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Cincinnati Ins. Co. v. Banks

United States Court of Appeals for the Sixth Circuit

April 28, 2015, Filed

File Name: 15a0308n.06

No. 14-5597

Opinion

 [*454]  ALICE M. BATCHELDER, Circuit Judge. In this diversity case, Cincinnati Insurance Company ("CIC") appeals a verdict rendered against it in favor of Larry and Wanda Sue Banks (collectively "Banks"), whose home was damaged by fire in 2011, and the district court's denying CIC a new trial. Banks insured the home through CIC, and although CIC cited several reasons for not covering the damage, pursuant to Tennessee law CIC paid the mortgage balance to the bank that held the mortgage on the property. CIC then filed suit against Banks to recover that payment, and Banks filed a counterclaim seeking payment for the value of the property  [*455]  in excess of the outstanding [**2]  mortgage, as well as personal property. After discovery and an eight-day trial, a jury rendered a verdict in favor of Banks. CIC raises fifteen issues on appeal covering manifold aspects of this litigation. We AFFIRM.

I. FACTS AND PROCEDURAL HISTORY

Plaintiff Cincinnati Insurance Company ("CIC") is an Ohio insurance company, and Defendants Larry Banks and Wanda Sue Banks ("Banks") are citizens of Tennessee. CIC insured Banks' residential property in Manchester, Tennessee. The policy covers the dwelling, other structures, personal property, and any loss of use. The parties dispute whether this is an "all-risk policy," covering all direct physical loss unless otherwise excluded. On November 28, 2011, the property was damaged by fire. On March 14, 2012, Banks filed a claim for $1,904,309.64. On March 17, 2012, CIC denied the claim. Banks filed a second claim, wherein they insist in a sworn statement:

The said loss did not originate by any act, design or procurement on the part of your insured, or this affiant; nothing has been done by or with the privity or consent of your insured or this affiant to violate the conditions of the policy or render it void; no articles are mentioned herein [**3]  or in annexed schedules but such as were destroyed or damaged at the time of said loss; no property saved has in any manner been concealed, and no attempt to deceive the said Company as to the extent of said loss has in any manner been made. Any other information that may be required will be furnished and considered a part of this proof.

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610 Fed. Appx. 453 *; 2015 U.S. App. LEXIS 7301 **; 2015 WL 1902806

CINCINNATI INSURANCE CO., Plaintiff-Appellant, v. LARRY BANKS, et ux., Defendants-Appellees.

Notice: NOT RECOMMENDED FOR FULL-TEXT PUBLICATION. SIXTH CIRCUIT RULE 28 LIMITS CITATION TO SPECIFIC SITUATIONS. PLEASE SEE RULE 28 BEFORE CITING IN A PROCEEDING IN A COURT IN THE SIXTH CIRCUIT. IF CITED, A COPY MUST BE SERVED ON OTHER PARTIES AND THE COURT. THIS NOTICE IS TO BE PROMINENTLY DISPLAYED IF THIS DECISION IS REPRODUCED.

Prior History:  [**1] ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE.

Cincinnati Ins. Co. v. Banks, 2014 U.S. Dist. LEXIS 188008 (E.D. Tenn., Apr. 22, 2014)

CORE TERMS

district court, argues, insured, new trial, dwelling, burden of proof, instructions, canine, total loss, alerts, under federal rule, matter of law, accidental, arson, abuse of discretion, personal property, expert testimony, bad faith, counterclaim, demolition, structures, excluding, covering, insurance company, directed verdict, jury award, accelerants, coverage, burning, damages

Civil Procedure, Appeals, Standards of Review, De Novo Review, Jury Trials, Jury Instructions, General Overview, Evidence, Burdens of Proof, Allocation, Insurance Law, Coverage, Arson & Intentional Loss, Burdens of Proof, Preponderance of Evidence, Property Insurance, All Risks, Claim, Contract & Practice Issues, Policy Interpretation, Exclusions, Abuse of Discretion, Criminal Law & Procedure, Arson, Simple Arson, Elements, Reversible Errors, Preliminary Considerations, Federal & State Interrelationships, Erie Doctrine, Trials, Judgment as Matter of Law, Directed Verdicts, Summary Judgment, Entitlement as Matter of Law, Province of Court & Jury, Estoppel & Waiver, Policy Coverage Issues, Contracts Law, Contract Conditions & Provisions, Waivers, Summary Judgment Review, Standards of Review, Judgments, Evidentiary Considerations, Real Property, Loss Calculation, Relief From Judgments, Motions for New Trials, Pleading & Practice, Joinder of Claims & Remedies, Pretrial Matters, Motions in Limine, Appellate Review, Admissibility, Conduct Evidence, Prior Acts, Crimes & Wrongs, Testimony, Expert Witnesses, Qualifications, Relevance, Exclusion of Relevant Evidence, Confusion, Prejudice & Waste of Time