MCCOY v. Foremost Insurance Company, No. 1:2011cv00128 - Document 18 (M.D. Ga. 2013)
Court Description: ORDER granting 13 Motion for Summary Judgment. It is hereby Ordered and Adjudged that Plaintiff shall take nothing by her Complaint and Judgment shall be entered in favor of Defendant. Ordered by Judge W. Louis Sands on 8/29/2013. (bcl)
Download PDF
<![CDATA[
MCCOY v. Foremost Insurance Company Doc. 18 IN TH E U N ITED STATES D ISTRICT COU RT FOR TH E MID D LE D ISTRICT OF GEORGIA ALBAN Y D IVISION J ULIA MCCOY, : : Plaintiff, : : v. : : FOREMOST INSURANCE COMPANY, : : Defendant. : : CASE NO.: 1:11-CV-128 (WLS) ORD ER Presently pending before the Court is Defendant’s Motion for Summ ary J udgm ent (Doc. 13). For the following reasons, Defendant’s Motion for Sum m ary J udgm ent (Doc. 13) is GRAN TED . I. PROCED U RAL H ISTORY On August 17, 20 11, Plaintiff filed a Com plaint in the Superior Court of Turner County, Georgia, alleging that Defendant Forem ost Insurance Com pany wrongfully denied her claim for the loss of her hom e due to a fire. (Doc. 1-1 at 2-4.) Defendant rem oved the case to this Court on Septem ber 20 , 20 11, citing diversity between the parties and an am ount in controversy in excess of $ 75,0 0 0 . (Doc. 1.) On October 9, 20 12, Defendant m oved for summ ary judgm ent on Plaintiff’s claim . (Doc. 13.) Plaintiff never filed a response in opposition to Defendant’s Motion for Sum m ary J udgm ent. (See Docket.) Accordingly, the briefing for Defendant’s Motion for Sum m ary J udgm ent has concluded, and the Court finds that Defendant’s Motion for Sum m ary J udgm ent is ripe for review. 1 Dockets.Justia.com II. Su m m ary Ju d gm e n t Stan d ard A. Fe d e ral Ru le o f Civil Pro ce d u re 56 Pursuant to Federal Rule of Civil Procedure 56, sum m ary judgm ent is proper “if the pleadings, depositions, answers to interrogatories, and adm issions on file, together with the affidavits, if any, show that there is no genuine issue as to any m aterial fact and that the m oving party is entitled to judgm ent as a m atter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). An issue is “genuine” if the quantum and quality of proof necessary to support liability under the claim is raised. Allen v. Ty son Foods, 121 F.3d 642, 646 (11th Cir. 1997). A fact is “m aterial” if it hinges on the substantive law at issue and it m ight affect the outcom e of the nonm oving party’s claim . Anderson v. Liberty Lobby , 477 U.S. 242, 248 (1986); see also Allen, 121 F.3d at 646. A judgm ent is appropriate “as a m atter of law” when the nonm oving party has failed to m eet its burden of persuading the Court on an essential elem ent of the claim . See Cleveland v. Policy Managem ent Sy s. Corp., 526 U.S. 795, 80 4 (1999); Celetox, 477 U.S. at 323. The m ovant bears the initial burden of showing that there is no genuine issue of m aterial fact. See Celotex, 477 U.S. at 323. The m ovant can m eet this burden by presenting evidence showing there is no dispute of m aterial fact or by showing or pointing out to the district court that the nonm oving party has failed to present evidence in support of som e elem ent of its case on which it bears the ultim ate burden of proof. See id. at 322-24. Once the m ovant has m et its burden, the nonm oving party is required “to go beyond the pleadings” and identify “specific facts showing that there is a genuine issue for trial.” Id. at 324. To avoid sum m ary judgm ent, the nonm oving party m ust do m ore than sum m arily deny the allegations or ‘show that there is som e m etaphysical 2 doubt as to the m aterial facts.” Matsuhita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). On a m otion for sum m ary judgm ent, the Court m ust view all the evidence and all factual inferences drawn therefrom in the light m ost favorable to the nonm oving party and determ ine whether that evidence could reasonably sustain a jury verdict. See Celotex, 477 U.S. at 322-23; Allen, 121 F.3d at 646. However, the Court m ust grant sum m ary judgm ent if there is no genuine issue of material fact and the m ovant is entitled to sum m ary judgm ent as a m atter of law. Fed. R. Civ. P. 56(c). B. Lo cal Ru le 56 Local Rule 56 requires the following from a respondent to a m otion for sum m ary judgm ent: The respondent to a m otion for sum m ary judgm ent shall attach to the response a separate and concise statem ent of m aterial facts, num bered separately, to which the respondent contends there exists a genuine issue to be tried. Response shall be m ade to each of the m ovant's num bered m aterial facts. All m aterial facts contained in the m oving party's statem ent which are not specifically controverted by the respondent in respondent's statem ent shall be deem ed to have been adm itted, unless otherwise inappropriate. M.D. Ga. R. 56. Here, Defendant properly filed a summ ary judgm ent along with a statem ent of undisputed facts, as is required by the Federal Rules of Civil Procedure and the Local Rules of this Court. (See Docs. 13, 13-1.) Plaintiff filed neither a response in opposition nor the required responsive statem ent of facts. Therefore, because Plaintiff failed to properly dispute Defendant’s m aterial facts as is required by the Local Rules, all of Defendant’s m aterial facts provided in its Statem ent of Material Facts (Doc. 13-1) are deem ed adm itted by operation of Local Rule 56. Although the Court is nevertheless required to m ake an independent review of the record before deciding Defendant’s 3 Motion for Sum m ary J udgm ent, see United States v. Delbridge, No. 1:0 6-cv-110 , 20 0 8 WL 1869867, at *3 (M.D. Ga. Feb. 22, 20 0 8) (WLS) (concluding that Eleventh Circuit precedent does not allow a district court to grant a sum m ary judgm ent based on default), it m ust be noted, however, that “[t]here is no burden upon the district court to distill every potential argum ent that could be m ade based upon the m aterials before it on sum m ary judgm ent.” Resolution Trust Corp. v. Dunm ar Corp., 43 F.3d 587, 599 (11th Cir. 1995). III. RELEVAN T FACTU AL BACKGROU N D The following facts are derived from the Com plaint (Doc. 1-1), Defendant’s Answer (Doc. 4), and Defendant’s Statem ent of Undisputed Facts (Doc. 13-1), which was subm itted pursuant to Local Rule 56; and the record in this case. Where relevant, the factual sum m ary also contains undisputed and disputed facts derived from the pleadings, the discovery and disclosure m aterials on file, and any affidavits, all of which are construed in a light m ost favorable to Plaintiff as the nonm oving party. See Celotex Corp., 477 U.S. at 322-23; Fed. R. Civ. P. 56. On August 20 , 20 0 9, a fire destroyed Plaintiff’s m obile hom e, causing a loss to Plaintiff in the am ount of $ 165,0 0 0 . (Doc. 1-1 ¶ 6.) At the tim e of the fire, Plaintiff’s hom e was insured under a policy with Defendant Forem ost Insurance Com pany. (Id. ¶ 3.) After being inform ed of the loss, Forem ost com m enced an investigation into the fire. (Doc. 13-1 ¶ 3.) As part of its investigation of the fire, Forem ost retained a cause-andorigin investigator, William M. Knight, J r. (Id. ¶ 4.) Mr. Knight inspected the property on Septem ber 4, 20 0 9. (Id. ¶ 5.) During the investigation, Mr. Knight found a towel possessing a strong odor of gasoline in a hole in the ceiling above one of the bathroom s. (Id.) A sam ple from this towel and three other sam ple debris tested positive for 4 ignitable liquids. (Id. ¶ 6.) On Septem ber 29, 20 0 9, Mr. Knight prepared a report and delivered it to Forem ost. (Id. 7.) The report concluded that the fire to Plaintiff’s m obile hom e was caused by an intentional hum an act and that gasoline was used to initiate and support the com bustion to bring about the destruction of the hom e. (Id.) Forem ost also learned that, on the day of the fire, Plaintiff’s daughter was reported to the school principal because she brought to school a notebook that sm elled like gasoline. (Id. ¶ 8.) The daughter’s teacher, Sheila J efferson, exam ined the notebook, confirm ed that it sm elled like gasoline, and reported the notebook to the school’s principal. (Id. ¶¶ 9-10 .) This incident took place before Ms. J efferson learned of the fire. (Id. ¶ 10 .) The insurance policy for Plaintiff’s m obile hom e stated, in part: Policy Conditions 4. We m ay require that you subm it to us a notarized statem ent of loss. The statem ent m ust be subm itted within 90 days of our request that you do so. You will be required to show us the dam aged property and subm it to exam ination under oath. You will be required to cooperate with us in our effort to investigate the accident or loss, settle any claim s against you and defend you. If you fail to cooperate, we have the right to deny you coverage in this policy. 8. Le gal Actio n Again s t U s . You m ay not bring legal action against us concerning this policy unless you have fully com plied with all of the policy term s. (Doc. 13-3 at 34-35.) After its investigation, Forem ost determ ined that it was necessary to obtain the exam ination under oath of Plaintiff and have her com plete a notarized statem ent of loss. (Doc. 13-1 ¶ 12.) Forem ost hired Attorney Tom Martin to obtain Plaintiff’s cooperation in m eeting these two requirem ents. (Id.) Plaintiff subm itted inventory sheets to Forem ost but did not subm it a notarized proof of loss. (Id. ¶¶ 13-16.) On Novem ber 5, 20 0 9, Mr. Martin contacted Plaintiff’s 5 attorney to inform the attorney that while Forem ost had received the inventory sheets, these were not a surrogate for an actual notarized statem ent of loss. (Id. ¶ 13.) Mr. Martin then provided Plaintiff with Forem ost’s blank proof of loss form and requested that Plaintiff prom ptly and fully com plete the form s and have them notarized and returned. (Id.) Mr. Martin followed up on this request on Decem ber 1, 20 0 9, J anuary 26, 20 10 , May 7, 20 10 , August 6, 20 10 , and October 8, 20 10 . (Id. ¶ 14.) In each attem pt, Mr. Martin explained that the inventory sheets were not a substitute for a notarized statem ent of loss. (Id. ¶ 15.) Plaintiff never subm itted a notarized proof of loss in any form at to Forem ost. (Id. ¶ 16.) Plaintiff adm its that she did not provide the notarized proof of loss but states that she “believed that the unnotarized docum ents sent to Scott Wheeler were sufficient.” (Doc. 13-7 at 8.) Plaintiff also never underwent an exam ination under oath. On J anuary 26, 20 10 , Mr. Martin contacted Plaintiff and requested that she subm it to an exam ination under oath to take place on February 25, 20 10 . (Doc. 13-1 ¶ 18.) On February 4, 20 10 , Plaintiff called Mr. Martin and requested that the exam ination be rescheduled. (Id. ¶ 19.) On February 18, 20 10 , Mr. Martin m ade a second request that Plaintiff subm it to an exam ination under oath to take place on March 12, 20 10 . (Id. ¶ 20 .) Plaintiff failed to appear for this exam ination and did not request a postponem ent. (Id.) Mr. Martin then m ade num erous attem pts to seek Plaintiff’s counsel’s assistance on scheduling an exam ination with requests m ade on May 18, 20 10 and J uly 12, 20 10 . (Id. ¶ 21.) Mr. Martin eventually scheduled the exam ination for J uly 23, 20 10 . (Id. ¶ 22.) Plaintiff appeared for the exam ination on J uly 23, 20 10 , but did not bring the docum entation requested and the exam ination had to be suspended because of this and the fact that Plaintiff’s attorney had a scheduling conflict. 6 (Id. ¶ 23.) The parties agreed to reschedule the exam ination. (Id.) On October 8, 20 10 , Mr. Martin contacted Plaintiff and scheduled the remainder of the exam ination to take place on October 14, 20 10 . (Id. ¶ 24.) Plaintiff called and canceled the exam ination on October 13, 20 10 . (Id. ¶ 25.) On October 22, 20 10 , Plaintiff agreed to conclude the exam ination on Novem ber 12, 20 10 . (Id. ¶ 26.) Plaintiff agreed that she would notify Forem ost by Novem ber 10 , 20 10 , if she needed to cancel the exam ination. (Id.) Plaintiff failed to attend the exam ination on Novem ber 12, 20 10 , and never notified Forem ost that she would not be in attendance. (Id. ¶ 27.) Forem ost never obtained Plaintiff’s full exam ination under oath. (Id. ¶ 28.) On J anuary 7, 20 11, Forem ost denied Plaintiff’s claim for coverage. (Id. ¶ 29.) The denial letter sum m arized Plaintiff’s failure to cooperate in attending an exam ination under oath and com pleting a notarized statem ent of loss and stated that “[g]iven these facts, we have found there is no coverage because: you failed to cooperate with us during the investigation of your claim as required by the Policy Condition of your policy.” (Id.) Plaintiff initiated the instant lawsuit on August 17, 20 11. (Doc. 1-1.) IV. D ISCU SSION Forem ost contends that it is entitled to judgm ent as a m atter of law because Plaintiff did not m eet the conditions precedent to coverage under the term s of the insurance policy. Per Forem ost, the policy required that Plaintiff subm it a notarized statem ent of loss and subm it to an exam ination under oath—two requirem ents that Plaintiff failed to satisfy. The Court concurs in the assessm ent that Plaintiff’s failure to satisfy one of the conditions precedent to her policy dem onstrates that there are no triable issues of fact that would preclude sum m ary judgm ent. “When questions exist as to the cause of a fire for which a claim is m ade, the insurer has the right to investigate before reaching a decision as to whether to pay the 7 claim .” Farm er v. Allstate Ins. Co., 396 F. Supp. 2d 1379, 1381 (N.D. Ga. 20 0 5) (citing Pervis v. State Farm Fire & Cas. Co., 90 1 F.2d 944, 946 (11th Cir. 1990 )). To that end, “[a]n insurer is entitled to require its insured to abide by the policy term s, and the insured is required to cooperate with the insurer in investigation and resolution of the claim .” Farm er, 396 F. Supp. 2d at 1382 (citing Diam onds & Denim s, Inc. v. First of Georgia Ins. Co., 20 3 Ga. App. 681, 683 (1992)). If the policy states that such policy term s m ust be com plied with before an insured m ay initiate suit, such policy term s constitute conditions precedent that are perm itted by Georgia law and are binding against the insured. Lucas v. State Farm Fire & Cas. Co., 864 F. Supp. 2d 1346, 1355 (M.D. Ga. 20 12) (citations om itted). “Failure to com ply with policy provisions which are conditions precedent to bringing suit is a breach which precludes recovery as a m atter of law.” Roberts v. State Farm Fire & Cas. Co., No. 7:11-cv-86, 20 11 WL 621570 0 , at *5 (M.D. Ga. Dec. 14, 20 11) (citing Farm er, 396 F. Supp. 2d at 1382). The record reflects that Plaintiff failed to com plete an exam ination under oath. This failure alone entitles Forem ost to judgm ent as a m atter of law. The Policy applicable to Plaintiff’s claim stated that an insured “will be required to . . . subm it to exam ination under oath.” (Doc. 13-3 at 35.) The Policy also stated very clearly that an insured “m ay not bring legal action against [Forem ost] concerning this policy unless [the insured] ha[s] fully com plied with all of the policy terms.” (Id. at 35.) The requirem ent that an insured subm it to an exam ination under oath has been found to be a condition precedent that is perm issible and binding against the insured. See Nichols v. Pearl Assur. Co., Ltd., 71 Ga. App. 378, 378 (1944). Thus, the “failure to subm it to the requested exam ination under oath constitutes a breach of the insurance contract unless som e privilege excuses plaintiff’s failure to com ply with the contractual condition.” 8 Lucas, 864 F. Supp. 2d at 56 (quoting Pervis, 90 1 F.2d at 946) (internal quotations om itted); see, e.g., Roberts v. State Farm Fire & Cas. Co., 479 F. App’x 223, 227 (11th Cir. 20 12). Here, the Court finds that Plaintiff’s inexcusable failure to subm it to a com plete exam ination under oath, as is required by the policy’s term s, proves fatal to her claim .1 Accordingly, Forem ost is entitled to judgm ent as a m atter of law. CON CLU SION For the foregoing reasons, Defendant’s Motion for Sum m ary J udgm ent (Doc. 13) is GRAN TED . It is hereby ORD ERED AN D AD JU D GED that Plaintiff shall taking nothing by her Com plaint (Doc. 1), and JU D GMEN T shall be entered in favor of Defendant. SO ORD ERED , this 29 th day of August, 20 13. / s/ W. Louis Sands TH E H ON ORABLE W . LOU IS SAN D S, U N ITED STATES D ISTRICT COU RT 1 Though Defendant has alleged that failure to subm it a notarized statem ent of loss also demonstrates that Plaintiff has failed to fulfill a condition precedent to her claim , the Court declines to address this argum ent. Per Defendant’s own version of the facts, Plaintiff subm itted an inventory statem ent. Although Defendant states that an inventory statement is not a “surrogate” for a “notarized statement of loss,” the inventory statem ent is indicative of som e level of compliance from Plaintiff. Case law reflects that the relevant inquiry is into the substance of the inform ation subm itted, rather than a form ulaic application of labels. See, e.g., Lucas v. State Farm & Cas. Co., 864 F. Supp. 2d 1346, 1354-55 (M.D. Ga. 20 12) (concluding that it cannot be determ ined as a m atter of law that plaintiff breached the insurance agreem ent for failure to provide m aterial inform ation where the record did not contain copies of plaintiff’s subm issions, thereby leaving open the question of whether the inform ation not supplied was “m aterial”); Brookins v. State Farm Fire & Cas. Co., 529 F. Supp. 386, 390 -91 (D.C. Ga. 1982) (noting that the determ inative inquiry is into whether the plaintiff substantially com plies with the proof of loss requirem ents prescribed in the policy). Because, however, the Court is not privy to what Plaintiff subm itted, and Plaintiff has failed to defend her own claim , the Court cannot resolve grant sum m ary judgment on this issue, but need not because of Plaintiff’s failure to subm it to a com plete exam ination under oath. 9
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
