Morton v. Travelers Insurance
MEMORANDUM OPINION. Signed by Judge R David Proctor on 4/9/2015. (AVC)
2015 Apr-09 PM 02:38
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
THE AUTOMOBILE INSURANCE
COMPANY OF HARTFORD, CONN.,
Case No.: 2:13-cv-01603-RDP
This case is before the court on Defendant Automobile Insurance Company of Hartford,
Connecticut’s Motion for Summary Judgment (Doc. 34), filed November 19, 2014. The Motion
has been fully briefed. (Docs. 35, 38, 39). The only claim remaining before the court is Count
Five of Plaintiff’s Complaint for breach of contract. (See Doc. 1, Ex. A, Pl. Compl. ¶¶ 36-38;
Doc. 12 (dismissing all other counts)). Specifically, Plaintiff alleges in that count that Defendant
unlawfully breached its contract with her (i.e., Defendant is in breach of obligations imposed by
Plaintiff homeowner’s insurance policy covering certain property Plaintiff owned) after a fire
loss in July 2007. For the purposes of this Motion, Defendant argues that, because Plaintiff
rented out the insured premises and failed to satisfy certain of her post-loss obligations, Plaintiff
is not entitled to recover under that insurance policy.
After careful review of Defendant’s Motion (Doc. 34), along with the briefs and
submissions filed in connection with it, and for the reasons outlined in this opinion, the court
concludes that there are no material issues of fact in this case and that Defendant is entitled to
summary judgment on Plaintiff’s breach of contract claim as a matter of law. Accordingly,
Defendant’s Motion is due to be granted, and Plaintiff’s case is due to be dismissed with
Standard of Review
Under Federal Rule of Civil Procedure 56(c), summary judgment is proper “if the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). The party asking for summary judgment always bears the initial responsibility of
informing the court of the basis for its motion and identifying those portions of the pleadings or
filings which it believes demonstrate the absence of a genuine issue of material fact. Celotex,
477 U.S. at 323. Once the moving party has met its burden, Rule 56(e) requires the nonmoving
party to go beyond the pleadings and by her own affidavits, or by the depositions, answers to
interrogatories, and admissions on file, designate specific facts showing that there is a genuine
issue for trial. See id. at 324; Gargiulo v. G.M. Sales, Inc., 131 F.3d 995, 999 (11th Cir. 1997)
(facing a “properly supported motion for summary judgment, [the nonmoving party] must come
forward with specific factual evidence, presenting more than mere allegations.”).
The substantive law will identify which facts are material and which are irrelevant. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All reasonable doubts about the facts
and all justifiable inferences are resolved in favor of the nonmovant. See Fitzpatrick v. City of
Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). A dispute is genuine “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. If
the evidence is merely colorable, or is not significantly probative, summary judgment may be
granted. See id. at 249.
Plaintiff owned a house located on 2407 Longbow Drive in Birmingham, Alabama (the
“Property”), but she had not lived there since 2004 when she moved into her husband Al
Morton’s house at 701 Cedarbrook Circle, Birmingham, Alabama. (Doc. 36, Ex. B, Pl. Dep.
44:5-9, 46:7-14, 47:8-14). In 2004 or 2005, Plaintiff began renting the Property through the U.S.
Department of Housing and Urban Development’s Section 8 housing program. (Id. at 64:1265:8). Plaintiff claims she rented the Property fully furnished, up to and including the time of the
fire. (Id. at 68:17-69:3, 204:16-206:8). In March 2006, Plaintiff began renting the Property to
Shaunna Reese. (Id. at 74:11-75:5; Doc. 36, Def.’s Ex. 3 to Pl. Dep., Reese Lease). Reese lived
at the Property with her two daughters. (Doc. 36, Ex. C, Reese Dep. 29:16-18). Plaintiff
received $445 through Section 8 and an additional $200 directly from Reese in monthly rent.
(Doc. 36, Ex. B, Pl. Dep. 88:16-90:22).
The facts set out in this opinion are gleaned from the parties’ submissions of facts claimed to be
undisputed, their respective responses to those submissions, and the court’s own examination of the evidentiary
record. All reasonable doubts about the facts have been resolved in favor of the nonmoving party. See Info. Sys. &
Networks Corp. v. City of Atlanta, 281 F.3d 1220, 1224 (11th Cir. 2002). These are the “facts” for summary
judgment purposes only. They may not be the actual facts that could be established through live testimony at trial.
See Cox v. Adm’r U.S. Steel & Carnegie Pension Fund, 17 F.3d 1386, 1400 (11th Cir. 1994).
Furthermore, Appendix II to the court’s Initial Order (Doc. 5) sets forth the court’s Summary Judgment
Requirements. Appendix II specifically notes that “briefs and evidentiary materials that do not conform to the
following requirements may be stricken.” (Doc. 5 at 17). Appendix II requires that all “briefs . . . begin with a
statement of allegedly undisputed relevant material facts set out in separately numbered paragraphs. Counsel must
state facts in clear, unambiguous, simple, declarative sentences. All statements of fact must be supported by specific
reference to evidentiary submissions.” (Doc. 5 at 12) (emphasis added). Appendix II requires that in responsive
briefs, “[t]he first section must consist of only the non-moving party’s disputes, if any, with the moving party’s
claimed undisputed facts. The non-moving party’s response to the moving party’s claimed undisputed facts shall be
in separately numbered paragraphs that coincide with those of the moving party’s claimed undisputed facts. Any
statements of fact that are disputed by the non-moving party must be followed by a specific reference to those
portions of the evidentiary record upon which the dispute is based. All material facts set forth in the statement
required of the moving party will be deemed to be admitted for summary judgment purposes unless
controverted by the response of the party opposing summary judgment.” (Doc. 5 at 13) (certain emphasis
added). Plaintiff’s response to Defendant’s Motion utterly fails to dispute Defendant’s statement of facts, and is
almost entirely devoid of record citations. (Doc. 38). Therefore, nearly all of Defendant’s statements of fact are
deemed admitted, except for those specifically contradicted by Plaintiff’s citations to the evidentiary record.
Despite the fact that Plaintiff had not resided at the Property since 2004, Plaintiff
continued to purchase and renew an AICH homeowner’s insurance policy on the Property (the
“AICH policy”), which ran through August 6, 2007. (Doc. 36, Ex. I, AICH Policy). The AICH
policy only provides coverage for the insured’s “residence premises,” which it defines as “the
one or two family dwelling, other structures, and grounds or that part of any other building where
you reside and which is shown as the ‘residence premises’ in the Declarations.” (Id. at 2 of 21
(emphasis added)). Plaintiff is the named insured under the AICH policy, and the policy defines
“you” and “your” as the named insured. (Id. at 1 of 21). The Declarations page of the AICH
policy lists the location of the “Residence Premises” as 2407 Longbow Drive, Birmingham,
Alabama, 35214. (Doc. 36, Ex. I, Declarations, at 1 of 2).
The AICH policy excludes coverage for personal property owned by an insured, if that
“property [is] contained in an apartment regularly rented or held for rental to others by any
insured” or that “property [is] rented or held for rental to others away from the residence
premises.” (Doc. 36, Ex. I, AICH Policy, at 4 of 21). In addition, the AICH policy contains
certain limitations for property used for business purposes. (See, e.g., id. at 3 of 21). Defendant
argues that, as amended by policy forms HA-300 AL (12-02) and 55621 (06-99), its liability is
limited to $1,250 for Plaintiff’s personal property used for business purposes. (See Doc. 36, Ex.
I, HA-300 AL (12-02), at 1 of 4; Doc 36, Ex. I, 55621 (06-99), at 1 of 4).
In Plaintiff’s Objection to Summary Judgment, Plaintiff claims that, before renting out
her Property, she contacted an insurance agent at Clark and Associates.
(Doc. 38 at 2).2
According to Plaintiff, she explained that she intended to rent the Property through Section 8
housing and wanted to make certain “that her insurance was good under the circumstances.”
Plaintiff contends that when she renewed her homeowner’s policy in mid-June 2007, the insurance
company told her to address her questions about the policy to the insurance agents at Clark and Associates. (Doc.
38 at 2). Therefore, Plaintiff claims she viewed the agents to be the true representatives for Defendant. (Id.).
Plaintiff alleges the agent assured her that she had no reason for concern.
Additionally, Plaintiff suggests Section 8 authorities contacted Clark and Associates to verify
that the AICH policy was in good standing. (Id.). Plaintiff argues she detrimentally relied upon
her insurance agent’s answers concerning the AICH policy’s validity and verification of policy
On July 23, 2007, six days before the fire, Reese arrived home to the Property to find the
back door unlocked, lighter fluid poured over the kitchen counter, and the stove on. (Doc. 36,
Ex. C, Reese Dep. 64:11-66:9, 68:4-12; Doc. 36, Ex. D, Incident Report, July 23, 2007, at 2).
Reese did not leave the back door unlocked, and did not leave the stove on. (Doc. 36, Ex. C,
Reese Dep. 64:18-65:7, 68:4-12). There was no sign of forced entry. (Id. at 68:8-12). Reese
immediately reported the matter to the police and filed an incident report. (Doc. 36, Ex. C,
Reese Dep. 70:3-7; Doc. 36, Ex. D, Incident Report, July 23, 2007). After this incident, Reese
spoke with Plaintiff about the incident and told Plaintiff that she was likely going to have to
move out of the house. (Doc. 36, Ex. E, Recorded Pl.-Reese Conversation 7). During the call,
Reese also told Plaintiff that her (Reese’s) furniture was in the house. (Id. at 5). Plaintiff
recorded the telephone call, and at no time in the telephone call did Plaintiff state that her own
personal property items were in the house, or that the furniture in the house did not belong to
Reese. (See id.; Doc. 36, Ex. F, Pl. EUO 69:6-72:19).
On July 24, 2007, five days before the fire, the Property was foreclosed. (Doc. 36, Ex. N,
Foreclosure Deed). Initially, Plaintiff argued that she was unaware that the house was going
through foreclosure proceedings at the time of the fire. (Doc. 36, Ex. B, Pl. Dep. 93:4-17; Doc.
36, Ex. F, Pl. EUO 121:14-18). However, the record shows that on July 17, 2007, Plaintiff
actually attended a hearing at which she voluntarily and orally dismissed a complaint that she
had filed to stop the foreclosure proceedings. (Doc. 36, Ex. Q, Order of Dismissal, July 20,
2007; see also Doc. 36, Ex. P, Compl. for Injunctive Relief to Stop Foreclosure, June 25, 2007
(filed by Plaintiff)). Furthermore, it is undisputed that, at the time of the fire, Plaintiff and her
husband, Al Morton, were in bankruptcy. (Doc. 36, Ex. H, Pl. Bankr. Petition; Doc. 36, Ex. K,
Al Morton Bankr. Petition).3
On July 29, 2007, a fire occurred at the Property while Reese and her children were
away. (Doc. 36, Ex. A, Fire Dep’t Rep.; Doc. 36, Ex. C, Reese Dep. 85:2-3, 87:4-10). Due to
the suspicious circumstances surrounding the fire, Defendant investigated the incident and
conducted testing on multiple samples from different areas of the house, which showed the
presence of accelerants, including gasoline. (Doc. 36, Ex. J, Lab. Analysis). Based on its
investigation, Defendant concluded the fire was intentionally set. (See Doc. 34 at ¶ 1).4 Under
the AICH policy, Plaintiff immediately made a claim to Defendant for the dwelling and her
personal property that she claimed was in the rental house at the time of the fire. (Doc. 36, Ex.
G, Pl. Sworn Statement in Proof of Loss; see also Doc. 36, Ex. B, Pl. Dep. 204:5-23). Plaintiff’s
claim for personal property alone totaled $92,472.41. (Doc. 36, Ex. G, Pl. Sworn Statement in
Proof of Loss, at 2).5
As the Rule 56 record indicates, on June 6, 2007, Al Morton had been found guilty on federal charges for
conspiracy, filing fraudulent tax returns, and bank fraud. (See Doc. 36, Ex. L, Indictment; Doc. 36, Ex. M, Docket
Reese testified that, based on rumors she heard, she believed Plaintiff hired someone to set the fire so that
Plaintiff could collect the insurance proceeds. (Doc. 36, Ex. C, Reese Dep. 96:3-21). But, the court cannot properly
consider this information in making its Rule 56 ruling.
Reese has testified that, except for a kitchen table and four kitchen chairs, Plaintiff did not have any
personal property in the house at the time of the fire. (Doc. 36, Ex. C, Reese Dep. 30:10-19). Reese provided an
affidavit to Defendant that the personal property at the house belonged to her, and provided receipts to Defendant
showing ownership of the large furniture items. (Doc. 36, Ex. R, Reese Aff. 2-3, 15-18). However, in a June 2007
bankruptcy petition, Plaintiff listed only $1,500 in household goods as personal property. (Doc. 36, Ex. H, Pl.
Bankr. Petition 14). For the purposes of this Motion, however, the court construes every inference and disputed fact
in Plaintiff’s favor. Therefore, for the purposes of this Motion only, the court assumes Plaintiff had furnished the
Property with at least $92,472.41 worth of personal property.
Plaintiff’s AICH policy includes certain mandatory “duties after loss.” (Doc. 36, Ex. I,
AICH Policy, at 11 of 21). In the event of a loss, these provisions require a claimant to submit to
a signed examination under oath (“EUO”) and provide a detailed inventory of allegedly damaged
property, along with various records and supporting documentation.
(See id.). The AICH
policy provides: “No action shall be brought UNLESS THERE HAS BEEN COMPLIANCE
WITH THE POLICY PROVISIONS.”
(Doc. 36, Ex. I, AICH Policy, at 13 of 21).
September 21, 2007, pursuant to these “duties after loss” provisions of the AICH policy,
Defendant demanded an EUO from Plaintiff and her husband. (Doc. 36, Ex. S, EUO Demand to
Pl.; Doc. 36, Ex. AA, EUO Demand to Al Morton). Defendant’s letter specifically requested
that Plaintiff produce documents at the EUO and warned that Plaintiff’s failure to comply with
the conditions of the AICH policy could result in a loss of coverage. (Doc. 36, Ex. S, EUO
Demand to Pl. at 5).
On October 26, 2007, Defendant conducted the requested EUOs. (Doc. 36, Ex. F, Pl.
EUO 2:1-5; Doc. 36, Ex. T, Al Morton EUO 2:1-5). During Plaintiff’s EUO, Defendant’s
counsel reminded Plaintiff of her obligation to sign the witness certification and errata sheet for
the EUO before a notary and return it to Defendant as a condition to recovery. (Doc. 36, Ex. F,
Pl. EUO 6:25-7:2). Defendant also requested that Plaintiff produce certain additional items for
use in its investigation, including (1) payroll information from her employment at Crossroads of
Intervention, Plaintiff’s family-owned company (id. at 21:7-12), (2) a copy of Crossroads’
501(C)(3) report (as it is allegedly a family-owned, nonprofit organization) (id. at 22:14-16), (3)
loan documents for a consumer loan from that was outstanding at the time of the loss (id. at
33:23-34:3), (4) records regarding conversations with her insurance agent regarding the Property
(id. at 39:13-17), (5) her “house file,” which Plaintiff claimed contained documents regarding the
rental of the Property and her personal property within the house (id. at 40:24-41:8), (6) certain
Section 8 paperwork regarding her request for increase in rent (id. at 44:2-45:3), (7) contact
information for the person Plaintiff claims was to perform work on the Property and was the
excuse Plaintiff provided to be at the property around the time of the fire (id. at 52:16-23), (8)
Section 8 inspection documents (id. at 55:17-56:3), (9) banking records regarding Plaintiff’s
financial condition and alleged ownership of personal property (id. at 74:15-75:16), (10) receipts
for personal property items in question (id. at 102:17-21), and (11) contact information for an
individual who Plaintiff claims gave her a $4700 television (id. at 111:13-20).
On December 14, 2007, Defendant sent Plaintiff a letter setting out a list of twenty items
requested during the EUO, including the above-enumerated items. (Doc. 36, Ex. U, Def. Letter
to Pl., Dec. 14, 2007, at 2-3). Defendant’s letter also enclosed a copy of the EUO and instructed
Plaintiff to sign the witness certification and errata sheet and return them to Defendant as
conditions to coverage under the AICH policy. (Id.). Having not received a response from
Plaintiff, Defendant again sent a letter to Plaintiff on February 27, 2008, checking on the status
of the documents and the completion of the errata sheet. (Doc. 36, Ex. V, Def. Letter to Pl., Feb.
27, 2008, at 2). On May 19, 2008, Defendant again wrote to Plaintiff, through her counsel,
acknowledging receipt of some documents, but noting that Defendant had still not received many
of the documents requested. Further, Defendant had still not received the signed EUO transcript.
(Doc. 36, Ex. W, Def. Letter to Pl., May 19, 2008, at 2).
By February 9, 2010, Defendant still had not received any further communication from
Plaintiff or her counsel, and had not received any of the requested information, documents, or
signed EUO. (Doc. 36, Ex. X, Claim Denial, Feb. 9, 2010, at 3). Accordingly, Defendant wrote
to Plaintiff on February 9, 2010, declining her claim as a result of her noncompliance with the
conditions precedent to coverage. (Id.).
Prior to Plaintiff’s filing this action, almost six years after the fire, Defendant still had
never received a copy of Plaintiff’s signed EUO or many of the other information and documents
it requested throughout its investigation. (See Doc. 36, Ex. Y, Alexander Aff. ¶¶ 5-7; Doc. 36,
Ex. B, Pl. Dep. 179:2-16).6 Nor to date has Plaintiff explained her noncompliance. Moreover, in
her Objection to Motion for Summary Judgment (Doc. 38), Plaintiff summarily asserts that
Defendant is in possession of both an EUO (Doc. 38 at 1) and copies of all documents requested
by Defendant. (Id. at 2).7
Plaintiff filed this action in state court on July 19, 2013. (Doc. 1). Defendant thereafter
removed the action to this court. (Id.).
After a careful review of Defendant’s Motion for Summary Judgment (Doc. 34), along
with the briefs and submissions filed in connection with it, and for the reasons outlined in this
opinion, the court concludes that Defendant is entitled to summary judgment on Plaintiff’s
breach of contract claim as a matter of law.
Specifically, Defendant claims it never received the following information: Plaintiff’s payroll information
from her employer, Crossroads to Intervention, which Plaintiff’s family owned; Crossroads’ 2006 501(C)(3) report
to the federal government; loan documents regarding a certain outstanding loan at the time of the fire from the
Money Store; records of conversations with Plaintiff’s agent regarding the Property; Plaintiff’s “house file,” which
she claimed contained documentation regarding the rental of the house; Section 8 information regarding rent
allowed on the property and rejection of Plaintiff’s request for higher rent; documents regarding Section 8’s
inspection of the property; requested receipts for certain personal property items; contact information regarding
witnesses that Plaintiff agreed to produce, but had not; and additional banking records. (Doc. 36, Ex. Y, Alexander
Aff. ¶ 9; Doc. 36, Ex. B, Pl. Dep. 192:17-198:20).
Plaintiff’s Opposition Brief claims that she has delivered Defendant’s documents “at least three times.”
(Doc. 38 at 2). However, Plaintiff has not provided any specific evidence to support this allegation. While under
oath, Plaintiff testified that she had no personal knowledge, beyond a purely speculative or subjective belief, that the
requested documents were ever delivered to Defendant. (See Doc. 36, Ex. B, Pl. Dep. 192:17-202:11 (stating
initially that she (Plaintiff) believed the documents were sent, but after further questioning admits to having no
personal knowledge of the same)). Ultimately, Plaintiff can only testify as to having delivered many of the
requested documents to an earlier attorney. (Id.).
The AICH Policy Does Not Cover the Fire Loss Because Plaintiff Rented the
Insured Property and Did Not Live There.
The AICH policy in this case simply does not provide coverage to Plaintiff, and
Defendant is entitled to summary judgment as a matter of law on Plaintiff’s breach of contract
claim. As Defendant notes, that the AICH policy does not provide coverage for the Property
because she did not reside at the dwelling at the time of the fire. Plaintiff does not dispute that
the Property was not her “residence premises” at the time of the fire. Instead, Plaintiff claims
that Defendant’s agent confirmed that the policy would provide coverage after it was converted
to a rental property.
For the reasons outlined below, the court concludes that Plaintiff’s
argument is flawed.
The Plain Language of the Policy
Plaintiff does not dispute that the plain language of the insurance contract simply does
not permit recovery of the insurance proceeds she seeks in this action. Under Alabama law,
general rules of contract law govern an insurance contract. Safeway Ins. Co. of Ala. v. Herrera,
912 So. 2d 1140, 1143 (Ala. 2005).
Courts must enforce unambiguous insurance policy
provisions as written. Id. Whether a provision of an insurance policy is ambiguous is a question
of law. Id. In this case, as a matter of law, the subject policy is unambiguous.
The AICH policy only provides coverage for “the dwelling on the residence premises
shown in the Declarations used principally as a private residence . . . .” (Doc. 36, Ex. I, AICH
Policy, at 2 of 21). The AICH policy defines “residence premises” as “the one or two family
dwelling, other structures and grounds or that part of any other building where you reside and
which is shown as the ‘residence premises’ in the Declarations.” (Id. at 2 of 21 (emphasis
added)). The AICH policy defines “you” as the named insured listed in the Declarations, which
is Tawanna Morton. (Id. at 1 of 21; see Doc. 36, Ex. I, Declarations, at 1 of 2). The property
referenced as the “residence premises” in the Declarations is 2407 Longbow Drive, Birmingham,
Alabama. (Doc. 36, Ex. I, Declarations, at 1 of 2).
Courts addressing substantially similar language, under Alabama law, have concluded
that homeowners who rent their property but do not reside there are not covered. See, e.g.,
Country Cas. Ins. Co. v. Massey. 2010 WL 5579881, at *2-4 (M.D. Ala. Dec. 20, 2010)9
(upholding fire loss claim denial to insured who rented his property because the policy “did not
-- by its express terms -- provide coverage for the . . . dwelling, as that was not where [the
claimant] “principally reside[d]”); see also Mahens v. Allstate Ins. Co., 447 F. App’x 51, 2011
WL 5299657 (11th Cir. 2011) (holding a similar policy provision “plainly and unambiguously
required [the insureds] to reside at the property listed on the policy.”); Nationwide Mut. Fire Ins.
Co. v. Facello, 2014 WL 801051 (S.W. W.Va. Feb. 28, 2014) (holding that the policy did not
provide coverage for a dwelling because the named insured did not reside at the property).
Accordingly, for coverage to exist for the dwelling under the clear terms of the AICH policy,
Plaintiff must have primarily resided at the Property at the time of the loss.
In July 2007, at the time of the fire, it is undisputed that Plaintiff did not principally
reside on the Property. (Doc. 36, Ex. B, Pl. Dep. 46:7-11, 63:4-7). In fact, Plaintiff has not
resided at the Property since 2004 when she began renting the Property. (Id. at 47:8-14, 48:1120). Because Plaintiff did not reside at the Property at the time of the fire, the Property was not
Plaintiff’s “residence premises,” and as Plaintiff’s policy only provides dwelling coverage to the
“residence premises,” Defendant’s failure to pay Plaintiff’s claim did not breach the insurance
In Massey, the policy at issue similarly defined “residence premises” as “the dwelling . . . where ‘you’
principally reside.” Country Cas.. 2010 WL 5579881, at *4.
Effect of Plaintiff’s Alleged Conversation with Her Insurance Agent
As discussed above, Defendant has properly demonstrated that, as a matter of law,
Plaintiff was not covered by the terms of the AICH policy for her fire loss. Therefore, to survive
summary judgment, Plaintiff must now come forward with more than mere allegations and
present specific factual evidence rebutting Defendant’s Motion (Doc. 34). See Gargiulo, 131
F.3d at 999 (facing a “properly supported motion for summary judgment, [the nonmoving party]
must come forward with specific factual evidence, presenting more than mere allegations.”).
Plaintiff’s Objection to Motion for Summary Judgment argues that, notwithstanding that
the plain language of the AICH policy makes clear that it does not cover Plaintiff’s loss,
Defendant “bears liability in its contract with the Plaintiff and is bound by the ‘agreement’ made by
(Doc. 38 at 2-3).10
Plaintiff’s theory presents two potential issues.
Defendant’s general agent enter into an oral contract with Plaintiff that binds Defendant and
supersedes later written agreements embodied by the AICH policy?11
Second, is Defendant
Beyond her own testimony, Plaintiff offers no evidence suggesting this conversation ever took place.
However, for the purposes of summary judgment, of course, the court resolves all reasonable doubts about the facts
and all justifiable inferences in favor of the nonmovant. See Fitzpatrick, 2 F.3d at 1115. Therefore, for the purposes
of this Motion only, the court assumes without deciding that an insurance agent at Clark and Associates made the
alleged remarks regarding the scope of her coverage.
In doing so, the court does not ignore its previous Order (Doc. 32), entered November 13, 2014. Plaintiff’s
alleged conversation with Clark and Associates was one of the subjects of Defendant’s Motion to Compel (Doc. 19)
and Motion for Enforcement of Order and Sanctions (Doc. 24). Plaintiff testified, under oath, that she had
recordings of this alleged conversation. However, when the court granted Defendant’s Motion to Compel, Plaintiff
failed to produce anything. When Defendant sought sanctions and enforcement of the court’s order, the court
granted its Motion in part, prohibiting Plaintiff from “relying on subjects of discovery” (i.e., the alleged recording)
that she failed to produce. (Doc. 32). However, the court only prevented Plaintiff from later submitting the
recording into evidence, without leave from the court. The court did not rule that Plaintiff is barred from relying on
the conversation. In her brief, Plaintiff referenced the conversation, not the recording; therefore, Plaintiff has not
violated the court’s Order (Doc. 32).
Drawing all inferences in Plaintiff’s favor, the record suggests Plaintiff entered into a homeowner’s
insurance policy with Defendant at or around the time she and her husband purchased the Property. Sometime
before Plaintiff began renting her Property through Section 8, Plaintiff engaged in discussions with Clark and
Associates, which Plaintiff now alleges resulted in an oral “agreement” for expanded coverage. Plaintiff then
continued to renew the AICH policy through the date of the fire in July 2007. (Doc. 38). The record is void of any
otherwise contractually bound by an insurance agent’s representations that flatly contradict the
AICH policy’s unambiguous terms? The court addresses these questions below.
Even if the AICH policy did not, by its terms, cover Plaintiff’s fire loss, Plaintiff argues
that Defendant “bears liability in its contract with the Plaintiff and is bound by the ‘agreement’
made by its agent.” (Doc. 38 at 2-3 (emphasis added)). Thus, the question at issue is whether
Plaintiff has presented sufficient factual evidence that Plaintiff entered into an oral contract with
an agent of Defendant such that she can survive Defendant’s Motion for Summary Judgment.
Under Alabama law, only a “general agent” has “authority to transact all of the business
of the principal, of a particular kind, or in a particular case.” Wash. Nat’l Ins. Co. v. Strickland,
491 So. 2d 872, 874 (Ala. 1985) (citing S. States Fire Ins. Co. v. Kronenberg, 74 So. 63, 67 (Ala.
1917)). The powers of a general agent are “coextensive with the business entrusted to his care,
authorizing him to act for the principal in all matters coming within the usual and ordinary scope
and character of such business.” Id. (citation omitted). A general agent has full power to bind
the insurer to the agent’s contract of insurance or to issue policies or to accept risks. Id. (citing
McGhee v. Paramount Life Ins. Co., 385 So. 2d 969 (Ala. 1980)). Ultimately, a general agent
“stands in the shoes” of the principal for the purpose of transacting business entrusted to him.
On the other hand, an insurance company also has the right to employ agents with limited
authority. Wash. Nat. Ins. Co., 491 So. 2d at 874 (citing Robinson v. Aetna Ins. Co., 30 So. 665
(Ala. 1901)). A “special agent,” as distinguished from a “general agent,” is authorized to act for
the principal only in a particular transaction, or in a particular way. Id. In the insurance context,
the most prevalent type of special agent is the “soliciting agent.” Id. A soliciting agent, unlike a
evidence tending to suggest that Plaintiff engaged in conversations with Clark and Associates that amounted to an
oral contract after the last time she renewed her policy.
general agent, has no power to bind his insurer principal in contract. Watson v. Prudential Ins.
Co., 399 So. 2d 285 (Ala. 1981).
Facing Defendant’s properly supported Motion for Summary Judgment (Doc. 34), in
order for Plaintiff to succeed on her oral contract theory, at a minimum, Plaintiff must offer
substantial evidence that indicates both that Defendant’s general agent entered into an oral
contract with Plaintiff and that the agent had the authority to do so. Gargiulo v. G.M. Sales, Inc.,
131 F.3d 995, 999 (11th Cir. 1997) (facing a “properly supported motion for summary judgment,
[the nonmoving party] must come forward with specific factual evidence, presenting more than
mere allegations” (quoting Celotex, 477 U.S. at 323-34)). However, the Rule 56 record is
entirely devoid of any evidence -- much less substantial evidence -- which supports the theory
that Clark and Associates is Defendant’s “general” agent. Neither Plaintiff’s pleadings nor her
briefs allege facts tending to suggests that Clark and Associates were at any relevant time acting
as general agents for Defendant.
Plaintiff testified that she spoke with someone, presumably at Clark and Associates,
before renting out her property under Section 8. (Doc. 36, Ex. B, Pl. Dep. 51:2-12; see also Doc.
36, Ex. F, Pl. EUO 40:7-19)).
Plaintiff alleges only that she questioned a representative
regarding the scope of her then-existing coverage. (Doc. 36, Ex. B, Pl. Dep. 51:2-19). Plaintiff
has not identified the agent with whom she spoke at Clark and Associates, nor has she pointed to
any other conversations regarding her rental agreement with Defendant or any person at Clark
and Associates. (Id. at 49:16-18, 52:7-11; see also Doc. 36, Ex. F, Pl. EUO 40:16-19). Plaintiff
has not offered even a summary argument that Clark and Associates, or any of its employees,
acted as “general agents” for Defendant. Accordingly, even construing every ambiguity in
Plaintiff’s favor, Plaintiff has not identified any Rule 56 evidence that tends to support the
ambiguous statement offered in her Objection to Motion for Summary Judgment that she reached
an “agreement” with a representative at Clark and Associates. (Doc. 38 at 3; see Doc. 36, Ex. B,
Pl. Dep. 49:6-52:11).
Because Plaintiff has not offered any specific factual evidence tending to show
Defendant’s general agent entered into any oral contract with Plaintiff, Plaintiff’s oral contract
theory is based only on mere conclusory allegations and necessarily fails.
Waiver, Enlargement, or Estoppel
Plaintiff’s arguments regarding waiver, enlargement and estoppel are, at best, unclear.12
However, to the extent she argues that her insurance agent’s representations contradicting the
otherwise straightforward and unambiguous policy language regarding the continuing coverage
of her “residence premises” control the scope of her coverage, that argument is off the mark.
(Doc. 38 at 2). Unlike the question presented by her previous “oral contract” theory, the issue
here is whether Defendant is contractually bound to its insurance agent’s representations that
plainly contradict unambiguous policy terms and allegedly induce an insured’s detrimental
reliance. It is not.
Alabama law is clear, “[c]overage under an insurance policy cannot be created or
enlarged by waiver or estoppel and, if there is no ambiguity, it is the duty of the court to enforce
the policy as written.” Home Indem. Co. v. Reed Equip. Co., 381 So. 2d 45, 50-51 (Ala. 1980).
While limitations on coverage are interpreted as narrowly as possible to provide the maximum
allowable coverage to the insured, courts may not rewrite the terms of a policy or interpret
unambiguous policy language so as to provide coverage that was not intended by the parties. See
Canal Ins. Co. v. Old Republic Ins. Co., 718 So. 2d 8, 12 (Ala. 1998) (citations omitted). The
Plaintiff seems to assert that an insurance agent at Clark and Associates, Melinda James, represented to
her (and Section 8 authorities) that the policy would cover her home while it was being rented. (Id.).
doctrine of estoppel “is not available to bring within the coverage of a policy risks not covered
by its terms or risks expressly excluded therefrom.” Woodall v. Alfa Mut. Ins. Co., 658 So. 2d
369, 372 (Ala. 1995) (citing Home Indem. Co. v. Reed Equipment Co., 381 So. 2d 45, 50-51
(Ala. 1980); Johnson v. Allstate Ins. Co., 505 So. 2d 362, 365 (Ala. 1987); McGee v. Guardian
Life Ins. Co., 472 So. 2d 993, 995-96 (Ala. 1985)).
For example, in Canal Insurance Co., the Alabama Supreme Court held that an insured
was without coverage where an insurance agent allegedly told him that three of his trailers would
be covered by a policy because the court concluded the policy was unambiguous in its terms not
providing coverage. 718 So. 2d at 13; see also S. United Life Ins. Co. v. Gregory, 508 So. 2d
247, 249 (Ala. 1987) (holding “representations made by an agent who solicited the policy are
inadmissible to vary the terms of the writings, since in the absence of fraud or mistake such
statements are merged into the written contract”). Similarly, in Woodall, the plaintiff alleged
that, in response to his questions concerning coverage of a commercial general liability insurance
policy of claims arising from the insured’s sale of alcohol, the defendant-insurance company’s
agents made statements contradicting the plain language of the plaintiff’s policy. The Alabama
Supreme Court held that because the policy unambiguously excluded coverage for claims arising
from the insured’s sale of alcohol, the insured could not sustain an argument of waiver or
estoppel. Woodall, 658 So. 2d at 372.
Finally, “Alabama follows [a] rule of exclusion regarding parol evidence in interpreting
insurance contracts.” S. United Life Ins. Co., 508 So. 2d at 249. “In an action to recover on a
written contract of insurance, parol evidence is not admissible to aid in the construction of an
unambiguous insurance policy.” Id. (citation omitted)); see also S. Guar. Ins. Co. v. Rhodes, 243
So. 2d 717 (1971) (holding where a written contract of insurance exists between two parties,
parol evidence cannot be received to explain, contradict, or vary its terms, and all parol
negotiations, understandings, and agreements are merged into the written policy).
In June 2007, one month before the fire, Plaintiff claims she renewed her AICH policy,
thereby adopting the terms as laid out therein. (Doc. 38 at 2). As discussed in more detail
above, the relevant provisions of that policy are unambiguous and unchallenged.
provisions left Plaintiff without homeowner’s coverage when she rented her house and resided
Therefore, because -- absent allegations of fraud13 -- an insurance agent’s
representations will not undermine a policy’s clear terms, Plaintiff is unable to recover on her
breach of contract claim because the policy’s plain terms did not cover a claimant landlord at the
time of the fire loss.
Plaintiff Cannot Sustain a Breach of Contract Claim Because She Failed To
Satisfy the Conditions Precedent to Recovery Under the AICH Policy.
The parties’ filings make clear that the undisputed Rule 56 record evidence demonstrates
that Plaintiff did not comply with conditions precedent to assert coverage under the AICH
policy; therefore, Plaintiff cannot maintain her breach-of-contract claim against Defendant. That
is, Defendant has pointed to evidence in the Rule 56 file showing that Plaintiff has failed to
satisfy the “duties after loss” provisions of the AICH policy.
And, although Plaintiff has
attempted to create a factual dispute regarding her compliance with the provision, all she has
done is assert mere conclusions and unsupported factual allegations; thus, her efforts have failed.
Under Alabama law, where an insured fails to comply with a condition precedent to
recovery under an insurance contract, the insured cannot sustain a breach of contract claim. See,
Plaintiff cites two Alabama Supreme Court cases for the proposition that an insurance company is liable
for the false representations of insurance agents to insureds. See Wash. Nat’l Ins. Co., 491 So. 2d 872; ALFA Mut.
Ins. Co. v. Brewton, 554 So. 2d 953 (Ala. 1989). Both cases involved plaintiffs’ claims alleging fraud — not breach
of contract. Importantly, an insurance company is liable for the fraudulent conduct of both its general and soliciting
agents. Wash. Nat’l Ins. Co., 491 So. 2d 872. However, here, Plaintiff has not proffered any allegation of fraud and
the Washington National and ALFA cases are inapposite.
e.g., Nationwide Ins. Co. v. Nilsen, 745 So. 2d 264, 269 (Ala. 1998); Akpan v. Farmers Ins.
Exchange, Inc., 961 So. 2d 865, 872 (Ala. Civ. App. 2007). Simply put, “an insured must
comply with his or her post-loss obligations when the insured is making a claim upon the insurer,
and meeting those obligations is a precondition to any duty on the part of the insurer to make a
loss payment.” Baldwin Mut. Ins. Co. v. Adair, Case No. 1100872, 2014 WL 4851516, at *11
(Ala. Sept. 30, 2014) (citations omitted).
Accordingly, an insurer’s “obligation to pay or
evaluate the validity of the claim does not arise until the insured has complied with the terms of
the contract with respect to submitting claims.” Id. (citing United Ins. Co. of Am. v. Cope, 630
So. 2d 407, 411 (Ala. 1993)).
Courts routinely uphold “duties after loss” provisions obliging insureds to furnish
information and documents to the insurer. Hillery v. Allstate Indem. Co., 705 F. Supp. 2d 1343,
1362 (S.D. Ala. 2010); see, e.g., Nationwide Ins. Co., 745 So. 2d at 267 (“An insurance company
is entitled to require an insured to submit to an [EUO] as part of its claims investigation
process . . . . Moreover, an insurer’s obligation to pay or to evaluate the validity of an insured’s
claim does not arise until the insured has complied with the terms of the contract with respect to
submitting claims.”) (citations omitted).
Accordingly, post-loss duty provisions are “strict
conditions precedent to coverage.” See Pittman v. State Farm Fire & Cas. Co., 868 F. Supp. 2d
1335, 1348 (M.D. Ala. 2012) (applying Alabama law). An insured must comply fully with her
contractual duties and “cannot pick which duties  she wants to comply with and then shirk the
Id. (finding insured’s compliance with some, but not all, of insurer’s requests was
insufficient to satisfy a duties after loss provision).
In this case, the AICH policy contains specific “duties after loss” provisions. (Doc. 36,
Ex. I, AICH Policy, at 11 of 21). Included in those duties, Plaintiff was required to provide
Defendant with various records and documents and submit to an EUO. (Id.). The AICH policy
specifically provided that the insured must sign the EUO. (Id.). Further, the AICH policy
provides: “No action shall be brought UNLESS THERE HAS BEEN COMPLIANCE WITH
THE POLICY PROVISIONS.” (Id. at 13 of 21) (emphasis in original).
Plaintiff does not dispute that her failure to comply with the “duties after loss” provisions
would preclude her recovery under the AICH policy; rather, she argues that she (or her
representatives) have fully complied with the provisions by providing Defendant with all of the
information and documents it requested, at least three times. (Doc. 38 at 1-2). However, the
undisputed Rule 56 record demonstrates that Plaintiff has not fully -- or, for that matter,
sufficiently -- complied with Defendant’s requests.
Defendant has presented extensive evidence supporting its allegation that Plaintiff has
failed to satisfy the conditions precedent of the AICH policy. During the course of Defendant’s
investigation, Plaintiff failed to provide signed answers to the EUO and a majority of the
documents Defendant required.
Defendant’s letters to Plaintiff on September 21, 2007,
December 14, 2007, February 27, 2008, May 19, 2008, and February 9, 2010, catalogue
Defendant’s numerous attempts to solicit this information from Plaintiff. (Doc. 36, Exs. U, V,
W, X; see also Doc. 36, Ex. F, Pl. EUO (requesting repeatedly, during the EUO, Plaintiff’s
production of certain items for use in its investigation)). Throughout this saga, Plaintiff either
failed to respond (see Doc. 36, Ex. V, Def. Letter to Pl., Feb. 27, 2008, at 2), or gave Defendant
only partial responses (see Doc. 36, Ex. W, Def. Letter to Pl., May 19, 2008, at 2). Finally, more
than two years after Plaintiff’s EUO and Defendant’s initial requests for information, Defendant
declined Plaintiff’s claim as a result of her noncompliance with the conditions precedent to
coverage. (Doc. 36, Ex. X, Claim Denial, Feb. 9, 2010, at 3). Defendant offers a sworn affidavit
asserting that, before Plaintiff filed suit, Defendant never received the signed EUO or certain
other requested documentation. (Doc. 36, Ex. Y, Alexander Aff. ¶¶ 7-9).
Conversely, Plaintiff has presented no substantial evidence, at all, which contradicts
Defendant’s claims or that supports her conclusory allegations that she complied with the
conditions precedent. Plaintiff’s Objection to Motion for Summary Judgment boldly claims that
Plaintiff provided Defendant a signed EUO and “all documents requested . . . at least three
times.” (Doc. 38 at 1-2). The Rule 56 record does not support Plaintiff’s bald assertion.
In an apparent attempt to support her contention (that she provided Defendant with a
signed EUO), Plaintiff cites to two miscellaneous documents. Neither is of any help to Plaintiff.
First, Plaintiff identifies a letter from her previous attorney that insinuates Defendant had in its
possession an EUO. (Doc. 38, Ex. A, Goldasich Letter, June 11, 2010). But this letter does not
in any way indicate that Defendant had in its possession a signed EUO. (Id.). Of course,
Defendant had in its possession a copy of the EUO — Defendant conducted the EUO and
provided Plaintiff with a copy of the EUO with instructions for her to sign and return it. (Doc.
36 at 7). The only issue -- and it is an issue which Plaintiff’s letter does not address -- is whether
Plaintiff ever fulfilled her obligation to sign and return the EUO. Second, Plaintiff offers a copy
of her signed Sworn Statement of Loss, implying that the document is Plaintiff’s signed EUO.
(Doc. 38, Ex. B, Sworn Statement of Loss at 2). This Statement of Loss, which was also
provided by Defendant in its initial evidentiary submission, however, is not the requested EUO.
Therefore, it is irrelevant to the issue of whether Defendant received a signed EUO as mandated
by the AICH policy.
Accordingly, Plaintiff has not offered any substantial evidence contradicting Defendant’s
sworn affidavit stating that it never received a signed EUO. Plaintiff’s failure to simply sign and
submit the EUO is alone sufficient for the court to conclude that Plaintiff failed to comply with
the conditions precedent to recovery under the AICH policy. But there is more.
Although the EUO is the only document at issue that Plaintiff specifically references in
her responsive brief, the undisputed Rule 56 record shows that Plaintiff also failed to provide as
many as ten categories of documents and information that Defendant requested. Plaintiff has
testified that she has no personal knowledge or evidence that any of these requested documents
were ever provided to Defendant. (Doc. 36, Ex. B, Pl. Dep. 192:17-202:11). A letter submitted
by Plaintiff, through a previous attorney, indicates that, based on Plaintiff’s testimony in the
EUO, “it is obvious [Defendant] is in possession of this material.” (Doc. 38, Ex. A, Goldasich
Letter, June 11, 2010). Importantly, in the letter, Plaintiff does not claim that she submitted the
requested materials to Defendant, nor does Plaintiff’s letter indicate she, or her representatives,
had any knowledge that Defendant had the requested materials (beyond, of course, the
assumptions it made from Plaintiff’s questioning in the EUO).
Moreover, the court notes that on June 11, 2010, Defendant responded to Plaintiff
clarifying that it did not have the requested materials, and that Plaintiff’s stated assumptions
were mistaken. (Doc. 36, Ex. 2 to Pl. Dep., Def. Letter to Pl., Aug. 17, 2010, at 78 of 82).
Having reviewed the EUO transcript, the court finds Plaintiff’s “assumptions” untenable and,
even more importantly, wholly unsupported by the undisputed Rule 56 evidence. Plaintiff has
not indicated, nor can the court find, where Defendant acknowledged it had the information it
had previously requested. Of course, even if Defendant was in possession of certain requested
material, without more, that would not release Plaintiff from her obligation to satisfy her duties
after loss.14 Plaintiff’s counsel’s letter directly conflicts with the undisputed Rule 56 evidence in
For example, Defendant requested Plaintiff to provide information regarding Terrell Bradley’s funeral
and funeral home in order to verify Plaintiff’s alibi suggesting that Plaintiff arrived in Tampa on July 29, 20007, the
the case, and with Plaintiff’s own sworn deposition testimony. (See, e.g., Doc. 36, Ex. B, Pl.
Other than Plaintiff’s conclusory allegations, no evidence (much less substantial
evidence) supports her claim that she, or her representative, ever submitted the information and
documents that Defendant has requested. Plaintiff’s unsupported assertions cannot be used to
defeat Defendant’s Motion (Doc. 34). Holifield v. Reno, 115 F.3d 1555, 1564 n.6 (11th Cir.
1997) (holding plaintiff’s “conclusory assertions . . ., in the absence of [admissible] supporting
evidence, are insufficient to withstand summary judgment.”). Consequently, to survive
Defendant’s properly supported motion for summary judgment, Plaintiff is required to produce
“sufficient [favorable] evidence” which would be admissible at trial supporting her claims.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Rule 56(e)(1), Federal Rules of Civil
Procedure. “If the evidence [on which the nonmoving party relies] is merely colorable . . . or is
not significantly probative . . . summary judgment may be granted.” Id. at 249-50. “A mere
‘scintilla’ of evidence supporting the opposing party’s position will not suffice; there must be
enough of a showing that the [trier of fact] could reasonably find for that party.” Walker v.
Darby, 911 F.2d 1573, 1576-77 (11th Cir. 1990) (quoting Anderson, 477 U.S. 242 (1986)).
Conclusory allegations based on subjective beliefs are likewise insufficient to create a genuine
issue of material fact and, therefore, do not suffice to oppose a motion for summary judgment.
Waddell v. Valley Forge Dental Assocs., Inc., 276 F.3d 1275, 1279 (11th Cir. 2001); Holifield,
115 F.3d at 1564 n.6; Harris v. Ostrout, 65 F.3d 912, 916 (11th Cir.1995) (grant of summary
judgment appropriate where inmate produces nothing beyond “his own conclusory allegations”
challenging actions of the defendants); Fullman v. Graddick, 739 F.2d 553, 557 (11th Cir. 1984)
date of the fire. Defendant, on the other hand, was in possession of a newspaper article that suggested Bradley’s
funeral occurred on July 26, not July 31, as Plaintiff testified. (See Def. Letter to Pl., Aug. 17, 2010, at 81 of 82).
(“mere verification of party’s own conclusory allegations is not sufficient to oppose summary
judgment . . . .”). Hence, when a plaintiff fails to set forth specific facts supported by requisite
evidence sufficient to establish the existence of an element essential to his case and on which the
plaintiff will bear the burden of proof at trial, summary judgment is due to be granted in favor of
the moving party. Celotex, 477 U.S. at 322 (“[F]ailure of proof concerning an essential element
of the nonmoving party’s case necessarily renders all other facts immaterial.”); Barnes v.
Southwest Forest Industries, Inc., 814 F.2d 607, 609 (11th Cir. 1987) (if on any part of the prima
facie case the plaintiff presents insufficient evidence to require submission of the case to the trier
of fact, granting of summary judgment is appropriate). Because the undisputed Rule 56 record
shows that Plaintiff did not comply with conditions precedent to coverage under the AICH
policy, Plaintiff cannot sustain her breach of contract claim.
Plaintiff’s Personal Property Claim
Even if the court were to construe the AICH policy as providing some form of coverage
to Plaintiff at the time of the fire loss, the policy does not provide coverage for Plaintiff’s
personal property claim. Included in the list of personal property that the policy does not cover
is “[p]roperty contained in an apartment regularly rented or held for rental to others by the
insured.” (Doc. 36, Ex. I, AICH Policy, 4 of 21). Thus, Defendant argues that the plain terms of
the policy exclude from coverage any personal property held on the property if it is regularly
held out for rental. The court agrees.
Plaintiff does not dispute that she was renting the Property to Shauna Reese at the time of
the July 2007 fire. And, although the fact is in dispute, Plaintiff further alleges (and for the
purposes of this Motion the court assumes) that certain of Plaintiff’s personal property was
located in the house at that time. But, because the AICH policy does not cover any of the
personal property that Plaintiff may have left in the home at the time of the fire, Plaintiff cannot
make a claim for that property here.
Finally, and alternatively, because Plaintiff has not addressed Defendant’s argument that
the AICH policy does not provide coverage to Plaintiff for her personal property, Plaintiff is
deemed to have abandoned this point. See Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1322
(11th Cir. 2001) (finding claim abandoned, and affirming grant of summary judgment, as to
claim presented in complaint but not raised in initial response to motion for summary judgment);
Coalition for the Abolition of Marijuana Prohibition v. City of Atlanta, 219 F.3d 1301, 1325
(11th Cir. 2000) (finding claim abandoned where it was not briefed and argued in district court in
party’s response to motion for summary judgment or in party’s own motion for summary
judgment); see also Brasseler, U.S.A. I, L.P. v. Stryker Sales Corp., 182 F.3d 888, 892 (11th Cir.
1999) (affirming “the unremarkable position that assertions made in the pleadings (e.g.,
complaint or answer), but not made in opposition to a motion for summary judgment, need not
be considered by the district court or the appellate court in ruling on the motion for summary
judgment”); Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (“In
opposing a motion for summary judgment, ‘a party may not rely on his pleadings to avoid
judgment against him.’ There is no burden upon the district court to distill every potential
argument that could be made based upon the materials before it on summary judgment. Rather,
the onus is upon the parties to formulate arguments; grounds alleged in the complaint but not
relied upon in summary judgment are deemed abandoned.”). Accordingly, with respect to this
aspect of Plaintiff’s breach of contract claim, Defendant is entitled to summary judgment.
For the reasons outlined above, Defendant’s Motion for Summary Judgment (Doc. 34) is
due to be granted. Plaintiff has failed to create any genuine issue of material fact as to her breach
of contract claims. Accordingly, Plaintiff’s claims are due to be dismissed with prejudice.
A separate order will be entered in accordance with this Memorandum Opinion.
DONE and ORDERED this April 9, 2015.
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE
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