Butler v. Allstate Indem. Co. Inc.

• Decision Date: 25 April 2011
• Docket Number: CASE NO. 3:09-CV-838-WKW [WO]
• Parties: DEMITRIA BUTLER, Plaintiff, v. ALLSTATE INDEMNITY COMPANY, INC., Defendant.
• Court: U.S. District Court — Middle District of Alabama

DEMITRIA BUTLER, Plaintiff, v. ALLSTATE INDEMNITY COMPANY, INC., Defendant.

CASE NO. 3:09-CV-838-WKW [WO]

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

Dated: April 25, 2011.

MEMORANDUM OPINION AND ORDER

Before the court is Defendant Allstate Indemnity Company, Inc.'s ("Allstate") Motion for Partial Summary Judgment and accompanying brief and evidentiary submission. (Docs. # 25-27.) Allstate seeks summary judgment on Counts II-V of Plaintiff Demitria Butler's ("Ms. Butler") Complaint. Ms. Butler opposes the motion as to Count II, but not as to Counts III-V.¹ (Docs. # 34, 35.) The issues regarding Count II of the Complaint (bad faith) having been fully briefed, the motion is ripe for review. For the reasons set forth below, Allstate's Motion for Partial Summary Judgment is due to be granted.

I. JURISDICTION AND VENUE

Subject matter jurisdiction is exercised pursuant to 28 U.S.C. § 1332. The parties do not contest personal jurisdiction or venue, and there are allegations sufficient to support both.

II. STANDARD OF REVIEW

"Summary judgment is appropriate 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.'" Greenberg v. BellSouth Telecomms., Inc., 498 F.3d 1258, 1263 (11th Cir. 2007) (per curiam) (quoting former Fed. R. Civ. P. 56(c)). The party moving for summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record, including pleadings, discovery materials and affidavits], which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant may meet this burden by presenting evidence indicating there is no dispute of material fact or by showing that the nonmoving party has failed to present evidence in support of some element of its case on which it bears the ultimate burden of proof. Id. at 322-24.

If the movant meets its evidentiary burden, the burden shifts to the nonmoving party to establish, with evidence beyond the pleadings, that a genuine issue material to each of its claims for relief exists. Fed. R. Civ. P. 56(e)(2); Celotex Corp., 477 U.S. at 324; Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). What is material is determined bythe substantive law applicable to the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "The mere existence of some factual dispute will not defeat summary judgment unless that factual dispute is material to an issue affecting the outcome of the case." McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003) (per curiam) (internal quotation marks and citation omitted).

A genuine issue of material fact exists when the nonmoving party produces evidence that would allow a reasonable fact-finder to return a verdict in its favor. Greenberg, 498 F.3d at 1263; Waddell v. Valley Forge Dental Assocs., 276 F.3d 1275, 1279 (11th Cir. 2001). However, if the evidence on which the nonmoving party relies "is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted). "A mere 'scintilla' of evidence supporting the [nonmovant's] position will not suffice; there must be enough of a showing that the [trier of fact] could reasonably find for that party," Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990), and the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Conclusory allegations based on subjective beliefs are likewise insufficient to create a genuine issue of material fact and do not suffice to oppose a motion for summary judgment. Holifield v. Reno, 115 F.3d 1555, 1564 n.6 (11th Cir. 1997) (per curiam). Hence, when a plaintiff fails to set forth specific facts supported by appropriate evidence sufficient to establish the existence of an element essential to his case and on which the plaintiff will bearthe burden of proof at trial, summary judgment is due to be granted in favor of the moving party. Celotex Corp., 477 U.S. at 323.

On summary judgment, the facts must be viewed in the light most favorable to the non-movant. See Lee v. Ferraro, 284 F.3d 1188, 1190 (11th Cir. 2002). Hence, "'facts, as accepted at the summary judgment stage of the proceedings, may not be the actual facts of the case.'" Id. (quoting Priester v. City of Riviera Beach, 208 F.3d 919, 925 n.3 (11th Cir. 2000)).

III. BACKGROUND

The evidence, construed in the light most favorable to Ms. Butler, establishes the following facts.

Ms. Butler began insuring her real estate, home, and possessions with Allstate in May 1998. (Compl.¶ 9 (Doc. # 1, Attach. 2).) Ms. Butler's home suffered damages in a fire on August 27, 2008, and on the same day, she reported the loss to Allstate pursuant to her Deluxe Plus Homeowners Policy No. 9 21 477507 05/03 then in effect. Allstate property adjuster Jerry Hamilton inspected the home on September 4, 2008, completed a summary report of his findings, and took photos of the property. (Claims History 7 (Doc. # 27, Ex. C).) When Mr. Hamilton contacted Ms. Butler by telephone on September 9, 2008, to discuss her retention of a contractor, Ms. Butler communicated that three separate contractors told her the house required total demolition. (Claims History 8; Butler Dep. 61-62 (Doc. # 27, Ex. B); Hamilton Aff.¶ 5 (Doc. # 36, Ex. 4).) Mr. Hamilton responded that Allstateintended to salvage the brick veneer structure of the home while gutting and repairing the portions of the home damaged by fire. (Butler Dep. 60-61.)

Although Mr. Hamilton conveyed to Ms. Butler Allstate's opinion that a total demolition was unnecessary, he nevertheless agreed to have structural engineer Joel D. Wehrman examine the home. (Claims History 8; Hamilton Aff. ¶5.) Mr. Wehrman visited the home on September 11, 2008, and concluded that the home was repairable. (Hamilton Aff.¶7; Wehrman Oct. Rep. (Doc. # 27, Ex. F).) Mr. Wehrman's report states that "there are extensive structural damages to the Butler house, but... since approximately half the house has no structural damage and because there is no damage to the floor framing or foundation, I believe that it would be possible to repair the building...." (Wehrman Oct. Rep. 5.)

Mr. Hamilton then met with Ms. Butler and a contractor of her choice, ICON Restoration, Inc. ("ICON"), and began negotiating an estimate for repair. ICON was in agreement with Mr. Hamilton as to the estimate for repairs but Ms. Butler later advised Mr. Hamilton that she would employ another contractor. (Hamilton Aff.¶10.)

In the meantime, Ms. Butler had collected professional opinions supporting her position in favor of total demolition and reconstruction. Contractor Tom Ward expressed his concern that if damaged wall studs were removed, "there does not appear [to be] a structurally correct way to re-attach new studs and place them inside an existing mortar joint." (Ward Letter (Doc. # 35, Ex. D).) Contractor Barry McCollough "recommend[ed][against] gutting the house and trying to rebuild a fire damaged brick facade" because "the integrity of the mortar ha[d] been compromised from the fire and there [was] no proper way to tie the existing brick facade back to the new walls." (McCollough Letter (Doc. # 35, Ex. E).) An inspector for the City of Tuskegee, Charlie Bowen, commented on a City of Tuskegee Property Maintenance Code Form that the "[s]tructure should be replaced."²(Tuskegee Inspection Form 4 (Doc. # 35, Ex. F).) Mr. Bowen subsequently clarified his remarks in an unsworn statement to reflect that he could only recommend an inspection by a structural engineer. (Bowen Statement (Doc. # 36, Ex. 5).)

In light of these opinions, Ms. Butler reported her position to Allstate that the brick veneer of the home needed demolition and replacement because the mortar had lost its integrity during the fire. (Claims History 19.) She also asserted that demolition would be necessary to satisfy local building code requirements. (Claims History 19.) Ms. Butler hired structural engineer Danny P. Raines, who provided Mr. Hamilton a report and cover letter explaining his professional opinion that

the timber framing of the structure is unsafe and must be removed and re-built. It was not possible through visual examination to determine whether the clay brick masonry or cement mortar were heat-damaged.... [T]esting should be performed to determine the damage (if any) on the masonry and mortar. If it is determined that the masonry and mortar materials have been damaged, the masonry should be removed and replaced. If it is determined that the masonry veneer can remain, extreme care must be taken during demolition of the exterior backing walls to not damage the veneer.... Salvaging the masonryveneer could prove to be difficult and possibly approach, if not exceed, the cost of removal and replacement.

(Raines Rep. 2 (emphasis added).) Mr. Hamilton did not believe that Mr. Raines's report contradicted Allstate's prior assessment that repair was possible, and he communicated his belief to Ms. Butler. (Claims History 20; Hamilton Aff. ¶ 12.)

Another contractor hired by Ms. Butler sent Allstate an estimate that appeared to quote a price for total demolition and replacement of the home. (Claim History at 21.) Mr. Hamilton contacted Mr. Wehrman regarding the potential need for testing the strength of the mortar joints. Relying on information provided by the Brick Industry Association and the National Concrete Masonry Association, Mr. Wehrman responded that the lack of visual cracking in the veneer, as well as the minimal burning of the wall sheathing behind the veneer,...