Case: 09-30847     Document: 00511216410          Page: 1    Date Filed: 08/26/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                           August 26, 2010

                                       No. 09-30847                         Lyle W. Cayce
                                                                                 Clerk

KENNETH JONES; LORIE JAMES-JONES,

                                                   Plaintiffs-Appellants
v.

STATE FARM FIRE & CASUALTY COMPANY, INC.,

                                                   Defendant-Appellee




                    Appeal from the United States District Court
                       for the Eastern District of Louisiana
                              USDC No. 2:06-CV-9151


Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
        Plaintiffs-Appellants Kenneth Jones and Lorie James-Jones (“the
Joneses”) appeal the district court’s grant of summary judgment in favor of
Defendant-Appellee State Farm Fire & Casualty Company, Inc. (“State Farm”),
dismissing the Joneses’ action with prejudice. We affirm.
                                I. Facts and Proceedings
        When Hurricane Katrina came ashore on August 29, 2005, the Joneses’
residential property in New Orleans was insured by State Farm under a

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                 No. 09-30847

homeowners policy that provided, inter alia, wind damage coverage for their
immovables (the house and a separate garage) and movables (contents and
personal property), plus additional living expenses (“ALE”).      The Joneses’
property was also insured for flood damage by a separate policy which was
issued and administered by State Farm pursuant to the National Flood
Insurance Program (“NFIP”). The Joneses’ property suffered extensive wind and
flood damage, but neither their house nor their garage was totally destroyed or
reduced to only a slab.
      A few days after the storm, the Joneses notified State Farm, then spoke
with a company representative less than two weeks later. In early October, a
State Farm representative adjusted the Joneses’ flood claim under their NFIP
policy via telephone and had checks issued to them under that policy in the full
limits amounts of $79,900 for their immovable property and $37,100 for their
moveables, less a previous $2,500 advance. After they returned to their home
later in October, the Joneses reported specific damage to State Farm; and an
adjuster for State Farm inspected the Joneses’ property in mid-November 2005.
As a result, State Farm paid them $6,741.81 for wind damage to their
immovables, less (1) $1,742 deductible and (2) $1,473.77 in prohibited use
damage, for a net amount of $6,743.58 under their homeowners policy. In
February 2006, another adjuster inspected the Joneses’ house for State Farm
and revised the damage estimate upward, producing an additional payment of
$8,269.34.
      In August 2006, the Joneses’ lawyer sent State Farm a supplemental proof
of loss together with a report from one Steve Hitchcock estimating wind damage
of $35,455.33. The Joneses’ lawyer demanded an additional $21,804.18. About
a month later, State Farm faxed and mailed a letter that rejected the Hitchcock
report and provided forms for use by the Joneses in filing a supplemental proof
of loss. State Farm also made a request to reinspect their property. Without

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                                          No. 09-30847

responding to State Farm, the Joneses filed suit on September 20, 2006. They
sold their gutted home in February 2007 for $30,000.
        Following several months of motion practice, State Farm filed for
summary judgment on five issues, three of which remain under consideration in
this appeal. In those three, the Joneses seek payment under their homeowners
policy for dwelling damage, personal property damage, and ALE, as well as
damages for State Farm’s alleged breach of the statutory duty of good faith. In
a well-reasoned order, the district court granted summary judgment to State
Farm and dismissed all claims by the Joneses, who timely filed their notice of
appeal.
                                         II. ANALYSIS
A.      Standard of Review.
        We review a district court’s grant of summary judgment de novo.
Summary judgment should be granted only if there is no genuine issue of
material fact.1 A fact is material only if its resolution would affect the outcome
of the action, and an issue is genuine only “if the evidence is sufficient for a
reasonable jury to return a verdict for the nonmoving party.”2 “If the burden at
trial rests on the non-movant, the movant must merely demonstrate an absence
of evidentiary support in the record for the non-movant’s case.” 3 Once a party
meets the initial burden of demonstrating that there exists no genuine issue of
material fact for trial, the burden shifts to the non-movant to produce evidence
of the existence of such an issue for trial.4 The non-movant must go beyond the



        1
            Weeks Marine Inc. v. Fireman's Fund Ins. Co., 

, 235 (5th Cir. 2003).
       2
         Hamilton v. Segue Software, Inc., 

, 477 (5th Cir. 2000) (citing Anderson
v. Liberty Lobby, Inc., 

, 248 (1986)).
        3
            Miss. River Basic Alliance v. Westphal, 

, 174 (5th Cir. 2000).
        4
            Celotex Corp. v. Catrett, 

, 2552 (1986).

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                                       No. 09-30847

pleadings and present specific facts indicating a genuine issue for trial.5 On
appeal we may affirm a grant of summary judgment “on any grounds supported
by the record.” 6
B.      Merits.
        Except for the names of the parties, the locations of the insured properties,
and the quantum of the claims, losses, and payments, this case is legally
indistinguishable from the one that we recently addressed in William Bayle;
Darlene Bayle v. Allstate Insurance Company 7, including, without limitation, the
presence in both cases of questionable, late-filed, and ultimately rejected reports
by Steve Hitchcock, whose testimony and reports have been disapproved by
several courts of the Eastern District of Louisiana in Katrina insurance cases.
At bottom, we perceive no genuine issue of disputed fact whether the Joneses
have been fully compensated for all legitimate claims through payments under
one or the other of their policies; and under Louisiana law, they cannot recover
the double payment that they seek here. Only their ALE claim reflects any
potential merit, yet the evidence presented by the Joneses, particularly when
stripped of the correctly rejected Hitchcock report, is insufficient to defeat
summary judgment. For essentially the same reasons and based on essentially
the same analysis as set forth in our Bayle opinion, the judgment of the district
court is, in all respects,
AFFIRMED.




       5
           Piazza's Seafood World, LLC v. Odom, 

, 752 (5th Cir. 2006).
       6
        Jenevein v. Willing, 

, 272 n.5 (5th Cir. 2010) (quoting Wells v. SmithKline
Beecham Corp., 

, 378 (5th Cir. 2010)).
       7
        William Bayle; Darlene Bayle v. Allstate Insurance Company, 

(C.A.5 La.)

                                              4