James P. Little v. United Services Automobile Association, Inc.

09/28/2026 IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE May 12, 2026 Session JAMES P. LITTLE v. UNITED SERVICES AUTOMOBILE ASSOCIATION, INC. Appeal from the Chancery Court for Hamilton County No. 21-0139 Jeffrey M. Atherton, Chancellor ___________________________________ No. E2024-01434-COA-R3-CV ___________________________________ The plaintiff insured filed a claim against his homeowners insurance company for damages from an earthquake that occurred in 2018. The insurance company denied the claim, and the insured subsequently filed this action against the insurer alleging claims of breach of contract, fraud, and bad faith. The trial court conducted a jury trial spanning several days. During trial, at the close of the plaintiff’s proof, the defendant insurer moved for a directed verdict on all claims. The trial court directed a verdict on the fraud claim but allowed the other claims to proceed. Following deliberation, the jury returned a verdict in favor of the plaintiff in the amount of $2,000,000. The jury found that the defendant had breached its contract with the plaintiff but declined to find that the defendant had acted in bad faith. The defendant insurer filed a post-trial motion, which was denied by the trial court. The plaintiff timely appealed. Following our thorough review, we affirm the trial court’s judgment in all respects. However, we deny the insurer’s request for an award of attorney’s fees on appeal. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed; Case Remanded THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which W. NEAL MCBRAYER and KRISTI M. DAVIS, JJ., joined. Rebecca M. Little, Chattanooga, Tennessee, for the appellant, James P. Little. Derek W. Mullins, Chattanooga, Tennessee, and Michael D. Mulvaney, Birmingham, Alabama, for the appellee, United Services Automobile Association, Inc.  OPINION I. Factual and Procedural Background On March 2, 2021, the plaintiff, James P. Little, filed a complaint in the Hamilton County Chancery Court (“trial court”) and named United Services Automobile Association, Inc. (“USAA”) as the defendant. In his complaint, Mr. Little stated that he had maintained homeowners insurance with USAA for many years and that his policy included a specific earthquake endorsement. During the years that the coverage had been in place, USAA had inspected the home from time to time, reporting after an inspection performed in October 2016 that the structural integrity of the residence was “fine.” According to Mr. Little, seismic activity near Signal Mountain in December 2018 had caused significant sinking and shifting of roads, homes, and driveways in the area, including damage to Mr. Little’s home and driveway. Mr. Little averred that his ex-wife and children had been forced to leave the home and find lodging elsewhere due to this damage. Mr. Little asserted that he had submitted a timely claim to USAA on March 4, 2019, regarding the earthquake damage to his home and driveway. USAA had subsequently sent an independent adjustor to examine the property damage, as well as a civil engineer. Mr. Little claimed that although USAA had later sent a letter confirming that earth shifting had occurred and that Mr. Little’s home had sustained damage, USAA nonetheless had denied his claim. USAA stated in its denial letter that the civil engineer had opined that any damage to the home was caused by construction deficiencies in the home’s retaining wall and was not the result of a “single, sudden, or recent event.” Mr. Little also alleged that the denial letter contained “patently false statements” attributed to Mr. Little’s ex-wife regarding purported long-standing issues with the home. Mr. Little noted that following receipt of the denial letter, he had hired structural engineers to ascertain the cause of the damage. According to Mr. Little, these engineers had reported that “the ground shifting was of such a magnitude that they would be unable to draw plans for remediation or provide an opinion on the cause of the earth shifting without a geotechnical investigation.” Mr. Little then hired a geotechnical engineering firm to perform the investigation. Mr. Little further stated that he had received a report in December 2020 from the geotechnical engineering firm, which concluded that the issues with Mr. Little’s property were due to “saturation and seismic events.” Mr. Little, through his insurance agent, promptly sent a letter to USAA demanding payment of his claim. In turn, USAA denied his demand for payment, asserting that there was no coverage for the loss. Mr. Little’s agent reportedly filed a complaint with the Tennessee Department of Commerce and Insurance (“the Department”) regarding the denial. Mr. Little later received a copy of the response that USAA had submitted to the Department, which he characterized as replete -2- with misrepresentations of fact. Mr. Little averred that USAA had also failed to comply with his multiple requests for policy documents and had engaged in dilatory and evasive tactics since the claim was filed. In addition, Mr. Little alleged that USAA had ultimately “fabricated” reasons to deny coverage and discontinue the insurance policy. Mr. Little asserted claims of breach of contract, bad faith, and fraud against USAA and included a jury demand in his complaint. He asked that the trial court (1) require USAA to produce the underwriting file, initial policy, and inspection documents related to the claim; (2) enjoin USAA from terminating Mr. Little’s insurance coverage; (3) sanction USAA for restricting Mr. Little’s access to claim and policy documents under USAA’s control; (4) award Mr. Little compensatory, bad faith, and punitive damages; and (5) award Mr. Little attorney’s fees. USAA filed an answer, denying the material allegations of the complaint and presenting various affirmative defenses. On August 18, 2021, the trial court conducted a hearing regarding a petition for injunctive relief that had been filed by Mr. Little, and the court entered an order denying the petition. On June 29, 2023, Mr. Little filed a motion for partial summary judgment. Mr. Little subsequently filed an amended motion for partial summary judgment on February 5, 2024, wherein he posited that he was entitled to judgment as a matter of law regarding his claims of breach of contract and bad faith. USAA filed a competing motion for summary judgment on that same date. Although no order related to the motions for summary judgment appears in the record, these motions were apparently denied by the trial court, and the matter proceeded to trial in August 2024, spanning multiple days. On August 16, 2024, upon the close of Mr. Little’s proof, USAA moved for a directed verdict concerning Mr. Little’s claims. The trial court granted a directed verdict in favor of USAA on the fraud claim such that the only claims remaining for the jury’s determination were for breach of contract and bad faith. On August 20, 2024, after both parties had rested, USAA renewed its motion for directed verdict concerning those claims. The trial court denied the motion. After deliberation, the jury returned a verdict in favor of Mr. Little, finding that USAA had breached the insurance contract but declining to find that USAA had acted in bad faith. The jury awarded damages to Mr. Little in the amount of $2,000,000. The trial court entered a judgment in accordance with the jury’s verdict. USAA then filed a motion for entry of a judgment pursuant to its motion for a directed verdict, and the trial court denied this motion. Mr. Little timely appealed. During the appellate proceedings, Mr. Little’s initial brief was stricken and his counsel was granted additional time to file a corrected brief. After the corrected brief’s filing, USAA filed a motion to strike the brief and dismiss the appeal, which motion was deferred to this panel for adjudication. -3-  II. Issues Presented Mr. Little presents the following issues for our review, which we have restated and reordered slightly: 1. Whether the jury’s finding that USAA had not acted in bad faith was contrary to the clear weight of the evidence. 2. Whether the trial court erred by granting a directed verdict in USAA’s favor respecting Mr. Little’s fraud claim rather than allowing the jury to determine the claim. 3. Whether USAA acted improperly by denying Mr. Little’s claim without conducting a good faith investigation into the peril expressly covered by its insurance policy. USAA presents additional issues for this Court’s consideration, which we have also restated slightly: 4. Whether the jury’s determination that USAA had breached its insurance contract with Mr. Little was unsupported by material evidence in the record. 5. Whether Mr. Little waived appeal of his fraud claim by failing to (1) develop his argument regarding the applicable elements of the claim, (2) support his argument with evidence in the record, and (3) properly raise his issues before the trial court. 6. Whether Mr. Little waived appeal of his bad faith claim by failing to (1) file a motion for new trial regarding the claim, (2) develop arguments regarding the applicable elements of the claim, and (3) support his argument with evidence in the record. 7. Whether Mr. Little’s appeal is frivolous such that USAA should be awarded costs and attorney’s fees on appeal. III. Standard of Review Regarding review of a jury’s verdict that has been approved by the trial court, this Court has clarified: -4-  Our review of the trial court’s approval of a jury verdict is based on a “material evidence” standard. Under this standard, “appellate courts may only review the record to determine whether it contains material evidence to support the jury’s verdict.” Overstreet v. Shoney’s, Inc., 4 S.W.3d 694, 718 (Tenn. Ct. App. 1999) (citing Tenn. R. App. 13(d)); see Barnes v. Goodyear Tire & Rubber Co., 48 S.W.3d 698, 704 (Tenn. 2000). As with the standard for reviewing the denial of a motion for a [judgment notwithstanding the verdict], this Court must “(1) take the strongest legitimate view of all the evidence in favor of the verdict; (2) assume the truth of all evidence that supports the verdict; (3) allow all reasonable inferences to sustain the verdict; and (4) discard all [countervailing] evidence.” Crabtree Masonry Co. v. C & R Constr., Inc., 575 S.W.2d 4, 5 (Tenn. 1978); see also Foster v. Bue, 749 S.W.2d 736, 741 (Tenn. 1988). In re Estate of Blackburn, 253 S.W.3d 603, 613 (Tenn. Ct. App. 2007). Concerning the denial of a motion for a directed verdict, the following standard of review applies: In ruling on a motion for directed verdict, trial courts must take the strongest legitimate view of the evidence in favor of the non-moving party, construing all evidence in that party’s favor and disregarding all countervailing evidence. Eaton v. McLain, 891 S.W.2d 587, 590 (Tenn. 1994). A court may grant the motion only if reasonable minds could reach only one conclusion from the evidence. Id. Appellate courts apply the same standard in reviewing the trial court’s decision on a directed verdict. Sauls v. Evans, 635 S.W.2d 377, 379 (Tenn. 1982). Gaston v. Tenn. Farmers Mut. Ins. Co., 120 S.W.3d 815, 819 (Tenn. 2003). The same standard applies to a motion for judgment notwithstanding the verdict. Mairose v. Fed. Express Corp., 86 S.W.3d 502, 511 (Tenn. Ct. App. 2001) (“In ruling on a motion for a judgment notwithstanding the verdict, the standard applied by both the trial court and the appellate court is the same as that applied to a motion for a directed verdict made during the trial.”). IV. Bad Faith Mr. Little contends that the jury’s determination that USAA had not acted in bad faith was contrary to the clear weight of the evidence. In response, USAA asserts that Mr. Little has waived this issue by failing to file a motion for a new trial regarding his bad faith claim. Upon review, we agree with USAA. Our Supreme Court has explained: -5-  It has long been the rule in this state that in order to preserve errors for appeal, the appellant must first bring the alleged errors to the attention of the trial court in a motion for a new trial. See Memphis St. Ry. Co. v. Johnson, 114 Tenn. 632, 88 S.W. 169 (1905). This requirement was initially imposed by this Court to make more efficient the process of reviewing “the ever increasing number of appeals,” and we have recognized that this practice significantly aids the functions of the appellate courts by limiting and defining the issues for review. See Board of Equalization v. Nashville, C. & St. L. Ry., 148 Tenn. 676, 680, 257 S.W. 91, 93 (1923) (noting that this Court “was constrained to exercise its power of prescribing rules of practice, requiring that errors be first assigned in a motion for new trial presented to the trial court, and . . . limiting the inquiry on appeal to error assigned in the motion”). Moreover, and perhaps most importantly, motions for a new trial also help to ensure that the trial judge might be given an opportunity to consider or to reconsider alleged errors committed during the course of the trial or other matters affecting the jury or the verdict, such as alleged misconduct of jurors, parties, or counsel which either occurred after the trial or could not reasonably have been discovered until after the verdict. McCormic v. Smith, 659 S.W.2d 804, 806 (Tenn. 1983). In modern appellate practice, the requirement of filing a motion for a new trial to preserve most errors is governed by Rule of Appellate Procedure 3(e), which reads in relevant part, [I]n all cases tried by a jury, no issue presented for review shall be predicated upon error in the admission or exclusion of evidence, jury instructions granted or refused, misconduct of jurors, parties or counsel, or other action committed or occurring during the trial of the case, or other ground upon which a new trial is sought, unless the same was specifically stated in a motion for a new trial; otherwise such issues will be treated as waived. Fahey v. Eldridge, 46 S.W.3d 138, 141-42 (Tenn. 2001). This Court has further noted that an appellant who asserts that the jury’s verdict was unsupported by material evidence must first raise the issue in a motion for new trial to avoid waiver of the issue. See Chilton v. Austin, No. M2001-02891-COA-R3-CV, 2003 WL 237365, at *3 (Tenn. Ct. App. Feb. 4, 2003) (“[The appellant] asserts that there is no evidence to support the jury verdict. This ground requires a motion for a new trial in the trial court in order to raise it on appeal, see -6- Tenn. R. App. P. 3(e)[.]”); see also Johnson v. Ford, No. E2011-00486-COA-R3-CV, 2012 WL 1253269, at *10 (Tenn. Ct. App. Apr. 12, 2012) (finding that the appellants had waived the issue of whether material evidence supported the jury’s verdict that the appellants were not entitled to punitive damages by failing to raise it in their motion for new trial). Here, Mr. Little failed to file a motion for new trial or any post-trial motion pursuant to Tennessee Rule of Appellate Procedure 3(e). Accordingly, Mr. Little has waived appellate review of this issue. V. Fraud Mr. Little asserts that the trial court erred by granting a directed verdict concerning his fraud claim rather than allowing the claim to go to the jury.1 USAA contends that the trial court’s grant of a directed verdict was proper due to the lack of evidence of fraudulent misrepresentations by USAA. USAA further argues that Mr. Little failed to properly support his arguments on appeal, resulting in waiver of this issue. Regarding the review of a grant of directed verdict, our Supreme Court has clarified: On review of the grant of a directed verdict on motion of a defendant, it is not the office of an appellate court to weigh the evidence. Rather, it must take the strongest legitimate view of the evidence in favor of the plaintiff, indulging in all reasonable inferences in his favor, and disregarding any evidence to the contrary. The trial judge’s action may be sustained only if there is no material evidence in the record that would support a verdict for the plaintiff, under any of the theories that he has advanced. Conatser v. Clarksville Coca-Cola Bottling Co., 920 S.W.2d 646, 647 (Tenn. 1995) (quoting Williams v. Brown, 860 S.W.2d 854, 857 (Tenn. 1993)). “A verdict should not be directed during, or after, trial except where a reasonable mind could draw but one conclusion.” Mercer v. Vanderbilt Univ., Inc., 134 S.W.3d 121, 131 (Tenn. 2004). In Tennessee, a fraud claim must satisfy the following elements: (1) the defendant made a representation of an existing or past fact; (2) the representation was false when made; (3) the representation was in regard to a material fact; (4) the false representation was made either knowingly or without belief in its truth or recklessly; (5) plaintiff reasonably relied on the 1 Mr. Little’s failure to file a post-trial motion is not dispositive of this issue. Tennessee Rule of Civil Procedure 50.05 specifically provides: “Whenever a court shall have granted a directed verdict, it shall not be necessary for the party against whom the verdict was directed to file a motion for a new trial in order to obtain appellate review of such action of the court.” -7-  misrepresented fact; and (6) plaintiff suffered damage as a result of the misrepresentation. Walker v. Sunrise Pontiac-GMC Truck, Inc., 249 S.W.3d 301, 311 (Tenn. 2008). “The party alleging fraud bears the burden of proving each element.” PNC Multifamily Capital Institutional Fund XXVI Ltd. P’ship v. Bluff City Cmty. Dev. Corp., 387 S.W.3d 525, 548 (Tenn. Ct. App. 2012). In his appellate brief, Mr. Little posits that he proved knowing misrepresentations made by USAA’s representative, Sabra Johnson. In support, Mr. Little cites to Ms. Johnson’s testimony from the 2021 preliminary injunction hearing. During the subsequent jury trial, Mr. Little’s counsel sought to introduce the prior testimony of Ms. Johnson by reading portions of that testimony aloud to the jury. The trial court allowed the testimony to be introduced to the jury in this manner; however, the trial transcript merely reflects that testimony was read to the jury but does not contain an actual transcription of what was read aloud. USAA therefore urges that Mr. Little cannot demonstrate that the trial court erred in granting a directed verdict as to his fraud claim because the record does not contain a sufficient transcript of the evidence introduced at trial in support of that claim. Although Mr. Little relies primarily on testimony from Ms. Johnson to support his fraud claim, he cites to her testimony introduced at a prior hearing regarding a preliminary injunction. During the jury trial, Mr. Little’s counsel introduced portions of Ms. Johnson’s testimony from the injunction hearing by reading to the jury from the prior hearing transcript. In doing so, counsel relied on Tennessee Rule of Civil Procedure 65.04(7), which states in pertinent part: [A]ny evidence received upon an application for a preliminary injunction which would be admissible upon the trial on the merits becomes part of the record on the trial and need not be repeated upon the trial. The trial court permitted portions of the testimony from the injunction hearing to be read to the jury. However, the transcript from the jury trial merely states, “testimony of [witness] read aloud” and does not contain an actual transcription of what was read to the jury. By failing to provide this Court with an actual transcript of the portions of Ms. Johnson’s prior testimony that were read to the jury, Mr. Little has waived review of this proof. Mr. Little is responsible for providing this Court with an adequate record to review the issues that he has raised. See State v. Ballard, 855 S.W.2d 557, 561 (Tenn. 1993). As this Court has explained: Appellant’s failure to provide a record of the proceedings below does not enable us to review the issues he raises. As the Supreme Court stated in -8-  State v. Ballard, 855 S.W.2d 557 (Tenn. 1993), “[w]hen a party seeks appellate review there is a duty to prepare a record which conveys a fair, accurate and complete account of what transpired with respect to the issues forming the basis of the appeal.” State v. Bunch, 646 S.W.2d 158, 160 (Tenn. 1983). Where the record is incomplete and does not contain a transcript of the proceedings relevant to an issue presented for review, or portions of the record upon which the party relies, an appellate court is precluded from considering the issue. State v. Roberts, 755 S.W.2d 833, 836 (Tenn. Cr. App. 1988). Sturgeon v. Sturgeon, No. E2008-01099-COA-R3-CV, 2009 WL 2213485, at *3 (Tenn. Ct. App. July 24, 2009). Moreover, Tennessee Rule of Appellate Procedure 24(b) provides that “the appellant shall have prepared a transcript of such part of the evidence or proceedings as is necessary to convey a fair, accurate and complete account of what transpired with respect to those issues that are the bases of appeal.” Here, Mr. Little has failed to provide this Court with a transcript that reflects what transpired during trial with respect to the testimony upon which he seeks to rely. Without a transcript detailing the portions of the prior testimony that were read to the jury, we cannot fully evaluate the trial court’s basis for directing a verdict on the fraud claim. In addition to the preliminary injunction hearing testimony, Mr. Little also relies on certain exhibits that were introduced at trial, namely USAA’s initial denial letter regarding his claim and USAA’s response sent to the Department following Mr. Little’s consumer complaint. Mr. Little further mentions other documentary exhibits, including the independent adjustor’s report, notes recorded by Ms. Johnson during her investigation of the claim, Mr. Little’s complaint filed with the Department, and the engineering report prepared by GEOServices, LLC. However, none of these documents demonstrate that a “false representation was made either knowingly or without belief in its truth or recklessly,” upon which Mr. Little relied or that caused him to suffer damages. See Walker, 249 S.W.3d at 311. Mr. Little first references the report from an independent adjuster, dated March 21, 2019. In this report, the adjuster noted multiple areas in and around the home that contained cracks and concluded by stating: There were some cracks on the right side of the home that appeared to have been sealed over previously, and insured’s ex-wife advised those cracks were previously present, indicating the area is prone to settlement. The home sits on the edge of the mountain, with the grounds being very steep downward from the front of the home to the rear. Based on our inspection, it appears likely that due to the heavy rains in the area recently, the soil is heavily saturated and is eroding, causing the home to settle. The services of a -9-  structural and/or soil engineer may be needed to ensure the grounds are stable. As Mr. Little points out, Ms. Johnson’s notes reflect that Ms. Johnson then telephoned Mr. Little on April 4, 2019, following receipt of the independent adjuster’s report, and advised Mr. Little that the adjuster had noted “some damages that may be earth movement” and had stated that because of the earthquake endorsement, USAA would need to hire an expert to determine the cause of the losses. Ms. Johnson stated that USAA would thus hire an engineer “to inspect and confirm [cause of loss].” It is undisputed that USAA retained a structural engineer to inspect the home. Following inspection, the structural engineer provided a report to USAA, wherein he concluded that “observed distress throughout the residence, including sloping floors and interior/exterior cracks and separations, is the result of long-term differential movement of the foundation due to deficiency in initial construction details of the retaining wall. These items were not the result of any single, sudden, or recent event.” Ms. Johnson sent the initial denial letter to Mr. Little on May 17, 2019, along with a copy of the structural engineer’s report. Relying on that report, USAA denied coverage. Ms. Johnson stated in the letter that in order to trigger coverage under the earthquake endorsement, “the damage must be direct physical loss caused by an earthquake.” We note that it was not until Mr. Little’s receipt of the report from GEOServices, LLC, dated December 30, 2020, more than a year after the initial denial by USAA, that he obtained an engineer’s opinion that the damage to his home was likely due in part to seismic activity. Accordingly, Ms. Johnson’s representations in 2019, which essentially quoted the structural engineer’s report, cannot be classified as knowingly or recklessly false. Ms. Johnson’s letter evinced that she was relying upon the expert opinion that was available to her at that time. Similarly, although Mr. Little sent his complaint to the Department on January 12, 2021, which was after the date of the GEOServices report, he failed to mention that report in his complaint. Instead, his complaint focused on USAA’s purported lack of cooperation with requests for policy documents. Accordingly, in USAA’s responsive letter to the Department, USAA addressed the document requests and again cited the structural engineer’s report regarding the cause of Mr. Little’s losses. Although USAA did acknowledge that Mr. Little had supplied an “engineer’s report,” apparently referring to the report by GEOServices, USAA stated that “the engineer’s report supplied by [Mr. Little] does not state any evidence of earthquake damage. The decision to deny remains unchanged.” Mr. Little now propounds that USAA’s statement that “the engineer’s report . . . does not state any evidence of earthquake damage” was false or misleading because the GEOServices report does cite seismic activity as a cause of the damages. Even if we - 10 - assume, arguendo, that this amounts to a knowing or reckless misrepresentation, Mr. Little’s evidence still falls short of supporting his fraud claim because he failed to demonstrate that he “reasonably relied on the misrepresented fact” or that he was damaged thereby. See Walker, 249 S.W.3d at 311. As the trial court noted in its explanation regarding its grant of a directed verdict on the fraud claim: [W]hen I granted the motion for a directed verdict . . . there was the issue of reliance and damages related to misrepresentation. And that is what I didn’t hear during the course of the plaintiff’s proof, and that was the primary focus when I said you have intentional misrepresentation, and you got the elements that are listed there. Even if we were to assume, for argumentative purposes only, that there was an intentional misrepresentation made to the Tennessee Department of Commerce and Insurance, kind of hard to rely upon representation you didn’t hear. Kind of hard to suffer damages, when it wasn’t discussed what authority the Tennessee Department of Commerce and Insurance would’ve had to somehow intervene in the process anyway. There was no—there was not enough proof to get to the jury on reliance and damages related to the misrepresentation, which is why the Court granted that motion for a directed verdict on that. We agree with the trial court’s determination. This Court has previously elucidated that a “false representation alone does not amount to fraud; there must be a showing by plaintiff that the representation was relied on by him or her, and that the reliance was reasonable under the circumstances.” Homestead Grp., LLC v. Bank of Tenn., 307 S.W.3d 746, 752 (Tenn. Ct. App. 2009). Mr. Little has shown neither of these elements. Mr. Little clearly did not rely upon USAA’s representation made to the Department because he has consistently maintained since receipt of the GEOServices report that his losses were caused by seismic activity. As the trial court stated, Mr. Little did not present any proof of reliance or damages related to the purported misrepresentation made by USAA to the Department. Taking the strongest legitimate view of the evidence in favor of Mr. Little, we conclude that there exists no material evidence in the record that would support a verdict in favor of Mr. Little regarding his fraud claim. See Conatser, 920 S.W.2d at 647. We therefore affirm the trial court’s grant of a directed verdict on the fraud claim. VI. Breach of Contract The jury returned a verdict in favor of Mr. Little, finding that USAA had breached the insurance contract and awarding to Mr. Little $2,000,000 in damages. USAA subsequently filed a post-trial motion and requested that the trial court enter a judgment in accordance with its directed verdict, but the court denied the motion. USAA contends that - 11 - the jury’s finding of breach of contract was not supported by material evidence in the record. This Court has explained: On appeal, “our review of a jury’s factual findings in a civil action is limited to determining whether any material evidence supported the verdict.” Potter v. Ford Motor Co., 213 S.W.3d 264, 268 (Tenn. Ct. App. 2006) (citing In re Estate of Brindley, No. M1999-02224-COA-R3-CV, 2002 WL 1827578, at *2 (Tenn. Ct. App. Aug. 7, 2002); Tenn. R. App. P. 13(d)). We “do not determine the credibility of witnesses or weigh evidence on appeal from a jury verdict.” Id. at 268-69 (citing In re Estate of Brindley, 2002 WL 1827578, at *2; Conatser v. Clarksville Coca-Cola Bottling Co., 920 S.W.2d 646, 647 (Tenn. 1995); Benson v. Tennessee Valley Elec. Coop., 868 S.W.2d 630, 638-39 (Tenn. Ct. App. 1993)). “Where the record contains material evidence supporting the verdict, the judgment based on that verdict will not be disturbed on appeal.” Id. at 269 (citing Reynolds v. Ozark Motor Lines, Inc., 887 S.W.2d 822, 823 (Tenn. 1994); Whaley v. Rheem Mfg. Co., 900 S.W.2d 296, 300 (Tenn. Ct. App. 1995)). State ex rel. Slatery v. Witherspoon Law Grp. PLLC, 700 S.W.3d 370, 382 (Tenn. Ct. App. 2022). In determining whether there is material evidence to support a verdict, this Court must: “(1) take the strongest legitimate view of all the evidence in favor of the verdict; (2) assume the truth of all evidence that supports the verdict; (3) allow all reasonable inferences to sustain the verdict; and (4) discard all [countervailing] evidence.” Old Republic Life Ins. Co. v. Woody, 652 S.W.3d 418, 424-25 (Tenn. Ct. App. 2022) (quoting Barnes v. Goodyear Tire & Rubber Co., 48 S.W.3d 698, 704 (Tenn. 2000)). USAA postulates that the jury’s verdict was in error because (1) no material evidence existed supporting a finding of breach because there was no evidence of direct physical loss caused by an earthquake, (2) the policy purportedly excluded rainwater issues from coverage, and (3) Mr. Little failed to provide evidence of recoverable damages. We will address each of these contentions in turn. A. Direct Physical Loss USAA advances the position that because the insurance policy required proof of a “direct physical loss” due to earthquake to afford coverage, the jury’s determination of breach was unsupported by the evidence. The earthquake endorsement attached to Mr. Little’s insurance policy provides in pertinent part: For an additional premium, we insure for direct physical loss to property covered under SECTION I-PROPERTY WE COVER of the policy to which - 12 -  this endorsement is attached caused by earthquake including land shock waves or tremors before, during or after a volcanic eruption. (Emphasis added.) The policy does not define the phrase, “direct physical loss.” With regard to proper construction of the language incorporated in an insurance policy, our Supreme Court has instructed: The analysis used in construing insurance policies is well settled. “Insurance contracts like other contracts should be construed so as to give effect to the intention and express language of the parties.” Blaylock & Brown Construction, Inc. v. AIU Insurance Co., 796 S.W.2d 146, 149 (Tenn. App. 1990). Words in an insurance policy are given their common and ordinary meaning. Where language in an insurance policy is susceptible of more than one reasonable interpretation, however, it is ambiguous. See e.g., Moss v. Golden Rule Life Insurance Co., 724 S.W.2d 367, 368 (Tenn. App. 1986). Where the ambiguous language limits the coverage of an insurance policy, that language must be construed against the insurance company and in favor of the insured. Allstate Insurance Co. v. Watts, 811 S.W.2d 883, 886 (Tenn. 1991). Tata v. Nichols, 848 S.W.2d 649, 650 (Tenn. 1993). Our Supreme Court has also stated: Where there is no ambiguity, it is the duty of the Court to apply to the words used their ordinary meaning and neither party is to be favored in their construction. The well recognized rule of construing language of an insurance policy most strongly against the insurance company does not permit or cause the Court to create an ambiguity where none exists. Brown v. Tenn. Auto Ins. Co., 237 S.W.2d 553, 554-555 (Tenn. 1951) (citation omitted). Mr. Little and USAA differ in their positions concerning the proper construction of the phrase, “direct physical loss.” In its most basic form, this disagreement involves whether the damages must have immediately manifested following the earthquake and whether any other contributing cause existed. Concerning this issue, the trial court instructed the jury as follows: Now, to prove that the defendant owes benefits under the earthquake endorsement, the plaintiff must prove by a preponderance of the evidence that an earthquake caused direct physical loss to his dwelling or other structures on the property. It is physical loss damage or injury that, in the natural and continuous sequence unbroken by an efficient intervening cause, produces the injury and without which the results would not have occurred. - 13 -  However, you may find coverage exists or that there is coverage if a non- excluded cause is a substantial factor in producing the damage or injury, even though an excluded cause may have in -- may have contributed in some form to the ultimate result and standing alone would have properly invoked the exclusion contained in the policy. The trial court’s instruction mirrors the language of Allstate Ins. Co. v. Watts, 811 S.W.2d 883, 888 (Tenn. 1991), wherein the Supreme Court adopted the “concurrent causation doctrine,” holding that “an insurer should not be excused from its obligation under a homeowner’s policy unless it has been determined that the loss being complained of did not result in substantial part from a risk for which it provided coverage and collected a premium.” USAA insists that this instruction was in error because the policy contains an “anti- concurrent cause” provision (“ACC clause”), which states: LOSSES WE DO NOT COVER UNDER DWELLING PROTECTION, OTHER STRUCTURES PROTECTION AND PERSONAL PROPERTY PROTECTION: 1. We do not insure for damage consisting of or caused directly or indirectly by any of the following regardless of: (i) The cause of the excluded event or damage that; or (ii) Other causes of the loss that; or (iii) Whether the event or damage occurs, suddenly or gradually, involves isolated or widespread damage, or occurs as a result of any combination of these to; or (iv) Whether other causes or events act concurrently or in any sequence with the excluded event to produce the loss. The policy then lists several exclusion clauses, such as “earth movement,” including “landslide,” and “weather conditions,” including “rain.” As a general rule, however, the provisions of a specific endorsement on a policy of insurance will take precedence over conflicting terms of the initial policy. See Hamill v. Nationwide Mut. Ins. Co., 499 S.W.2d 892, 898 (Tenn. Ct. App. 1972). Ergo, the inclusion of a provision (accompanied by payment of an additional premium) expressly covering - 14 - earthquake damage would take precedence over general exclusions found in the initial policy. Moreover, if the loss is covered under one portion of the policy, the insurer may not rely on conflicting policy provisions to deny that coverage. See Solomon v. Hager, No. E2000-02586-COA-R3-CV, 2001 WL 1657214, at *8 (Tenn. Ct. App. Dec. 27, 2001) (“Allstate will not be permitted to specifically provide coverage for an event and then take it away in the general language of the policy.”). In Solomon, the plaintiff was a homeowner who had been constructing a home and had obtained a “builder’s risk policy” through Allstate Insurance Company. Id. at *1. During construction of the home, a basement wall collapsed following several days of heavy rain. Id. When the plaintiff attempted to file a claim for the loss, Allstate’s a