IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 4, 2007
No. 07-60013 Charles R. Fulbruge III
Clerk
NORRIS EDWARDS SMITH
Plaintiff-Appellant
v.
ALLSTATE INDEMNITY COMPANY
Defendant-Appellee
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:05-CV-658
Before KING, BARKSDALE, and DENNIS, Circuit Judges.
PER CURIAM:*
This insurance case involves the issue of whether the plaintiff’s
homeowner’s insurance policy covers damages resulting from storm surge caused
by Hurricane Katrina. The district court concluded that the policy did not cover
such damages. Based on recent Circuit precedent, Tuepker v. State Farm Fire
& Cas. Co., No. 06-61075, __ F.3d __, 2007 WL 3256829 (5th Cir. Nov. 6, 2007),
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
No. 07-60013
I. BACKGROUND FACTS
On August 29, 2005, the Pascagoula, Mississippi home of Norris Edwards
Smith (“Smith”) suffered extensive damage as a result of Hurricane Katrina.
The dwelling was insured by a homeowner’s insurance policy issued by Allstate
Indemnity Company (“Allstate”). The policy contains both a water-damages
exclusion and a hurricane-deductible endorsement. Allstate inspected Smith’s
home and estimated his covered property damage to be $4,553.11. Smith filed
suit in federal court raising breach of contract, breach of implied covenants,
breach of the duty of good faith and fair dealing, and fraudulent and/or negligent
misrepresentation claims.1 The parties stipulated that the damage to Smith’s
home was caused by rising water pushed by storm surge, and/or flooding. The
district court granted summary judgment in favor of Allstate on the ground that
Smith’s policy does not cover hurricane storm surge damage. Smith filed a
timely notice of appeal.
II. STANDARD OF REVIEW
We review a district court’s summary judgment ruling de novo, applying
the same standard as the district court. Wyatt v. Hunt Plywood Co., 297 F.3d
405, 408 (5th Cir. 2002). A party is entitled to summary judgment only 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
material fact and that the moving party is entitled to a judgment as a matter of
law.” Fed. R. Civ. P. 56(c). On a motion for summary judgment, this court views
the facts in the light most favorable to the non-moving party and draws all
reasonable inferences in its favor. See Hockman v. Westward Commc’ns, L.L.C.,
407 F.3d 317, 325 (5th Cir. 2004). In reviewing the evidence, this court therefore
1
Smith withdrew his fraudulent and/or negligent misrepresentation claim.
2
No. 07-60013
“refrain[s] from making credibility determinations or weighing the evidence.”
Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007).
Because this is a diversity case, this court applies the substantive law of
Mississippi. Mulberry Square Prods. v. State Farm Fire & Cas. Co., 101 F.3d
414, 420 (5th Cir. 1996) (citing Sentry Ins. v. R.J. Weber Co., 2 F.3d 554, 556 (5th
Cir. 1993)). “‘The reach of an insurance contract . . . is a matter of law that we
review de novo.’” Id. (quoting Sentry, 2 F.3d at 556).
III. ANALYSIS
The sole issue on appeal is whether Smith’s policy covers damages
resulting from storm surge. The two policy provisions at issue are the water-
damages exclusion and the hurricane-deductible endorsement.
The water-damages exclusion expressly excludes coverage for damages
resulting from a “flood, including, but not limited to surface water, waves, tidal
water or overflow of any body of water, or spray from any of above, whether or
not driven by wind.” Smith argues that, under Mississippi law, this provision
does not unambiguously exclude coverage for damage resulting from storm
surge. This court has rejected this argument in a case involving a virtually-
identical exclusion under Mississippi law. See Tuepker v. State Farm Fire &
Cas. Co., Case No. 06-61075, __ F.3d __, 2007 WL 3256829, *5 (5th Cir. Nov. 6,
2007).2 Thus, Smith’s argument is foreclosed by Circuit precedent.
Smith’s policy also contains a hurricane-deductible endorsement, which
alters his deductible for damages during a hurricane “caused by windstorm, or
by any object(s) driven by windstorm.” Notwithstanding the language in the
endorsement that “[a]ll other provisions of the policy apply,” Smith argues that
this endorsement expands coverage to include damages resulting from storm
2
The policy in Tuepker excluded coverage for damages resulting from a “flood, surface
water, waves, tidal water, tsunami, seiche, overflow of a body of water, spray from any of
these, all whether driven by wind or not.” 2007 WL 3256829, at *4.
3
No. 07-60013
surge during a hurricane. This court likewise rejected this argument under
Mississippi law in Tuepker. 2007 WL 3256829, at *7.3 Thus, this argument is
also foreclosed by Circuit precedent.
IV. CONCLUSION
For the foregoing reasons, we affirm the judgment of the district court.
AFFIRMED.
3
The endorsement in Tuepker altered the deductible for damages during a hurricane
“caused by wind, wind gusts, hail, rain, tornadoes, or cyclones caused by or resulting from a
hurricane” and indicated that “[a]ll other policy provisions apply.” 2007 WL 3256829, at *4.
4