Traywicks v. American Nat'l Prop. & Cas. Co.
| Decision Date | 28 December 2011 |
| Docket Number | Case No. CIV-11-340-D |
| Court | U.S. District Court — Western District of Oklahoma |
| Parties | MALCOLM E. TRAYWICKS, SR., Plaintiff, v. AMERICAN NATIONAL PROPERTY & CASUALTY COMPANY, Defendant. |
Before the Court is the motion for summary judgment of Defendant American National Property & Casualty Company ("ANPAC") [Doc. No. 12]. Plaintiff timely responded, and ANPAC filed a reply. Although Plaintiff filed a timely response, he also filed a motion to extend the deadline for his response, arguing that additional discovery was needed to allow him to fully respond to the motion. On August 16, 2011, the Court entered its Order [Doc. No. 22] granting Plaintiff's motion and finding that, pursuant to Rule 56(d) of the Federal Rules of Civil Procedure, Plaintiff was entitled to conduct discovery to prepare a response to the summary judgment motion. The Court granted Plaintiff's request to extend the response deadline to September 9, 2011. Because Plaintiff had already responded, the Court authorized him to file a supplemental response on that date, and it also granted ANPAC leave to file a supplemental reply. The extended deadline expired, and Plaintiff did not file a supplemental response to the summary judgment motion.
However, Defendant later moved to supplement its motion, seeking to add argument based on the deposition of Plaintiff. Plaintiff did not oppose that request, and the Court granted Defendant leave to supplement its motion and authorized Plaintiff leave to respond to the supplemented motion.The briefing is now complete.
Background:
Plaintiff alleges that ANPAC breached a contract of insurance by denying his claim pursuant to a policy issued by ANPAC and covering accidental damage to his automobile. He also contends that, in denying coverage, ANPAC acted in bad faith. ANPAC denies liability, arguing that the insurance policy was rendered void ab initio because, in investigating Plaintiff's claim, it determined that Plaintiff made material misrepresentations in his application for the insurance policy. In its summary judgment motion, ANPAC seeks judgment on both claims asserted by Plaintiff.
Summary judgment standards:
"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A material fact is one which may affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). To avoid summary judgment, a plaintiff must present more than a "mere scintilla" of evidence; the evidence must be such that "a reasonable jury could return a verdict for the non-moving party." Id. The facts in the record and reasonable inferences therefrom must be viewed in the light most favorable to the nonmoving party. Swackhammer v. Sprint/United Mgmt. Co., 493 F.3d 1160, 1167 (10th Cir. 2007); MacKenzie v. City & County of Denver, 414 F.3d 1266, 1273 (10th Cir. 2005). However, to establish the existence of a "genuine" material factual dispute, the nonmoving party must present evidence to show more than "some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co. v. Zenith Radio Corp., 45 U.S. 574, 588 (1986).
Where the undisputed facts establish that a plaintiff cannot prove an essential element of acause of action, the defendant is entitled to judgment on that cause of action. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). However, it is not the responsibility of the summary judgment movant to disprove the plaintiff's claim; rather, the movant need only point to "a lack of evidence for the nonmovant on an essential element of the nonmovant's claim." Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998). The burden then shifts to the nonmovant to "go beyond the pleadings and 'set forth specific facts' that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant." Id. (citations omitted).
In opposing a summary judgment motion, a plaintiff cannot rely on the allegations in his complaint, his personal beliefs, or conclusory assertions; rather, he must come forward with evidence outside the pleadings sufficient to create a factual dispute with regard to the issue on which judgment is sought. Fed.R.Civ.P. 56(c); Celotex, 477 U.S. at 324; Harvey Barnett, Inc. v. Shidler, 338 F.3d 1125, 1136 (10th Cir. 2003). The facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein. Adler, 144 F.3d at 671 (citing Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir.1992), cert. denied, 506 U.S. 1013 (1992)). It is not the responsibility of the Court to attempt to locate evidence not cited by Plaintiff which could support his position. Adler, 144 F.3d at 671.
The Court may not weigh the credibility of witnesses or other evidence in ruling on a motion for summary judgment; evaluating credibility and weighing evidence are functions reserved for the jury. Anderson, 477 U.S. at 295.
The record before the Court:
It is not disputed that Plaintiff's 2004 Cadillac DeVille was insured under ANPAC Oklahoma Automobile Policy No. 35 A-69140A ("Policy"), providing coverage for the time periodof April 4, 2010 to October 4, 2010. A copy of the Policy is submitted as ANPAC Exhibit 2. The parties agree that Plaintiff completed the application for the Policy on April 3, 2006, and he made timely premium payments. ANPAC Ex. 4.
On May 11, 2010 Plaintiff submitted to ANPAC a claim based on May 10, 2010 hail damage to his covered automobile; the claim was assigned ANPAC Claim No. 35-A-23K945. See ANPAC Ex. 3. On May 15, 2010 Plaintiff's automobile was inspected by ANPAC Senior Staff Appraiser Rob Pavlock ("Pavlock"), who then prepared an estimate and a "Claim Summary." ANPAC Exs. 8 and 9. Pavlock took photographs and, based on his inspection, concluded the damage was not caused by hail. ANPAC Exs. 8, 9, 19.
Plaintiff withdrew his May 10 hail damage claim on May 17, 2010. ANPAC Exs. 7, 10. On that same date, however, he submitted a second claim based on hail damage occurring on May 16, 2010;1 the May 17 claim was assigned ANPAC Claim No. 35-A-23N623. ANPAC Exs. 11, 12. That claim was also investigated by Pavlock, who concluded that at least some of the damage was not caused by hail.2 ANPAC Exs. 9, 13.
During its investigation of Plaintiff's hail damage claim, ANPAC obtained from Plaintiff a sworn statement in the form of an examination under oath ("EUO"), a copy of which is submitted as ANPAC Exhibit 14. The statement was taken by an attorney for ANPAC; Plaintiff was not represented by counsel. During the EUO, Plaintiff was asked if he had ever been charged with a felony, and he responded affirmatively. He explained that, in 1961, he was charged and convicted of rape, and he was sentenced to 15 years in prison. ANPAC Ex. 14, p. 38, lines 7-25. He also testified that he served five years, and was released in 1969. Id. at p. 39, lines 1-10. Plaintiff further testified that he did not recall whether he was asked any personal background questions when he applied for the Policy, and does not think that he actually met with Doug Miller, the agent who processed the application for the Policy. ANPAC Ex. 14, pp. 133-134, 136-138. Specifically, Plaintiff testified he did not recall whether he was asked if he or any household member had a prior felony conviction. Id. at p. 138, lines 17-25. He further testified that, had the question been asked, he probably would have answered "no" because the conviction was more than 50 years old, he had chosen "not to remember it," he believed the conviction was unjust, and his family had suffered as a result. ANPAC Ex. 14, p. 140, lines 20-25. In addition, Plaintiff testified that, if he had been asked the question and responded negatively during the Policy application process, his answer would have been false.3 Id. at p. 141, lines 2-9.
It is not disputed that the "General Conditions" section of the Policy contains an express provision entitled "Concealment or Fraud," which provides:
If you or any other insured under this policy has intentionally concealed or misrepresented any material fact or circumstance relating to this insurance, whether before or after a loss, then this policy is void as to you and any other insured.
Policy, ANPAC Ex. 1, p. 10. It is further undisputed that the written application for the Policy contains a section entitled, "Underwriting Questions." That section includes the questions, and Plaintiff's answers, during the application process; the first question asks: "Have you or any household member ever been convicted of a felony?" The response reflected on the application is "No." ANPAC Ex. 4, p. 2.
According to ANPAC insurance agent Doug Miller, he assisted Plaintiff in the Policy application process. Affidavit of Doug Miller, ANPAC Ex. 5. Miller states he orally asked Plaintiff the underwriting questions on the application, and he recorded Plaintiff's responses in writing. This conflicts with Plaintiff's statements during the EUO, as Plaintiff testified he did not recall Doug Miller being present when he applied for the Policy; he recalled that Miller was out of the office at the time and that Plaintiff met with another male agent, whose name he did not recall. EUO, ANPAC Ex. 14, pp. 134-135.
In his affidavit, submitted as Exhibit 2 to his response brief, Plaintiff states that, if he responded negatively to the Policy application question regarding the existence of a prior felony conviction, he did not do so with the intent to deceive ANPAC. Plaintiff's Ex. 2, ¶ B. He also stated he believed that, because the conviction occurred more than 50 years earlier, it had been expunged by the time he applied for the Policy, and it was no longer a part of his criminal record. Plaintiff also did not believe the existence of that conviction...
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