Robbins v. Auto-Owners Insurance Company, No. 6:2014cv00095 - Document 71 (S.D. Ga. 2016)
Court Description: ORDER granting in part and denying in part 49 Motion for Summary Judgment; denying as moot 50 Motion to exclude. Plaintiff's claim related to the vandalism shall proceed to trial. Signed by Judge J. Randal Hall on 2/24/16. (cmr)
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Robbins v. Auto-Owners Insurance Company Doc. 71 IN THE UNITED FOR THE STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA STATESBORO DIVISION FRANCES ROBBINS, * Plaintiff, Tic- v. * CV 614-095 * * OWNERS INSURANCE COMPANY, * * Defendant. * ORDER Two motions are currently motion for summary judgment exclude testimony Defendant's motion DENIED in part, (doc. for before (doc. 50) . 49) the Defendant's and Defendant's motion to For the summary Court: reasons judgment discussed below, is GRANTED in part and and Defendant's motion to exclude is DENIED AS MOOT. I. A. Background Factual Background1 Plaintiff Frances Robbins owns a house in Sylvania, (the "Dwelling"), Robbins, where until 2012. she lived In January 2012, with her husband, Georgia Thomas Plaintiff suffered a fall that kept her in the hospital from January until March of that 1 Unless otherwise noted, the Court takes the factual background in this case from Defendant's statement of undisputed material facts. (Doc. 49, Ex. 2.) Dockets.Justia.com year. After being released from the hospital, husband returned return, it because had son, Plaintiff to was ill. So Plaintiff relevant to this Dwelling. apparent Statesboro and had not the became become moved to in live continued matter. spent the night In August Owners in the amount Plaintiff States Company of removed all live alone wheelchair and Mr. Robbins Plaintiff and Mr. Robbins live with as of Stevens, Stevens June Plaintiff's at all 2013, times Plaintiff 2012. And the Dwelling was listed for sale. apparently a agreed to Just prior change-of-address Service. home, not the Dwelling since April $3,592.29. changed her driver's Stevens's their the Dwelling was vandalized, submitted Postal after could Kenneth fact, soon Robbins passed away. 2012, Insurance a 2012, to In in they with from May 2012 until May 2013, In March 2013, Mr. to April to However, that confined Plaintiff and her Just after the to form and Defendant cover the with vandalism, registered to vote with Stevens's by October 2012. In damage vandalism, the license to reflect her current furniture the United Plaintiff address address, June 2013, at and the Dwelling was damaged by a fire. B. The Insurance Policy Defendant issued an insurance policy (doc. 49, ex. 20)2 to Plaintiff and her husband. The Policy remained in effect at all 2 It appears that Defendant has filed multiple copies of the Policy on the docket and that multiple documents were filed with the Policy each time. The Court will refer to the copy filed at Document 49, Exhibit 20. Moreover, times relevant litigation. to The this matter and portion of the is the subject Policy in dispute of this provides as follows: a. Coverage A—Dwelling (1) Covered Property We cover: (a) your dwelling located at the residence premises including structures attached to that dwelling. This dwelling must be used principally as your private residence (Doc. 15. 49, Ex. .... 20 at 27.) Residence premises means: a. the one or two family dwelling where you reside, including the building, the grounds and other structures on the grounds; b. that or part of any other building where you reside, including grounds and structures which is described in the Declarations.3 (Id.) C. The Current Litigation After Plaintiff making the initiated breached the Policy. Plaintiff claims that appropriate this (Doc. demand lawsuit, 1, Ex. Defendant under alleging 1; is Doc. Georgia that 13.) liable to law, Defendant Specifically, Plaintiff for because the page numbers on the Policy do not match the page numbers on the exhibit filed with the Court, to avoid confusion, the page numbers of the entire exhibit. 3 property. the Court will reference The Declarations page reflects that the Dwelling is the described (Doc. 49, Ex. 20 at 1.) additional amounts related to the vandalism, for losses suffered because of the fire, and for bad-faith damages.4 moves for summary judgment on the fire, faith claims and moves to Defendant now vandalism, exclude and the bad- Plaintiff's expert's testimony. II. Summary genuine dispute entitled 56(a). the judgment to U.S. in 941 to judgment under Liberty Lobby, the party, is appropriate any as a material matter only fact of if "there and law." Fed. no movant the is is R. Civ. P. Facts are "material" if they could affect the outcome of suit view as Legal Standard the Inc., facts in Matsushita 574, [its] 587 477 1428, substantive law. Elec. U.S. 242, 248 light the (1986), favor." F.2d governing most favorable Indus. Co. v. (1986). Anderson v. The Court must to the non-moving Zenith Radio Corp., 475 and must draw "all justifiable inferences United States v. 1437 (11th Four Parcels Cir. 1991) (en of Real banc) Prop., (internal punctuation and citations omitted). The Court, motion. by moving party reference Celotex has the initial to materials Corp. v. burden on file, Catrett, 477 U.S. of showing the basis 317, 323 the for the (1986). How to carry this burden depends on who bears the burden of 4 Plaintiff also sought damages related to theft, but those claims have since been settled. proof 1115 at trial. (11th Fitzpatrick v. Cir. 1993) . proof at trial, When City of the Atlanta, non-movant 2 has F.3d the 1112, burden of the movant may carry the initial burden in one of two ways—by negating an essential element of the non-movant's case or by showing that there is no necessary to the non-movant's case. Inc., v. 929 F.2d 604, S.H. Kress & 477 U.S. Catrett, the non-movant's whether there the are entitled to Columbus, mere Co., has judgment F.3d conclusory 144 (1986)). in 248, a initial of of (11th Cir. that the burden at trial is insufficient. If—and only if—the movant carries the Court it must burden there is indeed summary judgment." a Id. material issue fact fact law. v. evaluate first consider and Jones 1997) Corp. can of (per showing that it is City v. of curiam). cannot that meet A the 929 F.2d at 608. its initial non-movant may avoid summary judgment only by that a Coats & Clark, Celotex non-movant Clark, prove (explaining Adickes and material matter 254 statement (1970) Before its issues as 1991) opposition, met to See Clark v. (11th Cir. U.S. response genuine 120 398 317 movant no 606-08 evidence of fact burden, the "demonstrat[ing] that precludes When the non-movant bears the burden of proof at trial, the non-movant must tailor its response to the method by which the movant carried its initial burden. If the movant presents evidence affirmatively negating a material fact, the non-movant "must respond with evidence sufficient to withstand fact a directed sought to be verdict motion negated." at trial Fitzpatrick, 2 on the F.3d at material 1116. the movant shows an absence of evidence on a material non-movant must either show that the record If fact, contains the evidence that was "overlooked or ignored" by the movant or "come forward with additional verdict motion deficiency." burden by evidence at Id. trial at relying sufficient on based 1117. the to on The the pleadings or In notice the 1033-34 this of action, the summary motion judgment other materials (Doc. 51.) Wainwright, satisfied. (11th Cir. in the by rules, the 772 F.2d 822, The summary the opposition, Therefore, time for evidentiary cannot repeating carry its conclusory See Morris v. Ross, of the Court judgment right gave 663 and to Plaintiff informed file her of affidavits or and the consequences of notice 825 directed 1981). Clerk for a alleged non-movant allegations contained in the complaint. F.2d 1032, withstand requirements (11th Cir. filing 1985) materials of default. Griffith (per curiam), in opposition v. are has expired, and the motion is now ripe for consideration. Ill. A. Discussion Defendant's Motion for Summary Judgment: Defendant moves for summary judgment on both Plaintiff's claim related to the fire at the Dwelling and Plaintiff's claim related to the vandalism. Defendant 6 contends that the claim related to Plaintiff fire. that the did With fire not reside respect Plaintiff s produce is not to evidence of at the the claim covered Dwelling the at fail because damages. policy the vandalism claim, must her under because time of Defendant she has Defendant the argues failed also moves to for summary judgment on the bad-faith claim. i. The fire-loss "Under Georgia by ordinary Petroleum, (Ga. v. 1998). in marks omitted). to Mut. are are interpreted construction." Ins. rules Co., of 498 Boardman S.E.2d 492, construction, omitted) (internal reasonable contract alone Ins. to interpretation, ascertain "Mw]ords Co., State 482 the Farm S.E.2d Fire 714, & parties' 716-17 intent." Co. (Ga. and is to their usual Cas. the quotation the court generally bear 494 "[a]ny strictly construed against (citation signification.'" Hardware the insurance "Where the terms are clear and unambiguous, Furthermore, common 1997) Id. of contract contract only one the Id. of Federated Mut. the insurer . . . ." look contracts Following ambiguities capable of law, rules Inc. claim v. Ct. and Am. App. (quoting O.C.G.A. § 13-2-2(2)). Defendant argues that Plaintiff is not permitted to recover damages resulting from the fire because, under the Policy, she was required to have resided at the Dwelling at the time of the fire.5 As noted above, the Policy covers Plaintiff's "dwelling located at to that your the residence premises including structures dwelling. private This dwelling must residence . . . ." be (Doc. used 49, attached principally Ex. 20 at as 27.) Residence premises is defined as "the one or two family dwelling where you reside ... or that part of you reside . . . ." language of the (Id. ) Policy or any other building where Plaintiff the does contention not that challenge she must the have resided at the Dwelling at the time of the fire for coverage to be appropriate. interpreting before the reside at Georgia Georgia Court the S.E.2d 13, law to insured 13-14 courts find and agreements unambiguously premises. (Ga. Ct. courts App. 1988) this similar require See in Epps that v. to the circuit the one insured Nicholson, 370 (finding a similar policy to unambiguously require that the insured reside on the premises and finding that, rental property, F. Supp. 2d 1316, unambiguously and finding periods, because insured she did not); 1318-20 require that the she that did Lyons (N.D. used v. insured not property Allstate Ins. Co., Ga. 2014) the the a 996 (finding a policy to reside because, as on during the property the relevant the house either remained empty or other people lived there, even though the insured kept furniture and personal items 5 Defendant actually maintains that the Dwelling must have been Plaintiff's exclusive residence. Although not dispositive in this case, Defendant's argument is meritless and overzealous. Defendant points to no portion of the Policy—and the Court cannot locate any—that mandates that the Dwelling be Plaintiff's only residence. 8 at the house, kept the utilities on, the house in good repair, year). Thus, this case maintained the lawn, and slept at the house a few times a hinges on whether the Dwelling at the time of the fire. 6 in the Policy, kept Plaintiff resided at Reside is not defined and neither side disputes its meaning. the ordinary meaning of reside, Following Plaintiff did not reside at the Dwelling at the time of the fire. Plaintiff since April Plaintiff has not 2012. Not submitted service, changed Stevens's address, and informed address. her spent a long the registered doctors to after address Additionally, favorable single night she and for a Plaintiff, that Plaintiff resided at on to her vote banks year that in left change-of-address Dwelling was listed for sale. most a form the the to driver's with Dwelling, the lived following her postal license Stevens's she Dwelling at to address, Stevens's leaving, the Viewing these facts in the light no reasonable the Dwelling. jury could Accordingly, conclude Defendant did not improperly deny coverage. Essentially, First, she because of argues Plaintiff raises two alternative arguments. that the August she did not 2012 vandalism. reside Second, at the Dwelling she argues that Defendant is estopped from denying coverage because it knew that she had moved. Both of these arguments fail. 6 The Court acknowledges that Defendant apparently did not deny coverage on the vandalism claim, and Plaintiff alludes to a waiver argument. However, Plaintiff does not cite any authority on that issue. The therefore, declines to engage in a lengthy discussion on that issue. 9 Court, Although the there Dwelling was evidence reside that there. is in the evidence disrepair, vandalism In that, an is attempt to following Plaintiff the the has reason vandalism, pointed Plaintiff establish a no did not between link vandalism and her not residing at the Dwelling, to the Plaintiff points to evidence that one of Defendant's employees instructed her not enter the affidavit Dwelling that she establish vandalism. after filed in summary judgment. not soon the response to The employee's that she vandalism did not her own Defendant's motion statement, reside and without more, there because for does of the Plaintiff's affidavit simply states that she planned to one day return to the Dwelling and that the Dwelling was not livable. This adequately conclusory controvert statement, Plaintiff's own however, does deposition not testimony, which establishes that she was incapable of moving back into the Dwelling 15-16 case from the PP1. where vandalism, home burns Dep.") an is time she at 60-61, insured left lives through 2013. 83-88, in her forced to move because during the repairs. 119-20.) home of This until is the the vandalism, Plaintiff because of her health in April 2012, (Doc. left the 49, Exs. not day the of and the dwelling did not spend a night there from then until the time of the vandalism, and has acknowledged that she was not capable of moving back into the Dwelling at the time of the fire. 10 With that respect because to Plaintiff's Defendant corresponded with estoppel accepted Plaintiff while argument, premium she payments lived at Defendant is estopped from denying coverage. claims that Dwelling Defendant so it could knew not that deny because under Georgia law, 96 S.E.2d 502, 504 because insurance insureds the agent (Ga. that it argument the fails [is] bound to know the Ins. Co. of Conn, (holding that coverage, was covered) . it v. was not vacant See Plaintiff's summary estoppel judgment on reside at claim fails. the claim 1, (Ga. the assured and also 3-4 though the Chi. Ins. Co. v. Ct. App. 1997). Plaintiff was bound to know that for there to be coverage, to S.E.2d even Here, required 494 at Mut. was Co., excluded building would be lived Cent. she Ins. the home, Plaintiff This Cas. 1957) and deny coverage based on a building's policy knew Fire Stevens's longer "the insured[] improper for an insurer to vacancy no argues from That is, coverage. rights of the insurer . . . ." Fields, she she the Dwelling. The for Court, Accordingly, therefore, damages from finds the fire appropriate.7 ii. As fire, The vandalism claim discussed Plaintiff vandalism. above, in seeks damages On this issue, addition to damages based Defendant on the claims that related to August the 2012 Plaintiff has 7 Defendant's brief separately addresses issues Defendant has with Plaintiff's damage calculation for the fire claim. Because the Court finds that Defendant did not improperly deny separately address those arguments. 11 coverage, it is not necessary to failed to present evidence of certain damages and that the damages are speculative. Plaintiff seeks $21,533.44 related (Doc. 13 1 20.) to the vandalism claim. some of Defendant argues that Plaintiff has failed to prove roughly $10,000.00 of that amount because the receipts she disclosed total just and because Stevens, who testified about these to adequately explain the missing amount. supplemented his deposition testimony explained the missing amount. Plaintiff has presented $11,000,000 damages, Stevens, with an (Doc. 56, Ex. sufficient over evidence however, has affidavit B.) of failed and Accordingly, her damages to survive summary judgment. Next, Defendant challenges Plaintiff's installation $4,800.00 HVAC system as part of the $21,533.44 claim. Defendant's Defendant argument is appropriate only by is claiming: repair not (1) because window-unit air entirely that the the clear, HVAC Dwelling conditioners; Plaintiff has failed to produce evidence to the repair. arguments. Defendant First, as presented a handwritten has not cited any—and does not cite Defendant receipt the Court any is even that not previously (2) a Although appears system was and it of an cooled if it is, support the cost of law to acknowledges, for the HVAC is not aware support these Plaintiff unit. of has Defendant any—law that prevents the introduction of handwritten receipts as evidence of expenses. Second, reasonableness or to the extent that necessity of 12 Defendant challenges the spending $4,800.00 on an HVAC system, it may do so to a jury, but summary judgment is not appropriate on this issue. Defendant also asserts simply that all of the requested damages related to the vandalism are not recoverable as of law. Specifically, Defendant remodeling the and costs from the flow vandalism. Dwelling The subsequent remodel Court has argues not affidavit, Stevens costs In were his explained the ("Stevens Dep.") at 62-77.) That is, was shown what caused by the deposition receipts and discusses how they relate to the vandalism. 12-13 Plaintiff sufficiently and what disagrees. that a matter and and (Doc. his costs 49, Exs. Stevens's deposition testimony represents that expenses were incurred while repairing the to vandalism damage. regarding that, in its The only evidence renovation the process of theory is repairing the that Defendant Plaintiff's damage, points testimony Stevens may have been attempting to make the Dwelling a bit more comfortable than it was just prior to seeks to argue that the vandalism. To the extent Defendant Plaintiff's requested damages were actually part of a remodeling project, it must do so to a jury. Summary judgment is not appropriate on this issue. iii. In pursuant O.C.G.A. faith. Plaintiff's bad-faith claim her to complaint, O.C.G.A. Plaintiff § 33-4-6. also An seeks insured bad-faith may damages recover under § 33-4-6 if the insurer refused to cover a claim in bad Bad faith means "any frivolous and unfounded refusal in 13 law or in fact to comply with the demand of the policyholder to pay according Mut. Ins. Co., omitted) the be issue. the Court for Plaintiff's bad claim. In her notes in that a the policy." 384 Fortson v. (Ga. Ct. Plaintiff's that App. Defendant damages in with 1983) address that lengthy of Cotton (citation Defendant's damages Defendant regard to vandalism motion, however, Thus, factual dispute which would claim. See this the Court will asserted damages, a from the on a that motion—address Defendant's argument. improperly fire, with not discussion those bad-faith to did the faith regard to response has from bad complaint—and Defendant reasonableness for acting faith Plaintiff did not engage finds claim liable claim for not of 308 S.E.2d 382, Plaintiff's cannot terms (internal quotation marks omitted). Because deny to Fortson, issue 308 and simply about the preclude S.E.2d at 385 ("Penalties for bad faith are not authorized where the insurance company has any reasonable ground to contest the claim and where there is a disputed question of fact."). Accordingly, summary judgment is appropriate on the bad-faith claims. In sum, Defendant's relates to Plaintiff's GRANTED because motion Plaintiff's damages has claim Plaintiff Defendant's Plaintiff motion for for for did summary summary damages not reside judgment judgment from at as the the it as it fire is Dwelling; relates to from the vandalism claim is DENIED because presented sufficient 14 evidence of those damages; and Defendant's Plaintiff's motion bad-faith for summary claim is judgment GRANTED as because it relates Defendant to did not deny coverage in bad faith. B. Defendant's Motion In has addition moved to to its exclude expert's opinion purposes of to Exclude motion summary Plaintiff's addresses damages for value the Dwelling for it it unnecessary to exclude. Defendant's motion summary part, MOOT. the reasons judgment to Accordingly, (doc. Conclusion discussed 49) is above, GRANTED and Defendant's motion to exclude Plaintiff's has is DENIED AS MOOT. IV. For motion finds Court The granted summary judgment on that claim, the fire. of testimony. the address the expert's Defendant Because separately from the judgment, Defendant's in part (doc. 50) motion for and DENIED in is DENIED AS claim related to the vandalism shall proceed to trial. ORDER ENTERED at Augusta, February, Georgia this C^CP^K day of 2016. HONORABLE J. RANDAL HALL UNITED/STATES DISTRICT JUDGE IRN DISTRICT OF GEORGIA 15
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