Pickens v. Liberty Mut. Ins. Co.

• Decision Date: 15 August 2013
• Docket Number: Case No. 2:12–cv–1652–SLB.
• Citation: 966 F.Supp.2d 1265
• Parties: Karatia PICKENS and Fredrick Pickens, Plaintiff, v. LIBERTY MUTUAL INSURANCE COMPANY, Defendant.
• Court: U.S. District Court — Northern District of Alabama

966 F.Supp.2d 1265

Karatia PICKENS and Fredrick Pickens, Plaintiff,

v.LIBERTY MUTUAL INSURANCE COMPANY, Defendant.

Case No. 2:12–cv–1652–SLB.

United States District Court,

N.D. Alabama,

Southern Division.

Aug. 15, 2013.

Oscar Morgan, III, Morgan Law Firm, Birmingham, AL, for Plaintiffs.

Bethany L. Bolger, Ronald G. Davenport, Rushton Stakely Johnston & Garrett, Montgomery, AL, for Defendant.

MEMORANDUM OPINION

SHARON LOVELACE BLACKBURN, Chief Judge.

This case is currently before the court on Defendant Liberty Mutual Insurance Company's Motion for Summary Judgment. (Doc. 9.) ¹ In their Complaint, plaintiffs Karatia Pickens and Fredrick Pickens (the “Pickens”) assert a claim for breach of contract against defendant LibertyMutual Insurance Company (“Liberty”),² alleging that it breached their insurance contract when it rejected their claim. (Doc. 1–1 at 6–7.) Based on the submissions of the parties, the evidence in the record, and the relevant law, the court is of the opinion that Liberty's Motion is due to be granted.

I. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party bears the initial burden of showing no genuine issue of material fact and that it is entitled to judgment as a matter of law. See Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991); see also Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Once the moving party has met its burden, the non-moving party must go beyond the pleadings and show that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A dispute is genuine “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, 91 L.Ed.2d 202 (1986).

A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or

(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed.R.Civ.P. 56(c)(1); see also Clark, 929 F.2d at 608 (“[I]t is never enough simply to state that the non-moving party cannot meet its burden at trial.”).

In deciding a motion for summary judgment, the court's function is not to “weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249, 106 S.Ct. 2505. Therefore, “courts are required to view the facts and draw reasonable inferences ‘in the light most favorable to the party opposing the [summary judgment] motion.’ ” Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962) (per curiam)). “Nevertheless, the nonmoving party need not be given the benefit of every inference but only of every reasonable inference.” Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir.1999) (citing Brown v. City of Clewiston, 848 F.2d 1534, 1540 n. 12 (11th Cir.1988)). Therefore, “[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249–50, 106 S.Ct. 2505 (citations omitted).

II. STATEMENT OF FACTS³

The Insurance Policy

In 2009, Liberty issued a homeowners insurance policy (the “Policy”) to Karatia and Frederick Pickens, covering property located at 829 Monterey Drive, Bessemer, Alabama 35022, for the policy period of April 15, 2009, to April 15, 2010. (Doc. 11–1 at 3.) Among other things, the Policy contains an exclusion for water damage, which reads as follows:

c. Water Damage, meaning:

(1) Flood, surface water, waves, tidal water, overflow of a body of water, or spray from any of these, whether or not driven by wind;

(2) Water which backs up through sewers or drains or which overflows from a sump; or

(3) Water below the surface of the ground, including water which exerts pressure on or seeps or leaks through a building, sidewalk, driveway, foundation, swimming pool or other structure.

(Doc. 11–1 at 18.) The Policy also excludes “[w]eather conditions” if such conditions “contribute in any way with a cause or event” that is otherwise excluded. ( Id.)

However, for an additional premium of $10.00, the Pickens purchased a “Back Up of Sewer and Sump Pump ⁴ Overflow Coverage Endorsement” (the “Endorsement”), which provides coverage under its terms up to $10,000.00. (Doc. 11–1 at 3.) The Endorsement effectively removes the Policy exclusion listed above dealing with sewer or drain backups and sump pump overflows. (See id. at 8.) It does not, however, remove the provisions above excluding flood and surface water or “water which exerts pressure on or seeps or leaks through a building ... foundation ... or other structure,” ( id. at 18), and it also specifically states that it is not flood insurance, ( id. at 8). It further defines “flood” in part as “the unusual and rapid accumulation of runoff of surface waters from any source.” ( Id.) The provisions of the Endorsement that provide coverage for sump pump overflows state that:

PERILS INSURED AGAINST—SECTION I

For an additional premium, we cover risks of direct physical loss to property described in Coverage A—Dwelling and Coverage C—Personal Property described below when caused by a peril listed below, unless the loss is excluded in this policy.

1. Sewer Back-up, meaning only direct loss to covered property caused by effluent which backs up through sewers or drains which are a part of the “residence premises”.

2. Sump Pump Overflow, meaning only direct loss to covered property caused by water which overflows or accidentally discharges from within a sump pump, sump pump well, sump pump well discharge system, or other type system designed to remove subsurface water from the foundation area of the “residence premises.”

Direct physical loss caused by water which backs up through sewers or drains due to the mechanical failure of a sump pump, sump pump well, sump pump well discharge system or other type system designed to remove subsurface water from the foundation area of the “residence premises” is covered.

This coverage does not apply if the loss is caused by the negligence of any insured.

....

EXCLUSIONS—SECTION I

With respect to the coverages provided by this endorsement only, the following exclusions under Section I—Exclusions are deleted:

Water which backs up through sewers or drains or which overflows from a sump pump.

....

LIMIT OF LIABILITY

We will pay no more than the amount shown on the policy declarations for this coverage for any one loss caused by sewer back up or sump pump overflow as described above.⁵

(Doc. 11–1 at 8.)

Initial Water Damage to the Basement

On the morning of November 2009, Mr. Pickens went down to the basement of his home and discovered about a foot of water covering the floor.⁶ (Doc. 13 at 22.) Upon discovery, he “started working on it right away,” ( id. at 26), purchased a water pump, and used that, along with a shop vac, to remove the water, ( id. at 22–23). In his deposition, he testified that he could not recall how long it took him to remove the water on that particular occasion because the flooding had since happened “numerous times,” but that it typically took anywhere from a few hours to two days, depending on the amount of rain. ( Id. at 23–24.) He further testified that since the first incident of flooding, the basement floods during most of the “big rain[s],” ( id. at 27), and that “when we get a good day or two of rain it happens.... I don't know how the water was getting in,” ( id. at 25–26). Along the same lines, Mrs. Pickens testified that whenever it rains, her husband checks the basement to be sure it has not flooded again. (Doc. 12 at 68.)

Immediately after this first flooding incident, Mrs. Pickens called her insurance agent, filed a claim, and Liberty sent someone to the Pickens's house to investigate. (Doc. 12 at 29–31.) Mrs. Pickens testified that at this point, they did not have any idea what had caused the flooding in the basement. ( Id. at 26–29.) However, next to the stairs descending into the basement, before reaching the basement floor, there is a “crawl space” about five feet high which contains two sump pumps. (Doc. 12 at 24.) There was much speculation in the Pickens's depositions that one of the sump pumps may not have been working correctly,⁷ but the Pickens testified that they never discovered what caused the flooding to occur—from the Liberty investigator or otherwise. ( Id. at 23, 28–29, 31, 60; doc. 13 at 25, 27.) Then, in December of 2009, the Pickens received a letter from their claim handler at Liberty denying their claim: specifically, the letter quoted portions of the Policy and noted that they had “cited backup sewer and sump pump overflow,” in their claim, but that rainfall and surface water (which was not covered), rather than sump pump overflow, had caused the damage to their home. (Doc. 12 at 45–46.) ⁸ Later, sometime in 2010, Mrs. Pickens contacted Alabama Foundation Specialists (“AFS”) to inspect their basement in order to determine the cause of the flooding. ( Id. at 34–36.) AFS provided the Pickens with a quote for approximately $8,000.00, and Mrs. Pickens testified that they told her (1) the sump pump was not big enough to pump the water out, and (2) that the lining in their basement had not been properly installed, and that “wear and tear just caused...