Wright v. Royal Carpet Services

29 So. 3d 109, 2010 Miss. App. LEXIS 92, 2010 WL 611506
CourtCourt of Appeals of Mississippi
DecidedFebruary 23, 2010
Docket2007-CA-01668-COA
StatusPublished
Cited by10 cases

This text of 29 So. 3d 109 (Wright v. Royal Carpet Services) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wright v. Royal Carpet Services, 29 So. 3d 109, 2010 Miss. App. LEXIS 92, 2010 WL 611506 (Mich. Ct. App. 2010).

Opinions

ROBERTS, J.,

for the Court;

¶ 1. On February 13, 2004, Marcy Wright filed suit against seven defendants on a variety of claims related to the cleanup of her home after a pipe ruptured leaving water throughout her home.1 On March 26, 2004, the case was removed to federal court. After nearly two years of litigation, Wright reached a settlement with the insurance defendants, so the matter was remanded to the Circuit Court of Lowndes County on March 12, 2006, leaving only the resident defendants, Royal Carpet and Service Pro South. A jury trial was held on August 21, 2007, and the jury returned a verdict in favor of Royal Carpet. Judgment was entered by the circuit court in favor of Royal Carpet on September 24, 2007. Aggrieved, Wright appeals and argues that the trial judge committed reversible error by denying her motion in limine to exclude evidence of her [112]*112homeowner’s insurance. Finding no error, we affirm.

FACTS

¶ 2. Upon returning home on Sunday, October 7, 2001, Wright discovered an inch or so of water throughout her home, originating from a bathroom pipe that had burst the night before. Wright spent most of the day removing the water, furniture, and carpet from her home. Wright began contacting water-removal and/or carpet-cleaning companies the following Monday or Tuesday. Wright testified that she contacted several companies prior to speaking with Danny Mattison, the owner of Royal Carpet, the week of October 8, 2001. Feeling confident that Mattison could help her, she arranged for Mattison to meet with her and an insurance adjuster on October 11, 2001.

¶ 3. When he arrived, Mattison found that Wright had removed the standing water and water-soaked carpet from her home. Prior to placing two dehumidifiers and two fans in the affected areas of the home, Mattison checked the moisture levels in the home and applied Microban X-580 (Microban), an antimicrobial agent. Mattison and Wright discussed the precautions stated on Microban’s label, and Mat-tison informed Wright that, pursuant to those precautions, she should vacate the area for twenty minutes after the antimicrobial agent was applied. Wright informed Mattison that she would be staying with her mother, so she would not be staying in the home while the cleanup and drying process was ongoing.

¶ 4. Mattison left the dehumidifiers and fans operating for three days, and he then rechecked the moisture levels and found them to be within normal limits for the region. Mattison testified that he suggested to Wright that she have the baseboards and tile flooring removed from the home, but she declined because of the expense. At trial, Wright disputed his testimony and stated that he never suggested she remove the baseboards or tile flooring. Mattison returned to Wright’s home in November 2001 because Wright complained of a chemical smell and that she was experiencing allergic-type reactions. Mattison wiped down the area where he had applied the Microban. Mattison testified that he found no indication of mold growth in the home at this visit or the prior visit in October 2001.

¶ 5. In an effort to find the source of Wright’s problem, Mattison suggested that she have the air conditioning duct work examined and possibly cleaned in case there was mold growth within it. Wright contracted with Service ProSouth, and the company cleaned and disinfected the duct work in October or November 2001. The last time Wright had “any dealings” with Mattison was November 15, 2001.

¶ 6. After Mattison dehumidified her home, Wright attempted to “air out” her house, so she left the windows open for approximately four weeks, after which time she closed up the home and did not return. At some point, mold grew behind the baseboards in Wright’s home. However, even Wright’s expert acknowledged it was unknown when the mold growth in Wright’s home occurred; he stated that it could have been caused by the initial water leak or by Wright’s actions of leaving the home open to the elements and then closing it up. In any event, the baseboards were eventually removed, and some mold growth was discovered. Wright never returned to live in the home because she stated that it made her sick. Wright placed some of her belongings in a non-climate-controlled metal storage building behind her home and in her garage, and she burned some of her personal property, such as clothing, because she said that the [113]*113clothing made her skin burn and itch despite being washed several times.

¶ 7. Wright testified that, between November 2001 and sometime in 2005, she worked with her insurance company to have her home repaired, and she received three estimates from three different contractors in 2002 to 2003, as well as a check from the insurance company for the repairs. She also testified that the insurance company offered to have her clothes professionally cleaned. Wright testified that she refused to cash the check from the insurance company or have her home repaired because no one “could guarantee that [she] could live there again without health problems.” She testified that she would not let the insurance company have her clothes cleaned because she had already tided to clean them, and it did not work. She also stated that based upon her reading, she believed that the method of cleaning mentioned by the insurance company was not “a good thing.” At trial, Wright testified that she blamed the insurance company and Mattison for allowing mold to grow in her home.

¶ 8. As mentioned, prior to trial, Wright made a motion in limine to exclude any evidence of homeowner’s insurance arguing that allowing such evidence would violate the collateral-source rule. Royal Carpet contended that Wright’s receipt of insurance payments and offers to repair were necessary to show that she had failed to mitigate her damages, and it was necessary to reveal that she had homeowner’s insurance because she had made statements specifically blaming the insurance company for one hundred percent of her damages. The trial judge agreed with Royal Carpet and allowed her statements to the insurance company to be admitted. He also allowed questions related to her failure to mitigate her damages. However, the trial judge ruled that the parties were not allowed to discuss the exact amount of money Wright had received. The admission of evidence related to Wright’s homeowner’s insurance is the sole issue before this Court.

DISCUSSION

WHETHER THE CIRCUIT COURT COMMITTED REVERSIBLE ERROR BY ADMITTING EVIDENCE OF WRIGHT’S HOMEOWNER’S INSURANCE IN VIOLATION OF ■ THE COLLATERAL-SOURCE RULE

¶ 9. “This Court reviews a trial judge’s decision to admit or deny evidence under an abuse-of-discretion standard.” Robinson Prop. Group, L.P. v. Mitchell, 7 So.3d 240, 243 (¶ 9) (Miss.2009) (citing Whitten v. Cox, 799 So.2d 1, 13 (¶ 27) (Miss.2000)). “If an error involves the admission or exclusion of evidence, this Court ‘will not reverse unless the error adversely affects a substantial right of a party.’ ” Id. (citation omitted). It is well settled that “a defendant tortfeasor is not entitled to have damages for which he is liable reduced by reason of the fact that the plaintiff has received compensation for his injury by and through a totally independent source, separate and apart from the defendant tortfeasor.” Id. (citing Cent. Bank of Miss. v. Butler, 517 So.2d 507, 511-12 (Miss.1987)). In other words, compensation or indemnity received by the plaintiff from a collateral source such as insurance cannot be used by the defendant to mitigate or reduce damages. Id.

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Cite This Page — Counsel Stack

Bluebook (online)
29 So. 3d 109, 2010 Miss. App. LEXIS 92, 2010 WL 611506, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wright-v-royal-carpet-services-missctapp-2010.