UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
_______________________
No. 00-60642 Summary Calendar _______________________
LEONICE GOODLOE, Plaintiff-Appellant,
versus
STATE FARM FIRE AND CASUALTY INSURANCE COMPANY, et al., Defendants,
STATE FARM FIRE AND CASUALTY INSURANCE COMPANY, Defendant-Appellee.
______________________________________________________________
Appeal from the United States District Court for the Southern District of Mississippi, Jackson 3:99-CV-65-BN _________________________________________________________________ September 19, 2001
Before DAVIS, JONES, and DeMOSS, Circuit Judges.
PER CURIAM:*
Leonice Goodloe appeals from a final judgment entered for
State Farm Fire and Casualty Insurance Company in this breach of
contract action involving the alleged arson fire of Goodloe’s home.
Finding no error, we affirm.
* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. FACTS AND PROCEDURAL HISTORY
In May 1997, a fire destroyed Leonice Goodloe’s residence
in Canton, Mississippi. Goodloe submitted a proof of loss form and
a claim for $78,585 to her insurance company, State Farm Fire &
Casualty.
State Farm denied Goodloe’s claim. For the following
reasons, State Farm concluded that Goodloe had set fire to her
house and had misrepresented or concealed material information
regarding her claim. First, State Farm’s fire scene investigator,
Ed Morgan of Southeastern Fire Investigations, determined that the
fire was the result of arson. Morgan considered it suspicious that
there were two potential points of origin: a burner on the stove
and a clothes iron, both of which were left on. But the burn
pattern on the iron’s cord suggested that the fire had started near
Goodloe’s bed, several feet from where the iron was located.
Second, the Madison County fire investigator also believed that the
fire had been set deliberately. Third, the timing of events
suggested arson. A fire department official testified that, based
on the damage done to the sheetrock, the fire must have started
around 9:11 a.m. It was undisputed, however, that Goodloe left her
house no earlier than 9:25, that no one else was in the house, and
that Goodloe locked the door when she left. Fourth, an
acquaintance of Goodloe’s, Lavonne McGee, told law enforcement
officials that Goodloe had approached McGee’s boyfriend, an
2 electrician, and offered him $500 to start a fire that would look
like an accident. When McGee and her boyfriend declined, Goodloe
said that she could start a fire herself. Fifth, State Farm’s
investigation of Goodloe’s finances suggested that Goodloe had a
motive to set the fire and collect the insurance proceeds.
Moreover, Goodloe failed to disclose much of this financial
information requested by State Farm.
In October 1998, Goodloe filed suit in state court for
breach of contract and bad faith refusal to pay a claim. State
Farm asserted two affirmative defenses: first, that Goodloe had
intentionally caused the fire; and second, that she had
fraudulently concealed or misrepresented relevant information
regarding the claim. State Farm then removed the case to federal
court.
In November 1999, Goodloe designated Alvin Kirk Rosenhan
as an expert witness on the cause of the fire. However, Goodloe
failed to submit Rosenhan’s expert witness report in a timely
manner. In June 2000, the district court granted State Farm’s
motion in limine to exclude Rosenhan’s testimony because of
Goodloe’s failure to comply with the discovery deadlines.
The district court also granted in part State Farm’s
motion for summary judgment. First, the district court determined
that there was no genuine issue of material fact as to whether the
fire was set intentionally (an element of State Farm’s affirmative
3 defense of arson). Without Rosenhan’s report, Goodloe had no
evidence to rebut State Farm’s evidence that the fire was
incendiary in origin. Second, the district court granted summary
judgment for State Farm on Goodloe’s request for punitive damages.
The court concluded that punitive damages could not be recovered
under Mississippi law because State Farm unquestionably had an
arguable reason for denying Goodloe’s claim.
On August 16, 2000, the case proceeded to trial on the
remaining contract issues. The jury returned a special verdict
form, finding that State Farm had proven both of its affirmative
defenses of arson and misrepresentation. The district court then
entered a final judgment in favor of State Farm.
DISCUSSION
Goodloe raises seven issues on appeal. We begin with the
evidentiary issues at the summary judgment stage of the litigation.
See Curtis v. M & S Petroleum, Inc., 174 F.3d 661, 667-68 (5th Cir.
1999) (“We must first review the trial court’s evidentiary rulings
under an abuse of discretion standard. . . . Then, with the record
defined, we must review de novo the order granting summary
judgment. . . .”).
First, Goodloe contends that the district court erred in
excluding the testimony of her expert witness, Kirk Rosenhan. We
review a district court’s admission or exclusion of expert
testimony for an abuse of discretion. Moore v. Ashland Chemical
4 Inc., 151 F.3d 269, 274 (5th Cir. 1998)(en banc). The district
court ruled that Rosenhan’s testimony would be excluded pursuant to
Rule 26 and Local Rule 26.1 because Goodloe had failed to submit
Rosenhan’s expert witness report and other required information
prior to the discovery deadlines. Goodloe admits that she failed
to present Rosenhan’s report in a timely manner, but she emphasizes
that the report was late due to circumstances beyond her control.
In her response to State Farm’s motion in limine, Goodloe summarily
asserted that Rosenhan’s services were in demand and that he was
busy teaching at Mississippi State University. As the district
court pointed out, however, Goodloe did not explain in detail why
the report had not been submitted, nor had she asked the court for
an extension. Therefore, the district court concluded that Goodloe
had not provided substantial justification for her discovery
violation. The district court also concluded that State Farm would
be prejudiced by allowing Rosenhan to testify because the trial
date was quickly approaching. Considering all these facts, we
cannot say that the district court abused its discretion in
excluding Rosenhan’s expert testimony.
Second, Goodloe contends that the district court abused
its discretion in admitting the expert witness report of State
Farm’s expert during the summary judgment stage of the litigation.
Goodloe argues on appeal that Ed Morgan should not have been
considered an expert in the field of fire origin investigations
5 because State Farm had failed to submit Morgan’s curriculum vitae
and other basic information. However, Goodloe did not question
Morgan’s qualifications during the summary judgment stage.1 “It is
a well settled rule that a party opposing a summary judgment motion
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UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
_______________________
No. 00-60642 Summary Calendar _______________________
LEONICE GOODLOE, Plaintiff-Appellant,
versus
STATE FARM FIRE AND CASUALTY INSURANCE COMPANY, et al., Defendants,
STATE FARM FIRE AND CASUALTY INSURANCE COMPANY, Defendant-Appellee.
______________________________________________________________
Appeal from the United States District Court for the Southern District of Mississippi, Jackson 3:99-CV-65-BN _________________________________________________________________ September 19, 2001
Before DAVIS, JONES, and DeMOSS, Circuit Judges.
PER CURIAM:*
Leonice Goodloe appeals from a final judgment entered for
State Farm Fire and Casualty Insurance Company in this breach of
contract action involving the alleged arson fire of Goodloe’s home.
Finding no error, we affirm.
* 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. FACTS AND PROCEDURAL HISTORY
In May 1997, a fire destroyed Leonice Goodloe’s residence
in Canton, Mississippi. Goodloe submitted a proof of loss form and
a claim for $78,585 to her insurance company, State Farm Fire &
Casualty.
State Farm denied Goodloe’s claim. For the following
reasons, State Farm concluded that Goodloe had set fire to her
house and had misrepresented or concealed material information
regarding her claim. First, State Farm’s fire scene investigator,
Ed Morgan of Southeastern Fire Investigations, determined that the
fire was the result of arson. Morgan considered it suspicious that
there were two potential points of origin: a burner on the stove
and a clothes iron, both of which were left on. But the burn
pattern on the iron’s cord suggested that the fire had started near
Goodloe’s bed, several feet from where the iron was located.
Second, the Madison County fire investigator also believed that the
fire had been set deliberately. Third, the timing of events
suggested arson. A fire department official testified that, based
on the damage done to the sheetrock, the fire must have started
around 9:11 a.m. It was undisputed, however, that Goodloe left her
house no earlier than 9:25, that no one else was in the house, and
that Goodloe locked the door when she left. Fourth, an
acquaintance of Goodloe’s, Lavonne McGee, told law enforcement
officials that Goodloe had approached McGee’s boyfriend, an
2 electrician, and offered him $500 to start a fire that would look
like an accident. When McGee and her boyfriend declined, Goodloe
said that she could start a fire herself. Fifth, State Farm’s
investigation of Goodloe’s finances suggested that Goodloe had a
motive to set the fire and collect the insurance proceeds.
Moreover, Goodloe failed to disclose much of this financial
information requested by State Farm.
In October 1998, Goodloe filed suit in state court for
breach of contract and bad faith refusal to pay a claim. State
Farm asserted two affirmative defenses: first, that Goodloe had
intentionally caused the fire; and second, that she had
fraudulently concealed or misrepresented relevant information
regarding the claim. State Farm then removed the case to federal
court.
In November 1999, Goodloe designated Alvin Kirk Rosenhan
as an expert witness on the cause of the fire. However, Goodloe
failed to submit Rosenhan’s expert witness report in a timely
manner. In June 2000, the district court granted State Farm’s
motion in limine to exclude Rosenhan’s testimony because of
Goodloe’s failure to comply with the discovery deadlines.
The district court also granted in part State Farm’s
motion for summary judgment. First, the district court determined
that there was no genuine issue of material fact as to whether the
fire was set intentionally (an element of State Farm’s affirmative
3 defense of arson). Without Rosenhan’s report, Goodloe had no
evidence to rebut State Farm’s evidence that the fire was
incendiary in origin. Second, the district court granted summary
judgment for State Farm on Goodloe’s request for punitive damages.
The court concluded that punitive damages could not be recovered
under Mississippi law because State Farm unquestionably had an
arguable reason for denying Goodloe’s claim.
On August 16, 2000, the case proceeded to trial on the
remaining contract issues. The jury returned a special verdict
form, finding that State Farm had proven both of its affirmative
defenses of arson and misrepresentation. The district court then
entered a final judgment in favor of State Farm.
DISCUSSION
Goodloe raises seven issues on appeal. We begin with the
evidentiary issues at the summary judgment stage of the litigation.
See Curtis v. M & S Petroleum, Inc., 174 F.3d 661, 667-68 (5th Cir.
1999) (“We must first review the trial court’s evidentiary rulings
under an abuse of discretion standard. . . . Then, with the record
defined, we must review de novo the order granting summary
judgment. . . .”).
First, Goodloe contends that the district court erred in
excluding the testimony of her expert witness, Kirk Rosenhan. We
review a district court’s admission or exclusion of expert
testimony for an abuse of discretion. Moore v. Ashland Chemical
4 Inc., 151 F.3d 269, 274 (5th Cir. 1998)(en banc). The district
court ruled that Rosenhan’s testimony would be excluded pursuant to
Rule 26 and Local Rule 26.1 because Goodloe had failed to submit
Rosenhan’s expert witness report and other required information
prior to the discovery deadlines. Goodloe admits that she failed
to present Rosenhan’s report in a timely manner, but she emphasizes
that the report was late due to circumstances beyond her control.
In her response to State Farm’s motion in limine, Goodloe summarily
asserted that Rosenhan’s services were in demand and that he was
busy teaching at Mississippi State University. As the district
court pointed out, however, Goodloe did not explain in detail why
the report had not been submitted, nor had she asked the court for
an extension. Therefore, the district court concluded that Goodloe
had not provided substantial justification for her discovery
violation. The district court also concluded that State Farm would
be prejudiced by allowing Rosenhan to testify because the trial
date was quickly approaching. Considering all these facts, we
cannot say that the district court abused its discretion in
excluding Rosenhan’s expert testimony.
Second, Goodloe contends that the district court abused
its discretion in admitting the expert witness report of State
Farm’s expert during the summary judgment stage of the litigation.
Goodloe argues on appeal that Ed Morgan should not have been
considered an expert in the field of fire origin investigations
5 because State Farm had failed to submit Morgan’s curriculum vitae
and other basic information. However, Goodloe did not question
Morgan’s qualifications during the summary judgment stage.1 “It is
a well settled rule that a party opposing a summary judgment motion
must inform the trial judge of the reasons, legal or factual, why
summary judgment should not be entered. If it does not do so, and
loses the motion, it cannot raise such reasons on appeal.”
Liberles v. County of Cook, 709 F.2d 1122, 1126 (7th Cir. 1983),
quoted in Savers Fed. Sav. & Loan Ass’n v. Reetz, 888 F.2d 1497,
1501 (5th Cir. 1989). Goodloe’s belated attack on Morgan’s
qualifications is thus without merit.
Third, Goodloe contends that the district court erred in
concluding that there was no genuine issue of material fact as to
whether the fire was set intentionally. We review de novo the
court’s partial grant of summary judgment based on the evidence
properly before the district court at the time it ruled on the
motion. Munoz v. Orr, 200 F.3d 291, 300 (5th Cir. 2000). State
Farm supported its summary judgment motion with an affidavit from
the county fire investigator, Morgan’s detailed investigation
report, and other material -- all of which indicated that the fire
was incendiary in origin. Goodloe countered with the affidavit of
1 On the first day of trial, Goodloe filed a motion in limine to exclude Morgan’s testimony on the grounds that he had not been properly qualified as an expert. However, this motion in limine is irrelevant here because Morgan was never called to testify at trial.
6 Kirk Rosenhan, her designated expert. But when Rosenhan’s
testimony was excluded, Goodloe had no evidence to rebut State
Farm’s evidence that the fire had been set intentionally.
Consequently, the district court did not err in granting partial
summary judgment for State Farm on this issue.
Fourth, Goodloe contends that the district court erred in
accepting State Farm’s evidence that the fire was incendiary. The
basis of this argument is unclear, but Goodloe asserts repeatedly
that State Farm’s investigation was “shabby” and “a sham” and that
Morgan’s report is unworthy of credence. However, we find no error
in the district court’s consideration of Morgan’s fire
investigation report.
Fifth, Goodloe contends that the district court erred in
granting partial summary judgment on the issue of punitive damages.
Under Mississippi law, punitive damages are not available where an
insurance company has a legitimate or arguable reason for refusing
to pay a claim. See Life & Cas. Ins. Co. of Tenn. v. Bristow, 529
So.2d 620, 622 (Miss. 1988). In this case, the record indicates
that State Farm had several arguable reasons for denying the claim,
including the county fire investigator’s opinion that the fire was
set intentionally, Morgan’s fire investigation report, the evidence
that Goodloe concealed or misrepresented relevant financial
information, and McGee’s accusation that Goodloe was interested in
setting fire to her own house. Given these arguable reasons for
7 denying the claim, Goodloe’s contention that her request for
punitive damages should have been submitted to the jury is without
merit.
Sixth, Goodloe contends that the district court erred in
refusing her jury instruction on the calculation of damages.
Because the jury found that State Farm had proved its affirmative
defenses, the jury did not reach the question of damages, and we
have no reason to consider this issue on appeal.
Seventh, Goodloe argues that State Farm presented
insufficient evidence to support the jury’s finding that Goodloe
had concealed or misrepresented material information. However,
State Farm was entitled to judgment if the jury found that it had
proved either of its affirmative defenses -- arson and
misrepresentation. Because Goodloe has not called into question
the jury’s finding of arson, we need not address the sufficiency of
evidence with respect to the defense of misrepresentation.
CONCLUSION
The district court committed no reversible error either in its
evidentiary rulings or in its partial grant of summary judgment for
State Farm. The judgment for State Farm is therefore
A F F I R M E D .