Smith v. Am. Nat'l Prop. & Cas. Co.

• Decision Date: 22 December 2020
• Docket Number: Case No. 20-CV-00115-GKF-CDL
• Citation: 508 F.Supp.3d 1048
• Parties: David Gary SMITH and Lori Smith, individually and on behalf of all others similarly situated, Plaintiffs, v. AMERICAN NATIONAL PROPERTY AND CASUALTY COMPANY, Defendant.
• Court: U.S. District Court — Northern District of Oklahoma

508 F.Supp.3d 1048

David Gary SMITH and Lori Smith, individually and on behalf of all others similarly situated, Plaintiffs,

v.AMERICAN NATIONAL PROPERTY AND CASUALTY COMPANY, Defendant.

Case No. 20-CV-00115-GKF-CDL

United States District Court, N.D. Oklahoma.

Signed December 22, 2020

Donald Eugene Smolen, II, John William Warren, Laura L. Hamilton, Lawrence Richard Murphy, Jr., Smolen Law, PLLC, Jeffrey Allen Martin, Jeff Martin & Assoc. PC, Tulsa, OK, for Plaintiffs.

Margo Elizabeth Shipley, William Walker O'Connor, Hall Estill Hardwick Gable Golden & Nelson, Tulsa, OK, for Defendant.

OPINION AND ORDER

GREGORY K. FRIZZELL, UNITED STATES DISTRICT JUDGE

This matter comes before the court on the Motion for Summary Judgment [Doc. 30] and Motion to Strike Plaintiff's Expert Declaration [Doc. 39] of defendant American National Property and Casualty Company. For the reasons discussed below, the motion for summary judgment is granted in part and denied in part. The motion to strike is also granted in part and denied in part.

Factual Background

The following facts are undisputed for purposes of the summary judgment determination.

In 2005, David Gary and Lori Smith (collectively, "the Smiths") purchased a homeowners insurance policy, designated policy no. 35-H-V64-786-2, from American National Property and Casualty Company (ANPAC). [Doc. 30, p. 8, ¶ 1; Doc. 34, p. 5, ¶ 1]. As issued in 2005, the Policy provided full replacement coverage for the roof of the Smith home. [Doc. 30, p. 8, ¶ 2; Doc. 34, p. 5, ¶ 1]. The Policy was renewed annually in 2006, 2007, 2008, 2009, 2010, 2011, 2012, and 2013 and remained in effect during that time. [Doc. 30, p. 8, ¶ 3; Doc. 34, p. 5, ¶ 1].

In 2013, ANPAC mailed the Smiths a copy of their 2013 Policy renewal. [Doc. 30-1, p. 3, ¶ 4; Doc. 34, p. 5, ¶ 2]. The 2013 renewal included a "roof schedule" through a Policy endorsement. [Doc. 30-1, p. 3, ¶ 5; Doc. 34, p. 5, ¶ 2; Doc. 30-1, pp. 3, 61-63].

In 2014, the Policy again renewed. [Doc. 30, p. 9, ¶ 9; Doc. 34, p. 5, ¶ 1]. Prior to the renewal in 2014, ANPAC mailed the Smiths a complete renewal packet, including several documents notifying the Smiths of changes in the Policy and a full copy of the 2014 Policy and endorsements (hereinafter, "2014 Renewal Packet"). [Doc. 30, p. 9, ¶ 10; Doc. 34, p. 6, ¶ 3; Doc. 30-1, pp. 3-4, ¶ 10; Doc. 30-1, pp. 66-103; Doc. 30-2, pp. 1-47]. The first page of the 2014 Renewal Packet states:

IMPORTANT INFORMATION

NEW POLICY ENCLOSED

ACTION REQUIRED

[Doc. 30, p. 9, ¶ 13; Doc. 34, p. 6, ¶ 3; Doc. 30-1, p. 4, ¶ 13; Doc. 30-1, p. 66]. The second document in the 2014 Renewal Packet states, "This packet requires ACTION from you," and

? Please review these items in your packet:

• "Thank you for your continued business ..." notice describing key changes to your policy

• Policy and endorsement coverage comparison

[Doc. 30, p. 9, ¶ 14; Doc. 34, p. 6, ¶ 3; Doc. 30-1, p. 4, ¶ 14; Doc. 30-1, p. 68 (emphasis in original)]. The document also states:

? Please contact us if you answer "yes" to any of the following:

1. Do you have any questions about your new coverage for wind and hail damage to roofs?

Your new policy could limit your coverage for wind or hail damage to your roof. [Id. ]. The "Thank you for your continued business" notice (the fifth and sixth pages of the 2014 Renewal Packet) is headed with the following: "Your New Policy Includes Coverage Changes, Please Review!" It includes the following:

• Loss Settlement Changes for Roofs Damaged by Wind or Hail

• Your new policy adjusts the maximum amount we will pay for wind or hail damage to your roof depending on the age and construction of your roof, and may not cover the full cost to repair or replace your roof if it is damaged by wind or hail. Please see The "Roof Payment Schedule" (Appendix A) in your policy.

• If your roof was installed more than 4 years ago , please contact your agent to discuss how your roof coverage is affected by this change and other options that may be available. Refer to your policy declarations to review and verify the documented year your roof was installed.

[Doc. 30, p. 10, ¶ 15; Doc. 34, p. 6, ¶ 3; Doc. 30-1, p. 5, ¶ 15; Doc. 30-1, p. 70 (emphasis

in original)]. The "Thank you for your continued business" notice also states:

These and other changes are explained in greater detail in the "Policy and Endorsement Coverage Comparison" document included in this packet.

We encourage you to thoroughly read your new policy. All of the aforementioned changes take effect on the date shown on the enclosed renewal policy premium notice and are conditional upon payment of the amount due.

Please contact your American National agent if you would like to discuss the changes to your policy or the many ways you can personalize your homeowners coverage.

[Doc. 30, p. 10, ¶ 15; Doc. 34, p. 6, ¶ 3; Doc. 30-1, p. 5, ¶ 16; Doc. 30-1, p. 71].

The "Policy and Endorsement Coverage Comparison" form in the 2014 Renewal Packet begins as follows:

The Oklahoma Special Homeowners Policy, SH-3.35 (6-06) (old policy) is being replaced by the Oklahoma American National Homeowners Policy, SH-3.35 (6-13) (new policy).

The following explains the differences in coverage between your old policy and the new policy replacing it. Among other changes, the new policy was reworded and reorganized to make it easier to read and understand. This notice does not reference every change, including editorial changes or clarifications, made in your policy.

[Doc. 30, p. 10, ¶ 17; Doc. 34, p. 6, ¶ 3; Doc. 30-1, p. 5, ¶ 17; Doc. 30-1, p. 74 (emphasis in original)]. The two introductory paragraphs are followed immediately by a heading stating "POLICY COMPARISON HIGHLIGHTS ." The first sub-section under that heading is entitled "I. REDUCTIONS IN COVERAGE ," Part C.1 of which relates to "PROPERTY COVERAGES," "COVERAGE A – DWELLING AND COVERAGE B – OTHER STRUCTURES." [Doc. 30, pp. 10-11, ¶ 17; Doc. 34, p. 6, ¶ 3; Doc. 30-1, pp. 5-6, ¶ 17; Doc. 30-1, p. 74 (emphasis in original)]. The "COVERAGE A – DWELLING AND COVERAGE B – OTHER STRUCTURES" section includes the following:

e. In the new policy, replacement cost coverage will not apply to roofs when damaged by wind or hail. Roofs damaged by wind or hail will now be covered according to a Roof Payment Schedule included in the policy which is based on the type and age of the roof. Repair and replacement costs will include all costs and fees associated with the repair or replacement, including but not limited to materials, labor, removal, or demolition. The old policy provided replacement cost.

[Doc. 30, p. 11, ¶ 17; Doc. 34, p. 6, ¶ 3; Doc. 30-1, p. 6, ¶ 17; Doc. 30-1, p. 75].

Additionally, on or about June 2, 2014, four days before the effective date of the 2014 Renewal Policy (June 6, 2014), ANPAC mailed the Smiths a separate letter, which stated, in relevant part, as follows:

Your coverage changed with your renewal.

***

2. New Loss Settlement Provisions for Roofs

The new policy now limits coverage for wind and hail damage to certain roofs depending on the location, age, and type of roof. Your renewal packet explains how your coverage was affected. Please call your agent if you do not understand how your roof is covered.

[Doc. 30, p. 11, ¶ 20; Doc. 34, p. 6, ¶ 4; Doc. 30-1, p. 7, ¶ 20; Doc. 30-2, p. 49].

The 2014 Policy Renewal took effect on June 6, 2014. [Doc. 30-1, p. 101]. With respect to roofs damaged by windstorm or hail, the 2014 Renewal Policy stated as follows:

3. Loss Settlement for Roofs Damaged by Windstorm or Hail

In the event of a loss caused by windstorm or hail to the roof of a building covered under Coverage A – Dwelling or Coverage B – Other Structures, we will pay the lesser of the following amounts:

a. the amount actually spent to make necessary repairs or to replace the damaged roof;

b. the applicable limit of liability shown in the Declarations for Coverage A – Dwelling if the loss is to the dwelling or Coverage B – Other Structures if the loss is to an other structure , regardless of the number of other structures damaged; or

c. the applicable percentage of the cost to repair or replace the damaged part of the roof, based on the age and type of the roof as indicated in the Maximum Payment with Proof of Repairs column of Appendix A – Roof Payment Schedule located on page 27 of your policy.

However, we will pay the applicable percentage in the Initial Payment column, minus the applicable deductible, based on the age and type of roof as indicated in the Appendix A – Roof Payment Schedule, until actual repair or replacement is completed. You must make claim within 180 days from the date of the initial payment amount for any additional liability due and payable up to the difference between the initial payment amount and the limit of liability determined to be the lesser of the options described in 3a, 3b, and 3c above.

Repair and replacement costs include all costs of materials, installation, removal, or demolition, including labor, taxes and fees associated with the repair or replacement of the roof and its components and accessories.

[Doc. 30, p. 12, ¶ 22; Doc. 34, p. 6, ¶ 3; Doc. 30-1, pp. 7-8, ¶ 22; Doc. 30-2, p. 14 (emphasis in original)]. The 2014 Renewal Policy also included the following:

ADDITIONAL COVERAGES

1. Debris Removal

We will pay up to an additional 5% of the Coverage A limit of liability for the reasonable expense you incur for the removal of debris of covered property due to a covered loss ....

Debris Removal does not apply to costs to:

***

d. remove roofing material whether damaged or undamaged unless the materials are no longer attached to the building structure and:

(1) they were detached by a covered cause of loss; or

(2) they were detached because they were necessarily removed in the course of repairing or replacing roofing materials which were damaged in a covered loss.

[Doc. 30, pp. 12-13, ¶ 23; Doc. 34, p. 6, ¶ 3; Doc. 30-1, p. 8, ¶ 23; Doc. 30-2, p. 19 (emphasis in original)]. Appendix A of the 2014 Renewal Policy is a "Roof Payment Schedule." [Doc. 30...