St. John's Deliverance Temple v. Frontier Adjusters

• Decision Date: 27 February 2012
• Docket Number: CA 11-0624-KD-C
• Parties: ST. JOHN'S DELIVERANCE TEMPLE, Plaintiff, v. FRONTIER ADJUSTERS, et al., Defendants.
• Court: U.S. District Court — Southern District of Alabama

ST. JOHN'S DELIVERANCE TEMPLE, Plaintiff,

v.FRONTIER ADJUSTERS, et al., Defendants.

CA 11-0624-KD-C

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

Date: February 27, 2012

REPORT AND RECOMMENDATION

This cause is before the Magistrate Judge for issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b), on the notice of removal (Doc. 1), plaintiff's motion to remand and memorandum of law in support of the motion (Docs. 5 & 7), the defendants' response (Doc. 21), and plaintiff's reply brief (Doc. 24). Upon consideration of the foregoing pleadings, the Magistrate Judge recommends that the Court DENY plaintiff's motion to remand (Doc. 5) and retain jurisdiction of this matter.

FINDINGS OF FACT

Prior to Hurricane Ivan, Hermitage Insurance Company ("Hermitage") issued an insurance policy to St John's Deliverance Temple ("St. John's") providing for wind damage coverage. (See Doc. 1, Exhibit A, COMPLAINT ¶¶ 6-7.) St. John's was damaged by wind during Hurricane Ivan and made a timely claim under the policy issued by Hermitage. (See id. at ¶¶ 5 & 7.) Plaintiff's claim was adjusted and a check wasissued to plaintiff for its "purported wind damage[]" (id. at ¶ 7); St. John's, however, disagreed with the amount tendered by Hermitage and, in accordance with policy provisions, demanded an "'appraisal' of the damage." (Id. at ¶ 8.) Those policy provisions read, in relevant part, as follows:

If we and you disagree on the value of the property or the amount of loss, either may make written demand for an appraisal of the loss. In this event, each party will select a competent and impartial appraiser. The two appraisers will select an umpire. If they cannot agree, either may request that selection be made by a judge of a court having jurisdiction. The appraisers will state separately the value of the property and amount of loss. If they fail to agree, they will submit their differences to the umpire. A decision agreed to by any two will be binding. Each party will:

a. Pay its chosen appraiser; and

b. Bear the other expenses of the appraisal and umpire equally. It there is an appraisal, we will still retain our right to deny the claim.

(Doc. 7, Exhibit A, E.2.)

Hermitage identified as its appraiser Skip Macon ("Macon") but after numerous unsuccessful attempts by St. John's appraiser to communicate with Macon from November, 2010 through January 26, 2011, Hermitage agreed to appoint a new appraiser, David Coggin ("Coggin") of South Alabama Claims Service ("SACS"). (See Doc. 1, Exhibit A, COMPLAINT, at ¶ 9.) Coggin and St. John's appraiser eventually agreed upon an umpire, Dan Cushing, Esquire. (Id. at ¶ 10.)

On September 23, 2011, an appraisal award in the amount of $236,775.00 was made and concurred in by the umpire, Dan Cushing, and St. John's appraiser, Michael Bena. (See id., Attached Appraisal of Insurance Claim.) Subsequent to entry of the award, counsel for Hermitage informed plaintiff's counsel that Hermitage planned tocontest the award "and not pay within the time limits required by the policy." (Doc. 1, Exhibit A, COMPLAINT, at ¶ 12.)

On October 5, 2011, St. John's filed this specific performance, negligence, wantonness, and civil conspiracy action defendants Frontier Adjusters ("Frontier"), Macon, SACS, Coggin, and Hermitage in the Circuit Court of Mobile County, Alabama. (Doc. 1, Exhibit A, COMPLAINT) Plaintiff asserts its specific performance claim only against the insurer, Hermitage, not against any of the other defendants. (See id. at 3.) Therefore, the complaint, as to Frontier, Macon, SACS, and Coggin, reads, in relevant part, as follows:

COUNT TWO

NEGLIGENCE

(Defendant Skip Macon)

16. Plaintiff incorporates by reference paragraphs 1-15, inclusive, as if fully set forth.

17. Appraiser Skip Macon by and through the direction of Frontier Claims (sic) negligently failed to communicate and respond to St. John's appraiser and attempt to appoint an umpire as required by the "appraisal process." Additionally, he and Frontier Claims (sic) negligently failed to participate in the appraisal process including the umpire selection, re-estimating the damage, re-inspecting, meeting with the opposing appraiser and chosen umpire and rendering an award of an amount of damage as determined by two of the three.

18. This resulted in months of delay and caused the plaintiff to incur additional damage for lack of funds to provide protection to the damaged property and or repair the damaged property. In addition, it caused the plaintiff to lose interest on the money that was owed and caused the appraisal process to drag out over an extended period of time requiring a new appraiser to be selected and more time wasted.

Wherefore, the premises considered[,] the plaintiff prays this honorable court will award damages for loss of use of the damagedproperty, interest on the eventual award and any other damages warranted by equity or law.

COUNT THREE

NEGLIGENCE

(Defendant David Coggin)

19. Plaintiff incorporates by reference paragraphs 1-18, inclusive, as if fully set forth.

20. Appraiser David Coggin by and through the direction of South Alabama Claims Services negligently failed to act independently without direction and guidance from Hermitage and or their counsel in the selection of an umpire, rewriting of an independent estimate, and the general handling of the appraisal process.

21. This resulted in months of delay and caused the plaintiff to incur additional damage for lack of funds to provide protection to the damaged property and or repair the damaged property. In addition, it caused the plaintiff to lose interest on the money that was owed and caused the appraisal process to drag out over an extended period of time requiring a new appraiser to be selected and more time wasted.

Wherefore, the premises considered[,] the plaintiff prays this honorable court will award damages for loss of use of the damaged property, interest on the eventual award and any other damages warranted by equity or law.

COUNT FOUR

WANTONNESS

(Defendant Skip Macon)

22. Plaintiff incorporates by reference paragraphs 1-21, inclusive, as if fully set forth.

23. Appraiser Skip Macon by and through the direction of Frontier Claims (sic) wantonly failed to communicate and respond to St. John's appraiser and attempt to appoint an umpire as required by the "appraisal process." Additionally, he and Frontier Claims (sic) wantonly failed to participate in the appraisal process including the umpire selection, re-estimating the damage, re-inspecting, meeting with theopposing appraiser and chosen umpire and rendering an award of an amount of damage as determined by two of the three.

24. This resulted in months of delay and caused the plaintiff to incur additional damage for lack of funds to provide protection to the damaged property and or repair the damaged property. In addition, it caused the plaintiff to lose interest on the money that was owed and caused the appraisal process to drag out over an extended period of time requiring a new appraiser to be selected and more time wasted.

Wherefore, the premises considered[,] the plaintiff prays this honorable court will award damages for loss of use of the damaged property, interest on the eventual award, punitive damages, and any other damages warranted by equity or law.

COUNT FIVE

WANTONNESS

(Defendant David Coggin)

25. Plaintiff incorporates by reference paragraphs 1-24, inclusive, as if fully set forth.

26. Appraiser David Coggin by and through the direction of South Alabama Claims Services wantonly failed to act independently without direction and guidance from Hermitage and or their counsel in the selection of an umpire, rewriting of an independent estimate, and the general handling of the appraisal process.

27. This resulted in months of delay and caused the plaintiff to incur additional damage for lack of funds to provide protection to the damaged property and or repair the damaged property. In addition, it caused the plaintiff to lose interest on the money that was owed and caused the appraisal process to drag out over an extended period of time requiring a new appraiser to be selected and more time wasted.

Wherefore, the premises considered[,] the plaintiff prays this honorable court will award damages for loss of use of the damaged property, interest on the eventual award, punitive damages, and any other damages warranted by equity or law.

COUNT SIX

CIVIL CONSPIRACY

28. Plaintiff incorporates by reference paragraphs 1-27, inclusive, as if fully set forth.

29. Defendants knowingly and willfully conspired and agreed among themselves to thwart the appraisal process in a fraudulent manner to reduce the amount owed to plaintiff.

30. Skip Macon refused to communicate whatsoever after being identified as an appraiser. David Coggin refused to act independently as required and followed [the] direction[s] of Hermitage and or its counsel regarding umpire selection, the rewriting of an independent estimate, and an independent and unbiased general handling of the appraisal process as required. Hermitage intentionally controlled the process through their adjusters and counsel in an effort to restrict Coggin[] from providing an independent opinion and agreeing to an umpire without direction from Hermitage and or its counsel. Plaintiff has been damaged by loss of use of their (sic) property, loss of interest of funds eventually owed under the award, loss of use of the funds to make repairs which resulted in additional damages in the interim.

Wherefore, the premises considered[,] the plaintiff prays this honorable court will award damages for loss of use of the damaged property, interest on the eventual award, punitive damages, and any other damages warranted by equity or law.

(Id. at 4-7.)

The defendants timely removed this action to this Court on November 4, 2011 in accordance with the first paragraph of 28 U.S.C. § 1446(b). (See Doc. 1.) In the removal petition, the removing defendants argue that all citizenship, save that...