SJP Props., Inc. v. Mount Vernon Fire Ins. Co.

Decision Date27 July 2015
Docket NumberNo. 4:14-CV-694-JAR,4:14-CV-694-JAR
CourtUnited States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
PartiesSJP PROPERTIES, INC., Plaintiff, v. MOUNT VERNON FIRE INSURANCE COMPANY, Defendant.
MEMORANDUM AND ORDER

Plaintiff SJP Properties, Inc. ("SJP") brings this action against Defendant Mount Vernon Fire Insurance Company ("Mount Vernon") to recover damages under an insurance policy. This matter is before the Court on Mount Vernon's Motion for Summary Judgment (Doc. No. 11) and SJP's Partial Motion for Summary Judgment as to the Extent of Coverage Only. (Doc. No. 13) The motions are fully briefed and ready for disposition.

As a threshold matter, Mount Vernon moves to strike SJP's Additional Statement of Material Facts for failing to comply with the requirements of Federal Rule of Civil Procedure 56(c)(1) or E.D.Mo. L.R. Rule 7-4.01(E). More specifically, Mount Vernon argues SJP states no additional facts; instead, SJP makes a number of arguments unsupported by other materials in the record. (Doc. No. 19) Motions to strike are not favored and infrequently granted, because they propose a drastic remedy. Stanbury Law Firm, P.A. v. Internal Revenue Service, 221 F.3d 1059, 1063 (8th Cir.2000). Nevertheless, resolution of such a motion lies within the broad discretion ofthe Court. Id. Rule 12(f) authorizes a court to strike from a pleading any "redundant, immaterial, impertinent, or scandalous matter." Fed.R.Civ.P. 12(f).

A "pleading" as defined in Rule 7(a) does not include statements of fact submitted in support of, or in opposition to, a motion for summary judgment. Thus, there is no specific authority in the Federal Rules for striking a party's statement of uncontroverted facts. See Nelson v. Special Administrative Bd. of St. Louis Public Schools, 2012 WL 5508394, at *l-2 (E.D. Mo. Nov. 14, 2012) (citing United States v. Hawley, 812 F.Supp.2d 949, 962 n. 2 (N.D. Iowa 2011) (denying a motion to strike a statement of material facts offered in opposition to a motion for summary judgment)).

Accordingly, Mount Vernon's motion to strike will be denied. The Court will examine the entire record, including SJP's Additional Statement of Material Facts and any properly supported factual contentions, to determine whether there are genuine disputes regarding material facts precluding the entry of summary judgment. See Fabian v. St. Louis Rams Partnership, 2014 WL 222816, at *1 (E.D.Mo. Jan. 21, 2014). Mere arguments, speculation and/or conclusions fail to create a genuine issue of material fact sufficient to defeat summary judgment.

Legal standard

Summary judgment is appropriate when no genuine issue of material fact exists in the case and the movant is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The initial burden is placed on the moving party. City of Mt. Pleasant, Iowa v. Associated Elec. Co-op., Inc., 838 F.2d 268, 273 (8th Cir.1988). If the record demonstrates that no genuine issue of fact is in dispute, the burden then shifts to the non-moving party, who must set forth affirmative evidence and specific facts showing a genuine dispute onthat issue. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). In determining whether summary judgment is appropriate in a particular case, the evidence must be viewed in the light most favorable to the nonmoving party. Osborn v. E.F. Hutton & Co., Inc., 853 F.2d 616, 619 (8th Cir.1988).

Where parties file cross-motions for summary judgment, each summary judgment motion must be evaluated independently to determine whether a genuine issue of material fact exists and whether the movant is entitled to judgment as a matter of law. Husinga v. Federal-Mogul Ignition Co., 519 F.Supp.2d 929, 942 (S.D.Iowa 2007). "[T]he filing of cross motions for summary judgment does not necessarily indicate that there is no dispute as to a material fact, or have the effect of submitting the cause to a plenary determination on the merits." Wermager v. Cormorant Township Bd., 716 F.2d 1211, 1214 (8th Cir.1983). In determining the appropriateness of summary judgment, "the relevant inquiry is whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Bingaman v. Kansas City Power & Light Co., 1 F.3d 976, 980 (10th Cir.1993) (quoting Anderson, 477 U.S. at 251-52).

Facts2

SJP is in the business of buying and selling foreclosed properties. On July 13, 2006, SJP purchased property known and numbered as 6 Mintert Manor Drive, St. Louis, Missouri 63136 ("the Property") at a foreclosure sale. The Property was not inspected either prior to or after the purchase. Without an interested buyer, the Property sat vacant for more than two years. Duringthat time, according to Stanley Plocker, the sole owner and employee of SJP, no one was regularly checking on the Property. (Deposition of Stanley Plocker ("Plocker depo."), Doc. No. 12-4 at 16:9-17:1)

The Property was insured under commercial property insurance policies issued by Mount Vernon, effective March 8, 2006 to March 8, 2009.3 Among other provisions, the Policies contain a clause providing coverage for vandalism, an exclusion for loss or damage "caused by or resulting from theft," and an exception to the theft damage exclusion for "building damage caused by the breaking in or exiting of burglars." The Policies further exclude loss or damage caused directly or indirectly by "fungus, wet rot, dry rot and bacteria," water leaking from any part of a system containing water, or by continuous or repeated seepage or leakage of water over a period of 14 days or more.

The pertinent provisions read as follows:

A. Covered Causes of Loss

When Basic is shown in the Declarations, Covered Causes of Loss means the following:

8. Vandalism, meaning willful and malicious damage to, or destruction of, the described property.
We will not pay for loss or damage caused by or resulting from theft, except for building damage caused by the breaking in or exiting of burglars.

(Doc. No. 12-7 at 49)

B. Exclusions

1. We will not pay for loss or damage caused directly or indirectly by any of the following. Such loss or damage is excluded regardless of any other cause or event that contributes concurrently or in any sequence to the loss.
h. "Fungus", Wet Rot, Dry Rot and Bacteria
Presence, growth, proliferation, spread or any activity of "fungus", wet or dry rot or bacteria.
But if "fungus", wet or dry rot or bacteria results in a Covered Cause of Loss, we will pay for the loss or damage caused by that Covered Cause of Loss.
. . .
2. We will not pay for loss or damage caused by or resulting from:
c. Leakage or discharge of water or steam from any part of a system or appliance containing water or steam (other than an Automatic Sprinkler System), unless the leakage or discharge occurs because the system or appliance was damaged by a Covered Cause of Loss. But we will not pay for loss or damage caused by or resulting from continuous or repeated seepage or leakage of water, or the presence or condensation of humidity, moisture or vapor, that occurs over a period of 14 days or more.

(Doc. No. 12-7 at 51) The applicable deductible under the Policies is $2,500. (Id. at 93)

On or about October 31, 2008, the Property was broken into and burglarized. On November 1, 2008, SJP reported to the police that kitchen cabinets and copper pipes and wiring had been stolen. (Deposition of Officer William Wittkoetter ("Wittkoetter depo."), Doc. No. 12-6 at 8:1-14; 9:18-25) The burglars damaged the Property to extract the copper piping. SJP filed a claim with Mount Vernon seeking coverage for this damage under the Policies. Mount Vernon denied coverage, except for damage to the screen door and glass panel of the basement door where the vandals broke in, because any damages sustained were the result of "theft" and, therefore, not covered by the Policies. Scott Bradley, Mount Vernon's claims adjuster, assessed the damage done by the vandals in breaking into the Property at $303.43, well below the Policies' $2,500 deductible. Thus, there was no coverage under the Policies. SJP filed this actionagainst Mount Vernon on February 10, 2014, alleging breach of contract (Count I) and Vexatious Refusal to Pay (Count II). Mount Vernon timely removed the action to this Court on the basis of diversity jurisdiction pursuant to 28 U.S.C. § 1332.

SJP argues summary judgment on the issue of coverage is appropriate for several reasons. First, the Policies are vague and ambiguous regarding the distinction between "vandalism" and "theft" and should, therefore, be construed in favor of SJP. (Doc. No. 14 at 2) Next, even if the taking of the copper materials could be considered a theft, the vandalism loss is covered. (Id. at 4-10) Lastly, by definition the term "theft" only applies to the taking of personal property, not fixtures. (Id. at 10-12)

In response to SJP's motion (and as the basis for its own motion for summary judgment), Mount Vernon argues SJP cannot meet its burden to show the claimed loss occurred within a policy period. (Doc. No. 11 at 2-4) Even if the date of loss was not at issue, however, SJP cannot show the claimed damages are losses covered by the Policies. (Id. at 4-11) Lastly, SJP's claims are expressly excluded from coverage under the Policies. (Id. at 11-14)

Discussion

Breach of contract

In Count I, SJP alleges Mount Vernon breached its obligations under the Policies by "making an offer that represents a small fraction of the actual damage covered by the policy." (Complaint, Doc. No. 1-1 at ¶ 11) A court must apply the general rules of contract construction when interpreting an insurance policy, because insurance policies are contracts. Jaudes v. Progressive Preferred Ins. Co., 11 F.Supp.3d 943, 949 (E.D.Mo. 2014) (internal citation omitted). "The insurer is obligated to pay when the insured suffers a loss covered by the policy"and when "the insurer refuses to...

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