Hill v. Safeco Ins. Co. of America

• Decision Date: 30 September 1999
• Docket Number: No. 1:97-CV-107-2 WLS.,1:97-CV-107-2 WLS.
• Citation: 93 F.Supp.2d 1375
• Parties: Drew D. HILL, Jr., Plaintiff, v. SAFECO INSURANCE COMPANY OF AMERICA, Defendant and Third-Party Plaintiff, v. Mary Alice Brim Jordan, Third-Party Defendant.
• Court: U.S. District Court — Middle District of Georgia

93 F.Supp.2d 1375

Drew D. HILL, Jr., Plaintiff, v. SAFECO INSURANCE COMPANY OF AMERICA, Defendant and Third-Party Plaintiff, v. Mary Alice Brim Jordan, Third-Party Defendant.

No. 1:97-CV-107-2 WLS.

United States District Court, M.D. Georgia, Albany Division.

September 30, 1999.

Wilbur T. Gamble, III, Dawson, GA, for Drew D. Hill, plaintiff.

Lawrence Brannen Domenico, Wayne D. Taylor, Jr., Atlanta, GA, for Safeco Insurance Company of America, defendant.

Donald A. Sweat, Mr., Albany, GA, for Mary Alice Brim Jordan, third-party defendant.

ORDER

SANDS, District Judge.

Plaintiff Drew D. Hill, Jr., ("Hill") filed the above-styled action, asserting that Defendant Safeco Insurance Company of America breached its insurance contract and is liable for bad faith penalties. Presently before the Court is the Defendant Safeco's Motion for Summary Judgment (Doc. No. 47) and Third Party Defendant Jordan's Motion for Summary Judgment (Doc. No. 54). For the following reasons, the Court finds the pending Motions for Summary Judgment should be granted.

FACTUAL BACKGROUND

Safeco issued a homeowner's policy to Plaintiff Hill with an effective policy period from August 7, 1995, to August 7, 1996. This policy provided coverage to the Plaintiff for any damage to the Plaintiff's personal property, no matter where it was located. As a part of that contract, the Plaintiff was required to fulfill certain duties in case of a loss to which the insurance may apply, including: (1) to give immediate notice to the insurance company or its agent; (2) to protect the property from further damages, to make reasonable and necessary repairs to protect the property, and to keep an accurate record of repair expenditures; and (3) to exhibit the damaged and undamaged property, to provide the insurance company with requested records and documents, and to submit to examinations under oath. Splaine Aff. at ¶ 5, Ex. 1.

On May 18, 1996, Third Party Defendant Mary Alice Brim Jordan and Harold Mitchell were involved in a vehicular accident, causing one of the vehicles to crash into a building owned by Plaintiff Hill. As a result of this collision, the Plaintiff asserted that his building and some of its contents, such as arrowheads among other items, were damaged or destroyed. Pl.'s Compl. at 5, 6. Plaintiff Hill initially submitted a claim to Ms. Jordan's insurance company, ITT Hartford Insurance Company ("Hartford Insurance"). Hartford Insurance retained Mr. Worley to investigate Hill's claim. Worley Aff. at ¶ 5.

Sometime before Mr. Worley got involved in the action, the Plaintiff, himself, began to clean up the debris caused by the accident. Pl.'s Depo. at 56. Mr. Hill threw away the rubble, including the pieces of arrowheads that Mr. Hill decided were not recognizable as arrowheads. Pl.'s Depo. at 59-62. Out of all of the arrowheads at issue, only 102 were salvaged from the debris. Pl.'s Depo. at 162.

In submitting his claim for the arrowheads, the Plaintiff asserts he never had counted the arrowheads so could only guess as to the number and value of the arrowheads. Pl.'s Depo. at 74-75. During one of the first conversations with Mr. Worley, Hill estimated the total number of arrowheads to be about three hundred to four hundred. Pl.'s Depo. at 72. Hill suggested that the value of these of these arrowheads would be about $12,500.00. Worley Aff. at ¶ 7. Upon further reflection and review, Hill determined that he had many more than four hundred arrowheads and that the number of arrowheads was closer to two thousand arrowheads. Pl.'s Depo. at 80. Specifically, when Hill observed the 102 remaining arrowheads in a box like that in which he had stored his collection, he realized how few there were and that he had many more than the original estimate of 350. Pl.'s Depo. at 80. Hill asserts that he had two full boxes of arrowheads, and each box would hold at least 1,000 arrowheads. Id. Hill's estimate as to the value of arrowheads also changed after he showed the remaining arrowheads to appraisers. Hill's latest estimate regarding the damage to the 2,000 claimed arrowheads is approximately seventy-five thousand dollars, based in part upon information received during Mr. Williams's appraisal of the 102 remaining arrowheads. Pl.'s Depo. at 94-96.

On November 14, 1996, the Plaintiff notified Safeco for the first time about the May 16, 1996, automobile accident which damaged his property. Pl.'s Resp. to Def.'s Req. for Admis., No. 5; Splaine Aff. ¶ 6. The Plaintiff asserts that he was attempting to have Hartford Insurance pay for his damage and did not know his personal insurance policy would cover the damage caused by the accident. Pl.'s Depo. at 92. By the time Safeco was notified about the accident, only 102 arrowheads remained. Pl.'s Depo. at 162-62.

After Safeco refused to pay the claim, Plaintiff Hill filed suit in Dougherty County Superior Court, alleging three counts: (1) breach of contract; (2) bad faith refusal of insurer to pay legitimate claim; and (3) bad faith under O.C.G.A. § 13-6-11. The Defendant removed the action to this Court and later filed the presently pending summary judgment motion asserting, among other bases, that the Plaintiff did not fulfill his contractual obligations because he did not (1) give immediate notice to the insurance company or its agent; (2) failed to protect the damaged property and exhibit all damaged property upon request; and (3) failed to provide the insurance company with requested records and documents, and to submit to an examination under oath. Third Party Defendant Jordan likewise filed a Motion for Summary Judgment, adopting Safeco's brief in support of its Motion for Summary Judgment.¹ The Court finds the Defendants' Motions for Summary Judgment should be granted on three separate bases, and addresses each basis separately below.

DISCUSSION

I. SUMMARY JUDGMENT STANDARD

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." The Court is required to "resolve all reasonable doubts about the facts in favor of the non-movant, and draw all justifiable inferences in his or her favor." Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir.1993) (quotations and citations omitted).

The moving party carries the initial burden of showing that there is an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). The substantive law governing the case determines which facts are material, and "summary judgment will not lie if the dispute about a material fact is `genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). For issues on which the non-movant bears the burden of proof at trial, the moving party "simply may show — that is, point out to the district court — that there is an absence of evidence to support the non-moving party's case. Alternatively, the moving party may support its motion for summary judgment with affirmative evidence demonstrating that the non-moving party will be unable to prove its case." Fitzpatrick, 2 F.3d at 1116 (quotations and citations omitted).

If the moving party fails to overcome this initial burden, the Court must deny the motion for summary judgment without considering any evidence, if any, presented by the non-moving party. Fitzpatrick, 2 F.3d at 1116. If, on the other hand, the moving party overcomes this initial burden, then the non-moving party must show the existence of a genuine issue of material fact that remains to be resolved at trial. Id. Moreover, the adverse party may not respond to the motion for summary judgment by summarily denying the allegations set forth by the moving party. Rather, the adverse party "must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party." Fed.R.Civ.P. 56(e).

II. ANALYSIS

A. Whether Plaintiff Complied with Requirement of Insurance Contract by Preserving and Presenting all Damaged and Undamaged Property

The Defendant asserts Mr. Hill did not preserve all the damaged arrowheads for which he asserts he is entitled to compensation. In support, Defendant Safeco points to the insurance contract which as a condition precedent to any recovery requires the insured to exhibit the damaged and undamaged property as often as the insurer reasonably requires.

The contract specifically provides that after a loss to which the insurance policy may apply, the Plaintiff must as often as Safeco reasonably requires "exhibit the damaged and undamaged property." (Def. Safeco's Brief in Supp. of Motion for Summ.J., Ex. 1, Safeco Insurance Company Insurance Policy ("the Policy"), at pg. 7, Section 1: Conditions ¶ (2)(d)(1)). Furthermore, Section I: Conditions, Paragraph 6 provides: "No action shall be brought unless there has been compliance with the policy provisions and the action is started within one year after the loss or damage." Id. at Ex. 1, pg. 9. Such clauses are conditions precedent to recovery and are binding against the insured. Townley v. Patterson, 139 Ga.App. 249, 228 S.E.2d 164, 165 (1976). As stated by Georgia courts, "the conditions set out in the policy contract are an essential part of the consideration for the insurer assuming the risk and the insured becomes bound by those conditions by his acceptance of the policy contract." Buffalo Ins. Co. v. Star Photo Finishing Co., 120 Ga.App. 697, 709, 172 S.E.2d 159, 167 (1969) (quoting Mitchell, Georgia Law on Insurance, ...