(CN) – Lexington Insurance wrongfully attributed the Hurricane Katrina damages to a couple’s home to flooding in order to avoid paying wind damages, the 5th Circuit ruled.
Dale and Shirley Dickerson had wind and rain coverage from Lexington and flood damages covered through a different insurer.
The federal appeals court in New Orleans upheld the lower court’s ruling that the couple’s witness, a general contractor, provided a more credible analysis of the different causes of the damages to the couple’s home. The contractor said wind and rain accounted for 70 percent of the damage.
Lexington did not challenge that percentage, but claimed the costs were much lower and tried to identify individual components of damage that could be attributed to flooding. The appeals court found the couple’s general contractor to be a more credible witness than the insurer’s adjuster.
Lexington also argued that the Dickersons failed to prove that they had suffered mental anguish – that Dale Dickerson’s development of a rash, showering with a hose and sleeping in a bathtub do not qualify as mental anguish because they do not reach a level of medical significance.
Again affirming the lower court, the 5th Circuit ruled that mental anguish does not require proof of medical or psychiatric care.
“Although Lexington contends plausibly that Dickerson could have mitigated his suffering,” Judge Wiener wrote, “the district court was best positioned to make credibility determinations of the witnesses, and it found the weight of the evidence tipped in favor of Dickerson.”