Pitts v. Geovera Specialty Ins. Co.
| Decision Date | 07 September 2022 |
| Docket Number | 8:21-cv-2033-VMC-CPT |
| Parties | ZENA PITTS, Plaintiff, v. GEOVERA SPECIALTY INSURANCE COMPANY, Defendant. |
| Court | U.S. District Court — Middle District of Florida |
ZENA PITTS, Plaintiff,
v.
GEOVERA SPECIALTY INSURANCE COMPANY, Defendant.
No. 8:21-cv-2033-VMC-CPT
United States District Court, M.D. Florida, Tampa Division
September 7, 2022
REPORT AND RECOMMENDATION
CHRISTOPHER P. TUITE UNITED STATES MAGISTRATE JUDGE
Before me on referral are Defendant GeoVera Specialty Insurance Company's (GeoVera) motion for summary judgment (Doc. 51); Plaintiff Zena Pitts's motion to strike certain evidence from GeoVera's summary judgment motion (Doc. 52); and Pitts's motion for summary judgment (Doc. 54). For the reasons discussed below, I respectfully recommend that GeoVera's summary judgment motion be granted in part and denied in part and that Pitts's motions be denied.
I.
Pitts is the owner of a rental property located in Sarasota, Florida, which she insured with GeoVera for a period of time, including-of relevance here-from May 2020 through May 2021. (Doc. 51 at 3, ¶2); (Doc. 51-1 at 1); (Doc. 53 at 2, ¶2). In
addition to her policy with GeoVera, Pitts had a home warranty policy for the rental property with ARW Home Service Company, LLC (ARW) between 2015 and at least December 2020. (Doc. 51 at 9, ¶16); (Doc. 51-3 at 21); (Doc. 53 at 3, ¶16).
In early September 2019, Pitts reported to ARW that her bathtub drain was clogged. (Doc. 51-3 at 18). Although she initially made a claim to ARW for this issue, she ultimately cancelled the claim before the reason for the stoppage could be determined because the clog resolved itself. Id.; (Doc. 53-1 at 4). In early April 2020, Pitts reported another blockage in the bathtub drain and, this time, a servicer investigated the matter and was able to rectify it. (Doc. 51-3 at 19). Pitts avers in an affidavit she includes with her summary judgment motion that she believes both of the above stoppages were “caused by the[ tenant's] children putting toys and food down the drain.” (Doc. 53-1 at 4, 5).
A few days after the second blockage, on April 10, 2020, GeoVera mailed Pitts a packet of materials in connection with Pitts's renewal of her policy with the company. These materials consisted of, among other things, a copy of Pitts's policy, certain amendments to the policy, as well as various notices. (Doc. 51-1 at 1). Of import to the parties' summary judgment motions, one of the notices “highlight[ed] a significant coverage restriction” found in an endorsement[1] titled “Water Damage Exclusion and Limited Named Peril Coverage” (hereinafter, Water Damage Endorsement), which GeoVera had added to the policy “based on certain
underwriting criteria and/or [a] request[ ] by [Pitts] for a premium credit.”[2] Id. GeoVera explained that this new provision would limit Pitts's water damage coverage “to only water damage resulting from a covered loss caused by [one of nine] named peril[s].” Id. A copy of the Water Damage Endorsement was provided in the packet as well. Id. at 64-65.
Pitts does not appear to dispute that GeoVera sent her the packet of materials on April 10, 2020. She states, however, that she “does not believe she received” these items and that, in any event, GeoVera never called her to describe “how it substantially changed her policy from prior years.” (Doc. 53 at 2). Even with this caveat, it is uncontested that Pitts continued her policy with GeoVera during the pertinent period, notwithstanding the addition of the Water Damage Endorsement. (Doc. 51 at 3, ¶2); (Doc. 51-1 at 1); (Doc. 53 at 2, ¶2).
Following the renewal of her policy with GeoVera, Pitts's rental property continued to experience plumbing issues. In mid-May 2020, Pitts advised ARW that there was a blockage in the toilet in the same bathroom where the bathtub had been previously clogged and that she believed this issue stemmed from “tree roots growing into her piping.” (Doc. 51-3 at 20). Roughly two months later, in July 2020, Pitts reported to ARW that “water [was] leaking from behind [the] toilet wall and then on the other side of wall in the kitchen[,] behind the refrigerator when [her tenant was
taking] a shower.” Id. at 21. Pitts opted on this occasion to hire her own servicer and to seek reimbursement from ARW afterwards. Id. While Pitts told ARW at the time that she thought the “refrigerator drip pan” was the source of the leak, there are no records indicating what the actual cause of the problem was. Id.
On December 2, 2020, Pitts's tenant at the property complained that water was running from the bathroom into the hallway when the tenant was showering. (Doc. 51 at 9, ¶¶ 17, 19); (Doc. 53 at 3-4, ¶¶ 17, 19). According to the parties' submissions, this water overflow was apparently due to a leak or some other failure in the plumbing system caused by wear and tear. (Doc. 1-1 at 2); (Doc. 51-5 at 4); (Doc. 53 at 1, 5). Pitts asserts that, as a result of this incident, she sustained water damage in the hallway bathroom and other portions of the home. (Doc. 63 at 2-3).
The next month, in January 2021, Pitts brought this action in state court seeking a declaratory judgement that her policy with GeoVera covered the access-to-repair costs associated with repairing the plumbing issue. (Doc. 1-1). Roughly seven months later, in August 2021, GeoVera removed the action to this Court based on the Court's diversity jurisdiction. (Doc. 1).
After GeoVera filed its answer (Doc. 13), the Court issued a Case Management and Scheduling Order (CMSO) establishing, of significance here, an October 7, 2021, deadline for the parties' mandatory initial disclosures under Federal Rule of Civil Procedure 26(a); deadlines in January, February, and March 2022 for the parties' expert reports; an April 1, 2022, deadline for discovery; and a May 2, 2022, deadline for any summary judgment motions. (Doc. 14).
During the months of September and October 2021, the parties exchanged their initial disclosures pursuant to Rule 26(a). (Docs. 59-1, 59-2). Of consequence to the issues before the Court, GeoVera informed Pitts in its disclosures that the persons who had material and discoverable information regarding GeoVera's claims and defenses included “[a]ll witnesses listed in [Pitts]'s Rule 26[a] disclosures or otherwise identified or disclosed by [Pitts].” (Doc. 59-1 at 3-4). For her part, Pitts represented that a “Representative for ARW” would potentially have pertinent information relative to Pitts's claims or defenses because Pitts “purchased a home warranty from ARW.” (Doc. 59-2 at 3). Pitts further advised GeoVera that ARW had documents “which may be relevant to the case” as well, and that such items had been or would be “produced in response to written discovery.” Id. Pitts qualified these disclosures,
however, with the disclaimer that it was her position the ARW warranty “did not cover the subject issues.” Id. Seemingly related to these disclosures, Pitts contacted ARW in October 2021, requesting that her policy number and “the terms and conditions [of her policy be] sent to her.” (Doc. 51-3 at 22).
In early November 2021, GeoVera issued a subpoena to ARW, seeking documents pertaining to Pitts's warranty with ARW and any claims she made in connection with that policy. (Doc. 52-1). Pitts received proper notice of this subpoena[3] and asked that GeoVera forward her copies of any materials it received from ARW. (Doc. 52-2).
In its response to GeoVera's subpoena dated November 15, 2021, ARW provided GeoVera with a copy of the agreement between Pitts and ARW, various records describing Pitts's claims to ARW for water damage prior to the start of the relevant policy period, and a declaration from a records custodian, Evan Rothman, attesting to the authenticity of the items produced by ARW. (Doc. 51-3); (Doc. 59 at 4-5). GeoVera, however, neglected to turn these records over to Pitts in the weeks and months that immediately followed its receipt of same (Doc. 52 at 4-5) but did include them with its motion for summary judgment filed on March 8, 2022 (Doc. 51).
The day after GeoVera filed its summary judgment motion, Pitts again requested that GeoVera send her the ARW materials and added that she wished to depose Rothman before the March 29, 2022, deadline for her response to GeoVera's
summary judgment motion. Id. GeoVera provided Pitts with the sought-after items two days later, on March 11, 2022, and told her on March 18, 2022, that it would be available to depose Rothman on either March 24, 2022, or March 25, 2022. Id. at 5. Pitts though did not attempt to schedule Rothman's deposition until March 23, 2022, and was apprised by ARW at the time that the deposition could not be conducted on such short notice. (Doc. 52 at 5); (Doc. 59 at 6). Pitts did not engage in any further efforts to depose Rothman prior to the April 1, 2022, discovery deadline (Doc. 14), nor did she ask the Court to extend either the discovery deadline or the deadline for her to respond to GeoVera's summary judgment motion.
Instead, Pitts filed the instant motion to strike on March 29, 2022, requesting that the Court disregard both the ARW documents and the Rothman declaration attached to GeoVera's summary judgment motion. (Doc. 52). That same day, Pitts also submitted its response to GeoVera's summary judgment motion (Doc. 53) and, in short order, filed its own motion for summary judgment as well (Doc. 54).
Each party has since replied to their opponent's response (Docs. 60, 63) and provided the Court with one or more notices of supplemental authority (Docs. 64, 6668), the last of which was filed in August 2022 (Doc. 68). During this intervening period, as alluded to above, the Court heard argument on Pitts's motion to strike. The parties' motions are thus ripe for the Court's consideration.
II.
I commence my analysis with Pitts's motion to strike the ARW evidence included with GeoVera's summary judgment motion. (Doc. 52). In support of this
request, Pitts argues that GeoVera should not be allowed to rely on these items because GeoVera...
To continue reading
Request your trial