     Case: 15-60757      Document: 00513543686         Page: 1    Date Filed: 06/10/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit

                                    No. 15-60757                                  FILED
                                  Summary Calendar                            June 10, 2016
                                                                             Lyle W. Cayce
                                                                                  Clerk
GARRISON PROPERTY AND CASUALTY COMPANY,

              Plaintiff - Appellee

v.

PATRICIA SILVA,

              Defendant - Appellant




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                              USDC No. 1:15-CV-8


Before KING, OWEN, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       This appeal relates to an insurance claim filed by Defendant–Appellant
Patricia Silva for fire damage to Silva’s home in Gulfport, Mississippi. On
April 19, 2014, Silva had removed approximately thirty family pictures from a
wall inside her home and intentionally burned the photos on the tile floor of
her living room. As a result, smoke filled the room. Observing no flames and



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                       No. 15-60757
believing that the fire was extinguished, Silva opened the back door of the
house to help disperse the smoke and moved to the back patio. Thereafter,
Silva heard a smoke alarm activate within her house, and returning inside,
Silva observed that the ceiling had been discolored by smoke. Silva disabled
the smoke alarm, disposed of the alarm in the garbage, and opened the front
door because smoke was still present within the house. She then exited her
home and went to her car, which was parked directly in front of the house. At
some time later, 1 Silva noticed that her home was on fire, and she called
emergency services. The fire department arrived and extinguished the fire,
but not before the fire caused damage to the home and its contents.
       Silva submitted a claim to Plaintiff–Appellee Garrison Property and
Casualty Company (Garrison) for the policy limits on her homeowner’s
insurance policy, totaling more than $75,000. Garrison thereafter filed the
present action in federal court pursuant to 28 U.S.C. § 1332, seeking a
declaratory judgment on its liability for insurance coverage for the fire damage
to Silva’s home. 2 On April 2, 2015, Garrison moved for summary judgment,
arguing that Silva’s claim was not covered by the insurance policy because the
loss was not “sudden or accidental.” The district court granted the motion,
finding that Silva could not demonstrate that she suffered a covered loss
because the conflagration that damaged her home was not “sudden and
accidental.” The district court thereafter entered final judgment in favor of
Garrison, and Silva timely appealed.
       We review a district court’s grant of summary judgment de novo,
“applying the same standard as the district court.” Johnston & Johnston v.


       1 In her deposition, Silva stated that she may have fallen asleep in her car.
       2 Silva asserted counterclaims for breach of contract and bad faith. The district court
granted summary judgment for Garrison on Silva’s counterclaims, and Silva does not
challenge that determination on appeal. See SEC v. Recile, 10 F.3d 1093, 1096 (5th Cir. 1993)
(“[I]ssues not raised at all are waived.”).
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                                  No. 15-60757
Conseco Life Ins. Co., 732 F.3d 555, 561 (5th Cir. 2013). Summary judgment
is proper “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). “A genuine dispute as to a material fact exists ‘if the evidence
is such that a reasonable jury could return a verdict for the nonmoving party.’”
Rogers v. Bromac Title Servs., L.L.C., 755 F.3d 347, 350 (5th Cir. 2014) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). And we construe
all facts and inferences in the light most favorable to the nonmoving party.
Johnston & Johnston, 732 F.3d at 561. “In diversity cases, this court applies
the substantive law of the forum state, Mississippi.” State Farm Mut. Auto.
Ins. Co. v. LogistiCare Solutions, LLC, 751 F.3d 684, 688 (5th Cir. 2014).
      Silva contends that the district court, in finding that her loss was not
covered by the insurance policy, resolved several genuine disputes of material
fact relating to whether the loss of the house as a result of the fire was “sudden
and accidental.” “‘Under Mississippi law a plaintiff has the burden of proving
a right to recover under the insurance policy sued on,’ and this basic burden
never shifts from the plaintiff.” Broussard v. State Farm Fire & Cas. Co., 523
F.3d 618, 625 (5th Cir. 2008) (quoting Britt v. Travelers Ins. Co., 566 F.2d 1020,
1022 (5th Cir. 1978)). “The interpretation of insurance policy language is a
question of law.” Robichaux v. Nationwide Mut. Fire Ins. Co., 81 So. 3d 1030,
1035 (Miss. 2011). In the present matter, the insurance policy covered “‘sudden
and accidental’, direct, physical loss to tangible property described in [the
insurance policy].” And the contract unambiguously defines the term “sudden
and accidental” as “an abrupt, fortuitous event which is unintended from the
perspective of a reasonable person.” See Lewis v. Allstate Ins. Co., 730 So. 2d
65, 68 (Miss. 1998) (holding that “when the words of an insurance policy are
plain and unambiguous, the court will afford them their plain, ordinary
meaning and will apply them as written”).
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                                       No. 15-60757
       On appeal, Silva points to a number of alleged factual disputes
purportedly resolved by the district court. All of those alleged disputes relate
to her deposition testimony that she believed the fire she started by burning
her photos was extinguished and that the subsequent fire affecting her home
was “sudden and accidental.” 3 However, Silva has failed to offer any evidence
supporting that assertion. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.
1994) (“[U]nsubstantiated assertions are not competent summary judgment
evidence.”).    Such unsupported assertions in “deposition testimony setting
forth ultimate or conclusory facts and conclusions of law are insufficient to
defeat a motion for summary judgment.” Clark v. America’s Favorite Chicken
Co., 110 F.3d 295, 297 (5th Cir. 1997). Having considered the entire record,
Silva has failed to present sufficient evidence to raise a genuine dispute that
the fire that destroyed her home was “sudden and accidental” and, thus,
covered under the insurance policy. The district court consequently did not err
in granting Garrison’s summary judgment motion.
       We therefore AFFIRM the judgment of the district court.




       3Silva also contends that the district court improperly resolved a factual dispute when
the court stated that Silva “sat in her car (perhaps napping) while the smoke aired out of the
house.” However, the district court never made an express finding that Silva was asleep and,
instead, was only referencing Silva’s own testimony that she thought she may have fallen
asleep.
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