Axis Insurance Company v. Terry

Filing 205

MEMORANDUM OPINION AND ORDER Terry has moved to withdraw her motion for summary judgment 175 and 178 ; those motions are GRATNED, and Terry's motion for summary judgment is TERMED. Terry's Motion to Amend Motion to O ppose 176 does not seek relief, and the Clerk is DIRECTED to TERM it. AXIS's motion to supplement evidentiary submissions 179 is GRANTED. Terry's Motion to withdraw 181 and 182 is GRANTED; to the extent t he motion to withdraw sur-reply 182 , seeks other relief, it is DENIED AS MOOT; the Clerk is DIRECTED to TERM 181 and 182 ; Terry's motion to substitute is DENIED; Terry's motion for court hearing 186 is DENIED; Terry's motions related to unethical behavior 188 , 189 , 190 & 191 are DENIED; for the reasons herein AXIS's motions for summary judgment 160 & 172 are DENIED. A Status Conference set for 2/19/2019 10:00 AM in Hugo L Black US Courthouse, Birmingham, AL before Magistrate Judge John H England III. Signed by Magistrate Judge John H England, III on 1/30/2019. (AFS)

FILED
2019 Jan-30 AM 11:56
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
AXIS INSURANCE COMPANY,
Plaintiff,
v.
SHARANDA L. TERRY,
Defendant.

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Case No.: 2:16-cv-01021-JHE

MEMORANDUM OPINION AND ORDER1
Plaintiff AXIS Insurance Company (“AXIS” or “Plaintiff”) brings this action against
Sharanda L. Terry (“Terry” or “Defendant”), seeking a declaratory judgment pursuant to 28 U.S.C.
§ 2201 that it is not required to pay a homeowners insurance claim brought by Terry. (Doc. 1).
The parties have filed cross-motions for summary judgment, (docs. 158 & 1722), each of which is
opposed by the other party, (docs. 174 & 177). However, Terry has moved to withdraw her motion
for summary judgment, (docs. 175 & 178); those motions are GRANTED, and Terry’s motion for
summary judgment is TERMED. The parties have also filed a number of other motions, (docs.
179, 181, 182, 183, 186, 188, 189, 190 & 191). The court considers those motions first below.
AXIS’s motion is fully briefed, (docs. 172, 177 & 180), and ripe for review. For the reasons stated
more fully below, AXIS’s motion for summary judgment is DENIED.

1

In accordance with the provisions of 28 U.S.C. § 636(c) and Federal Rule of Civil
Procedure 73, the parties have voluntarily consented to have a United States Magistrate Judge
conduct any and all proceedings, including trial and the entry of final judgment. (Doc. 13).
2
AXIS filed an amended motion for summary judgment, (doc. 172), the same day it filed
its original motion for summary judgment, (doc. 160). This memorandum opinion discusses only
the amended motion for summary judgment.

Non-Summary Judgment Motions
A. Terry “Motion to Amend Motion to Oppose, Dispute and Response to Plaintiff
Motion for Summary Judgment” (Doc. 176)
In this motion, Terry simply attaches a copy of AXIS’s statement of undisputed facts from
its motion for summary judgment, breaking it down into numbered paragraphs so that she can
dispute them. The motion does not seek relief, and the Clerk is DIRECTED to TERM it. The
undersigned has considered this document as part of Terry’s opposition to AXIS’s motion for
summary judgment.
B. AXIS Motion to Supplement Evidentiary Submissions (Doc. 179)
In response to Terry’s motion to withdraw her motion for summary judgment, AXIS moves
to supplement its summary judgment evidentiary submission to include the evidence and
arguments it submitted in response to Terry’s motion for summary judgment. (Doc. 179). Terry
does not appear to oppose this motion. AXIS’s motion is GRANTED, and its evidentiary
submission in support of its motion for summary judgment is supplemented to include the evidence
submitted in support of its response to Terry’s motion for summary judgment, (doc. 177).
C. Terry Motion to Respond to Plaintiff’s Reply, (Doc. 181), Motion to Withdraw
Motion to Respond to Plaintiff’s Reply, (Doc. 182), and Motion to Withdraw Docs.
181 & 182, (Doc. 185)
The undersigned construes Terry’s motion to respond, (doc. 181), which was filed the day
after AXIS’s reply in support of its motion for summary judgment and addresses numerous
arguments in AXIS’s reply, as a motion for leave to submit a sur-reply. Terry has also submitted
a motion to withdraw her motion to respond, in which she apologizes to the court for filing the
motion and adds additional arguments. (Doc. 182). AXIS opposes both motions, on the basis that
the scheduling order does not provide for sur-replies. (Doc. 184). Terry clarifies in a subsequent
motion that she intends to withdraw docs. 181 and 182. (Doc. 185). This last motion is
2

GRANTED, and the undersigned has considered neither the arguments contained in the sur-reply
nor those contained in the motion to withdraw the sur-reply. To the extent the motion to withdraw
the sur-reply, (doc. 182), seeks other relief, it is DENIED AS MOOT. The Clerk is DIRECTED
to TERM docs. 181 and 182.
D. Terry Motion to Substitute (Doc. 183)
Next, Terry moves to substitute Exhibit O of her response to AXIS’s motion for summary
judgment with a new Exhibit O. (Doc. 183). Terry’s original Exhibit O is a subpoena duces tecum
directed to the City of Birmingham Fire and Rescue Service Department. (Doc. 177-6 at 4-5).
Terry’s intent is to submit recordings of 911 calls, along with a Call for Service Detail Report,
which she says she picked up on June 4, 2018. (Doc. 183 at 1). AXIS opposes this on essentially
the same basis as it opposes the motions discussed in Section I.C. — that there is no provision for
Terry to use the motion to supplement her summary judgment response. (See doc. 184 at 2).
The original Exhibit O subpoena duces tecum is dated April 30, 2018, and includes a
compliance date of May 14, 2018. (See doc. 177-6 at 4). Discovery in this case ended on March
9, 2018. (See doc. 150). It is unclear why Terry waited until after the discovery deadline to attempt
to subpoena these records, nor why her plan to conduct discovery outside the discovery period was
never brought to the court’s attention, nor why she waited more than three weeks after the
subpoena’s compliance deadline to retrieve these records. Terry’s motion is DENIED.
E. Terry Motion for Court Hearing (Doc. 186)
Terry has moved for a hearing on AXIS’s motion for summary judgment. (Doc. 186).
Terry’s request also contains numerous extraneous arguments. (See id.). The undersigned notes
that AXIS has also requested oral argument on its motion, (see doc. 172 at 1), although it opposes
Terry’s motion to the extent that it includes additional arguments related to summary judgment,
3

(doc. 187). Having reviewed the parties’ submissions, the undersigned concludes oral argument
is unnecessary. Therefore, Terry’s motion, (doc. 186), is DENIED, as is AXIS’s request for oral
argument. The undersigned has not considered the summary-judgment-related arguments Terry
includes in this motion.
F. Terry Motions Related to Perjury and Unethical Behavior (Docs. 188, 189, 190 &
191)
Each of these motions details what Terry contends is inappropriate behavior by parties
associated with AXIS or by the City of Birmingham. The undersigned has reviewed these motions,
and Terry’s allegations of criminal and unethical conduct are without merit.3 Further, to the extent
Terry requests the court refer her allegations for criminal prosecution, this civil action is not the
mechanism for Terry to alert the FBI or U.S. Attorney’s office to what she believes to be criminal
conduct, and the undersigned declines to be the conduit for such an alert. These motions, (docs.
188, 189, 190 & 191), are DENIED.
These motions resolved, the undersigned now turns to AXIS’s motion for summary
judgment.
Standard of Review
“Disposition of a summary judgment motion in a declaratory judgment action is governed
by the same basic principles that generally rule the grant or denial of such a motion.” Bingham,

3

For example, Terry argues Birmingham Fire and Rescue Service Captain Fitzgerald
Mosley perjured himself by stating that he arrived on the scene at 12:45 a.m. when he really arrived
at 12:58 a.m., (doc. 188 at 2-3), and contends a receptionist for Spain & Gillon (the firm that
represents AXIS) fraudulently signed an affidavit as “Diane Carr” rather than her full name,
Patricia Diane Carr, (doc. 189 at 2-3). Terry also alleges AXIS’s counsel Walter McArdle behaved
unethically when he responded to an email — sent to his old email address — from a new email
address. (Doc. 191 at 2-3). None of these hyper-technical quibbles approaches fraud, perjury,
criminality, or otherwise sanctionable conduct.
4

Ltd. v. United States, 724 F.2d 921, 924 (11th Cir. 1984). Under Rule 56(a) of the Federal Rules
of Civil Procedure, summary judgment is proper “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” “Rule
56(c) mandates the entry of summary judgment, after adequate time for discovery and upon
motion, against a party who fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 447 U.S. 317, 322 (1986). The moving party bears the initial burden of
proving the absence of a genuine issue of material fact. Id. at 323. The burden then shifts to the
nonmoving party, who is required to “go beyond the pleadings” to establish that there is a “genuine
issue for trial.” Id. at 324. (citation and internal quotation marks omitted). A dispute about a
material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The Court must construe the evidence and all reasonable inferences arising from it in the
light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157
(1970); see also Anderson, 477 U.S. at 255 (all justifiable inferences must be drawn in the nonmoving party’s favor). Any factual disputes will be resolved in Plaintiff’s favor when sufficient
competent evidence supports Plaintiff’s version of the disputed facts. See Pace v. Capobianco,
283 F.3d 1275, 1276-78 (11th Cir. 2002) (a court is not required to resolve disputes in the nonmoving party’s favor when that party’s version of the events is supported by insufficient evidence).
However, “mere conclusions and unsupported factual allegations are legally insufficient to defeat
a summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per curiam)
(citing Bald Mtn. Park, Ltd. v. Oliver, 836 F.2d 1560, 1563 (11th Cir. 1989)). Moreover, “[a] mere
‘scintilla’ of evidence supporting the opposing party’s position will not suffice; there must be
5

enough of a showing that the jury could reasonably find for that party.” Walker v. Darby, 911
F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252).
Summary Judgment Facts4
A. The Property and Policy
On January 12, 2016, Terry purchased the property located at 6730 2nd Avenue South in
Birmingham, Alabama (the “Property”). (See docs. 162-1 & 162-3).5 Terry paid $8,500.00 as
the purchase price for the Property, plus other charges: a total of $10,500.08. (See doc. 162-2).
On January 14, 2016, Terry submitted an application to AXIS for homeowners insurance.
(Doc. 162-1). AXIS issued Policy No. 007759 (the “Policy”) to Terry on the same date. (Docs.
162-4 & 162-5). The Policy provides coverage limits of $91,000.00 for the dwelling, $1,000.00
for structures detached from the dwelling, and $36,400.00 for personal property. (Doc. 162-5 at
1).
The Policy contains a state fraud provision applicable in Alabama: 6 “Any person who
knowingly presents a false or fraudulent claim for payment of a loss or benefit or who knowingly
presents false information in an application for insurance is guilty of a crime and may be subject

Because the only remaining motion for summary judgment is AXIS’s, the following facts
are undisputed, or, if disputed, they are taken in the light most favorable to Terry. The undersigned
notes AXIS’s motion contains a 35-page narrative of allegedly undisputed material facts, many of
which are cumulative, immaterial to the two bases on which AXIS moves for summary judgment,
or simply argument masquerading as factual assertions. This section has been pared down to omit
those facts.
5
Terry offers substantially the same evidence as AXIS, although her copies are heavily
marked up with additional commentary. Consequently, the undersigned refers primarily to AXIS’s
copies of this evidence, taking into account Terry’s notations as extensions of her briefing.
6
Neither party disputes the policy is governed by Alabama law.
6
4

to restitution[,] fines[,] or confinement in prison, or any combination thereof.” (Id. at 6). The
Policy also sets out the following:
AGREEMENT
We will provide the insurance described in this policy in return for the premium
and compliance with all applicable provisions of this policy.
[. . .]
SECTION I - PROPERTY COVERAGES
A. Coverage A - Dwelling
1. We cover:
a. The dwelling on the “residence premises” shown in the Declarations,
including structures attached to the dwelling; and
b. Materials and supplies located on or next to the “residence premises”
used to construct, alter or repair the dwelling or other structures on the
“residence premises”.
[. . .]
C. Coverage C - Personal Property
1. Covered Property
We cover personal property owned or used by an “insured” while on the
“residence premises”. After a loss and at your request, we will cover personal
property owned by others while the property is on the part of the “residence
premises” occupied by an “insured”.
[. . .]
SECTION I - EXCLUSIONS
We do not insure for loss caused directly or indirectly by any of the following.
Such loss is excluded regardless of any other cause or event contributing
concurrently or in any sequence to the loss. These exclusions apply whether or
not the loss event results in widespread damage or affects a substantial area.
[. . .]
7

8. Intentional Loss
Intentional Loss means any loss arising out of any act an “insured”
commits or conspires to commit with the intent to cause a loss. In the
event of such loss, no “insured” is entitled to coverage, even “insureds”
who did not commit or conspire to commit the act causing the loss.
SECTION I - CONDITIONS
[. . .]
B. Duties After Loss
In case of a loss to covered property, we have no duty to provide coverage
under this policy if the failure to comply with the following duties is prejudicial
to us. These duties must be performed either by you, an “insured” seeking
coverage, or a representative of either:
[. . .]
5. Cooperate with us in the investigation of a claim;
[. . .]
7. As often as we reasonably require:
a. Show the damaged property;
b. Provide us with records and documents we request and permit
us to make copies; and
c. Submit to examination under oath, while not in the presence
of another “insured”, and sign the same;
[. . .]
Q. Concealment or Fraud
We provide coverage to no “insureds” under this policy if, whether before or
after a loss, an “insured” has:
1. Intentionally concealed or misrepresented any material fact or
circumstance;
2. Engaged in fraudulent conduct; or
8

3. Made false statements;
relating to this insurance.
(Doc. 162-5 at 20, 22, 27-28, 30).
B. The Fire
On January 28, 2016, at approximately 12:45 a.m., the Birmingham Police Department
(“BPD”) responded to a fire at the Property. (Doc. 166-8 at 1). Upon arrival, the BPD officers
radioed Birmingham Fire and Rescue Service (“BFRS”), which dispatched several engines to the
scene. (Id.). At approximately 12:48 a.m., BFRS arrived. (Doc. 168-3 at 8).
Terry was was not at the Property when either BFRS or BPD arrived, but she had been
there the previous day and night (January 27, 2016) with her boyfriend, Phillip Taylor, her twin
brother Sherard, and several laborers. (Doc. 165-1 at 65-67 (260:19-267:9)). After Phillip,
Sherard, and the laborers left, sometime between 6:00 p.m. and 8:00 p.m., Terry stayed behind at
the Property to “[do] little finishing touches on stuff . . . just doing odds and end . . . .” (Id. at 67
(267:10-268-6)). Terry then left the property, but there are conflicting accounts of when she left,
including inconsistent statements by Terry herself:
•

A BPD police report indicates when she arrived at the scene of the fire, Terry told
officers she had left the Property at around midnight and believed she had left a heater
on. (Doc. 164-21 at 10). The report also states an anonymous witness on the scene
stated to officers Terry had left just prior to the fire beginning. (Id.).

•

An investigator for McDonald Claim Service, LLC (“McDonald”), which had been
hired to investigate the claim by AXIS, submitted three reports. In his first report, dated
February 8, 2016, the investigator states “the insured and her fiancée left the home
about 11:30 p.m. to go to her sister’s house.” (Doc. 162-7 at 1). In the second report,
9

dated February 12, 2016, the investigator reports Terry “stated to us that she had left
the home about 11:30 p.m.,” but also notes Fire Inspector Lieutenant Fitzgerald
Moseley (“Captain Moseley”),7 who had been at the scene of the fire, had informed
McDonald that Terry had reported to him having been gone only for 45 minutes —
meaning she had left the home about midnight. (Doc. 162-8 at 1). In the third report,
dated Mach 28, 2016, the investigator obtained a recorded statement from Terry that
indicated she had left the home “about 11 p.m. or a little later.” (Doc. 162-10 at 1).
•

On March 2, 2016, Terry provided an in-person recorded statement to investigator Jeff
Starnes of G4S Compliance & Investigations. (Doc. 162-12 at 3). In this statement,
Terry indicated she had left sometime after 11:00 p.m. (Id. at 5). Terry stated she could
not recall her conversations with the first responders. (Id. at 6).

•

During an examination under oath (“EUO”) conducted by AXIS’s counsel on April 19,
2016, Terry stated she had left “a little after 11:00,” which, in her best judgment, was
“about 11:15, 11:20, somewhere up in there.” (Doc. 163-1 at 18 (71:5-12)). Terry
testified a neighbor “told me when I pulled up that — he was like you had just been
gone — you hadn’t been gone a whole hour, something like that.” (Id. at 24 (94:2023)). Terry also testified her car’s clock was “set like 30 — it hadn’t been in there like
two years, 30 or 45 minutes off . . . .” (Id. at 24 (94:20-23)).

The report refers to Moseley as “Fire Chief Mosley.” At the time of the fire, Moseley
was a BFRS lieutenant. Moseley has since been promoted to Captain.
10
7

•

During a second EUO, dated May, 24, 2016, Terry stated she had told the police she
had been at the house “forty-five minutes to an hour before [the fire] happened.” (Doc.
164-1 at 13 (50:16-21)).

•

At her deposition in this case, Terry stated she was “on the other side of town by” 11:15
or 11:20.8 (Doc. 165-1 at 68 (270:9-12)). Terry said she had taken a “selfie” after
receiving a phone call at 10:35 p.m. from her boyfriend, Phillip Taylor (“Taylor”), and
“knew exactly when [she] left” because it had been five minutes after taking the selfie.
(Id. (269:6-22)). Terry explained the discrepancy between her EUO testimony and her
deposition testimony by stating she was correcting the EUO testimony (which had been
provided to the best of her knowledge) based on seeing the picture’s timestamp. (Id.
(270:13-272:2)). Terry also stated it was “somewhere, what, about an hour, hour and
a half, somewhere in there” between her departure and her return to the Property. (Id.
at 77-78 (308:19-309:3)).

In any event, after Terry left the Property, she went to her sister’s house to bathe, but instead
sat in the car “Facebooking.” (Id. at 67 (267:7-18); doc. 163-1 at 23 (90:19-91:13)). Terry then
went to a nearby Chevron to buy gas, which took ten or fifteen minutes. (Doc. 165-1 at 68-69
(272:5-9, 276:2-17)). After buying gas, Terry drove to an apartment to visit a friend, but she did
not go inside because she did not see the friend’s vehicle outside. (Id. at 68-70 (272:9-279:9)).
Terry then went back to her sister’s house and parked for around ten minutes because she was
“doing something on [her] phone.” (Id. at 70 (280:8-22); doc. 163-2 at 1 (102:11-19)). Afterwards,

AXIS characterizes this as Terry “changing her story” within the deposition from earlier
stating she left at 11:15 or 11:20, (doc. 176 at 11), but Terry clarifies she meant she was already
on the other side of town at that time.
11
8

Terry planned to “pop up on” Taylor (i.e., show up unannounced). (Doc. 165-1 at 70-71 (280:2281:15)). No one saw Terry between 10:35 p.m. and 12:55 a.m. (Doc. 165-1 at 86 (341:14-19)).
At approximately 12:55 a.m., as she was stopped at a light prior to turning onto the
interstate, Terry received a phone call from her neighbor, Frank McCoy, informing her about the
fire. 9 (Doc. 163-1 at 18 (72:8-14); doc. 163-2 at 1-2 (104:23-105:6)). Terry returned to the
Property at approximately 1:05 a.m., and Taylor arrived five to ten minutes later. (Doc. 163-2 at
2 (107:4-8, 108:1-3)).
C. BFRS and BPD Investigations
In January 2016, Captain Moseley was a BFRS lieutenant in investigations. (Doc. 168-1
at 1 (4:10-23)). Captain Moseley arrived on the scene of the fire several minutes after the initial
firemen.10 (Id. at 2-3 (8:6-10:23)). On the scene, while waiting for firemen to get the fire under
control, Captain Moseley was “basically just observing how the fire was burning, where it was
burning from” so that he could get an idea of where to start looking. (Id. at 3 (10:19-11:4)). At
around 1:00 a.m. the fire was under control, and Captain Moseley began his investigation. (Id. at
4 (13:8-14:13)).
Captain Moseley began by performing a 360-degree inspection of the exterior of the house.
(Id. (14:16-20)). At the back of the house, Captain Moseley spotted a block sitting in front of an
open window, which he found suspicious. (Id. at 4-5 (15:7-11, 20:3-5)). Captain Moseley testified

9

Terry neither made nor received any phone calls between January 27, 2016 at 10:35 p.m.
and January 28, 2016 at 12:55 a.m. (See doc. 163-5).
10
Terry disputes several portions of Captain Moseley’s account, mostly as to insignificant
details (e.g., the precise time Captain Moseley arrived at the scene and the number of cinderblocks
Captain Moseley observed outside Terry’s window). (See doc. 177 at 4). Where Terry articulates
a dispute with a pertinent portion of Captain Moseley’s account, it is noted.
12

when he entered the house through the back door, he saw a gun in the middle of the kitchen floor11
and a five-gallon can of gasoline just in front of the entrance to the kitchen. (Id. at 7 (25:3-22)).
It appeared to Captain Moseley that the gun was “out of place” and had been placed in the kitchen
floor for investigators to see it. (Id. (26:3-6)). Captain Moseley also thought the gas can was
unusual because “if someone’s going to start a fire, they normally throw the gasoline can in with
it, but the gas can was just sitting there.”12 (Id. (26:9-17)). He concluded the quarter-full gasoline
can was going to be used as a “trailer” (something people use when they want to set a fire or extend
it through a structure) to ignite the rest of the house to ensure that it burned completely, but that
had not happened.13 (Id. (26:15-17:14)). He testified a trailer indicates a fire was intentionally
caused. (Id. (28:7-9)). Terry denied this was her gas can. (Doc. 165-2 at 77 (306:14-18)). Captain
Moseley found much of the house had only smoke damage, but some rooms had extensive fire
damage. (Doc. 168-1 at 7-8 (28:16-7)).
Captain Moseley determined the fire was a set fire; he had observed no other possible
causes (e.g., electrical or other ignition sources). (Id. at 8-9 (32:19-33:11)). He found points of
origin in the front left bedroom and in the living room. (Id. at 9 (33:14-16); doc. 168-12). Captain

11

Disputing the location of the gun, Terry points to the police report, which indicates the
gun was found in the northeast corner of a rear room in the house rather than the center of the
kitchen, (see doc. 164-21 at 10). (Doc. 177 at 5). Terry acknowledges the gun is hers; it had
belonged to her younger brother, and she had effectively inherited it. (Doc. 165-1 at 89 (356:118)).
12
BPD Detective James Canino (“Detective Canino”), who investigated the arson, also
found the placement of the gun and the gas can strange. (Doc. 169-1 at 15-16 (60:5-63:2), 23 (92:611)).
13
AXIS also references Captain Moseley’s testimony there was suspicious lighter fluid in
a bedroom. (Doc. 160 at 16). In response to AXIS’s counsel’s leading question, “Now, did you
see any lighter fluid like a can of lighter fluid anywhere?” Captain Moseley testified “I want to say
there was one in the bedroom,” and that it “could have been used as a trailer, not real sure.” (Doc.
168-1 at 19 (75:5-76:2)).
13

Moseley testified the walls were intact and not burned up inside the home.14 (Doc. 168-1 at 9
(36:2-8)).
When Captain Moseley exited the house, the battalion chief informed him Terry had
arrived. (Id. at 12 (45:5-7)). Captain Moseley walked down the street and spoke with Terry. (Id.).
He testified Terry was not frantic or upset. (Id. (48:12-20)). He introduced himself as a fire
investigator and asked how long Terry had been gone, whether she was having a dispute with
anyone, and who was last at the house. (Id. (45:10-16)). Terry responded that she had been at the
house about an hour before the fire.15 (Id. (46:1-6)). Prior to going inside the house, Moseley
testified Terry asked him if her TVs had been stolen.16 (Id. (46:17-20)). Captain Moseley did not
know what Terry was referring to, but reentered the house; he saw a TV box in the back bedroom,
but no TV. (Id. (46:21-47:12)).

14

AXIS contends this is relevant because, as discussed further below, Terry (suspiciously,
in AXIS’s view) provided an accounting of the property missing from her home the night of the
fire prior to fully entering the house, based on her ability to view portions of the home from just
inside the front door. AXIS argues this would have been impossible because the walls were still
intact. (See doc. 172 at 13).
15
AXIS also cites Captain Moseley’s deposition for the proposition that “Terry initially
told Moseley that Mr. Taylor was at the house about the time of the fire and she placed Taylor on
the scene between 12:00 midnight and 12:45 a.m.” (Doc. 160 at 14). Terry denies she made this
statement, (doc. 177 at 9), and other evidence conflicts with it. Captain Moseley testified that
Terry “reported speaking to Mr. Taylor between, I want to say, midnight and 12 — midnight and
12:45 . . . [s]he said Mr. Taylor was at the house.” (Doc. 168-1 at 13 (51:12-17)). Captain Moseley
immediately clarifies that Terry had said “she told [him] she had gone out looking for [Taylor and]
ad called him”; when she spoke with Taylor, he was “at home,” which Captain Moseley identifies
as the Property’s address. (Id. (52:8-12)). However, as AXIS emphasizes, Terry’s phone records
indicate no phone calls made or received during that time frame, and Terry stated Taylor was
elsewhere in both her first EUO, (doc. 163-2 at 1 (102:19-104:19)), and at her deposition, (doc.
165-1 at 71 (281:2-15)).
16
In Terry’s telling, Moseley initiated the discussion about the TV. (Doc. 165-1 at 80
(317:20-318:23)).
14

In response to Captain Moseley’s question about whether she was “having problems with
anybody,” Terry told Captain Moseley that a man named Jamie Moore (“Moore”) was “potentially
the one that set the fire.” (Doc. 168-1 at 13 (52:15-22)). Captain Moseley had not at that point
told Terry that the fire was arson or a set fire, although he testified he did not know whom Terry
had spoken with while he was inside the house. (Id. at 14 (53:3-11)). Terry stopped talking to
Captain Moseley after he asked her what reason Moore would have to set the fire, and that was the
end of the interview. (Id. (54:1-11)).
Captain Moseley had three interviews with Terry: the interview at the scene described
above, a phone interview, and an interview with Detective Canino. (Id. (56:2-6)). Captain
Moseley found Terry less than forthcoming, and that “everything continuously changed” with
Terry’s story. (Id. (58:16-19)). During the phone interview, Terry stated Taylor had “got into
some kind of fight or confrontation” with Moore at some point. (Id. (56:15-18)). Terry then
“[went] all off into this story of how she didn’t like Jamie Moore’s girlfriend . . . she would just
go off on tangents of everything that had nothing to do with what I was asking.” (Id. at 15 (57:310)).
Detective Canino was assigned to investigate the arson on February 1, 2016. (Doc. 169-1
at 3 (9:9-11)). On February 15, 2016, Detective Canino and Captain Moseley interviewed Terry.
(Id. at 21 (81:9-11)). Detective Canino read Terry her Miranda rights, and, after Terry signed a
document indicating she had been Mirandized, the interview began. 17 (Id. at 9 (36:6-10)).
Detective Canino described Terry as “very defensive” and the interview as “uncomfortable” due

Detective Canino testified “I went in there in post-Miranda, and that’s more or less
anytime I’m going into open investigation and I don’t know suspect from victim, witness. I
Mirandize everybody.” (Doc. 169-1 at 9 (34:22-35:3)).
15
17

to animosity between Captain Moseley and Terry.18 (Id. at 9-10 (36:12-38:9)). Terry did not want
to provide information about Taylor because she did not feel comfortable giving that information,
but stated he was “not going to say [Terry] refused [to identify other witnesses]”; because Terry
had “gotten so shook up or defensive . . . [i]t just was not good a good [sic] interview, in [Detective
Canino’s] opinion.” (Id. at 10 (38:9-39:16)).
According to Detective Canino, “once we started discussing Jamie Moore, [Terry] put a
lot of time and effort into the possibility of it being Jamie Moore, which was odd to [him] because
at one time she wasn’t even wanting to give the information on her boyfriend.” (Id. at 23 (90:2291:5)). At the time of the interview, Detective Canino “[h]ad already got what we call our contacts
on the street, people calling in saying that Jamie Moore had broken in the house after drugs. Never
heard if he was successful or not in finding what he was looking for, but had set the house on fire,
took a whole bunch of property out of it.” (Doc. 169-1 at 6 (25:16-22)).
In her first EUO, Terry described her belief that Moore was responsible for the arson and
burglary in greater detail. She stated Moore had claimed he had committed the arson and that
“everybody” had told her Moore had “been bragging about it on social media the next day.” (Doc.
163-1 at 19-20 (76:22-77:23); doc. 163-2 at 23 (191:18-192:6)). She testified she had heard
Taylor’s nephew and Moore had been in an argument, and afterwards Moore had “put on Facebook
an eye for an eye.” (Doc. 163-1 at 20 (78:2-21)). A “girl from down the street” named Ree Ree
told Terry that Moore had burned down the house and that the argument had been related to Iesha

18

As AXIS notes, Terry has no love for Captain Moseley. Terry has repeatedly accused
Captain Moseley of falsifying information or unethical conduct based on her belief Captain
Moseley is related to Moore. (See, e.g., doc. 165-1 at 102 (405:17-406:17)); see also supra, n.3.
Captain Moseley testified he does not know Moore, is not related to him, and has never seen or
met him. (Doc. 168-1 at 24 (94:12-18)).
16

Mayhand, Moore’s girlfriend. (Id. at 22-23 (88:7-89:14); doc. 163-2 at 4-5 (109:22-114:11)).
Moore was murdered on January 29, 2016. (Doc. 169-9 at 2). Iesha Mayhand was also murdered
shortly afterwards. (Doc. 169-1 at 20 (78:16-23)).
Detective Canino stated Terry had cooperated in the investigation “in the sense she’ll call
you back when you ask her to,” but has not provided information that has helped develop a suspect.
(Id. at 25 (98:10-17)). Detective Canino stated “[t]here’s no information [Terry] has that would
be useful.” (Id. (97:23-98:1)). However, Detective Canino testified Terry has never mentioned
Moore’s Facebook postings. (Id. at 26 (101:1-16)). And although usually victims “go out of their
way to try and help out,” Detective Canino testified he “never got the participation that’s typically
accompanied by a true victim.” (Id. at 28 (109:21-23)).
According to Detective Canino, the arson investigation remains open. (Doc. 169-1 at 28
(110:1-3)). Terry is still a person of interest, but not a suspect. (Id. (109:5-12)). Detective Canino
testified that he thinks Terry “has knowledge of who started the fire,” and although Terry has
identified Moore as the arsonist, “there’s no physical evidence to prove he set that fire.” (Id. at 16
(63:21-23)). According to Detective Canino, although “[a] lot of the information on the street was
Jamie [Moore] was responsible . . . there’s no evidence to show he did it. There’s no evidence to
show he didn’t do it.” (Id. at 21 (84:3-6)). Similarly, Detective Canino “can’t say Phillip [Taylor]
didn’t set that fire . . . I can’t say that Ms. Terry didn’t [set] that fire.” (Id. at 22 (87:6-10)).
Detective Canino cited this lawsuit as a reason why the arson case has “gone a different direction”;
rather than worry about “who burned the house, who damaged the property,” Terry is now
“worried about, I’m assuming, getting paid from the insurance company.” (Id. (87:11-88:1)).
An addendum to the police report reads: “In the course of the investigation, allegations
were made that the vic was at the residence at the time the fire (arson) started. No physical
17

evidence was discovered that the vic had any knowledge of or played part [sic] in the offense. It
is believed the fire was set by as [sic] retaliation towards the boyfriend of the vic of which has also
been cooperative with the investigation. Ms. Terry has met with the Det. on numerous occasions
w/o incident.” (Doc. 169-10 at 2). The addendum was not prepared at Terry’s request; instead,
Detective Canino testified it reflects “where [BPD was] in the investigation” and had been
requested by Detective Canino’s lieutenant “on who [Terry] was, where we were with the
investigation, why has there not been an arrest made.” (Doc. 169-1 at 27-28 (108:8-109:4)).
D. AXIS Investigation
1. Terry’s Finances
Investigating the claim for AXIS, McDonald obtained a statement from Terry indicating
she is self-employed and does monograms, with no other income. (Doc. 162-10 at 2). Terry stated
her income varies, and she made $2,700.00 the month prior to the fire. (Id.). McDonald’s third
report states Terry “filed between $30-40,000.00 as a guess.” (Id.). In Terry’s first EUO, she
stated her income from the previous year was “still kind of sketchy to me because I probably
worked like one or two days a week”; Terry stated a friend was giving her money and she was
“doing some shirts,” making approximately $2,500.00 in the month of January. (Doc. 163-1 at 910 (36:18-37:14)). When AXIS’s counsel clarified he was asking how much she made for the
entire year, Terry stated, “Let’s stick with [$25,000.00] because I really can’t guess.” (Id. at 10
(37:15-38:1)).
Responding to Jeff Starnes (“Starnes”) of G4S, another investigator working on behalf of
AXIS, Terry indicated she is self-employed and has a business called Exquisite Monograms &
Clothing. (Doc. 162-12 at 4). Terry initially indicated she was unemployed and had not been
working because her embroidery machine is inoperable. (Id.).
18

At Terry’s deposition, she could not estimate her gross yearly income but stated she
reported that income on her taxes. (Doc. 165-2 at 8 (30:18-31:9)). Regarding her previous
testimony she had earned between $25,000.00 and $45,000.00 in 2015, Terry stated: “I kept saying
I don’t know, but he wanted a number, so I just — everything was to the best of my knowledge. I
threw a number out there.” (Id. (31:10-21)). Terry also stated between approximately between
2006 and 2013, she had had large sums of money confiscated four times by various agencies,
including the DEA, totaling “a little over $200,000”; all but $10,000.00 of this money had been
returned. (Id. at 13-15 (52:23-66:1)). Terry stated that her “money burned along with the house,”
referring to “way more than $10,000” that had been concealed in a storage space behind a wall,
hanging from a bag on a nail. (Id. at 23-27 (90:10-107:10)).
According to her tax returns, Terry’s gross income for 2013 was $15,164.00, for 2014 was
$17.783.00, and for 2015 was $18,842.00. (See docs. 163-14, 163-15, 163-16 & 163-17).
2. Value of Terry’s Claim
Terry submitted a “Statement as to Full Cost of Repair or Replacement.” (Doc. 164-9). In
the statement, Terry claims $127,400.00 — the full value of the policy — as the amount of her
loss. (Id.). This breaks down into $91,000.00 for the replacement cost of the property and the
remainder in personal property. (Id.; doc. 165-1 at 98 (391:19-392:23)).
On February 7, 2016, Terry submitted an inventory of the contents of the house. (Doc.
163-12). Terry reported various electronics missing or destroyed, including five TVs ranging in
size from 47 to 60 inches, video game systems, a stereo, and several iPads. (Doc. 163-2 at 8-12
(132:4-145:4)). Terry testified she had replaced the TVs after a previous burglary. (Id. at 15
(159:14-18)). Terry also included clothing and jewelry in the inventory. (See doc. 163-12). Terry

19

testified she has receipts for most of the items on the inventory — “[b]asically my contents” —
which she had provided to the adjuster. (Doc. 163-2 at 16 (162:13-16, 163:3-13)).
Terry testified she did not go inside her house until the next morning after the fire; instead,
she had stepped just through the threshold, “probably a foot” into the house. (Doc. 165-1 at 78
(309:4-9, 311:7-18)). Terry stated that from the threshold of the house, she could get a clear view
of the whole house; specifically, she could see into a bedroom and did not see a TV on the stand.
(Doc. 163-2 at 7 (126:15-18, 127:16-21)). Terry reported stolen electronics and jewelry to the
police prior to entering the house. (Doc. 164-21 at 8-9). Terry also testified that Captain Moseley
asked her if a TV had been “back there,” which led her to believe that everything had been taken
until the next day when she realized most of it had been burned. 19 (Doc. 165-1 at 80 (317:20318:23)).
In its first report, McDonald stated “[t]he home is a total loss.” (Doc. 162-7 at 1). However,
by its third report, McDonald no longer considered the home a total loss. (Doc. 162-10 at 2).
Instead, it found Terry was in the process of remodeling the home and had not done very much
work to repair it yet. (Id.). McDonald noted Terry had indicated she was buying another home

19

Terry testified she believed the burglar or burglars had entered through the back window,
above the stacked cinderblocks, by removing the air conditioner unit. (Id. at 81 (322:13-324:2)).
The back door was “barricaded” with three boards when Terry left. (Id. (324:12-22)). AXIS states
Terry testified “the back window was the only way the burglars could have taken the televisions
and personal property out of the house.” (Doc. 160 at 26-27). This misstates Terry’s testimony.
AXIS’s counsel asked Terry directly to clarify that her “testimony is that the burglar would have
taken the goods, as it were, out that window?” (Doc. 165-1 at 82 (326:8-11)). Terry responded:
“No, that’s not what I’m saying. I don’t know how it happened.” (Id. (326:12-13)). Terry then
speculated the burglars could have exited the door, which was open on her return. (Id. (326:13327:19)).
20

for about $30,000.00 and stated no replacement cost would be owed under the policy if Terry did
so. (Id.).
Analysis
AXIS argues it is entitled to summary judgment on two grounds. First, it says the
undisputed facts show that no coverage exists under the policy due to arson. (Doc. 172 at 37-42).
Second, it contends Terry has breached the policy by failing to cooperate in the investigation. (Id.
at 42-45). Each ground is discussed separately below.
A. Arson
Under Alabama law, arson is a defense to denial of coverage by an insurance company.
Great Southwest Fire Ins. Co. v. Stone, 402 So.2d 899, 900 (Ala.1981). To make out a prima facie
case of arson, an insurance company must show three elements: (1) “arson by someone”; (2)
“motive by the [insured]”; and (3) “unexplained surrounding circumstantial evidence implicating
the [insured].” Id. AXIS contends it has met this standard.
The first problem for AXIS is that the defense of arson is a means to get to the jury, not a
method of bypassing it. In Hillery v. Allstate Indemnity Co., 705 F. Supp. 2d 1343 (S.D. Ala.
2010), the court set out the effect of making out a prima facie case of arson under Alabama law:
Defendant's position is that, because it can make out a prima facie showing of
arson, it is entitled to summary judgment on plaintiffs’ breach of contract claim.
This contention is a non sequitur that fundamentally misapprehends the import
of a prima facie showing of arson under Alabama law. By making such a
showing, an insurer can withstand a summary judgment motion or motion for
directed verdict brought by the insured as to the arson defense (i.e., the insurer
can present that defense to the jury). But Allstate improperly conflates a prima
facie showing of arson with an entitlement to summary judgment on that
defense. Alabama law does not provide that an insurer's mere prima
facie showing of arson, without more, negates an insured's breach of contract
claim as a matter of law. It does not; rather, a prima facie showing merely
raises an inference that the insured committed arson, so as to enable the insurer
to present its arson defense at trial. Simply put, “[t]he fact that [an insurer] has
21

produced evidence raising an inference that the insured willfully burned the
property covered by the policy simply means there is sufficient evidence for
the issue to go to the jury.” Jackson, 2007 WL 3287369, at *7.
Hillery, 705 F. Supp. 2d at 1361. Although Hillery is a breach of contract action, AXIS provides
neither argument nor reason to conclude the arson defense should apply differently in a declaratory
judgment action. Instead, it simply assumes showing a prima facie case entitles it to summary
judgment. None of the case law AXIS cites supports this application of the arson defense. See
Bush v. Alabama Farm Bureau Mut. Cas. Ins. Co., 576 So. 2d 175, 179 (Ala. 1991) (discussing
evidence to support jury’s verdict for insurer on arson defense); Great Southwest Fire Ins. Co. v.
Stone, 402 So. 2d 899, 902 (Ala. 1981) (reversing directed verdict for insured on defense of arson;
defense should have been submitted to the jury).
Even if AXIS were correct that it could in theory achieve victory simply by showing no
factual dispute as to its prima facie case of arson, it cannot do so in this case because factual
disputes abound as to the second and third elements. AXIS alleges the facts show Terry’s motive
for arson was money. (Doc. 172 at 38-40). It points to the difference between the purchase price
for the house and the amount of the insurance claim — approximately $80,500.00 — as well as
Terry’s “strange explanation of how she can afford to pay for things.” (Id. at 38). It follows this
with the conclusion that Terry’s story “indicates hoarding of unreported income, if the story is to
be believed, which is doubtful[, and i]f the story is not believed, then she is lying to achieve her
goal — getting the insurance money.” (Id.). The remainder of its argument tracks this: Terry’s
income does not support the purchases she allegedly made, and her explanation that a large sum
of confiscated money was returned to her by the police is part of an “incredible” argument, (id. at
38-39); the money Terry claims she had “is evidence of her hoarding money that was not reported
on her tax returns, (id. at 39); Terry “deals in cash, has a relatively insignificant balance on her
22

credit card, rarely uses her bank account and leaves absolutely no paper trail to determine how
much income she has, what her expenditures are and other financial information,” (id.); and Terry
wanted to purchase a new house after the fire, rather than repair the current house, (id. at 39-40).
What AXIS does not acknowledge here is that the court may not discount Terry’s
explanations just because they seem unlikely. “Credibility determinations, the weighing of the
evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a
judge . . . ruling on a motion for summary judgment . . . .” Anderson, 477 U.S. at 255. AXIS
explicitly invites the court to make a credibility determination as to whether Terry actually had the
money and property she testified she had — whether Terry’s story is “unbelievable,” (doc. 172 at
45), “incredible,” (id. at 38), or “not believable,” (doc. 180 at 7). The court may not do that.
Further, whether Terry reported the income on her tax returns goes to the weight a factfinder might
place on her testimony, not whether it should be discounted entirely.20
AXIS’s argument for unexplained circumstances implicating Terry is similarly flawed.
AXIS highlights Terry’s multiple accounts of when she left the house, which it says shows Terry
is “trying to hide something or mislead . . . she is changing her testimony for a reason.” (Doc. 172
at 40). That reason, according to AXIS’s theory, is that Terry is attempting to make herself less
of a suspect by “placing herself as far away from the scene as possible physically and temporally.”
(Id.). The court may not infer that at summary judgment. Here, Terry argues her initial

In its reply, AXIS contends Terry’s claims of hundreds of thousands of dollars in cash is
“not supported by any admissible evidence or any theory of logic.” (Doc. 180 at 5-6). The
evidence to support this is Terry’s testimony, regardless of how credible AXIS finds it. See
Strickland v. Norfolk S. Ry. Co., 692 F.3d 1151, 1160 (11th Cir. 2012) (“[E]ven in the absence of
collaborative evidence, a plaintiff's own testimony may be sufficient to withstand summary
judgment.”).
23
20

assessments of the time she left are a product of the “duress, confusion[, and] stress” she felt after
the fire and caused her to “ma[k]e an honest mistake regarding her time frame,” which she has
since resolved by referring to the timestamp of the “selfie” she took in her car before she left the
house. (Doc. 177 at 3). A jury could find this explanation, which Terry gave under oath at her
deposition, (see doc. 165-1 at 68 (270:13-272:2)), sufficient such that it need not infer Terry’s
evolving testimony was intended to mislead.21
AXIS admits Terry has an alternate explanation for the fire:
Indeed, she has developed her own story that another individual named Jamie
Moore broke into the house based upon a vendetta and committed the burglary
and arson. The vendetta was allegedly based upon a dispute between Jamie
Moore and the nephew of the Defendant’s boyfriend, Phillip Taylor. This story
immediately implicates and makes her boyfriend, and possibly her, a suspect in
the murder of Jamie Moore. This also raises the further question as to whether
she and her boyfriend were involved in a criminal conspiracy, with Moore
initially being their willing, or unwitting accomplice and ultimately the “fall guy.” Plaintiff submits that she could have also learned of Moore’s murder and
then conveniently used him as the scapegoat after his death. Therefore, her
bizarre explanation actually increases the confusion and the likelihood of her
potential culpability instead of minimizing it. Ms. Terry has not cooperated
with any investigator in this case and has resisted disclosing information. As
Lt. Canino and Capt. Moseley recognized, this is unusual. She has enhanced
and encouraged confusion, instead of providing accurate information. She does
not appear to want the arson solved. She has not explained the surrounding,
unusual circumstances that implicate her in the arson.

21

Notably, because AXIS explicitly relies on the internal inconsistencies in Terry’s
testimony, it is not asking the court to apply some variant of the “sham affidavit” doctrine. Under
that doctrine, “[w]hen a party has given clear answers to unambiguous questions which negate the
existence of any genuine issue of material fact, that party cannot thereafter create such an issue
with an affidavit that merely contradicts, without explanation, previously given clear testimony.”
Strickland v. Norfolk S. Ry. Co., 692 F.3d 1151, 1161 (11th Cir. 2012) (quoting Van T. Junkins &
Assocs., Inc. v. U.S. Indus., Inc., 736 F.2d 656, 658 (11th Cir. 1984)). But AXIS does not contend
any of Terry’s testimony ought to be stricken; consequently, it cannot ask the court to believe the
parts of Terry’s testimony that support its arguments and disbelieve the other parts.
24

(Doc. 172 at 41-42). AXIS’s attempts to cast doubt on the believability of this story require the
court to make inferences unfavorable to Terry (Terry has implicated Jamie Moore to disguise the
true nature of the fire), weigh the evidence (Terry’s account makes her involvement in the arson
more likely), and speculate (Terry could have decided to scapegoat Jamie Moore after his death),
none of which is permissible at summary judgment. AXIS also ignores the addendum to the police
report; although it does not absolve Terry, at a minimum it creates a question of fact about the
viability of Terry’s alternative explanation.
AXIS is not entitled to summary judgment on its arson theory.
B. Failure to Cooperate
AXIS’s second argument is that Terry has breached her duty to “[c]ooperate with us in the
investigation of a claim,” consistent with the Policy. (Doc. 162-5 at 28). Therefore, it claims, no
coverage exists for Terry’s claim. (Doc. 172 at 44).
Under Alabama law, an insurer may decline to cover a claim when the insured fails to
comply with a policy condition requiring the insured to cooperate in the insurer’s investigation of
the claim. Williams v. Alabama Farm Bureau Mut. Cas. Ins. Co., 416 So. 2d 744, 746 (Ala. 1982).
“Where an insurer attempts to avoid coverage obligations based upon a defense that its insured
breached a ‘cooperation clause,’ the insurer has the burden not only to show that the insured's
failure or refusal to cooperate was ‘material and substantial,’ but also that the insurer suffered
prejudice as a result.”22 QBE Ins. Corp. v. Blount Med. Ctr. Partners, No. 2:08-CV-2347-PWG,
2010 WL 11565124, at *6 (N.D. Ala. Apr. 19, 2010) (citing Ex parte Clarke, 728 So. 2d 135, 141

Consistent with Alabama law, the Policy states AXIS has “no duty to provide coverage
under this policy if the failure to comply with the following duties [including cooperation] is
prejudicial to us.” (Doc. 162-5 at 28) (emphasis added).
25
22

(Ala. 1998); Williams, 416 So. 2d at 746; Home Indem. Co. v. Reed Equip. Co., 381 So. 2d 45, 48
(1980); Auto-Owners Ins. Co. v. Rodgers, 360 So. 2d 716, 719 (Ala. 1978)). Non-cooperation is
prejudicial if the failure to cooperate “negate[s] the only evidence the insurer could offer in
defense,” Williams, 416 So. 2d at 747, or deprives the insurer of the ability to conduct an
investigation and mount a defense, see Colorado Cas. Ins. Co. v. The Kirby Co., 2008 WL 149996,
at *4 (M.D. Ala. Jan. 14, 2008). “Moreover, the ultimate question of whether or not the
noncooperation is material and substantial is a question for the trier of fact.” Williams v. Alabama
Farm Bureau Mut. Cas. Ins. Co., 416 So. 2d 744, 747 (Ala. 1982) (citation omitted); Alabama
Farm Bureau Mut. Cas. Ins. Co. v. Teague, 110 So. 2d 290, 293 (1959). “The burden to establish
the insured's failure to cooperate and resulting prejudice lies with the insurer.” QBE, 2010 WL
11565124, at *11 (citing Clarke, 728 So. 2d at 141).
In conclusory terms, AXIS states Terry has failed to cooperate by: (1) refusing to identify
witnesses; (2) failing to give a full, fair, and complete disclosure of the facts; (3) giving a changing
timeline for her actions on the night of the fire; (4) failed to disclose facts related to her income
and expenses; (5) failed to truthfully and accurately identify the personal property she lost,
including by misrepresenting the amount and value of that property; and (6) “developed a strange
and bizarre story or alibi” related to Jamie Moore, which she has “persisted in telling.” (Doc. 172
at 42-43). AXIS does not contend Terry has failed to provide documentation it needs to adjudicate
the claim, give a statement under oath, or furnish proof of her loss. Any of these might be
appropriate for resolution at summary judgment, because each would be an unambiguous

26

roadblock to a full investigation by AXIS.23 See, e.g., Hillery v. Allstate Indem. Co., 705 F. Supp.
2d 1343, 1363 (S.D. Ala. 2010) (in bad faith action, granting summary judgment to insurance
company where insureds provided information they conceded was inaccurate and refused to
cooperate in correcting that information); State Farm Fire & Cas. Co. v. Richardson, No. CIV.A.
070791WSB, 2008 WL 4531765, at *7 (S.D. Ala. Oct. 9, 2008) (in declaratory judgment action,
granting summary judgment to insurer where insured refused to answer written questions or
provide a recorded statement); Shan Hsu v. Safeco Ins. Co. of Indiana, 654 F. App'x 979, 980 (11th
Cir. 2016) (in Georgia breach of contract action, affirming summary judgment for insurer;
insured’s failure to produce specific documents after detailed request, with no excuse or
explanation, was a breach of policy’s cooperation provision). 24 Instead, with the possible
exception of Terry’s failure to identify witnesses, each of AXIS’s non-cooperation theories asks
the court to weigh Terry’s testimony against the evidence and conclude Terry has lied about
something.25 As discussed above, the court may not do so at summary judgment.

AXIS conflates, without any legal support, Terry’s alleged failure to cooperate in the
BFRS and BPD investigations with her failure to cooperate under the policy. The policy — a
contract between Terry and AXIS, with an attendant responsibility to “[c]ooperate with us in the
investigation of a claim,” (doc. 162-5 at 28) (emphasis added) — is silent as to Terry’s obligation
under the policy to cooperate in a criminal investigation. Further, as stated above, the addendum
to the police report creates a question of fact as to Terry’s cooperation with the criminal
investigation.
AXIS also occasionally points to Terry’s allegedly bad behavior in this case to support she
has not cooperated with it. (See, e.g., doc. 172 at 43-44). Terry’s discovery obligations in this
case are governed by the Federal Rules of Civil Procedure, not the Policy. Terry has already been
sanctioned for her failure to produce documents to AXIS. (See doc. 173). AXIS’s backdoor
request the court grant it summary judgment for discovery violations is not well taken.
24
AXIS cites Shan Hsu in its “Standard of Review” section. (Doc. 172 at 35).
25
AXIS contends Terry “admits that she has not cooperated,” (doc. 180 at 10), but provides
no citation for this admission. In fact, Terry repeatedly states she has cooperated in the
investigation. (See, e.g., doc. 165-1 at 102 (407:2-10)). Nor would any admission by Terry
discharge AXIS’s burden to show materiality and prejudice.
27
23

As to Terry’s failure to provide AXIS with the names of witnesses, AXIS’s statement of
undisputed facts indicates Terry has “refused to identify witnesses to AXIS Insurance Company’s
attorney,” (doc. 172 at 32), and “refused to identify [a] third-party” who paid laborers at her house,
(id. at 25). To support the first portion of this, AXIS cites the extreme end of Terry’s first EUO,
after Terry had informed AXIS’s counsel that Ree Ree knew about Moore’s threats because Taylor
and Ree Ree’s husband were “associates”:
Q.
A.
Q.
A.

Q.

What’s his name, the boyfriend or the husband?
I don’t know his name, his whole name, his real name.
What’s his street —
You will have to ask [Ree Ree] that. I’m not throwing any more names
out there because it seems like that’s what y’all trying to do. Y’all trying
to get me killed.
No, nobody is trying to get anybody killed. Don’t — please don’t —
there’s nobody up here today, nobody’s looking, seeing this. This
information will be given to your insurance carrier.

(Doc. 163-2 at 24 (196:2-21)). Immediately following this, AXIS’s counsel concludes the EUO.
(Id. at 24-25 (196:22-197:6)). While it is true Terry does not provide the husband’s name, AXIS
does not attempt to show prejudice from this (i.e., that it was unable to track down the husband
because Terry insufficiently identified him). Nor does it offer anything to support the materiality
of the husband’s name, given that AXIS could presumably obtain testimony from Ree Ree (whose
identity it does not contend Terry concealed) regarding the same facts. AXIS’s counsel’s decision
to end the interview without following up on this matter suggests the missing name was neither
material nor prejudicial to it. Terry did refuse to name the third party who helped her pay laborers
at her house on the basis the third party “wish[es] not to be involved,” (see doc. 164-1 at 7-8 (28:117)), but AXIS also offers no argument why failing to identify this third party was material or
prejudicial. Therefore, it has not met its burden to demonstrate Terry’s alleged failure to cooperate
permits it to deny coverage.
28

AXIS’s final salvo is that Terry has breached the concealment and fraud provision of the
contract. As noted above, this provision states AXIS will not provide coverage to an insured who
has “[i]ntentionally concealed or misrepresented any material fact or circumstance . . . [e]ngaged
in fraudulent conduct . . . or [m]ade false statements.” (Doc. 162-5 at 35-36). An Alabama statute
overlays onto this provision the requirement that “[n]o misrepresentation in any proof of loss under
any insurance policy shall defeat or void the policy unless such misrepresentation is made with
actual intent to deceive as to a matter material to the insured's rights under the policy.” ALA. CODE
§ 27–14–28 (emphasis added). See also Howe v. Allstate Ins. Co., 2008 WL 559578, *1 (N.D.
Ala. 2008) (“the language in Alabama Code § 27–14–28 is built into every casualty insurance
policy issued in Alabama” and an insurer “cannot contract around it”).
Even accepting AXIS’s framing that Terry has breached this provision by concealing facts
from its investigators and the police, (see doc. 172 at 43-44), the only arguments AXIS marshals
to support Terry’s intent to deceive rest on assumptions that her testimony is false or inconsistent
with other evidence. Again, the court may not weigh the evidence to reach that conclusion, as
AXIS requests. Accordingly, AXIS is not entitled to summary judgment on this theory either.
Conclusion
For the reasons stated above, AXIS’s motions for summary judgment, (docs. 160 & 172),
are DENIED. A status conference is SET for February 19, 2019 at 10:00 a.m. in the chambers
of the undersigned to discuss preparations for trial. A court reporter will be present.
DONE this 30th day of January, 2019.

_______________________________
JOHN H. ENGLAND, III
UNITED STATES MAGISTRATE JUDGE
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