct any business with any banking or financial institution
with respect to any of my accounts, including, but not limited to,
making deposits and withdrawals, negotiating or endorsing any
checks or other instruments with respect to any such accounts.”
The Power of Attorney was valid and enforceable at the time that
each of the electronic funds transfers occurred.
Furthermore, the Additional Insured Endorsement authorized
Lori to act for Mrs. Sushinski “in all matters pertaining to this
Accordingly, Garrison had the contractual right and
duty to act in accordance with the Endorsement’s language. For all
of these reasons, Garrison is entitled to summary judgment on this
The title of the plaintiff’s Count III claims that Garrison
failed to investigate materially false information provided at the
time of issuance of the Policy.
However, the substance of Count
III is not that Garrison received materially false information at
the time of the Policy’s issuance; rather, the plaintiff claims
that Garrison (1) failed to investigate the value of the house, and
(2) failed to investigate regarding Vincent Daddio’s insurable
interest in the house and/or its contents.
underwriting which, as stated in the Court’s discussion of Count I
Additionally, regarding Vincent’s insurable interest (or lack
thereof), Mississippi law provides that “[t]he principle may be
stated generally that anyone has an insurable interest in property
who derives a benefit from its existence or would suffer loss from
Southeastern Fidelity Ins. Co. v. Gann, 340
So.2d 429, 434 (Miss. 1976).
The record in this case demonstrates
that Vincent had an insurable interest in the house and its
Vincent was married to Lori, an owner of the house, and
lived in the house.
He brought personal property, including
furnishings and appliances, with him when he moved in.
purchased new furnishings and appliances, and he and his wife made
repairs to the house.
Vincent also had complete access to the
entire house while living there.
For these reasons Garrison is
entitled to summary judgment on this claim.
The plaintiff alleges that Garrison failed to act reasonably
during the investigation into the fire, and failed to determine
that Lori and/or Vincent committed arson, resulting in damages to
To survive Garrison’s summary judgment motion, the
plaintiff must have some credible, competent summary judgment
evidence that Lori and/or Vincent committed arson.
As the Court
found under Count I, the plaintiff has come forward with no such
evidence, and in fact the record demonstrates that the fire was not
incendiary in nature.
Additionally, the plaintiff has produced no
evidence to create a fact issue regarding the reasonableness of
The record demonstrates that Garrison
had multiple adjusters conduct onsite investigations, and hired an
independent cause and origin specialist to investigate the fire.
After Garrison determined that the fire originated at the coffee
maker, Garrison had the coffee maker company and its insurer
conduct their own investigations.
The undisputed evidence shows
that Garrison acted reasonably and that summary judgment must be
granted as to this claim.
In Count V, the plaintiff claims that Garrison failed to
detect forgery, specifically forged signatures of the name “Jimmy
Fay Wiltshire Sushinski,” on four checks issued by Garrison.
However, there is no duty owed under Mississippi law that would
require an insurer issuing claim payment checks to detect forgery
of a payee listed on the checks.
The checks were issued by
They were not presented to Garrison for depositing or
The checks were deposited into accounts of Lori, Mrs.
Sushinski, Vincent and/or some combination thereof. After Garrison
mailed the checks, it did not have any further contacts with the
checks until they were returned as cancelled checks.
There is also no competent evidence in the record establishing
that Mrs. Sushinski or any person acting on her behalf complained
of forgery prior to the final payment of $8,307.53 being issued and
The checks for $9,402.83, $27,588.95, $236,528.16, and
$16,113.55 were endorsed by Lori while she had authority to sign on
Mrs. Sushinski’s behalf pursuant to the Power of Attorney.
final check for $8,307.53 was for recoverable depreciation, i.e.,
the difference in the estimated actual cash value of certain
damaged items and the actual cost of items that were purchased to
replace those damaged items.
Lori and Vincent submitted receipts
The final check for $8,307.53 did not
represent any supplemental payment for Mrs. Sushinski.
reasons, Garrison is entitled to summary judgment.
Count VI is a recapitulation of the plaintiff’s claim that
Garrison was informed of intentional acts and omissions committed
information and arson.
As the Court found in its discussion of
Count V above, the plaintiff cannot establish that she was entitled
to any part of the $8,307.53 check; the plaintiff’s claims of
arson, material misrepresentation and false claims are based solely
occurred after the final payment was issued and cashed.
as the plaintiff can prove neither breach of duty nor damages,
Garrison is entitled to summary judgment on this claim.
In Count VII, the plaintiff alleges that Vincent Daddio had no
insurable interest in the house or its contents, no homestead
rights, no beneficial interest in the contents, or any other
insurable interest in the property, yet Garrison nevertheless paid
Vincent for personal property coverage. The plaintiff also alleges
that Garrison failed to take measures to avoid danger that its
policyholder/member would intentionally destroy property to receive
benefits to which he was not entitled.
As discussed above under Count III, Vincent did have an
insurable interest in the house and its contents.
discussed under Count IV, the plaintiff has come forward with no
credible, competent summary judgment evidence that Lori and/or
Vincent committed arson; and, as discussed under Count I, the
record in fact demonstrates that the fire was not incendiary in
specialist to investigate the fire.
After it was determined that
the fire originated at the coffee maker, Garrison had the coffee
maker company and its insurer conduct their own investigations.
The undisputed evidence shows that Garrison acted reasonably and
that summary judgment must be granted as to Count VII.
Counts VIII, IX, X, XI, and XII apply only to the Daddio
defendants, but having found that Garrison acted in good faith, the
Court finds no evidence to support a punitive damage claim.
Summary judgment shall therefore be granted to Garrison on Count
In her response to Garrison’s motion for summary judgment, the
plaintiff asserts a new claim: that Garrison failed to investigate
into the validity of a 1998 Deed of the family home from Mrs.
Sushinski to Lori.
According to the plaintiff, while Lori was
living in California in 1998, she asked her mother for a deed to
her of an undivided interest in the 160 West Bay Street property,
because Lori had an urgent need to pledge the house as loan
collateral so that she could pay expenses associated with an
ongoing divorce action. The plaintiff alleges that Mrs. Sushinski,
alone, signed the deed conveying to Mrs. Sushinski and Lori the 160
West Bay Street property.
The plaintiff further alleges that the
deed was never signed by Mr. Sushinski, who had been living in the
home since 1992. The plaintiff states that Miss. Code Ann. § 89-129 requires that a conveyance of a homestead be signed by the
spouse of the owner, if they are living together, unless the spouse
has been declared insane; and that because the 1998 deed from Mrs.
Sushinski to herself and Lori failed to comply with Mississippi’s
homestead statute, it is absolutely void.
Regardless of the status of the 1998 deed, the plaintiff’s
claim fails for several reasons.
First of all, the plaintiff did
not assert the claim in her Complaint, and neither amended nor
sought leave to amend the Complaint to add the claim; thus, it is
not properly before the Court.
Gomez v. LSI Integrated LP, 246
Fed.Appx. 852, 854 (5th Cir. 2007).
Moreover, it is not necessary for a party to hold legal title
in order to have an insurable interest in the property.
Sushinski and the Daddios held insurable interests regardless of
who owned legal title.
“‘The principle may be stated generally
that anyone has an insurable interest in property who derives a
destruction....’” Anderson v. State Farm Mut. Auto. Ins. Co., 2006
WL 2701193, *3 (S.D. Miss. Sept. 19, 2006)(quoting 29 Am. Jur. 781,
Insurance, section 438, as quoted in Smith v. Eagle Star Ins. Co.,
370 S.W.2d 448, 450 (Tex. 1963)(emphasis in original)).
forth elsewhere in this Opinion, Mrs. Sushinski and the Daddios all
had insurable interests, and Lori held a Power of Attorney on
behalf of her mother.
Inasmuch as this claim is not properly
before the Court, and is otherwise without merit, it shall be
Garrison is therefore entitled to summary judgment on all
plaintiff’s response to Garrison’s motion for summary judgment
shall be stricken.
Because all claims against Garrison are being
dismissed, Garrison’s motions in limine are moot.
IT IS HEREBY ORDERED that defendant Garrison Property and
Casualty Insurance Company’s Motion for Summary Judgment (docket
entry 37) is GRANTED, and defendant Garrison is dismissed from this
action with prejudice;
FURTHER ORDERED that defendant Garrison’s Motion to Strike
(docket entry 46) is GRANTED;
FURTHER ORDERED that defendant Garrison’s Motions in Limine
(docket entries 49, 51, 53, 55, 57, 59, 61, 63, 65, 67, 69 and 71)
SO ORDERED, this the 20th day of March, 2017.
/s/ David Bramlette
UNITED STATES DISTRICT JUDGE
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