Passmore v. Travelers Cas. & Sur. Co.

• Decision Date: 02 October 2020
• Docket Number: No. 2:19-CV-0059,2:19-CV-0059
• Citation: Passmore v. Travelers Cas. & Sur. Co., No. 2:19-CV-0059 (S.D. Ga. Oct 02, 2020)
• Parties: CASSANDRA PASSMORE, Plaintiff, v. TRAVELERS CASUALTY AND SURETY COMPANY, Defendant.
• Court: U.S. District Court — Southern District of Georgia

CASSANDRA PASSMORE, Plaintiff, v. TRAVELERS CASUALTY AND SURETY COMPANY, Defendant.

No. 2:19-CV-0059

United States District Court for the Southern District of Georgia Brunswick Division

October 2, 2020

ORDER

This matter comes before the Court on the Motion for Summary Judgment(Dkt. No. 37) and Motion to Strike(Dkt. No. 45) filed by DefendantTravelers Casualty and Surety Company("Defendant").Both motions are fully briefed, have been augmented by a hearing before the Court, and are ripe for review.SeeDkt. Nos. 41, 46, 48, 50.For the reasons stated below, Defendant's Motion for Summary Judgment, dkt. no. 37, is DENIED in part and GRANTED in part.Defendant' Motion to Strike, dkt.no. 45, is DENIED in part and GRANTED in part.

BACKGROUND

This case arises out of an insurance coverage dispute after PlaintiffCassandra Passmore("Plaintiff") reported to Defendant that her home, located at 2303 G Street in Brunswick, Georgia (the "Residence"), had sustained storm-related damage in connection with Hurricane Irma on or around September 11, 2017(the "2017 Loss").Dkt. No. 37-1 ¶¶ 1, 21.At the time of the 2017 Loss, Plaintiff's Residence was insured by Defendant under homeowner's insurance policy number 977220160-633-1 (the "Policy").Dkt. No. 37-1 ¶ 1.

It is undisputed that hurricane damage is covered under the Policy.Accordingly, Defendant inspected the Residence and issued payments for $5,341.71, which it contended covered the actual cash value of necessary repairs.Plaintiff contends that Defendant did not pay her the appropriate amount and instead values the 2017 Loss at $43,200.00.Dkt. No. 1-1 ¶ 5.Accordingly, Plaintiff alleges that Defendant has breached its contractual obligation under the Policy.SeeDkt. No. 1-1.Plaintiff filed the present suit to recover policy proceeds in the amount of $43,200.00, along with Georgia statutory penalties for bad faith and attorney fees.SeeO.C.G.A. § 33-4-6.

The Policy

The Policy indisputably includes the following relevant provisions:

SECTION I - EXCLUSION

We do not cover any direct or indirect loss or damage caused by, resulting from, contributing to or aggravated by any of these excluded perils.Loss from any of these perils is excluded regardless ofany other cause or event contributing concurrently or in any sequence to the loss.

. . .

5.NEGLECT, MEANING NEGLECT OF THE INSURED TO USE ALL REASONABLE MEANS TO SAVE AND PRESERVE PROPERTY AT AND AFTER THE TIME OF A LOSS OR WHEN PROPERTY IS ENDANGERED BY A PERIL INSURED AGAINST.

Dkt. No. 37-1 ¶ 48.

SECTION I - CONDITIONS

2.Duties After Loss.In the case of a loss to which this insurance may apply, you shall see that the following duties are performed:

. . .

d.(1) PROTECT THE PROPERTY FROM FURTHER DAMAGE;

(2) MAKE REASONABLE AND NECESSARY REPAIRS TO PROTECT THE PROPERTY; AND

(3) KEEP AN ACCURATE RECORD OF REPAIR EXPENDITURES;

. . .

f. AS OFTEN AS WE REASONABLY REQUIRE:

(1) SHOW THE DAMAGED PROPERTY;

(2) PROVIDE US WITH RECORDS AND DOCUMENTS AND PERMIT US TO MAKE COPIES . . .

. . .

3.Loss Settlement.The compensation provided by this policy for a covered property loss does not include compensation for stigma damages or for any actual or perceived reduction or diminution in value of such property that remains or may remain after repair or replacement.

. . .c. 4.We will pay no more than the actual cash value of the damage until actual repair or replacement is complete.Once actual repair is complete, we will settle the loss according to the provisions of c.(1) and c.(2) above.

However, if the costs to repair or replace is less than $2,500 we will settle the loss according to the provisions of c.(1) and c.(2) above, whether or not actual repair or replacement is completed.

. . .

8.Suit Against Us.No action can be brought against us unless there has been full compliance with all the terms of this policy and the action is started within two years after the date of loss.

Id.¶¶ 49-51.

Defendant's Estimate

After the 2017 hurricane damage, Plaintiff promptly notified Defendant that she had sustained storm-related damage.Dkt. No. 37-1 ¶ 21.Upon receiving notice of the damage, Defendant sent its claim representative, Thomas Ayer, to inspect the Residence.Id.¶ 23.Defendant thereafter sent Plaintiff an estimate (the "Estimate") detailing its determination of the cost of repairs associated with the 2017 Loss.Id.¶ 27.Defendant's Estimate calls for the following repairs: (1) remove and replace the entire roof; (2) repair living room walls; (3) repair bathroom walls and ceiling; and (4) repair bedroom ceiling.Dkt.No. 37-10at 15.

In total, the Estimate calls for $8,560.89 in cost of repairs.Id. at 19.Defendant issued a check to Plaintiff in the amount of $5,341.71, which it calculated to be the actual cash value of the damage.Id. at 19-20.In accordance with the Policy, Plaintiff would receive additional funds once actual repair to the Residence was complete.Seeid.("Once actual repair is complete, we will settle the loss according to the provisions of c.(1) and c.(2) above.").

Capitol City's Proposal

Plaintiff contends that Defendant's Estimate was not sufficient to cover the cost of the damage that her Residence suffered.Dkt. No. 41at 1.Instead, she requests $43,200 for the damage her Residence suffered in the 2017 Loss. Dkt.No. 41-2at 3.Plaintiff derives her requested amount of $43,200 in insurance proceeds from a proposal submitted to her from Capitol City Development("Capitol City"), dated September 19, 2017(the "Proposal").SeeDkt.No. 37-9at 15.Capitol City is owned and operated by the repairman Plaintiff hired to complete repairs to the Residence, Mr. Wilfred Atwater.Dkt. No. 37-1 ¶ 13.Mr. Atwater had previously repaired the Residence after the property was damaged by Hurricane Matthew in 2016(the "2016 Loss").Id.¶ 53.

Mr. Atwater testified that he gave Defendant's adjuster, Mr. Ayer, his Proposal "two to three weekends" after Mr. Ayer's first inspection of the Residence (Mr. Ayer's first inspection of theResidence was on September 22, 2017).Atwater Depo. 72:22-73:19.Mr. Atwater's list of repairs and associated Proposal is significantly more extensive and expensive than Defendant's Estimate of the 2017 Loss.Within the Proposal, Capitol City calls for the following repairs to the Residence related to 2017 Loss: "(1) remove and replace the entire roof; (2) remove and replace rotten wood in the affected area; (3) remove and dispose of all materials affected by mold; (4) remove and replace 614 square feet of insulation; (5) remove and replace electrical outlets in the affected area; (6) remove and replace damaged and collapsed ceilings and walls in the bedrooms, kitchen, laundry room, bathroom, and hallway (totaling 614 square feet); (7) remove and replace the crown molding in kitchen, foyer, and living room; (8) paint interior (3,600 board feet); (9) install new kitchen cabinets and counter tops; (10) remove and replace flooring (as specified); and (11) remove debris from the Residence.Dkt.No. 37-9at 15."

Apart from an estimated cost for replacing the roof ($9,750.00),¹ none of the other line items contained an associated cost.Id.Ultimately, Mr. Atwater values the repairs at $43,200.00.Id.

Payments to Mr. Atwater

Plaintiff has only ever paid Mr. Atwater by check.Dkt. No. 37-1 ¶ 41.Plaintiff issued five of those checks prior to the 2017 Loss.SeeDkt. No. 37-1 ¶ 44.In total, the pre-2017 Loss checks from Plaintiff to Mr. Atwater total $10,300.00.Dkt. No. 37-1 ¶ 45.Additionally, Plaintiff paid Mr. Atwater $9,810.00 following the 2017 Loss.Id.¶¶ 42, 43, 47.

Defendant's refusal to pay

Defendant contends it was within its rights to deny Plaintiff's claim on three grounds.First, Defendant contends that during the September 22, 2017 inspection of the Residence, its adjuster, Mr. Thomas Ayer, observed storm-related damage to the Residence's roof, living room ceiling, hallway ceiling, bedroom ceiling, and bathroom wall.Id.¶¶ 24, 25.Mr. Ayer further contends that he did not identify any mold damage, damage to the floor, or damage to the kitchen cabinets or countertops.Id.¶ 26.On September 25, 2017, Defendant issued payments in accordance with Mr. Ayer's observations.Defendant contends that Plaintiff has not been able to substantiate any damage to the Residence that was not observed by Mr. Ayer during the September 22, 2017 inspection.Id.¶ 30.

Second, Defendant contends that Plaintiff has failed to provide evidence that shows the amount of the September 25 payment was insufficient.Dkt. 37-2at 9.Plaintiff relies on Mr. Atwater's proposal to show an estimated cost of repair in excess ofDefendant's estimate and payment.Dkt. 37-9at 15.Defendant argues that Mr. Atwater's proposal lacks specificity and that he admitted he does not have adequate authority to opine on certain repairs.37-1 ¶ 29.

Third, Defendant contends that Plaintiff failed to abide by various conditions set forth in the policy because she failed to replace her roof following the 2017 Loss and has failed to cooperate in reporting damage to the property.Id.¶¶ 36-37.Specifically, Defendant contends that Plaintiff's failure to repair her roof constitutes neglect, and that damage resulting from neglect is excluded from coverage under the Policy.Id.¶ 48.

II.Defendant's Motions

Neither party contests that any damage to the Residence caused by Hurricane Irma would be covered under the Policy.Indeed, Defendant has already issued payment to Plaintiff for the losses to the Residence it determined were caused by Hurricane Irma following its inspection of the Residence on September 22, 2017.Id.¶ 30.Plaintiff simply contends that Defendant did not account for all the hurricane damage to the Residence in its Estimate following the 2017 Loss. Dkt. No. 41at 1.Therefore, Plaintiff contends Defendant"underpaid the amount"she is entitled to recover for storm-related damage pursuant to the terms of the Policy.Id.

Comparatively, before the...