At your request, we have provided a report that we prepared regarding the Mucha Property at 2558 South Shore Drive, which is located less than 400 feet from the McIntosh house...
As can be seen from my Special Inspection report of the Mucha house, we concluded that the structure of the Mucha house was destroyed by wind before the storm surge of Hurricane Katrina arrived. The Mucha house was subjected to these conditions during the landfall of Hurricane Katrina on August 29, 2005 …
Mr. Mucha…stated that he saw the garage blow apart before 9:00 AM on August 29, 2005. This garage landed in the street in front of the house.
The disclosures of the Rigsbys’ expert witnesses included the post-Katrina engineer’s report on the Mucha residence prepared by John A Fowler PE, President of Fowler Engineering.
There is over 1,000 feet of unobstructed open marsh behind the house which leaves a very large unobstructed path with for wind to come across the marsh from the south and southeast during a storm and damage the house. This is probably the reason why the Mucha house was destroyed by wind and some of the neighbors’ houses were not. The neighbors’ houses did not have an unobstructed path between their house and Hurricane Katrina as the Mucha’s did. With the Mucha’s house standing for some period of time before it was totally destroyed during Hurricane Katrina, it shielded the other houses in the neighborhood. The other houses in the neighborhood are also at varying angles to one another and shield each other, but this is not the case with the Mucha’s house.
With engineering reports like this replaced with one claiming flood damage, State Farm was unable to keep the whistleblowing Risby sisters down on the Farm.
…This evidence, viewed in the light most favorable to the Spansels, tends to show their claim was denied on October 19, before an adjustor had set foot on their property, reviewed photographs of the loss, or received any data other than the property’s location along Bay St. Louis. State Farm management affirmed this denial based solely on the property’s proximity to the Gulf of Mexico. This creates question for the jury as to whether State Farm lacked a legitimate arguable reason for denial of wind coverage under the homeowner’s policy…State Farm is not entitled to judgment as a matter of law on whether it lacked an arguable, legitimate reason for denial.
Because there is evidence that State Farm denied the claim without any adjustment or investigation, a question of fact exists as to whether State Farm acted at least in reckless disregard of the Spansels’ rights under the policy. Therefore, State Farm is not entitled to judgment as a matter of law on this portion of the bad faith claim either.
Next, the Spansels seek a declaratory judgment that the anti-concurrent clause is ambiguous and unenforceable. The anti-concurrent clause is cited in the previous section. State Farm argues that this clause has been held unambiguous and enforceable by the Fifth Circuit. Since that time, the Mississippi Supreme Court has rejected this contention. Corban, 20 So. 3d at ¶48. Corban held that the anti-concurrent clause was ambiguous and unenforceable to the extent that it purported to exclude any wind loss if it occurred separately from and in any sequence to excluded water loss. Id. at ¶¶32, 40-41. State Farm has not shown it is entitled to summary judgment on this portion of the declaratory judgment claim.