Champion v. Auto-Owners Ins. Co., CIVIL ACTION NO. 14-206-CG-M
| Decision Date | 18 May 2015 |
| Docket Number | CIVIL ACTION NO. 14-206-CG-M |
| Parties | JANET CHAMPION, Plaintiff, v. AUTO-OWNERS INSURANCE COMPANY, Defendant. |
| Court | U.S. District Court — Southern District of Alabama |
This matter is before the court on Defendant's motion for partial summary judgment (Doc. 55), Plaintiff's objection to Defendant's evidence (Doc. 58), Plaintiff's opposition to summary judgment (Doc. 59), Plaintiff's supplemental opposition (Doc. 50), and Defendant's reply (Doc. 61). For the reasons explained below, the court finds that Defendant's motion should be granted.
This case involves an insurance claim for fire damage to the Plaintiff's residence, located at 5560 Thomas Drive, Theodore, Alabama. The property was insured by Defendant, Auto-Owners Insurance Company ("Auto-Owners"). (Doc. 55-2). The policy of insurance provides fire coverage but excludes "action by or at the direction of any insured committed with the intent to cause a loss." (Doc. 55-2, p. 19). The policy also included a concealment or fraud clause stating the following:
This entire policy is void if, whether before, during or after a loss, any insured has:
Plaintiff's residence was reported to be on fire on February 25, 2010 at 0203 hours. (Doc. 55-3, p. 2). The Plaintiff, Janet Champion, and Mitchell Ferrell were reportedly asleep at the residence when the fire began and were awakened by a smoke detector and escaped through a window. (Doc. 55-3, p. 3). Firefighters forced entry through the front door. (Doc. 55-3, p. 3). The fire originated in the front den and appeared to be contained to the sofa bed. (Doc. 55-3, p. 4).
Later that same morning at 0712 hours, a second fire was reported at the residence. (Doc. 55-3, p. 5). The residence was unoccupied at the time and the front door had been nailed closed from the inside and the rear door was locked. (Doc. 55-3, p. 5). The fire was determined to be incendiary and resulted from open flame application to combustible in the middle bathroom between the commode and the lavatory. (Doc. 55-3, pp. 5, 15). The official incident report indicates that the second fire occurred between 6:30 and 7:12. (Doc. 55-4, p. 152).
At 1021 on the day of the fire, John Michael Wilson called the fire department and said he had information about the fire. (Doc. 55-3, p. 30). Mr. Wilson reported that approximately two months prior, Ferrell said he "ought to justburn the son of a bitch." (Doc. 55-3, p. 30). Wilson reported that Ferrell said he wanted to burn the house because they were going through bad times. (Doc. 55-3, p. 42; Ex. C). About two to three weeks before the fire Ferrell came by with the Plaintiff to talk to Wilson about storing some furniture and to see if Wilson had any old furniture he could put in the house because he was going to burn it down, but Plaintiff stayed in the truck and was not part of the conversation. (Doc. 55-3, p. 43; Ex. C). Wilson reported that Ferrell came by to see him on the morning of the fire between 0630 and 0700 about renting a trailer and Ferrell stated that he had just set the house on fire again because the first fire did not do enough damage. (Doc. 55-3, pp. 30, 43, Ex. C). About 15-20 minutes later, Wilson heard the fire truck sirens. (Doc. 55-3, p. 30). Wilson recorded a later conversation with Ferrell in which Ferrell talked about starting the fires. (Doc. 55-3, pp. 44-45; Ex. C). Wilson reports that Plaintiff and Ferrell came back again to talk to him about whether he had a trailer to rent. (Doc. 55-3, p. 45; Ex. C). During that visit the Plaintiff said "let me tell you how it went down" and Ferrell stopped her saying they may have the truck bugged. (Doc. 55-3, p. 45; Ex. C). Another night the Plaintiff and Ferrell came back to see Wilson again about renting a trailer and Wilson told him if he would burn his own house, what would he do to his trailer. In response, the Plaintiff and Ferrell laughed. (Doc. 55-3, p. 45, Ex. C).
On February 25, 2010, claim representative Diana Gough met with Plaintiff and took her recorded statement. (Doc. 55-4, pp. 75-78). In the statement, Plaintiff reported that after escaping the fire, they went to the Red Roof Inn and "slept for ahour...couple of hours...till day light, and they wouldn't let me bring my dog in and he was hollerin." (Doc. 55-4, p. 77). After that she said they left and went to Plaintiff's daughter's house and Ferrell went to sleep on the sofa while Plaintiff and her daughter watched the news. They saw the fire on the news and headed back to the Thomas Drive house. (Doc. 55-4, p. 77).
The Thomas Drive property is adjacent to the Bellingrath RV Park. The Red Roof Inn is about a nine or ten minute drive from both the Thomas Drive house and Plaintiff's daughter's house. (Doc. 55-9).
Richard Ferrell was also interviewed on February 25, 2010, but by the Assistant Fire Marshal. (Doc. 55-4, pp. 158-159). Ferrell stated that he nailed a 2x2 board across the front door after the first fire, before they went to the Red Roof Inn. Ferrell said he went out the back door and locked it prior to leaving. Ferrell said that at the Red Roof Inn they had to keep their dog in the car and he barked loudly. After a short time, around daylight, they left and drove to Plaintiff's daughter's house. Ferrell said he fell asleep on the couch and when Plaintiff saw the report of the second fire on the news, they returned to the Thomas Drive house. (Doc. 55-4, p. 159).
On March 5, 2010, claims representative Diana Gough reported to the Auto-Owners home office that a fire inspector had called and advised that arson was suspected and that the Plaintiff's boyfriend had admitted the arson to a childhood friend. (Doc. 55-4, p. 64).
On March 12, 2010, Plaintiff was arrested on charges of arson, second degree.(Doc. 55-4, p. 149). During a video taped interview after being arrested (Ex. D), Plaintiff reported that the smoke detector woke them up and they went out the window. Plaintiff called 911. The Red Cross took them to the Red Roof Inn to stay, but there was no heat and it was cold. Also, Plaintiff said they would not let the dog stay in the room and he was yelping in the car. Plaintiff stated that they stayed and hour or so and then went to her daughter's house. Plaintiff said they did not stop anywhere and that Ferrell went to sleep on the sofa in the living room and Plaintiff and her daughter watched the news. Plaintiff stated that Ferrell was with her the whole time. According to Plaintiff, when they saw the fire on the news Plaintiff woke Ferrell up and they went back. (Ex. D).
On March 29, 2010, a preliminary hearing was held in Mobile District Court on Plaintiff's arson charges. The court found that probable cause existed for the charges against Plaintiff to be sent to the grand jury. (Doc. 55-4, p. 148). On August 20, 2010, the grand jury indicted Plaintiff on two counts of arson. (Doc. 55-5). On January 31, 2013, Richard Ferrell plead guilty to one count of arson, second degree. (Doc. 55-6).
On April 9, 2010 Auto-Owners received the cause and origin report it had commissioned by Crain & Associates. (Doc. 55-4, pp. 142-147). The report concluded that both fires were incendiary in nature and were caused by the burning of ordinary combustibles in two separate locations. (Doc. 55-4. P. 147).
On August 3, 2010, an attorney for Auto-Owners, Judson Wells, conducted an examination under oath of Plaintiff, who appeared with her attorney. (Doc. 55-4, pp.41-62). During the examination the Plaintiff said Ferrell was still her boyfriend and that she did not think he had anything to do with starting the fires intentionally. (Doc. 55-4, p. 53). Plaintiff stated that they went to the Red Roof Inn between 3:30 and 4:00 and their dog had to stay in their truck. (Doc. 55-4, pp. 53-54). They napped off and on. It was cold and they could not get the heat to work in the room. (Doc. 55-4, p. 56). She called a neighbor, who told her everything looked fine and told her they were going to go to Plaintiff's daughter's house. (Doc. 55-4, p. 56). It was about daylight, about 6:30, when they reached her daughter's house. (Doc. 55-4, p. 57). Plaintiff confirmed that Ferrell was with her the entire time, from before the first fire through the Red Roof Inn and to her daughter's house. (Doc. 55-4, p. 57). At her daughter's house Ferrell slept on the couch in the living room near where Plaintiff and her daughter were watching TV and Ferrell did not leave her daughter's house while she was there. (Doc. 55-4, p. 58). Ferrell and Plaintiff had keys that would have allowed them to get back in the house through the back door. (Doc. 55-4, p. 62).
On December 17, 2010, Judson Wells' assistant prepared a memorandum of the information available pursuant to the release authorizations of Champion. (Doc. 55-4, pp. 120-128). No records were available from the Red Roof Inn to show check-in and checkout times. (Doc. 55-4, p. 120). On September 23, 2010, Judson Wells provided a status report that stated that the requested cell phone records had not been provided and that no action had been taken yet by the grand jury. (Doc. 55-4, pp. 134-136). On October 22, 2010, Plaintiff provided her cell phone records toWells and they were forwarded to Auto-Owners. (Doc. 55-4, pp. 129-133). The records indicated that Plaintiff made a 911 call the morning of the fires at 2:02 a.m. and then made calls at 5:09, 5:28, 6:04, 6:52, 6:54, 6:57, 7:25 and 7:30. (Doc. 55-4, p. 133).
On December 28, 2010, an Auto-Owners Claim Supervisor sent an email advising that she thought they had enough to deny the claim at this time, but that she would probably suggest just waiting for the criminal hearing to take place in six weeks to build a stronger case. (Doc. 55-7, p. 3). On February 15, 2011, Judson Wells...
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