Brooks v. Allstate Indem. Co.

• Court: U.S. District Court — Middle District of Alabama
• Writing for the Court: Susan Russ Walker United States Magistrate Judge
• Decision Date: 13 December 2018
• Docket Number: CASE NO.: 2:17-cv-803-SRW
• Citation: Brooks v. Allstate Indem. Co., CASE NO.: 2:17-cv-803-SRW (M.D. Ala. Dec 13, 2018)
• Parties: ROY BROOKS, JR. Plaintiff, v. ALLSTATE INDEMNITY COMPANY, Defendant.

ROY BROOKS, JR. Plaintiff, v. ALLSTATE INDEMNITY COMPANY, Defendant.

CASE NO.: 2:17-cv-803-SRW

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA SOUTHERN DIVISION

December 13, 2018

MEMORANDUM OPINION AND ORDER¹

This matter is before the court on defendant's motion for partial summary judgment on plaintiff's claim for negligence, which is set out in count II of the original complaint; bad faith, which is set out in count III of the original complaint; and gross negligence and wantonness, which is set out in count IV of the original complaint. Doc. 24. Plaintiff filed a response to the motion, Doc. 30, conceding that counts II and IV were due to be resolved in the defendant's favor, id. at 2. Defendant filed a reply to the motion. Doc. 31. Upon its review of the motion and the record, the court concludes that the motion is due to be granted.

SUMMARY JUDGMENT STANDARD

A movant is entitled to summary judgment if it "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."Fed. R. Civ. P. 56(a). For summary judgment purposes, an issue of fact is "material" if, under the substantive law governing the claim, its presence or absence might affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If the movant fails to satisfy its initial burden, the motion for summary judgment will be denied. Kernel Records Oy v. Mosley, 694 F.3d 1294, 1300 (11th Cir. 2012), cert. denied, 133 S. Ct. 1810 (2013). If the movant adequately supports its motion, the burden shifts to the opposing party to establish - "by producing affidavits or other relevant and admissible evidence beyond the pleadings" - specific facts raising a genuine issue for trial. Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1315 (11th Cir. 2011); Dietz v. Smithkline Beecham Corp., 598 F.3d 812, 815 (11th Cir. 2010); Fed. R. Civ. P. 56(c)(1)(A). "All affidavits [and declarations] must be based on personal knowledge and must set forth facts that would be admissible under the Federal Rules of Evidence[.]" Josendis, 662 F.3d at 1315; Fed. R. Civ. P. 56(c)(4). The court views the evidence and all reasonable factual inferences in the light most favorable to the nonmovant. Miller's Ale House, Inc. v. Boynton Carolina Ale House, LLC, 702 F.3d at 1315; Fed. R. Civ. P. 56(c)(4). However, "the nonmoving party 'must do more than show that there is some metaphysical doubt as to the material facts," and "[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir. 1999) (internal citations omitted). "Conclusory, uncorroborated allegations by a plaintiff in an affidavit or deposition will not create an issue of fact for trial sufficient to defeat a well supported summary judgment motion." Solliday v. Fed. Officers, 413 F. App'x 206, 207 (11th Cir. 2011) (citing Earley v. Champion Int'l Corp., 907 F.2d 1077,1081 (11th Cir. 1990)); see also Holifield v. Reno, 115 F.3d 1555, 1564 n.6 (11th Cir. 1997) (per curiam) (conclusory allegations based on subjective beliefs are likewise insufficient to create a genuine dispute of material fact). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine [dispute] for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

BACKGROUND

Plaintiff commenced this action based upon an insurance contract on his home. Doc. 1-3 ¶¶ 6-7. The complaint alleges claims against the defendant insurer, Allstate Indemnity Company, Allstate Insurance Company, and Joseph Neighbors, an insurance adjuster working for Allstate Insurance Company, for breach of contract (count I); negligence (count II); bad faith (count III); and gross negligence and wantonness (count IV). Doc. 1-3 ¶¶ 16-39. Plaintiff and defendant jointly consented to dismissal of defendants Allstate Insurance Company and Joseph Neighbors, Doc. 15, and the court dismissed those parties without prejudice, Doc. 18. Defendant filed a motion for partial summary judgment and brief supporting such motion for plaintiff's claims on counts II, III, and IV. Doc. 24; Doc. 25.

Defendant's brief supporting its motion for summary judgment contends that plaintiff has failed to meet his burden of establishing that he is entitled to a directed verdict on his breach of contract claim, and of showing that defendant had no legitimate or arguable reason for denying plaintiff's insurance claim. Doc. 25 at 10-12. Specifically, defendant contends that the record demonstrates that the fires which are the subject of plaintiff's insurance claim were caused by arson, that plaintiff made material misrepresentations todefendant in the course of defendant's investigation of the plaintiff's claim, and that plaintiff failed to comply with the conditions precedent to coverage in his policy with defendant. Id. at 13-17. Defendant also argues that it undertook a detailed and thorough investigation of plaintiff's claim, including seeking the advice of counsel, which evidences its good faith. Finally, Defendant asserts that negligence and gross negligence and wantonness claims are unrecognized causes of action in insurance claims under Alabama law, and should be dismissed.

In response, plaintiff concedes that counts II and IV, for negligence and gross negligence and wantonness, are due to be dismissed. Doc. 30 at 2. Plaintiff also clarifies that his claim of bad faith is a "normal" failure-to-pay claim and not an "abnormal" failure-to-investigate claim. Id. Plaintiff argues that defendant's motion for partial summary judgment should fail because there is insufficient evidence to show that plaintiff started the fires, because plaintiff made no material misrepresentations, and because defendant has failed to show that it was prejudiced by plaintiff's delay in meeting the conditions precedent to coverage under his agreement with defendant. Id. at 9-15.

UNDISPUTED MATERIAL FACTS²

A. Plaintiff's Policy and Insurance Coverage

Defendant issued a homeowner's insurance policy to plaintiff for his residence in Brundidge, Alabama, with the effective dates of Dec 26, 2014 to Dec. 26, 2015. Doc. 1-2 at 4. The policy provided coverage for sudden and accidental direct physical loss to Plaintiff's residence, including such losses caused by fire. Id. at 14. The policy specifies that, inter alia, "[insurer does not] cover any loss or occurrence in which any insured person has concealed or misrepresented any material fact or circumstance," and that insurer may cancel the policy for "material misrepresentation, fraud or concealment of material fact in presenting a claim, or violation of any of the policy terms." Id.

The policy also details plaintiff's duties after a loss in order to be covered under the policy which include, but are not limited to, giving prompt notice of any loss; protecting the property from further loss; keeping an accurate record of repair expenses; providing a detailed list of destroyed or stolen property; providing all accounting records, bills, invoices, and vouchers; submitting to examinations under oath as often as the insurer reasonably requires; and producing a signed, sworn proof of loss to the insurer within 60 days of the loss. Id. at 22.

B. Details of Plaintiff's Insurance Claim

On December 7, 2015, at approximately 2:08 p.m., the Brundidge Fire Department was called to plaintiff's residence in response to a fire.³ Doc. 26-1. The property was secured at the time of their arrival and forced entry was required. Doc. 25 ¶ 2; Doc. 30 at 3. After the fire was extinguished, a thermal imaging camera was used to ensure that no hotspots or remaining embers were active on the property. Doc. 25 ¶ 2; Doc. 30 at 3. Plaintiff reported the fire to the defendant that same evening. Doc. 26-5 at 7. On December 8, 2015, at approximately 9:27 a.m., the Brundidge Fire Department was called to the same address in response to a fire. Doc. 26-2. On December 9, 2015, defendant retained Bert Peete, a certified fire investigator, to investigate the fire on plaintiff's property and to determine the cause and origin of each incident. Doc. 25 ¶ 5; Doc. 30 at 4.

At the time of the fire, plaintiff primarily stayed with his estranged wife in Troy, Alabama, while his daughter, Angela Brooks, and her two children resided full time at his property in Brundidge, which is the subject of the insurance claim. See Doc. 25 ¶ 10; Doc. 30 at 4; Doc. 26-7 at 3-4; Doc. 26-6 at 4. Ms. Brooks stated that she was the last person at the property before the fire. Doc. 25 ¶ 12; Doc. 30 at 5. Only plaintiff, Ms. Brooks, and two out-of-state relatives had keys to the property. Doc. 26-7 at 12.

In a sworn proof of loss form submitted to defendant on August 15, 2016, plaintiff claimed $196,056 as a result of the loss occurring from the fires.⁴ Doc. 26-15 at 2.

C. Facts Relevant to Arson

Bert Peete, the certified fire investigator retained to investigate plaintiff's claim, was assigned the case by Jerry Hamilton on December 9, 2015, with specific instructions to conduct a cause and origin examination, which he conducted on December 10, 2015. Doc. 26-4 at 4. Peete reviewed the Brundidge Fire Department's incident reports and a laboratory analysis of debris samples taken from the property after the fire; interviewed plaintiff, plaintiff's daughter, Brundidge Fire Department chief Glen Adkins and assistant chief Neil Sneed; and examined the plaintiff's property in person. Id.

Peete's report notes that the first fire, which involved the front center bedroom and a wardrobe in the right front bedroom, "originated in two separate and distinct locations and [was] incendiary in nature." Id. at 3, 7. Peete notes that the natural heat and ignition sources in the front center bedroom included the branch circuit wiring, two receptacles, and an overhead...