Guaranty Service Corporation, Southern Mortgage Services Corporation, and South *727 ern Federal Savings and Loan Association (collectively “Monaco”), plaintiffs below, appeal a final judgment entered by the United States District Court for the Southern District of Mississippi. American Employers’ Insurance Company (“American”), defendant below, cross-appeals. We affirm in part, reverse in part, and remand.
I. FACTS
Monaco Lake East is an apartment complex on the Mississippi Gulf Coast. In 1985 Hurricane Elena struck the complex, causing extensive damage. Monaco hired Gulf Oaks Construction Company to prepare a repair cost estimate (“the Gulf Oaks estimate”) for submission to Monaco’s insurer, American. Gulf Oaks estimated that the repairs would cost $1,050,225.20. Monaco submitted this estimate to American.
Complaining that the Gulf Oaks estimate did not satisfy a clause in the insurance contract requiring a detailed repair cost estimate, American rejected the one and one-half page Gulf Oaks estimate and requested a more detailed accounting. Monaco subsequently submitted a revised estimate of $1,229,225.00. One week later Monaco submitted a third estimate of $818,000.00, representing the actual cash value rather than the replacement cost value of the repairs. American rejected each of these estimates, stating that the documents were mere damage summaries instead of the required detailed cost estimate. ¿A
Monaco subsequently filed iMhis suit against American. Monaco’s complaint stated that Monaco had satisfied the repair cost estimate requirement of the insurance contract, that American had persistently refused to obtain its own appraisal of the property damage as was allowed by the policy, and that American had made a bad faith refusal to pay the claim. American defended by asserting that Monaco had refused to submit a properly detailed repair estimate, had misrepresented the cost of repairs by submitting inflated cost estimates, and had concealed an estimate of $100,500.00 prepared by Carlos Brown (“the Brown estimate”). American filed a counterclaim seeking punitive damages this alleged misrepresentation.
By consent of the parties the jury trial was conducted before a magistrate, who bifurcated the trial on the claim and counterclaim. Because the insurance contract specified that misrepresentation on the part of the insured in filing a claim would void the contract, the following interrogatory was submitted to the jury at the conclusion of the presentation of evidence on Monaco’s claim: “Do you find that the plaintiffs wilfully and knowingly misrepresented or concealed material facts during the submission of their claims to the defendant?” The jury responded affirmatively, and Monaco’s claim was dismissed.
With the trial on American’s counterclaim set to begin, Monaco submitted a motion in limine asking the court to exclude all evidence relevant to damages suffered by American. The court had previously stated in conference with counsel that he would allow only opening statements on the counterclaim before directing a verdict for Monaco. Instead of abiding by his conference statement, the court dismissed American’s counterclaim on the basis of the motion in limine. The court stated that American had failed to prove its reliance on Monaco’s misrepresentation. Although American had successfully proven misrepresentation as an affirmative defense, the court decided that American had not proven all elements of fraud as an independent tort. The court, therefore, dismissed American’s punitive damages claim. American was allowed, however, to retain $13,000 in unearned premiums paid by Monaco.
II. MONACO’S APPEAL
A. The Submission to the Jury of the Misrepresentation Question
Monaco asserts that the district court erred in denying its motions for directed verdict and for judgment notwithstanding the verdict. Monaco also states that the court erroneously instructed the jury on misrepresentation when insufficient evidence had been proffered to create a jury
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question on that issue. The standard for determining when a jury question has been developed at trial is stated in
Boeing Company v. Shipman,
The court properly allowed the question of misrepresentation to proceed to the jury. The evidence offered at trial included damage estimates of extreme variation which had been submitted by Monaco. American argued that Monaco’s activities&emdash; its misrepresentation in submitting the high Gulf Oaks estimate and its attempt to conceal the much lower Brown estimate&emdash; acted to void the insurance contract. Monaco responded that the differences in the original estimates were caused by differences in methods of calculation and in the extent of repairs considered, that the Brown estimate was an unreliable estimate produced by a contractor with very little experience in exterior housing repairs, and that any lack of detail in the estimates submitted was de minimis and could have been cured easily by American’s own investigators. Substantial evidence was adduced by both parties during the three-week trial. A review of the record makes it clear that reasonable minds could differ over the correctness of the parties’ assertions. Under Boeing, therefore, the court was correct to deny Monaco’s motions for a directed verdict and for j.n.o.v.
B. The Grant of Summary Judgment for American on Monaco’s Punitive Damages Claim
Monaco contends that the district court erred in granting summary judgment for American on Monaco’s punitive damages claim. In granting summary judgment, the court stated that the case was a “pocketbook” dispute in which an award of punitive damages would be improper even if American were held liable for the claim. We agree.
The record here reveals that American never denied Monaco’s claim. Nor did American deny that Monaco’s policy covered damages to the apartment complex or that it was in force when the hurricane damage occurred. American consistently stated that it had not been given the information required by the insurance contract to make analysis of the claim possible. Monaco’s claim was not effectively denied until the jury found that Monaco had misrepresented its damage claim and had thus breached the insurance contract. “[T]he Mississippi Supreme Court has been extremely reluctant to allow punitive damages in cases where the insurer did not deny coverage, but only disputed the amount of the claim or delayed payment.”
Tutor v. Banger Insurance Co.,
C. The Improper Remarks of American’s Counsel Made During Closing Arguments
During his closing argument, counsel for American characterized Monaco as a “greedy” insured, implied that most of Monaco’s witnesses had lied while giving testimony, and stated that exaggerated insurance claims cause increased insurance premiums. The court sustained Monaco’s objections to these statements and admon *729 ished both counsel not to make “conscience of the community” arguments. The court later instructed the jury that statements of counsel were not to be regarded as evidence. Monaco claims that the court erred in denying its motion for a new trial based on these improper statements which created a hostile jury environment for Monaco.
Our method of reviewing arguments of counsel for impropriety warranting a new trial is given in
Westbrook v. General Tire and Rubber Co.,
When a closing argument is challenged for impropriety or error, the entire argument should be reviewed within the context of the court’s rulings on objections, the jury charge, and any corrective measures applied by the trial court. Alleged improprieties may well be cured by an admonition or charge to the jury.
Arguments which invite a jury to act on behalf of a litigant become improper “conscience of the community” arguments when the parties’ relative popular appeal, identities, or geographical locations are invoked to prejudice the viewpoint of the jurors. The improper remarks become the basis for granting a new trial when the trial judge, with the benefit of his or her first hand knowledge of the entire proceedings, believes that the remarks deliberations and conclusions of the jury. We seriously doubt whether the three comments made by American’s counsel created in the jury the “us-against-them” attitude which we warned against in
Westbrook,
D. Monaco’s Motion to Examine the Jury
Monaco contends that the magistrate erred in denying its motion to examine the jury. This motion was prompted by the return of a verdict by the jury after only ten minutes of deliberation and by three comments made by jurors outside the jury room which indicated their boredom and frustration with the trial. Two jurors commented that the case was “ridiculous” (or used words to that effect) and one commented that he would “rather be on the beach” than in the jury room.
Monaco did not substantiate the need for an examination of the jury. We have stated that “[w]e cannot hold an hourglass over the jury. If the evidence is sufficient to support the verdict, the length of time the jury deliberates is immaterial.”
Marx v. Hartford Accident and Indemnity Company,
The cases cited by Monaco on this subject offer no support for their position. *730 The comments allegedly made by the jurors here show nothing but the predictable frustration and ennui resulting from a long trial. Monaco has adduced no evidence of juror misconduct. The motion to examine the jury was properly denied.
E. The Decision to Allow American to Retain Unearned Premiums
Although the district court had decided on a previous motion for summary judgment that the nature of this case did not warrant the imposition of punitive damages, he did allow American to keep a $13,000 unearned premium paid by Monaco. Monaco argues that this contradicts Mississippi insurance law, which calls for the return of any unused portion of an insurance premium after the cancellation of a policy. The court stated: “Under Mississippi law, where a contract of insurance is voided by acts of the insured which constitute a breach of the express provision of the contract, the insurer is not obligated to return premiums previously paid by the insured.” We disagree.
The court relied on four sources for his interpretation of Mississippi law:
Casualty Reciprocal Exchange v. Wooley,
A stronger argument for American’s retention of the premium is made by American’s citation of
Home Insurance Co. v. Cavin,
Ordinarily, when a policy of insurance, although delivered, has never taken effect and has throughout been of no force or validity as against the ostensible insurer, the insured may recover the premium paid, with interest, for there the insurer has received something for nothing. One of the exceptions to this rule is that the insured may not recover the premium when he has been guilty of actual fraud in the procurement of the policy ... In order, however, that the stated exception shall apply to an insured, who is seeking the recovery of the premium paid, his wrong in the procurement of the policy must be an actual wrong; a wrong or fraud which contains moral turpitude as a real ingredient.
We do not reach this question on the interpretation of Home Insurance because the emphasized portions of the above quotation show that the case does not apply to Monaco’s situation. We are not dealing here with a case where the insurance policy has been declared void ab initio. Both parties stipulated during trial that the hurricane damage to Monaco’s apartments was covered under the American policy and that the policy was in force at the time of the hurricane. Also, American has never alleged or proven that Monaco acted fraudulently in the procurement of the policy. Justice Griffith’s announcement of the Mississippi rule makes clear that both of these conditions must be met for the insurer’s retention of unearned premiums to be warranted. The court erred in awarding the unearned premium to American.
III. AMERICAN’S CROSS-APPEAL
A. Dismissal of the Cross-Appeal
The trial on American’s counterclaim was set to begin immediately after the jury returned its special verdict on Monaco’s claim. American’s counterclaim sought pu *731 nitive damages for Monaco’s misrepresentation. Monaco filed a motion in limine seeking to exclude all evidence of American’s damages suffered during the trial. With this motion before it, the court dismissed American’s counterclaim, stating that American could not obtain punitive damages because American had failed to prove actual fraud on the part of Monaco. American now contends that Monaco’s motion in limine was untimely and that the court erred in dismissing the counterclaim without having a proper motion for dismissal pending. American also argues that it did not have to prove fraud to be entitled to punitive damages.
We affirm the dismissal of the counterclaim. This result did not come as a surprise to American, because during a previous conference in chambers the court had announced that it would hear only opening statements on the counterclaim and would then direct a verdict for Monaco.
Regardless of whether American was required to prove fraud on the part of Monaco to be entitled to punitive damages, Mississippi law dictated the dismissal of the counterclaim. In
Vidrine v. Enger,
We find it sufficient to hold that, absent actual damages arising from a legally cognizable cause of action, Mississippi would not allow punitive damages. Exemplary or punitive damages are additional to compensatory damages. They are, as the Mississippi Supreme Court has said, “added damages.” There being no actual damages, there can be no addition.
B. Denial of American’s Motion for Directed Verdict
American moved for a directed verdict based on its defense that Monaco never submitted a properly detailed repair cost estimate as required by the insurance contract. The district court denied this motion, and American assigns that denial as error. This issue is moot in light of our affirmance of the district court’s judgment relieving American from all liability under the insurance contract.
C. Refusal to Award American Costs
Contrary to a motion submitted by American, the court directed each party in the litigation to pay its own costs. American contends that as the prevailing party, it should be awarded costs under Fed.R. Civ.P. 54(d). Our review of the magistrate’s decision not to award costs to American “is narrow, and we will reverse only if an abuse of discretion is shown.”
Schwarz v. Folloder,
IV. CONCLUSION
The judgment of the district court is AFFIRMED in part and, in part, REVERSED. The cause is REMANDED to the district court.