## Facts

- Kim Miceli placed approximately $200,000 in cash in a bag and put the bag inside a safe located in the home of his mother, Barbara Riso, and stepfather, Salvadore Riso.
- The safe belonged to the Risos. Miceli used it with their knowledge; the Risos did not object, but they did not agree—expressly or by conduct—to protect the money.
- The safe combination was known to multiple people, including the Risos, their daughter, and a housekeeper. Miceli also had access to the safe.
- The Risos stated they did not know how much cash was in the bag and did not handle it, except that Barbara once looked inside the bag at Miceli’s request.
- At some point after Miceli stored the bag, the cash was discovered missing from the safe.
- Miceli asserted Barbara made inconsistent statements about the money and acted in a way that caused suspicion, and he sued Barbara and Salvadore for the missing funds. He also sued their homeowner’s insurer, State Farm Fire & Casualty Company.
- After a bench trial, the trial court expressed that Barbara may have played some role in the loss, but it found Miceli did not carry his burden to prove she stole the money. The court also rejected Miceli’s claim that the Risos were liable as depositaries (bailees) for failing to safeguard the cash, and it dismissed the claims.

## Issues

1. Did Miceli prove, by a preponderance of the evidence, that Barbara (and/or Salvadore) wrongfully took or converted the cash, making them liable in tort (and triggering coverage against their insurer)?
2. Did Miceli establish a Louisiana “deposit” (depositary/bailment-type relationship) that imposed a duty on the Risos to safeguard and return the cash, and if so, did they breach that duty?

## Decision

- The Louisiana Fifth Circuit affirmed the judgment dismissing Miceli’s claims against Barbara Riso, Salvadore Riso, and State Farm.
- The court held the trial court was not clearly wrong in finding Miceli failed to prove theft or conversion by Barbara (or Salvadore), despite evidence that created suspicion.
- The court agreed that Miceli failed to prove the existence of a deposit/depositary relationship, because the Risos did not undertake a safekeeping obligation and multiple people had access to the safe.
- With no liability of the insureds established, the insurer had no liability.

## Legal Principles

- A plaintiff alleging conversion or intentional taking must prove, by a preponderance of the evidence, that the defendant wrongfully exercised dominion or control over the property; inconsistent statements and suspicion alone do not satisfy that burden.
- In a bench trial, appellate review of factual findings (including credibility calls and inferences from circumstantial evidence) is governed by the manifest error/clearly wrong standard; when the record reasonably supports the trial court’s view, an appellate court will not reweigh evidence.
- A Louisiana deposit (analogous to bailment) requires proof that the alleged depositary accepted custody in a way that includes an obligation of safekeeping and return; mere permission to place property in another’s safe, without an assumed duty and without exclusive control, may be insufficient.
- When a plaintiff fails to prove either an intentional taking or a legal duty to safeguard under a deposit theory, negligence and insurance-based recovery claims fail as well.

## Conclusion

Miceli stored cash in his mother and stepfather’s safe, but he could not prove they stole or converted it, and he also could not prove they accepted a depositary duty to safeguard and return the money; the appellate court therefore affirmed dismissal of all claims, including those against the homeowner’s insurer.


Miceli v. Riso, 839 So. 2d 141 (2003)