Stewart v. Allstate Indemnity Company
MEMORANDUM OPINION as more fully set out in order. Signed by Magistrate-Judge Harwell G Davis, III on 04/03/14. (SPT )
2014 Apr-03 PM 12:05
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
Case No. 5:12-cv-03644-HGD
The above-entitled civil action is before the court on the motion for summary
judgment filed by defendant.
(Doc. 20). The parties have consented to the
jurisdiction of the undersigned magistrate judge pursuant to 28 U.S.C. § 636(c),
Fed.R.Civ.P. 73 and LR 73.2.
Plaintiff, Benny Stewart, commenced this action by filing a complaint against
Allstate Indemnity Company (Allstate) in the Circuit Court of Lawrence County. The
action was removed to this court by Allstate on the basis of diversity of citizenship
and amount in controversy. In his complaint, Mr. Stewart alleges that he owns
property at 574 County Road 297 in Hillsboro, Alabama, and that his residence was
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insured by a homeowner’s policy issued by Allstate. In Spring 2011, plaintiff
sustained damage to his property and submitted a claim for insurance policy proceeds
to Allstate. Plaintiff avers that on or about August 1, 2011, Allstate sent adjusters to
perform an estimate of the cost of repair. However, plaintiff alleges that the estimate
failed to address a majority of the damage, and the payment tendered to plaintiff was
inadequate to repair the property. Plaintiff avers he then contacted Allstate to dispute
the adequacy of the payment and provided Allstate with a more accurate estimate of
the damage sustained, but Allstate refused further action. Plaintiff asserts causes of
action for breach of contract and bad faith. (Doc. 1-1, Complaint).
SUMMARY JUDGMENT STANDARD
“The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a) (Dec. 2010). Rule 56(c) provides:
(1) Supporting Factual Positions. A party asserting that
a fact cannot be or is genuinely disputed must support the
(A) citing to particular parts of materials in the
record, including depositions, documents, electronically
stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials; or
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(B) showing that the materials cited do not establish
the absence or presence of a genuine dispute, or that an
adverse party cannot produce admissible evidence to
support the fact.
(2) Objection That a Fact Is Not Supported by
Admissible Evidence. A party may object that the
material cited to support or dispute a fact cannot be
presented in a form that would be admissible in evidence.
(3) Materials Not Cited. The court need consider only
the cited materials, but it may consider other materials in
(4) Affidavits or Declarations. An affidavit or
declaration used to support or oppose a motion must be
made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or
declarant is competent to testify on the matters stated.
Fed.R.Civ.P. 56(c) (Dec. 2010).
Defendant, as the party seeking summary judgment, bears the initial
responsibility of informing the district court of the basis for its motion, and
identifying those portions of the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, which it believes
demonstrates the absence of a genuine issue of material fact. Clark v. Coats & Clark,
Inc., 929 F.2d 604, 608 (11th Cir. 1991) (quoting Celotex Corp. v. Catrett, 477 U.S.
317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986)). A genuine issue of material
fact is shown when the nonmoving party produces evidence so that a reasonable
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factfinder could return a verdict in his favor. Greenberg v. BellSouth Telecomms.,
Inc., 498 F.3d 1258, 1263 (11th Cir. 2007). If the nonmoving party fails to make a
sufficient showing on an essential element of his case with respect to which he has
the burden of proof, the moving party is entitled to summary judgment. Celotex, 477
U.S. at 323, 106 S.Ct. at 2552. Rule 56(e), Fed.R.Civ.P., provides that if a party
“fails to properly address another party’s assertion of fact as required by Rule 56(c),
the court may: . . . (2) consider the fact undisputed for purposes of the motion; [or]
(3) grant summary judgment if the motion and supporting materials – including the
facts considered undisputed – show that the movant is entitled to it. . . .”
Fed.R.Civ.P. 56(e)(2) and (3). In reviewing whether the non-moving party has met
his/her burden, the court must stop short of weighing the evidence and making
credibility determinations of the truth of the matter. The evidence of the non-movant
is to be believed, and all justifiable inferences are to be drawn in his favor. Tipton v.
Bergrohr GMBH-Siegen, 965 F .2d 994, 998-99 (11th Cir. 1992) (internal citations
and quotations omitted). However, speculation or conjecture cannot create a genuine
issue of material fact. Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1181 (11th Cir.
2005). A “mere scintilla of evidence” in support of the non-moving party also cannot
overcome a motion for summary judgment. Young v. City of Palm Bay, 358 F.3d 859,
860 (11th Cir. 2004).
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In this case, Allstate submitted evidence in support of its motion for summary
judgment filed September 6, 2013. (See Doc. 20). Under Appendix II to the court’s
an Initial Order Governing All Further Proceedings (Doc. 4), plaintiff had until
September 27, 2013, to file a response to the summary judgment motion. No
response was filed by the due date. Plaintiff attempted to file a response to the
summary judgment motion on January 24, 2014, but the response was stricken as
untimely. (See Doc. 29, Order). Therefore, for purposes of the motion for summary
judgment, the evidence of the defendant is undisputed.
Plaintiff’s residence is located at 574 County Road 297, Hillsboro, Alabama.
Allstate insured the subject property under a homeowner’s policy of insurance.
(Doc. 20-2, Certified Copy of Allstate Policy). The residence was damaged by a
On or about April 29, 2011, plaintiff reported the damage to Allstate and made
a claim. (Doc. 20-3, Allstate Claim History Report, at Stewart 0134). At that time,
Allstate advised plaintiff of the name and contact information of the outside adjuster
who would be responsible for inspecting the property, Robert Stevenson. (Id. at
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On May 6, 2011, Allstate completed an inspection of plaintiff’s property and
determined that a follow-up inspection was needed to determine the structural
soundness of the dwelling. (Id. at Stewart 0138, Stewart 0140). Therefore, Allstate
requested an independent professional engineer to inspect the property and provided
a $5,000 advance to plaintiff for living expenses. (Id.; Doc. 20-4, Check for
Additional Living Expenses). On May 14, 2011, Allstate updated plaintiff on the
status of his claim and reminded him that an engineer would be inspecting his
property to determine if the home would be classified as a total loss. (Doc. 20-3 at
Stewart 0144). A few days later, Allstate received plaintiff’s contents list and repair
estimates for the items being reported as damaged and/or destroyed. (Doc. 20-5,
Plaintiff’s Contents List).
On May 23, 2011, Professional Engineer Bob Mott advised Allstate that
plaintiff’s home was irreparable. (Doc. 20-6, Engineering Report Prepared by
Compton Engineering). Upon receipt of this report, Allstate issued a check to
plaintiff in the amount of policy limits for the subject dwelling and other structures,
totaling $186,616. (Doc. 20-7, Payments for “Dwelling” and “Other Structures”).
On June 8, 2011, Allstate advised Mr. Stewart that additional information was
needed on a number of the personal property items previously submitted. (Doc. 20-3
at Stewart 0160). Allstate requested either photographs, serial numbers, model
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numbers or brand names to help identify these items. (Id.). At the same time, Allstate
inside adjuster, Valorie Harris, contacted Tri-Green Equipment to gather more
information on the three damaged tractors reported by plaintiff.1 (Id.).
On June 9, 2011, plaintiff advised Ms. Harris that a number of the personal
property items being claimed were used for business purposes. (Doc. 20-8, Harris
Depo., at 21-22; Doc. 20-3 at Stewart 0161). Mr. Stewart identified each of the items
from his previously submitted contents list which he used for business purposes.
(Doc. 20-8, Harris Depo., at 66-67). Later that afternoon, Ms. Harris’ manager,
Dorothy Reed, followed up with Mr. Stewart on the personal property claim and
learned that he raised cattle for the purpose of selling the calves. Again, plaintiff
named each of the claimed items, including the tractors, which were used for business
purposes. (Doc. 20-3 at Stewart 0161). At that time, Ms. Reed informed Mr. Stewart
of the coverage limitation of $2000 for items “used or intended for use in a business.”
(Id.; Doc. 20-8, Harris Depo., at 67-68).
Plaintiff’s policy of insurance contained the following limitation on certain
Limitations apply to the following groups of personal
If personal property can reasonably be
The repair estimate for the three damaged tractors provided by plaintiff was from Tri-Green
Equipment and totaled $24,018.24. (Doc. 20-9, Repair Estimates from Tri-Green Equipment).
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considered a part of two or more of the groups listed
below, the lowest limit will apply. These limitations do not
increase the amount of insurance under Coverage
C-Personal Property Protection. The total amount of
coverage for each group in any one loss is as follows.
3. $2,000 - Property used or intended for use
in a business, including property held as
samples or for sale or delivery after sale,
while the property is on the premises.
(Doc. 20-2, Certified Copy of Allstate Policy, at Stewart 0023) (emphasis added).
Immediately after being advised of the business property limitation and in
direct contradiction to his previous statements, plaintiff retracted his prior comments
and stated that he sold cattle as a hobby. (Doc. 20-3 at Stewart 0161; Doc. 20-8,
Harris Depo., at 68). At the conclusion of the call, plaintiff was advised that the
business limit would apply to any items “used or intended for use in a business” but
that he would receive full payment for his other personal property items. (Doc. 20-3
at Stewart 0161). The claim was then transferred to Allstate’s Special Investigative
Unit (SIU) for further investigation as a result of plaintiff’s inconsistent statements
concerning his personal property claim. (Id. at Stewart 0165).
On June 14, 2011, SIU adjuster Jim Neno contacted Mr. Stewart to explain his
role in the claim and take a recorded statement. (Id. at Stewart 0170). Mr. Neno
informed plaintiff that he was assigned to the claim as a result of plaintiff’s
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inconsistent statements concerning personal property items. (Id.). During the
recorded statement, Neno inquired about the use of several items included on
plaintiff’s previously submitted contents list. (Doc. 20-11, Recorded statement taken
by James Neno, at 2-8). Plaintiff advised that the hayrack was used to harvest
between 65 and 70 acres of hay located on his son’s property and that this hay was
then used as feed for the cattle on his son’s farm.2 (Id. at 3). Plaintiff informed
Allstate that he used the three tractors on his son’s farm to avoid the necessity of his
son having to buy the same equipment. (Id. at 6).
The following day, plaintiff informed Allstate that he had retained counsel and
provided a letter of representation from attorney James A. Cook, Jr. (Doc. 20-12,
Letter of Representation). On June 24, 2011, Neno sent correspondence to Mr. Cook
requesting that Mr. Stewart provide any paperwork that would support his purchase
and ownership of the equipment claimed, that he provide copies of his tax returns for
the past three years, and that he explain the FEIN3 which was registered as issued to
Mr. Stewart for the purpose of a “beef cattle” business. (Doc. 20-13, Correspondence
from James Neno).
Plaintiff has provided sworn testimony that his son operates a business for the purposes of
selling calves and incorporated as Stewart Farms II, LLC on the property adjacent to his home. (Doc.
20-10, Stewart Depo., at 14-17).
“FEIN” stands for Federal Employer Identification Number and is issued to any company
to identify the company for tax and legal purposes.
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When he received no response, Mr. Neno again sent correspondence to Mr.
Cook on July 6, 2011, and requested the same information. (Doc. 20-14,
Correspondence from James Neno). On or about July 14, 2011, Mr. Neno sent a letter
to plaintiff setting out his responsibilities under the insurance contract following a
(Doc. 20-15, Correspondence from James Neno to Plaintiff). These
responsibilities included submitting to an examination under oath and providing
requested documentation in the investigation of the claim. (Id.; Doc. 20-2, Certified
Copy of Allstate Policy, at Stewart 0030).
On or about July 21, 2011, Allstate retained the services of Alabama licensed
attorney, Mark Hart, to assist in the claim investigation and to conduct an
Examination Under Oath (EUO) of Mr. Stewart. (Doc. 20-3 at Stewart 0182). On
August 2, 2011, Mr. Hart sent correspondence informing plaintiff/plaintiff’s counsel
that he had been retained by Allstate to help complete the investigation of plaintiff’s
personal property claim.
(Doc. 20-16, Correspondence from Mark Hart).
Specifically, plaintiff was informed that he would need to sit for an EUO on
August 18, 2011, and provide the documentation which previously had been
requested by Allstate. (Id.).
On or about August 10, 2011, Allstate was advised that plaintiff needed to
reschedule the examination under oath which had been set for August 18, 2011.
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(Doc. 20-3 at Stewart 0186; Doc. 20-17, Correspondence from James A. Cook, Jr.,
to Benny and Kathy Stewart dated August 22, 2011).4 On or about August 17, 2011,
Mr. Cook advised Allstate that his client was reluctant to sit for an examination under
oath and was considering withdrawing his personal property claim. (Doc. 20-3 at
On August 24, 2011, Mr. Hart sent a letter to Mr. Cook requesting dates for
plaintiff’s EUO and that plaintiff provide the documents which previously had been
requested by Allstate. (Doc. 20-18, Correspondence from Mark Hart). When he
received no response, Mr. Hart sent correspondence to Mr. Cook scheduling
plaintiff”s EUO for September 19, 2011. (Doc. 20-19, Correspondence from Mark
Hart). On September 16, 2011, Mr. Cook informed Allstate’s attorney, Mr. Hart, that
he was trying to convince Mr. Stewart to submit to the previously requested
examination under oath. In addition, Mr. Cook stated that he had made Mr. Stewart
aware that his claim could be denied if he failed to satisfy his obligations under the
contract. (Doc. 20-3 at Stewart 0189). Following this conversation, Allstate agreed
The court notes that in the letter to Mr. and Mrs. Stewart, Mr. Cook advised them that if
they wished to pursue the claim further, they would need to associate Alabama counsel because he
was not licensed to practice law in Alabama. Mr. Cook stated he would discuss everything he knew
with any Alabama attorney they hired and asked the Stewarts to contact him to discuss their preferred
course of action.
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to a two-week extension for plaintiff to sit for the EUO, and the EUO was set for
October 7, 2011. (Id. at Stewart 0189; Doc. 20-20, Correspondence from Mark Hart).
On October 7, 2011, Mr. Stewart failed to appear for his examination under
oath. (Doc. 20-21, Coverage Opinion provided by Mark Hart). Thereafter, Mr. Hart
issued his coverage opinion recommending the denial of plaintiff’s personal property
claim, based on his breach of the condition precedent of the policy of sitting for an
EUO and providing requested documentation and substantial evidence that Mr.
Stewart intentionally made a material misrepresentation that the tractors were not
used for business purposes. (Id.).
Allstate ultimately followed the recommendation of Mr. Hart and denied
plaintiff’s personal property claim on or about October 12, 2011, for the reasons set
out in Mr. Hart’s recommendation letter. (Doc. 20-22,
August 22, 2012, Allstate received a demand letter from attorney Christopher Leavitt,
asking that Allstate pay for the three tractors and attaching the Tri-Green Equipment
(Doc. 20-23, Correspondence from Christopher Leavitt).
responded on August 24, 2012, stating that it would not be addressing plaintiff’s
contents claim for the reasons previously set out in the October 12, 2011, denial
letter. (Doc. 20-24, Correspondence from Linda Berghult). Plaintiff then filed this
action on September 20, 2012.
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Breach of Contract
Plaintiff alleges that Allstate breached its insurance contract with plaintiff by
“failing to pay amounts due and owing under the policy for structural damage to the
Plaintiff’s above-described property and failing to address the damage noted in the
independent estimate.” (Doc. 1-1, Complaint, at ¶ 17). With respect to the claim for
damage to the residence and its contents, plaintiff claims that Allstate “failed to
address the majority of the damage sustained to the home and the payment issued
thereon was inadequate to repair the property.” (Id. at ¶ 11).
In order to establish a breach-of-contract claim, a plaintiff must show “(1) the
existence of a valid contract binding the parties in the action, (2) his own performance
under the contract, (3) the defendant’s non-performance, and (4) damages.” Ex parte
Alfa Mut. Ins. Co., 799 So.2d 957, 962 (Ala. 2001) (citation omitted); State Farm Fire
& Cas. Co. v. Slade, 747 So. 2d 293, 303 (Ala. 1999) (citation omitted).
It is undisputed that there was a valid contract between plaintiff and Allstate.
(See Doc. 20-2). However, plaintiff has not performed under the contract and cannot
establish non-performance by Allstate when the conditions precedent to trigger such
coverage were never satisfied. An insurance company is entitled to require its insured
to provide documentation supporting a claim during the investigation process. See,
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e.g., State Farm Fire & Cas. Co. v. Richardson, 2008 WL 4531765 (S.D.Ala. Oct. 9,
2008) (State Farm policy “obligated Richardson to cooperate with State Farm’s
investigation by, among other things, providing records and documents to State Farm
upon request.”). Furthermore, 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.” United Ins. Co. of America
v. Cope, 630 So.2d 407, 411 (Ala. 1993). The Alabama Supreme Court stated that
“no case from this Court places on an insurance company an obligation to either
investigate or pay a claim until the insured has complied with all of the terms of the
contract with respect to submitting claims for payment.” Id. at 412. “Courts must
enforce insurance contracts as written and cannot defeat express provisions in a
policy.” Shrader v. Employers Mut. Cas. Co., 907 So.2d 1026, 1034 (Ala. 2005).
The Allstate policy at issue contains the following provisions regarding the
insured’s duties following a loss:
Section I Conditions
What You Must Do After A Loss
In the event of a loss to any property that may be covered by this
policy, you must:
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give us all accounting records, bills, invoices and other
vouchers, or certified copies, which we may request to
examine an permit us to make copies.
as often as we reasonably require:
at our request, submit to examinations under oath,
separately and apart from any other person defined
as you or insured person and sign a transcript of the
(Doc. 20-2 at Stewart 0030) (emphasis added).
In Nationwide Ins. Co. v. Nilsen, 745 So.2d 264, 266-67 (Ala. 1998), the
Alabama Supreme Court held that submitting to an examination under oath was a
condition precedent to an insured’s recovery under the policy, where the policy
contained an express provision that the insured submit to an examination under oath
at the request of the insurer. The wording of the policy in Nilsen is very similar to the
policy at issue. Further, Nationwide made numerous requests that Nilsen appear for
an Examination Under Oath and that he provide a signed, sworn proof of loss that set
forth, among other things, receipts for additional living expenses and records
supporting the calculation of fair-rental-value loss pursuant to the terms of the policy.
Although numerous requests were made, Nilsen failed to submit to an Examination
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Under Oath and failed to provide the requested documentation. The Alabama
Supreme Court stated:
An insurance company is entitled to require an insured to
submit to an examination under oath as part of its claims
investigation process. See Payne v. Nationwide Mut. Ins.
Co., 456 So.2d 34, 37 (Ala. 1984). 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. See
United Ins. Co. of America v. Cope, 630 So.2d 407, 411
Id. at 267. It therefore found that Nationwide did not breach its contract of insurance
by failing to pay Nilsen’s claim. Id. at 269.
It is undisputed that Allstate made numerous requests for plaintiff to appear for
an examination under oath and provide requested documentation concerning his
personal property claim. Plaintiff failed to comply with these conditions precedent
of the insurance contract. Once plaintiff obtained counsel, Allstate was obligated to
communicate through Mr. Cook. Allstate’s counsel sent numerous letters to Mr.
Cook and talked with him by telephone. Mr. Cook advised that plaintiff was reluctant
to sit for the EUO. On September 16, 2011, Mr. Cook informed Mr. Hart that he was
trying to convince Mr. Stewart to submit to the previously requested EUO. In
addition, Mr. Cook stated that he had made Mr. Stewart aware that his claim could
be denied if he failed to satisfy his obligations under the contract. Despite the
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August 22, 2011, letter from Mr. Cook to the Stewarts advising that they would have
to obtain Alabama counsel, there is no evidence that Mr. Cook communicated this to
Allstate or ever advised Allstate that he was no longer representing Mr. Stewart.
Further, plaintiff never advised Allstate that Mr. Cook was no longer representing
him or that he had retained other counsel with whom Allstate should communicate
until after Allstate had denied his claim.
Plaintiff’s failure to comply with material terms of the insurance contract is a
breach of his obligations following a loss. Alabama courts have held the policy
provisions relied upon by Allstate to deny the claim are valid and enforceable, and
any duty Allstate may have owed to pay the claim for the damage to the tractors did
not arise until Mr. Stewart complied with these terms and conditions.
Plaintiff also has claimed that Allstate failed to pay him enough to repair his
residence. However, Allstate paid plaintiff policy limits for the damage to his
residence and its contents after determining that the house could not be repaired. It
cannot be obligated to pay any more than the policy requires it to pay. See Farr v.
Gulf Agency, 74 So.3d 393 (Ala. 2011) (finding no breach of contract when insurer
paid policy limits in absence of any evidence that policy limits had been increased).
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Plaintiff alleges that Allstate exercised bad faith by intentionally refusing to
pay plaintiff’s claim in full despite knowing it had no arguable reason to deny
benefits under the policy. (Doc. 1-1, Complaint, at ¶¶ 20-25).
In order to prevail on a bad-faith failure to pay an insured’s claim, the insured
has the burden of proving
(a) an insurance contract between the parties and a breach
thereof by the defendant; (b) an intentional refusal to pay
the insured’s claim; (c) the absence of any reasonably
legitimate or arguable reason for that refusal (the absence
of a debatable reason); [and] (d) the insurer’s actual
knowledge of the absence of any legitimate or arguable
reason; . . . .
National Sec. Fire & Cas. Co. v. Bowen, 417 So.2d 179, 183 (Ala. 1982). See also
State Farm Fire and Cas. Co. v. Brechbill, 2013 WL 5394444 (Ala. Sept. 27, 2013)
(same); Alfa Mut. Fire Ins. Co. v. Thomas, 738 So.2d 815, 822 (Ala. 1999) (same).
A “debatable reason” means “an arguable reason, one that is open to dispute or
question.” Bowen, supra.
The evidence is undisputed that Allstate undertook a thorough investigation
and hired a professional engineer to complete an inspection and assess the damages
to plaintiff’s home prior to reaching its claim decision. It paid plaintiff for living
expenses and paid policy limits for the residence and its contents. Allstate also
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sought documentation from plaintiff to substantiate his claim for the damage to the
tractors and conducted further investigation when plaintiff made inconsistent
statements regarding whether the tractors were used for personal or business
purposes. It attempted to obtain further documentation from plaintiff and schedule
an examination under oath on numerous occasions. When plaintiff failed to appear
for the EUO, it denied his claim on the basis of his failure to submit the requested
documentation and sit for an EUO, as well as for his apparent misrepresentation,
based on the unexplained inconsistencies in plaintiff’s statements about the use of the
tractors. As discussed above, Allstate did not breach its insurance contract with
plaintiff. Therefore, plaintiff cannot satisfy the elements of a cause of action for bad
faith refusal to pay a claim. Further, Allstate also had a “reasonably legitimate or
arguable reason” for refusing to pay plaintiff’s claim for the damage to his tractors,
and plaintiff has presented no evidence that Allstate lacked a debatable reason or that
it had actual knowledge of the absence of any legitimate or arguable reason for
refusing to pay his claim.
Based on the foregoing, the court finds that defendant’s motion for summary
judgment is due to be granted as to all claims asserted by plaintiff and this action
dismissed with prejudice.
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A separate order in conformity with this Memorandum Opinion will be entered
DONE this 3rd day of April, 2014.
HARWELL G. DAVIS, III
UNITED STATES MAGISTRATE JUDGE
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