BARRY W. ASHE, District Judge.
Before the Court is plaintiff Dale A. Kennett's renewed motion for judgment as a matter of law, or, alternatively, for a new trial,
This case arises from a dispute about insurance coverage. Kennett held a homeowner's insurance policy issued by USAA for property located at 705 Virginia Avenue in Bogalusa, Louisiana. The policy provides, inter alia, $590,000 in dwelling coverage, $88,500 in other structures coverage, $442,500 in personal property coverage, and an unlimited amount for up to twelve months of loss of use.
The policy defines "residence premises" to mean:
The policy provides "total loss" dwelling coverage "[i]n the event that your dwelling is completely destroyed solely by Fire or Windstorm to the extent that it has lost its identity and specific character as a building."
The policy does not provide coverage "for damage consisting of or caused directly or indirectly by any of the following":
On March 28, 2016, the premises located at 705 Virginia Avenue was damaged by fire allegedly caused by arson.
Kennett has renewed his motions for judgment as a matter of law on four issues: (1) that the policy was ambiguous with regard to property covered under dwelling protection; (2) that there was no evidentiary basis for the jury to find that he did not "reside" at the premises; (3) that, while not reached by the jury, there was no evidentiary basis for the jury to find that the property was vacant for 180 days; and (4) that, while also not reached by the jury, there was no evidentiary basis for the jury to find that the damage did not constitute a "total loss." In the event his renewed motion for judgment as a matter of law is denied, Kennett alternatively moves for a new trial.
In opposition, USAA contends that Kennett waived his right to argue ambiguity in the policy because he did not assert that ground at trial. USAA also contends that sufficient evidence supports a reasonable jury's finding that Kennett did not reside at the premises. USAA further contends that, had the jury reached the issues, sufficient evidence was presented to support findings that the premises was vacant for 180 days prior to the fire and that the damage was not a total loss.
Rule 50 of the Federal Rules of Civil Procedure requires a party to "specify the judgment sought and the law and facts that entitle the movant to the judgment" upon motion at trial before the jury renders its verdict. Fed. R. Civ. P. 50(a)(2); Puga v. RCX Sols., Inc., 922 F.3d 285, 290 (5th Cir. 2019). "If the pre-verdict motion is denied, then the party can renew its motion under Rule 50(b). But the renewed Rule 50(b) is `technically only a renewal of the [Rule 50(a) motion for judgment as a matter of law].'" Id. (quoting Mozingo v. Correct Mfg. Corp., 752 F.2d 168, 172 (5th Cir. 1985)) (bracketed language in original). As a consequence, "[i]f a party fails to move for judgment as a matter of law under Federal Rule of Civil Procedure 50(a) on an issue at the conclusion of all of the evidence, that party waives both its right to file a renewed post-verdict Rule 50(b) motion and also its right to challenge the sufficiency of the evidence on that issue on appeal." Flowers v. S. Reg'l Physician Servs. Inc., 247 F.3d 229, 238 (5th Cir. 2001); see also In re Isbell Records, Inc., 774 F.3d 859, 867 (5th Cir. 2014) ("By not raising this argument at trial or in its Rule 50(a) motion, [the appellant] has waived its right to bring a Rule 50(b) motion on this ground."). The Rule 50(b) waiver is "designed to prevent a litigant from ambushing both the district court and opposing counsel after trial." Puga, 922 F.3d at 290-91 (citing Quinn v. Sw. Wood Prods., Inc., 597 F.2d 1018, 1025 (5th Cir. 1979) ("When a claimed deficiency in the evidence is called to the attention of the trial judge and of counsel before the jury has commenced deliberations, counsel still may do whatever can be done to mend his case. But if the court and counsel learn of such a claim for the first time after verdict, both are ambushed and nothing can be done except by way of a complete new trial. It is contrary to the spirit of our procedures to permit counsel to be sandbagged by such tactics or the trial court to be so put in error.")) (other citation omitted).
Judgment as a matter of law under Rule 50 is warranted only where "the facts and inferences point so strongly and overwhelmingly in favor of one party that the court concludes reasonable jurors could not arrive at a contrary verdict." Arsement v. Spinnaker Expl. Co., 400 F.3d 238, 248-49 (5th Cir. 2005) (quoting Bellows v. Amoco Oil Co., 118 F.3d 268, 273 (5th Cir. 1997)) (citing Fed. R. Civ. P. 50(a)). Stated differently, "[a] jury verdict must be upheld unless there is no legally sufficient evidentiary basis for a reasonable jury to find as the jury did." Heck v. Triche, 775 F.3d 265, 273 (5th Cir. 2014) (quoting Foradori v. Harris, 523 F.3d 477, 485 (5th Cir. 2008)). Thus, to prevail on a Rule 50 motion, "the party opposing the motion must at least establish a conflict in substantial evidence on each essential element of [its] claim." N. Cypress Med. Ctr. Operating Co. v. Aetna Life Ins. Co., 898 F.3d 461, 473 (5th Cir. 2018) (quoting Goodner v. Hyundai Motor Co., Ltd., 650 F.3d 1034, 1039 (5th Cir. 2011)). "`Substantial evidence is more than a scintilla, less than a preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Id. (quoting Conn. Gen. Life Ins. Co. v. Humble Surgical Hosp., L.L.C., 878 F.3d 478, 485 (5th Cir. 2017)).
"[W]hen evaluating the sufficiency of the evidence, [courts] view all evidence and draw all reasonable inferences in the light most favorable to the verdict." Bryant v. Compass Grp. USA Inc., 413 F.3d 471, 475 (5th Cir. 2005). However, "credibility determinations, the weighing of evidence, and the drawing of legitimate inferences from the facts" remain within the province of the jury. Kelso v. Butler, 899 F.3d 420, 425 (5th Cir. 2018) (quoting Hurst v. Lee Cty., 764 F.3d 480, 483 (5th Cir. 2014)).
Rule 59(a) provides a district court discretion to grant a new trial "on all or some of the issues ... after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court." Fed. R. Civ. P. 59(a); see also Eiland v. Westinghouse Elec. Corp., 58 F.3d 176, 183 (5th Cir. 1995) ("the decision to grant or deny a motion for new trial ... rests in the sound discretion of the trial judge"). While the rule does not specify the grounds necessary for granting a new trial, the Fifth Circuit has instructed that "[a] new trial may be granted, for example, if the district court finds the verdict is against the weight of the evidence, the damages awarded are excessive, the trial was unfair, or prejudicial error was committed in its course." Smith v. Transworld Drilling Co., 773 F.2d 610, 613 (5th Cir. 1985) (citations omitted). A district court may also grant a new trial when the jury's verdict is logically inconsistent if, after viewing the evidence in the light most favorable to a finding of consistency, reconciliation is impossible. See Ellis v. Weasler Eng'g Inc., 258 F.3d 326, 343 (5th Cir. 2001); Willard v. The John Hayward, 577 F.2d 1009, 1011 (5th Cir. 1978) ("Answers should be considered inconsistent, however, only if there is no way to reconcile them.").
When a movant argues that insufficient evidence supports the verdict, the district court should deny the motion "unless the verdict is against the great weight of the evidence." Pryor v. Trane Co., 138 F.3d 1024, 1026 (5th Cir. 1998) (quoting Dotson v. Clark Equip. Co., 805 F.2d 1225, 1227 (5th Cir. 1986)); see also Shows v. Jamison Bedding, Inc., 671 F.2d 927, 930 (5th Cir. 1982) ("new trials should not be granted on evidentiary grounds unless, at a minimum, the verdict is against the great — not merely the greater — weight of the evidence") (quotation omitted). In contrast to the standard applicable to a Rule 50 motion, "[a] verdict can be against the `great weight of the evidence,' and thus justify a new trial, even if there is substantial evidence to support it," and a district court may weigh the evidence when resolving whether a new trial should be granted on this ground. Shows, 671 F.2d at 930.
When discussing each issue raised in his motion, Kennett does not make a distinction between the grounds warranting judgment as a matter of law as distinct from a new trial, but generally contends that the same arguments he advances for granting a judgment as a matter of law apply with greater force to support granting a new trial. Accordingly, where necessary, the Court applies each of these respective standards following a discussion of the parties' contentions directed to the issues raised by Kennett in his renewed motion for judgment as a matter of law, or, alternatively, for new trial.
Kennett argues that the policy terms defining dwelling coverage on the "residence premises" are ambiguous.
The Court is doubtful that there is any ambiguity in the policy as to the meaning of the term "residence premises,"
Bottom line, nowhere in his pre-verdict Rule 50 motions did Kennett's counsel argue that the USAA policy was ambiguous in its use of the term "residence premises." To preserve this argument, it was not enough for Kennett's counsel to intone the canon of construction that "any doubt has to be resolved in the favor of the insured,"
Kennett next contends that insufficient evidence was developed to support the jury's finding that he did not reside at 705 Virginia Avenue at the time of the fire. Kennett argues that the evidence adduced at trial could at most demonstrate that he took temporary leaves of absence from the premises as a consequence of his tumultuous divorce and his imprisonment, but that he always intended to retain the premises as his primary residence, as evidenced by his unchanged driver's license that listed 705 Virginia Avenue as his residence, his ownership of the property following the divorce proceedings, his renovations to the property, and the property not being foreclosed.
USAA responds that sufficient evidence existed to support the jury's verdict that Kennett did not reside at 705 Virginia Avenue. USAA points to Kennett's testimony at trial that he had moved into a friend's home in Mississippi in August 2015, where he helped to pay the bills. Kennett also testified that he was imprisoned between October 13, 2015, and February 23, 2016; that there was no water service at 705 Virginia Avenue when he was released from prison; and that water service was not reactivated at any time between his release and the time of the fire. While USAA contends this evidence alone would be sufficient for a reasonable jury to conclude that Kennett did not reside at the property at the time of the fire, USAA notes that Kennett's lessee and property manager, Albert Jones, also testified that he was "one hundred percent certain" that no one lived at 705 Virginia Avenue between the time he began renting property from Kennett around September 2015 and the date of the fire, which USAA says demonstrates the clear weight of the evidence against Kennett.
Kennett misapprehends the burden of proof on this issue. Contrary to Kennett's assertion that USAA bears the burden of proof to show that coverage was excluded, Louisiana law is clear that the insured has the burden to first prove that the claim asserted is covered by the policy. Dickerson v. Lexington Ins. Co., 556 F.3d 290, 295 (5th Cir. 2009) (citing Jones v. Estate of Santiago, 870 So.2d 1002, 1010 (La. 2004)). If the insured meets this burden, the burden shifts to the insurer to prove that the damage is excluded. Id.; see also Sensebe v. Canal Indem. Co., 35 So.3d 1122, 1125 (La. App. 2010) ("An insurer has the burden of proving that a loss falls within a policy exclusion.") (citation omitted). "Nonetheless, an insurance policy, including its exclusions, should not be interpreted in an unreasonable or strained manner so as to enlarge or to restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion." Sensebe, 35 So. 3d at 1125 (citing N. Am. Treatment Sys., Inc. v. Scottsdale Ins. Co., 943 So.2d 429, 443 (La. App. 2006)).
The provision at issue here establishes the scope of coverage; it is not exclusionary. Cf. id. (exclusionary clause stated that coverage "does not apply" to previously established coverage). Therefore, Kennett has the burden of proving that his claim is covered by the terms of the policy. The policy provided coverage of the "residence premises," defined in part as where the insured resides.
At trial, ample evidence indicated that Kennett did not reside at 705 Virginia Avenue at the time of the fire. Kennett testified that he had been living in Mississippi in August 2015, before Kennett was imprisoned in October 2015. Jones, who acted as Kennett's property manager for other of Kennett's Bogalusa properties, testified that he was "one hundred percent certain" no one was living at 705 Virginia Avenue after Jones began renting a neighboring property from Kennett around September 2015.
Kennett next argues that USAA failed to meet its burden of proving that the exclusionary clause relating to damage resulting from vandalism or mischief would have applied because USAA did not prove that the property was vacant for 180 consecutive days. Kennett points to his testimony that he had spent time at the property in the 180-day period prior to the fire, Jeff Berger's testimony that Kennett had informed Berger that he had stayed in the property weeks prior to the fire, and an order from Kennett's divorce proceedings directing him to remove his ex-wife's belongings from the property as corroborating his and Maxie Castilow's testimony that he had been doing so.
While USAA responds to the substance of this argument,
Finally, Kennett argues that he proved the damage was a total loss because USAA failed to rebut the expert testimony of Rick Clarke, Kennett's expert in construction estimating and expert estimator, adjuster, and appraiser of property damage claims.
Accordingly, for the foregoing reasons,
IT IS ORDERED that Kennett's motion for judgment as a matter of law, or, alternatively, for new trial (R. Doc. 148), is DENIED.
