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Manuel v. MDOW Insurance Co.

United States Court of Appeals, Eighth Circuit

June 29, 2015

Kirk Manuel, Plaintiff - Appellant
v.
MDOW Insurance Company, Defendant - Appellee

Submitted: April 16, 2015.

Page 839

Appeal from United States District Court for the Eastern District of Arkansas - Helena.

For Kirk Manuel, Plaintiff - Appellant: Andrew Greenlee, Andrew B. Greenlee, P.A., Sanford, FL.

Kirk Manuel, Plaintiff - Appellant, Pro se, Lexa, AR.

For MDOW Insurance Company, Defendant - Appellee: Mark Steven Breeding, Ashleigh D. Phillips, Munson & Rowlett, Little Rock, AR.

Before MURPHY, COLLOTON, and KELLY, Circuit Judges.

OPINION

Page 840

KELLY, Circuit Judge.

Kirk Manuel sued his insurance provider, MDOW Insurance Company, after MDOW refused to cover the loss of Manuel's house to a fire. A jury found in favor of MDOW, and Manuel moved for a new trial. The district court[1] denied the motion. Manuel appeals the denial of his motion and contests the court's admission of certain evidence at trial. We reject his claims and affirm the judgment.[2]

I. Background

On September 14, 2011, Manuel's home burned down while he and his family were vacationing in Las Vegas. Manuel had insured his home through MDOW with a policy providing $150,000 for the house, $75,000 for personal property, and $45,000 for added costs. Manuel filed a claim for the fire, but MDOW denied it. MDOW told Manuel that it believed he or someone acting on his behalf had intentionally set the fire and that Manuel's claim form contained fraudulent information.

Manuel sued MDOW in Arkansas state court for breach of contract, and MDOW removed the case to federal court. During the trial, Richard Eley testified as an expert witness for MDOW. Manuel did not object to Eley's testimony or certification as an expert witness. Eley testified that he had nearly 40 years of experience investigating fires. He opined that someone had intentionally set the fire that destroyed Manuel's home. He reached this conclusion after eliminating other potential causes of the fire and after speaking with Manuel. Counsel for Manuel questioned Eley extensively about his methods, comparing them to those detailed in the National Fire Protection Association 921 Guide for Fire and Explosion Investigations (NFPA 921).[3] Counsel noted that NFPA 921 recommends against using a " negative corpus" method, which involves " eliminating all ignition sources found, known, or believed to have been present in the area of origin" to prove the fire was set intentionally. NFPA 921 § 18.6.5 (2011). Eley insisted that everything he did " was scientific, and it followed NFPA 921." But Eley also disagreed with some parts of NFPA 921, including its description of negative corpus:

And what I believe negative corpus would be is if I came into this room and all I had was the light fixtures and the switches and things like that, I did not have a chance to talk to the owner or the last person in, and just from just looking around and saying, well, I don't see any

Page 841

thing that could have caused it, well, boom, you know, that in my mind might be negative corpus.
On the other hand, if you do a physical examination of everything in the area where the fire started and you can't find anything in that area that shows evidence that it caused a fire, and then I'm able to talk to the owner, like Mr. Manuel, or whoever the last person was in the house at the time of the fire, and they gave me all the information that I've talked about already from him, that nothing was on, there was no problems, nothing stored in the house of a flammable nature, I believe that goes beyond the negative corpus . . . .

That additional human element, Eley posited, led him to the only possible conclusion: The fire ...


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