Hurricane Katrina Casino Barge
Treasure Bay Casino - after Katrina (Google Maps). This is the view of the Treasure Bay Casino after hurricane Katrina. The ship ended on the west side of the casino building. BILOXI, Mississippi - When gaming arrived here in 1992, the Caribbean-themed Isle of Capri was the region's first casino barge. Now it will be Mississippi's first land-based casino. Following the destruction from Hurricane Katrina, Isle of Capri will open a temporary casino in late December in the property's convention area.
Gambling companies are beginning to tally the damage to New Orleans other U.S. Gulf Coast casinos. Hurricane Katrina picked up several Gulf Coast casinos and hurled them hundreds of yards inland. Grounded, steel-framed casino barge, blocking US 90 in Gulfport, MS Extensive damage to the Rigolets Pass bridge under construction Cast-in-place, post-tensioned parking garage struck and seriously damaged by floating casino barge, Isle of Capri Casino, Biloxi, MS.
(CN) – A jury should decide whether a Gulf Coast casino barge that smashed into a hotel during Hurricane Katrina was negligent, the Mississippi Supreme Court ruled.
The President Casino barge was moored in the Broadwater Beach Marina in Biloxi until its employees and customers were evacuated before Katrina hit in August 2005.
As the storm surge rose to 25 feet above sea level, the barge came loose from its moorings and floated for a mile before smashing into the main building of Biloxi Beachfront Hotel.
Eli Investments, the owner of the hotel, sued casino owners Silver Slipper Casino Venture and Silver Slipper Gambling, as well as marina owner Broadwater Development, for negligence and gross negligent conduct.
Eli claimed the casino owners failed to maintain the barge properly before and during the hurricane. It also claimed that Broadwater did not properly maintain the dock site and mooring system.
A Harrison County judge granted Silver Slipper summary judgment, saying it had complied with the regulations of the Gaming Commission and that the hurricane was an “Act of God, unforeseeable in the fury and destruction it caused.”
Eli appealed its case against Silver Slipper to the Mississippi Supreme Court, which ruled that the testimony of Eli’s expert regarding the mooring system created enough of an issue of fact to defeat Silver Slipper’s motion for summary judgment.
“If a jury finds that Silver Slipper, through the exercise of reasonable care, could have prevented the damage to Eli’s property, the Act of God defense will not apply,” Chief Justice William Waller wrote for the court’s behalf.
Date: 01-09-2016
Case Style: Cherri R. Porter v. Grand Casino of Mississippi, Inc.- Biloxi, State Farm Fire and Casualty Company, and Max Mullins
Case Number: 2012-CT-01793-SCT
Judge: LAWRENCE PAUL BOURGEOIS, JR.
Court: IN THE SUPREME COURT OF MISSISSIPPI
Plaintiff's Attorney:JIM RENFROE, ROY PERILLOUX
Defendant's Attorney:VINCE CASTIGLIOLA, JOHN KAVANAGH,
KASEE HEISTERHAGEN
Description: The pertinent facts can be taken from the Court of Appeals opinion:
Porter’s home on East Beach Boulevard, Biloxi, Mississippi, was destroyed during Hurricane Katrina. According to Porter, the destruction occurred when the barge operated by Grand Casino of Mississippi, Inc.–Biloxi came loose from its moorings and allided with her home. Porter made a claim under her “all-risk” homeowner’s insurance policy with State Farm Fire and Casualty Company. But her policy expressly excluded loss caused by wind or water damage—as well as “loss [that] would not have occurred in the absence of [an] excluded event[ ].” Because any loss caused by the barge would not have occurred in the absence of an excluded event—specifically the flood of storm surge that broke Grand Casino’s barge from its moorings—State Farm denied coverage. Porter sued State Farm for bad-faith denial of coverage and negligence in issuing her policy. She included a claim against State Farm agent Max Mullins, alleging Mullins negligently issued her a substandard policy and violated statutory trade practices. Porter also named Grand Casino as a defendant, alleging it had been negligent in its design and maintenance of the barge’s mooring system. In 2009, State Farm and Mullins succeeded in having the claims against them dismissed on summary judgment. Porter had admitted there was no other explanation for the barge’s movement other than the forces of wind and water. Because the policy clearly and unambiguously excluded loss caused by water, the trial court found State Farm was entitled to a judgment in its favor. And since Mullins had never made contrary representations to Porter, the trial judge
found Mullins was also entitled to a judgment in his favor. Porter appealed. But because the grant of summary judgment in State Farm’s and Mullins’s favor was not a final judgment, as it left pending the claims against Grand Casino, the Mississippi Supreme Court dismissed the appeal. . . . In 2012, the Grand Casino was also granted summary judgment in its favor. . . . . The circuit court found Porter could not establish a jury question over whether Grand Casino failed to meet [its] duty. The undisputed evidence showed the safety measures Grand Casino took were designed to withstand a hurricane equaling in severity the worst hurricane then on record. . . . With all claims against all defendants disposed of, both the 2009 and 2012 summary-judgment orders became final and appealable. See M.R.C.P. 56(b). Porter timely appealed both judgments.
Porter v. Grand Casino of Mississippi, Inc.-Biloxi, 138 So. 3d 952 (Miss. Ct. App. May 13,
2014). After the Court of Appeals denied Porter’s motion for rehearing, Porter filed a petition
for writ of certiorari with this Court.
¶3. Caesars Entertainment Operating Company, Inc., including its affiliate Grand Casinos
of Mississippi, Inc., filed for relief under Chapter 11 of the Bankruptcy Code with the
Bankruptcy Court for the Northern District of Illinois. On March 25, 2015, this Court stayed
the appeal pursuant to 11 U.S.C. § 362(a). On October 2, 2015, Grand Casino and Porter
entered an agreed order to lift the stay for purposes of this appeal.
DISCUSSION
¶4. A trial court’s grant or denial of summary judgment is reviewed de novo. Eli Invs.,
LLC v. Silver Slipper Casino Venture, LLC, 118 So. 3d 151, 154 (Miss. 2013). Summary
judgment is proper “if the pleadings, depositions, answers to interrogatories and admissions
on file, together with the affidavits, if any, show that there is no genuine issue as to any
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material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P.
56(c). The evidence is viewed in the light most favorable to the opposing party. Id. The party
opposing the motion must be diligent and, by allegations or denials, must set forth specific
facts showing there are genuine issues for trial. Davis v. Hoss, 869 So. 2d 397, 401 (Miss.
2004).
I. State Farm
¶5. The interpretation of an insurance policy is a question of law. Corban v. United Servs.
Auto. Ass’n, 20 So. 3d 601, 609 (Miss. 2009) (citations omitted). Insurance policies are
interpreted and construed liberally in favor of the insured. J & W Foods Corp. v. State Farm
Mut. Auto. Ins. Co., 723 So. 2d 550, 552 (Miss. 1998). If the words of an insurance policy
are clear and unambiguous, they must be interpreted as written. United States Fid. & Guar.
Co. v. Martin, 998 So. 2d 956, 963 (Miss. 2008).
¶6. Porter had an all-risk homeowner’s insurance policy with State Farm, which covered
all risks except those specifically excluded under the policy. See Jeffrey Jackson, Mississippi
Insurance Law and Practice § 15:17 (2014). Porter contends that State Farm denied her
claim in bad faith, arguing that the barge was the true cause of the destruction of her home
and, because loss from debris is not specifically excluded in her insurance policy, State Farm
should have covered the loss. However, Porter’s insurance policy clearly stated:
We do not insure under any coverage for any loss which would not have occurred in the absence of one or more of the following excluded events. . . . Water Damage, meaning: (1) flood, surface water, waves, tidal water, tsunami, seiche, overflow of a body of water, or spray from any of these, all whether driven by wind or not. . . .
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The insurance policy additionally excluded “loss resulting directly or indirectly from
windstorm or hail.”
¶7. In Corban, the homeowner’s insurance policy excluded loss caused directly or
indirectly by water damage but covered loss caused by wind damage. Corban, 20 So. 3d 601,
616 (Miss. 2009). Hurricane Katrina damaged the insured’s home, and the insurance
company denied coverage because the policy excluded damage caused by flood and because
the policy contained an anticoncurrent cause (ACC) clause which excluded loss caused
directly or indirectly by flood, “regardless of any other cause or event contributing
concurrently or in any sequence to the loss.” Id. at 612. This Court found that “wind damage
that precedes the arrival of the storm surge and damage that happens after the storm surge
arrives are separate losses from separate causes. . . .” Id. at 617 (quoting Dickinson v.
Nationwide Mut. Fire Ins. Co., 2008 WL 1913957, *6 (S.D. Miss. April 25, 2008)). The
wind damage, a covered loss, was not caused directly or indirectly by the storm surge;
therefore, this Court remanded the case to allow a jury to determine which losses were caused
by wind and which losses were caused by flood. Id.
¶8. The instant case is distinguishable. Under Porter’s policy, State Farm excluded from
coverage both loss caused by wind damage and loss caused by water damage. Although
Porter’s policy does include an ACC clause, the policy first unambiguously states that any
loss that would not have occurred absent water damage is not covered. Porter argues that the
expert affidavit she produced specifically states that the home was destroyed by the barge and
not by any other means. Yet the barge, without any other means, could not have allided with
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Porter’s home. It is illogical to interpret the language “we do not insure under any coverage
for any loss which would not have occurred in the absence of . . . [w]ater damage” to mean
that debris in a storm surge, which indisputably is an uncovered loss, would be covered when
water caused the debris to allide with the property. (Emphasis added.) Loss from waterborne
debris cannot occur in the absence of water.
¶9. Further, the insurance policy’s ACC clause states, “[w]e do not insure for such loss
regardless of: . . . whether other causes acted concurrently or in any sequence with the
excluded event to produce the loss. . . .” Unlike the wind damage in Corban, the barge did
not act independently to cause loss, but instead operated in conjunction with the storm surge
to damage Porter’s home. The application of the ACC clause does not provide a genuine
issue of fact.
¶10. Porter additionally argues that there is ambiguity because the policy covers loss from
impact by a vehicle, and that the barge became a vehicle when it broke free from its
moorings. This provision, under coverage for personal property, expressly states that vehicles
are insured, “except as provided in Section 1 - Losses Not Insured.” Section 1 excludes from
coverage loss that would not have occurred in the absence of water. The plain language of
the policy states that loss which would not have occurred in the absence of water damage is
not covered. Even in construing the language in favor of Porter, this is not ambiguous. The
barge was not an independent cause but worked in conjunction with the storm surge to allide
with Porter’s home, and the loss of the property would not have occurred absent water
damage. Thus, the loss unambiguously was not covered under Porter’s all-risk policy, and
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this issue cannot survive summary judgment.
II. Max Mullins
¶11. On certiorari, Porter did not argue any error regarding the claims against Mullins. “If
an appellant fails to support her. . . allegation of error with argument or authority, this Court
need not consider the issue.” Christmas v. State, 10 So. 3d 413, 423 (Miss. 2009) (quoting
Pierre v. State, 607 So. 2d 43, 48 (Miss. 1992)).Therefore, the issue is considered
abandoned, and this Court need not address it.
III. Grand Casino
¶12. Porter next contends that Grand Casino was negligent in mooring its barge and that
the barge was the proximate cause of the destruction of her home. The elements of
negligence are well-established: duty or standard of care, breach of that duty or standard,
proximate causation, and damages or injury. Lyle v. Mladnich, 584 So. 2d 397, 399 (Miss.
1991).
¶13. It is undisputed that Grand Casino owed a duty to property owners in close proximity
to take reasonable measures to prevent foreseeable injuries in the event of a hurricane. See
Eli Invs., LLC v. Silver Slipper Casino Venture, LLC, 118 So. 3d 151 (Miss. 2013); Bay
Point High and Dry, LLC v. New Palace Casino, LLC, 46 So. 3d 821, 824 (Miss. Ct. App.
2010). This Court next looks to determine whether Porter established a genuine issue of fact
as to whether Grand Casino breached this duty.
¶14. Porter argues that the instant case is comparable to Eli, in which this Court reversed
summary judgment because affidavits produced by each party established a battle of the
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experts and created genuine issues of fact. Eli, 118 So. 3d at 155. After a casino barge was
torn from its moorings during Hurricane Katrina and allided with a hotel owned by Eli, Eli
filed suit and produced an expert affidavit in answer to summary judgment, stating that
Hurricane Katrina’s storm surge was foreseeable in light of prior storm history. Id. at 153,
155. The affidavit was supported by statistics citing storms with surges greater than fifteen
feet prior to Katrina. Id. The casino provided an affidavit from an expert who opined that the
casino was adequately moored to comply with licensing regulations and that the barge did
not break free from its moorings until storm surge reached higher than fifteen feet. Id. This
Court held that there was a genuine issue of fact as to whether the casino had breached its
duty and reversed summary judgment. Id. at 156.
¶15. In contrast, the Court of Appeals in Bay Point affirmed summary judgment after
finding that the expert affidavits failed to establish a material issue of fact as to whether the
casino had breached its duty when the barge came loose from its moorings and struck a
marina. Bay Point, 46 So. 3d at 827. The casino produced an expert affidavit stating that the
barge was moored in a manner that exceeded regulation standards. Id. at 824, 825. Bay
Point’s expert acknowledged that the designs met regulation standards but suggested that the
standards should be doubled. Id. at 825. Bay Point argued that the casino had failed to take
additional measures to prevent the barge from coming loose. Id. The casino submitted a
report stating that Hurricane Katrina far exceeded Hurricane Camille in damage to property
and produced a storm surge eight to ten feet higher than Camille’s. Id. at 825, 826. The court
found that there was no genuine issue of material fact because the casino had produced
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evidence that Hurricane Katrina was unforeseeable and that the casino had taken reasonable
measures to prevent foreseeable injuries in the event of a hurricane. Id. at 826.
¶16. Here, to prove Grand Casino met its duty to take reasonable measures to prevent
foreseeable injuries, Grand Casino provided the affidavits of two experts stating that the
casino had exceeded the Commission’s licensing regulations by mooring the barge to
withstand seventeen-foot tidal surges. Porter did not provide an affidavit from a
meteorologist stating that a storm surge of more than fifteen feet was foreseeable. Although
Porter’s sole expert stated that no evidence was produced that Grand Casino had performed
annual structural inspections on the moorings, he did not opine that the barge had been torn
free from its moorings as a result. He also did not take the position that the barge came loose
before the tidal surge reached fifteen feet. Porter’s expert merely concluded that no heavy
storm mooring plan was submitted, and the absence of a plan is a deviance from customary
practice.1 However, again, there was no contention that a heavy storm mooring plan would
have prevented the casino from coming unmoored during Hurricane Katrina.
1Porter’s expert affidavit stated:
[I] was asked to review the annual inspections and heavy storm mooring plan of this Defendant. . . . [I]t is my expert opinion that no evidence that any annual structural inspections were performed on any marine structures including but not limited to, breasting dolphins, mooring dolphins, bollards, monopoles, floating docks, cells and other mooring devices. That no heavy storm mooring plan was submitted by this Defendant and the absence of a plan is a deviance from the customary practice.
Porter’s expert did not state that the absence of evidence of structural inspections or the lack of submission of a heavy storm mooring plan contributed to the barge breaking away from its moorings or that Grand Casino was negligent in maintaining its moorings. 9
¶17. Porter did not establish a battle of the experts. An expert affidavit concluding that no
evidence was produced showing annual structural inspections or a heavy storm mooring plan
fails to establish an issue of material fact as to whether Grand Casino breached its duty to
Porter to take reasonable measures to prevent foreseeable injury. Therefore, summary
judgment was appropriate on this issue
Outcome: Because Porter’s all-risk insurance policy unambiguously excluded from coverage loss that would not have occurred absent water damage, no genuine issue of material fact existed as to Porter’s bad-faith denial of coverage claim against State Farm. Additionally, Porter failed to produce sufficient evidence showing a genuine issue of fact as to whether Grand Casino breached its duty to take reasonable measures to prevent foreseeable injury. We affirm the decisions of the trial court and of the Court of Appeals as to all issues.
AFFIRMED.
Plaintiff's Experts:
Hurricane Katrina Casino Barge Rental
Defendant's Experts:
Hurricane Katrina Casino Barge Rentals
Comments: