Bryant v. Gen. Cas. Co. of Wis.

Decision Date31 August 2020
Docket Number1:18-CV-562
CourtU.S. District Court — Northern District of New York




August 31, 2020


Attorneys for Plaintiff
181 West Madison, Suite 3475
Chicago, IL 60602

Attorneys for Plaintiff
125 Half Mile Road, Suite 201
Red Bank, NJ 07701

Attorneys for Plaintiff
311 Newman Springs Road
Building 1, Suite 143
Red Bank, NJ 07701

Attorneys for Defendant
P.O. Box 657
Buffalo, NY 14201






DAVID N. HURD United States District Judge

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On May 9, 2018, plaintiff Russell Bryant ("Bryant" or "plaintiff") filed this breach of contract action after his commercial property insurer, defendant General Casualty Company of Wisconsin ("GCCW" or "defendant"), denied his insurance claim for the alleged partial collapse of a building he owned in Kingston, New York.

On July 10, 2018, Bryant amended his pleading as of right. Shortly thereafter, GCCW moved under Federal Rule of Civil Procedure ("Rule") 12(b)(6) seeking partial dismissal of plaintiff's operative complaint to the extent it sought recovery of any extra-contractual damages.

On January 30, 2019, the Court granted GCCW's motion for partial dismissal. Bryant v. Gen. Cas. Co., 2019 WL 367292 (N.D.N.Y. Jan. 30, 2019). Thereafter, the parties conducted discovery and attempted to mediate what remained of the dispute. Their inability to reach a negotiated result arose, at least in part, from Bryant's decision to demolish the commercial building before defendant could inspect it for purposes of this litigation.

On March 13, 2020, the parties cross-moved under Rule 56 for summary judgment. Bryant, for his part, moved for partial judgment on the question of whether the insurance policy covered the damage at issue. GCCW, for its part, moved for a judgment dismissing the complaint in its entirety. The motions have been fully briefed and will be considered on the basis of the submissions without oral argument.

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The following facts are undisputed unless otherwise noted. GCCW issued to Bryant1 a commercial property and casualty insurance policy that covered, inter alia, property damage to a one-story building at 634 Ulster Avenue in Kingston, New York. Def.'s Rule 7.1(a)(3) Statement ("Def.'s Facts"), Dkt. No. 47-1 ¶¶ 1-2; Pl.'s Rule 7.1(a)(3) Statement ("Pl.'s Facts"), Dkt. No. 46-2 ¶¶ 2, 7; see also Ex. D to Schapp Decl., Dkt. No. 47-7 (the "Policy"). The Policy's effective period ran between August 18, 2016 and August 18, 2017. Def.'s Facts ¶ 1.

Since 2013, Bryant had leased the building to a tenant, which operated a restaurant in the commercial space. Bryant Dep., Dkt. No. 46-4 at 14:3-9. In January of 2017, the tenant advised plaintiff that the ceramic tile of the kitchen floor "seemed to be lowering." Def.'s Facts ¶ 3; Pl.'s Facts ¶ 9. Plaintiff, who had not been inside the building for several years at that point, had not received any prior complaints from the tenant about the kitchen floor. Pl.'s Facts ¶¶ 5-6, 10.

Bryant did not take any action in response to this initial complaint. Bryant Dep. at 17:1-8. Eventually, though, plaintiff had a construction firm inspect the building and investigate the issue with the kitchen floor. Pl.'s Facts ¶ 11. The firm "performed selective demolition of the floor assembly, which revealed a decayed and rotted floor framing system." Id. ¶ 12.2 After the firm installed some temporary wood posts under a load-bearing wall in the kitchen, plaintiff advised his tenant that, "due to the extensive damage, it would

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not be allowed to reopen the restaurant." Id. ¶¶ 13-14.

In March of 2017, Bryant tendered a claim for the property damage to GCCW. Def.'s Facts ¶ 4. Defendant opened a claim file and recorded the loss as "wet rot damage" caused by a "water leak." Ex. M to Schapp Decl., Dkt. No. 47-16. Plaintiff denies that he reported the claim as a water leak. See Def.'s Facts ¶ 4. Notably, though, the construction firm plaintiff hired to investigate the damage had advised by e-mail that the building had been remodeled right over the top of "a decaying existing floor system" with "four to six inches of standing water below the old floor." Bryant Dep. at 41:2-42:9.

In any event, GCCW hired Kevin Golebiewski, an independent adjuster, to inspect the premises and investigate the cause of the damage. Def.'s Facts ¶ 5; Pl.'s Facts ¶¶ 16-17. In a report prepared in April of 2017, Mr. Golebiewski concluded that:

A leak in the kitchen sink for a long period of time has caused extensive rot damage to the sub-floor and floor joists in this risk. The rotting of the floor boards has also caused some structural issues as support beams are now sitting on nothing as the floor support has completely rotten through. this has caused some large drywall cracks along several walls in this area.

Ex. I to Schapp Decl., Dkt. No. 47-12.

On May 12, 2017, GCCW denied Bryant's claim for insurance coverage for the loss. Pl.'s Facts ¶ 23; Def.'s Facts ¶ 8. In its denial letter, defendant relied on Mr. Golebiewski's finding that water had repeatedly seeped or leaked from the kitchen sink into the subfloor over "the last several months." Ex. E to Schapp Decl., Dkt. No. 47-8. Because this kind of damage fit into a policy exclusion for the repeated seepage or leakage of water over a period longer than fourteen days, defendant denied coverage. Id.

On November 22, 2017, Bryant's own adjuster, Joe Charrier, wrote to GCCW with a

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request to re-open plaintiff's insurance claim. Pl.'s Add'l Facts, Dkt. No. 51-3 ¶ 9. In Mr. Charrier's view, plaintiff had reported the loss incorrectly. Id. According to Mr. Charrier, the claim should be considered as a "collapse" covered under the Policy. Id. Mr. Charrier's letter suggested that defendant should hire its own structural engineer to evaluate the true extent of the damage to the structure. Id.

On December 15, 2017, GCCW responded in writing to Mr. Charrier. Pl.'s Add'l Facts ¶ 12. According to defendant, it had reviewed the "collapse" coverage provision under the Policy but determined it was inapplicable because "the cause of loss was . . . continuous or repeated leakage of water over a period of 14 days or more, which is an excluded cause of loss." Id. Mr. Charrier requested from defendant a copy of the engineering report upon which it had based this coverage determination, but defendant explained that it had not retained an engineer but had relied instead on Mr. Golebiewski's findings. Id. ¶¶ 13-14.

In January of 2018, Bryant hired Jamison Morse, a consulting engineer, to examine the damage to the building. Pl.'s Facts ¶ 27; Def.'s Facts ¶ 10. According to plaintiff, Mr. Morse prepared two reports in which he observed "that there was a sudden collapse of the floor framing system in the kitchen area . . . due to its rotted and decayed condition, a condition which was concealed from view by the ceramic tile floor above it." Pl.'s Facts ¶ 28. Defendant contests virtually all of Mr. Morse's assertions. See Def.'s Facts ¶¶ 28-29, 31-36.

GCCW never re-opened the claim or conducted any additional inspections of its own. Pl.'s Add'l Facts ¶¶ 16. So Bryant filed this suit for breach of contract.


The entry of summary judgment is warranted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show

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that there is no genuine issue as to any material fact and that the moving party is entitled to judgment is a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing FED. R. CIV. P. 56(c)). A fact is "material" for purposes of this inquiry if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And a "genuine" dispute of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.

"When deciding a summary judgment motion, a court must resolve any ambiguities and draw all inferences from the facts in a light most favorable to the nonmoving party." Ward v. Stewart, 286 F. Supp. 3d 321, 327 (N.D.N.Y. 2017) (citation omitted). Accordingly, summary judgment is inappropriate where a "review of the record reveals sufficient evidence for a rational trier of fact to find in the [non-movant's] favor." Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002) (citation omitted).

"Where, as here, the parties have cross-moved for summary judgment, a reviewing court 'must evaluate each party's motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration.'" Ward, 286 F. Supp. 3d at 327 (quoting Marcano v. City of Schenectady, 38 F. Supp. 3d 238, 246 (N.D.N.Y. 2014) (McAvoy, J.)). "In undertaking this analysis, it bears nothing that 'a district court is not required to grant judgment as matter of law for one side or the other.'" Id.


Bryant has moved for partial judgment on the issue of whether the Policy covers the damage to his building, which he characterizes as a "partial collapse." Pl.'s Mem., Dkt. No.

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46-1 at 3.3 In plaintiff's view, the property "sustained direct physical damage caused by a collapse of part of it due to hidden decay unknown [to plaintiff]." Id. at 4. According to plaintiff, courts routinely conclude that a covered "collapse" occurred where, as here, some part of the structure shifts or drops. Id. at 6.

GCCW, on the other hand, has moved for a judgment disposing of the whole case. According to defendant, Bryant should be sanctioned for spoliating critical evidence during the pendency of this litigation. Def.'s Mem., Dkt. No. 47-2 at 15. As defendant explains,...

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