Ware et al v. Posey et al

Filing 27

MEMORANDUM OPINION. Signed by Judge L Scott Coogler on 4/12/13. (KGE, )

FILED
2013 Apr-12 AM 09:13
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
MAXINE WARE and ELBERT
WARE,
Plaintiffs;
vs.
NATIONWIDE INSURANCE
COMPANY, et al.,
Defendants.

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7:11-cv-4272-LSC

MEMORANDUM OPINION
I.

Introduction
Before the Court is a Motion for Summary Judgment (Doc. 21), filed on

November 30, 2012, by Defendant Nationwide Property & Casualty Company
(improperly designated in this lawsuit as Nationwide Insurance Company)
(“Nationwide”). Nationwide seeks summary judgment as to Maxine and Elbert
Ware’s (“Plaintiffs’”) claims for breach of contract, bad faith failure to pay, and bad
faith failure to investigate. Additionally, the Court has for consideration a Motion to
Strike (Doc. 24), filed by Nationwide on December 12, 2012, wherein Nationwide asks
this court to strike several exhibits Plaintiffs submitted contemporaneously with their

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response to Nationwide’s Motion for Summary Judgment. For the reasons stated
below, Nationwide’s Motion to Strike (Doc. 24) is due to be GRANTED in part and
DENIED in part, and its Motion for Summary Judgment (Doc. 21) is due to be
GRANTED in all respects.
II.

Facts
Nationwide provided homeowners’ insurance for Plaintiffs’ home pursuant to

Homeowners Policy No. 77 01 HP189164 (the “Policy”). (Doc. 22-1.) This action
arose after Nationwide refused to provide coverage under the Policy for water damage
inside the home. Plaintiffs contend that the water damage was a result of a leaking roof
brought on by heavy rains. Nationwide, on the other hand, contends that the damage
is attributable to surface and ground water accumulation, making it a non-covered loss
under the Policy.
The Policy contained an exclusion for water damage and damage caused by
water-borne material, which provides in pertinent part:
1.

We do not cover loss to any property resulting directly or
indirectly from any of the following.
....
b)

Water or damage caused by water-borne material. Loss
resulting from water or water-borne material described
below is not covered even if other perils contributed,
directly or indirectly to cause the loss. Water and waterborne material damage means:
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(1)

flood, surface water . . . .

....
(3)

water or water-borne material below the surface of the
ground, including water or water-borne material which
exerts pressure on, seeps or leaks through a building,
sidewalk, driveway, foundation, swimming pool, or other
structure.

(Id. at 16.)
On or about October 22, 2009, Plaintiffs filed an insurance claim under the
Policy for water damage to their home. Specifically, Plaintiffs cited water damage to
the flooring, as well as mold growth throughout the home. On October 28, 2009,
Nationwide’s claim adjuster, Ray Posey, visited Plaintiffs’ home and performed an
inspection. During the inspection, Posey took photographs, looked at the floors, and
examined the moisture content in the house using a moisture meter. Posey also
crawled under the house, where he discovered six to eight inches of standing water in
the crawlspace. Posey ultimately determined that the standing water in the crawlspace
was the source of the damage reported in Plaintiffs’ insurance claim. Unable to detect
leaking pipes or other sources of the water, Posey concluded that standing water in the
crawlspace was a result of surface and ground water accumulation—a cause of loss not
covered under the Policy. Posey informed Plaintiffs about his findings, and advised

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them to remove the standing water and take appropriate action to prevent it from
reentering.
As a result of Posey’s finding, Nationwide sent a letter to Plaintiffs on
November 4, 2009, informing them that the damages reported were not covered
under the Policy pursuant to the water damage exclusion cited above. (Doc. 22-4.)
Believing that the water damage was a result of a storm-damaged roof, Plaintiffs
contacted Nationwide again in January 2011, to ask that their claim to reconsidered.
In response, Nationwide sent Posey back to Plaintiffs’ home, this time with a roofing
expert. Posey and the roofing expert performed an inspection of the exterior of the
roof and the interior of the attic, but were unable to find evidence of water penetration
through the roof or damage to the roof that would have allowed water inside the home.
(Doc. 22-7.) On February 18, 2011, Nationwide sent Plaintiffs a letter, reaffirming
their position that the water damage was a result of causes not covered under the
Policy. (Doc. 22-8.)
On March 21, 2011, the Policy expired, as Nationwide refused to continue the
Policy after discovering structural hazards during a property inspection. (Doc. 22-6.)
In the fall of 2011, after the Policy expired, Plaintiffs asked Nationwide to reconsider
their claim a final time. (Doc. 21 at 8.) In response to this request, Nationwide

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contracted a private engineering firm, Donan Engineering Company (“Donan”), to
perform an inspection of the home. The stated purpose of Donan’s inspection was “to
determine the integrity of the roof and the cause of water intrusion into the
crawlspace.” (Doc 22-11.) While Donan noted a dent in one of the metal roofing
panels, it issued a report stating that the damaged roofing panel could not have caused
the water damage listed in Plaintiffs’ insurance claim.1 (Doc. 22-11 at 9–10.) In their
post-inspection report, Donan also reaffirmed Posey’s conclusion that the water
damage to Plaintiffs’ home was a result of surface water runoff and ground saturation,
citing poor grading and insufficient ground sloping as the reason for the water buildup.
(Id. at 10.) Based on Donan’s report, Nationwide once again informed Plaintiffs that
it was declining to provide coverage for the water damage. Following Nationwide’s
final refusal, Plaintiffs filed the instant action, asserting claims for breach of contract,
bad faith failure to pay, and bad faith failure to investigate. (Doc. 1.)
Plaintiffs disagree with Nationwide’s finding concerning the cause of the water
damage. They contend that storms in September and October of 2009 damaged the
roof and ultimately caused water damage to their home. (Doc. 23 at 1–2.) In support
of this position, Plaintiffs offered the affidavit of William Petty, the individual who

1

Nationwide asserts that this single wind-damaged roofing panel is a result of severe whether
and tornados that occurred in April 2011, after the Policy was cancelled. (Doc. 22-15 at 2.)
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originally installed the roof and allegedly inspected it after the storms in 2009. (Doc
23-1.) Petty attests that based on his “30 years of experience in the roofing and
remodeling business,” the damage to the roof allowed water to leak into the ceiling
and walls of Plaintiffs’ home and likely caused the water damage forming the basis of
Plaintiffs’ insurance claim. (Id.) Petty further attests that the storms also caused
damage to the cover of the central heating and air conditioning unit, which allowed
rain to run on top of the air conditioner and flow under the house. (Id.)
Nationwide moved to strike Petty’s testimony on grounds that his statements
are expert opinion under Fed. R. Evid. 702, but he was never disclosed as an expert
in accordance with the Court’s scheduling order or in response to Nationwide’s
requests for disclosure. (Doc. 24.) The Court addresses Nationwide’s Motion to
Strike in part IV, infra, before turning to the merits of Nationwide’s Motion for
Summary Judgment.
III.

Standard of Review
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 a judgment as a matter of law.” Fed. R. Civ. P. 56(c). The party moving for

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summary judgment “always bears the initial responsibility of informing the district
court of the basis for its motion, and identifying those portions of [the evidence] which
it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986). To meet this burden, the movant can present
evidence showing that there is no genuine dispute of material fact, or show that the
nonmoving party has failed to present evidence in support of some element of its case
on which it bears the ultimate burden of proof. Celotex, 477 U.S. at 322-23. In
evaluating the arguments of the movant, the court must view the evidence in the light
most favorable to the nonmoving party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739,
742 (11th Cir. 1996).
Once the moving party has met his 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.’” Celotex, 477 U.S. at 324 (quoting Fed. R. Civ.
P. 56(e)). “A factual dispute is genuine only if a ‘reasonable jury could return a verdict
for the nonmoving party.’” Info. Sys. & Networks Corp. v. City of Atlanta, 281 F.3d
1220, 1224 (11th Cir. 2002) (quoting United States v. Four Parcels of Real Property, 941
F.2d 1428, 1437 (11th Cir. 1991)).

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IV.

Motion to Strike
In its Motion to Strike, Nationwide’s asks the Court to strike certain portions

of Plaintiffs’ evidentiary filings submitted contemporaneously with their response to
Nationwide’s Motion for Summary Judgment. First, Nationwide asks this Court to
strike the expert disclosure portion of Plaintiffs’ Exhibit 1. Plaintiffs’ Exhibit 1 is the
affidavit of William Petty (“Petty”) (Doc. 23-1), the individual who originally
installed Plaintiffs’ roof and subsequently made repairs to the roof in the winter of
2009. In his affidavit, Petty attests that Plaintiffs’ roof was damaged by storms in late
2009. (Id.) Petty, goes on to state that based on his “30 years of experience in the
roofing and remodeling business,” the damage to the roof allowed water to leak into
the ceiling and walls of Plaintiffs’ home. (Id.) Additionally, Petty attests that the same
storms which caused the roof damage also damaged the cover of the central heating
and air conditioning unit, which allowed rain to run on top of the air conditioner and
flow under the house. (Id.)
Nationwide contends that Petty’s testimony amounts to expert testimony, and
should be stricken because Plaintiffs never disclosed an expert or provided an expert
report as required by this Court’s order. This Court entered a Scheduling Order on
March 19, 2012, which required that all experts be disclosed by August 31, 2012. To

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date, Plaintiffs have not disclosed an expert or provided Nationwide with an expert
report. Moreover, during the discovery phase, Nationwide specifically requested the
identification of experts that Plaintiffs intended to utilize in this matter, but Plaintiffs
did not disclose any experts in response to these requests. On January 2, 2013, this
Court issued an order directing Plaintiffs to respond within eleven (11) days to
Nationwide’s motion to strike. (Doc. 26.) As of the date of this opinion, Plaintiffs have
not yet offered a response.
After evaluating Plaintiffs’ Exhibit 1, it is clear that aspects of Petty’s testimony
consist of expert opinion. First, the affidavit makes what appears to be an effort to
qualify Petty as an expert by stating that his opinion is based on “30 years of
experience in the roofing and remodeling business.” (Doc. 23-1.) Second, Petty’s
attestations are beyond the scope of run-of-the-mill lay testimony. Petty testified that
the roof and air conditioner were both damaged by a storm, and that such damage
resulted in water entering the ceiling and walls of the home and flowing under the
house. This is not testimony that is within the understanding of a common lay witness.
While a lay witness may be able to recognize and testify about whether a roof is
damaged, such a witness is not capable of reaching an informed conclusion about
whether that damage arose due to a product defect, poor workmanship, natural wear

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and tear, storm damage, or some other cause. Additionally, a lay witness would not be
capable of opining that a storm-damaged roof resulted in specific water damage in the
ceiling, or that a storm-damaged air conditioning unit resulted in standing water under
the house. Instead, these are all determinations reserved for someone with specialized
knowledge. See Fed. R. Civ. Evid. 701(c) (stating that lay witness opinion must “not
[be] based on scientific, technical, or specialized knowledge withing the scope of Rule
702”).
There would be substantial injury if Plaintiffs were permitted to offer expert
testimony at this late stage of the proceeding. Nationwide has not been afforded an
opportunity to depose Petty, nor are they permitted to do so since the discovery
deadline has long since expired. Thus, Nationwide’s Motion to Strike (Doc. 24) is due
to be GRANTED with respect to Exhibit 1, and the portions of Petty’s proffered
testimony consisting of expert opinion are due to be stricken. Specifically, the Court
refuses to consider Petty’s testimony that (1) the roof was damaged because of wind
and storms, (2) the damage to the roof allowed water to leak into the ceiling and walls
of Plaintiffs home, (3) the air conditioning unit was damaged because of wind and
storms, and (4) the damage to the air conditioning unit allowed water to flow under
the house.

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Nationwide also asks the Court to strike Plaintiffs’ Exhibit 2 because it consists
of inadmissable hearsay. Plaintiffs’ Exhibit 2 includes copies of newspaper articles
describing heavy rains in Alabama in September and October of 2009. As discussed
in greater detail below, see infra n.2, it is not enough for Plaintiffs to establish that
heavy rains occurred in Alabama in 2009. Rather, Plaintiffs must demonstrate that the
water from those rains entered the home through the allegedly storm-damaged roof
and air conditioning unit. Plaintiffs have failed to make such a showing. Thus, because
the evidence presented in Plaintiffs’ Exhibit 2 is insufficient to help Plaintiffs’ survive
summary judgment, Nationwide’s motion to strike Exhibit 2 is moot, and therefore
DENIED.
V.

Motion for Summary Judgment
Nationwide seeks summary judgment on Plaintiffs’ claims for breach of

contract, bad faith failure to pay, and bad faith failure to investigate. Each claim will
be addressed in turn.
A.

Breach of Contract

“A contract of insurance, like other contracts, is governed by the general rules
of contracts.” Twin City Fire Ins. Co. v. Alfa Mut. Ins. Co., 817 So. 2d 687, 691 (Ala.
2001). The material elements necessary to establish a cause of action for breach of

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contract under Alabama law are: “(1) a valid contract binding the parties; (2) the
plaintiff[’s] performance under the contract; (3) the defendant’s non performance;
and (4) resulting damages.” Reynolds Metal Co. v. Hill, 825 So. 2d 100, 105 –106 (Ala.
2002) (citing State Farm Fire & Cas. Co. v. Slade, 747 So. 2d 293, 303 (Ala. 1999)).
Nationwide contends that Plaintiffs have not produced sufficient evidence to establish
its non-performance of the contract. Specifically, Nationwide asserts Plaintiffs have
failed to produce any evidence showing that the water damage to their home was a
“covered loss” under the Policy, and thus have not shown that Nationwide was
obligated to make a payment on Plaintiffs’ claim.
In Alabama, the insured bears the burden of establishing coverage by
demonstrating that a claim falls within the policy, while the insurer bears the burden
of proving the applicability of any policy exclusion. See, e.g., Colonial Life & Accident
Ins. Co. v. Collins, 194 So. 2d 532, 535 (Ala. 1967); U.S. Fidelity. & Guar. Co. v.
Armstrong, 479 So. 2d 1164, 1168 (Ala. 1985). However, the insurer’s burden to prove
the applicability of an exclusion does not “shift[] the general burden of proof from
plaintiff to defendant.” Belt Auto. Indem. Ass’n v. Ensley Transfer & Supply Co., 99 So.
787, 790 (Ala. 1924). Rather, “when the defendant has offered evidence showing

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prima facie that the case is one of specified nonliability, the burden of showing a case
within the operation of the policy remains upon the plaintiff.” Id.
Nationwide has offered sufficient evidence of nonliability pursuant to the
Policy’s water damage exclusion, including evidence from Posey’s initial inspection,
Posey’s second inspection with a roofing expert, and the inspection of an independent
engineering company—all three of which were consistent in finding that the water
damage to Plaintiff’s home arose from ground water accumulation not covered under
the Policy. Despite this evidence, Plaintiffs contend they have put forth enough
evidence to avoid summary judgment and to create a jury question regarding whether
the damage is excluded under the Policy. Specifically, Plaintiffs rely on Petty’s
testimony that the water damage was caused by leakage from the allegedly stormdamaged roof.
The problem with Plaintiffs’ argument is that Petty’s testimony has very little
probative value. As discussed earlier in this opinion, the Court cannot consider Petty’s
testimony to the extent he offers an expert opinion. See supra Part IV. If Plaintiffs had
timely disclosed Petty as an expert, his opinion would perhaps have created a genuine
issue of material fact regarding whether the allegedly storm-damaged roof actually
caused water damage in the home. But since Petty was not disclosed as an expert, the

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Court can only consider those portions of his testimony that are admissible by a lay
witness. In other words, Petty’s testimony is only admissible to the extent it involves
his first-hand knowledge of the damage to the roof and water damage to the home. See
Fed. R. Evid. 701. However, Plaintiffs have not made the necessary showing that Petty
has first-hand knowledge of the roof damage or water damage, as would be required
for lay testimony. Petty did not witness the storm damaging the roof, nor does he
allege observing the water actually entering the home. Rather, his testimony is based
on his after-the-fact inspection and his “30 years of experience in the roofing . . .
business.” (Doc. 23-1.) Presented in this format, Petty’s testimony cannot be fairly
classified as lay testimony, and to the extent it is offered as such, is undoubtedly
inadmissible at the summary judgment stage just as it would be at trial.
Additionally, Plaintiffs wrongly assert that expert testimony is not required to
prove their case. While it may be true that an expert is not required in all breach of
contract cases, here the crucial question—whether the water damage came from
ground water accumulation or a roof defect—is not one a lay witness can answer. A
lay witness is not capable of testifying about whether roof damage arose due to a
product defect, poor workmanship, natural wear and tear, storm damage, or some
other cause. Nor is a lay witness capable of opining that a storm-damaged roof resulted

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in specific water damage in the ceiling, or that a storm-damaged air conditioning unit
resulted in standing water under the house. See Fed. R. Civ. Evid. 701(c) (stating that
lay witness opinion must “not [be] based on scientific, technical, or specialized
knowledge withing the scope of Rule 702”). Rather, expert testimony would be
required on these disputed points.
Importantly, this conclusion is supported by precedent from this Court and the
Eleventh Circuit. See Nix v. State Farm Fire & Cas. Co., Inc., 444 Fed. App’x 388, 390
(11th Cir. 2011). In Nix, the Eleventh Circuit affirmed this Court’s decision granting
summary judgment in favor of an insurance company based on virtually identical facts
as those presently before the Court. In Nix, coverage was denied for a wall that
collapsed in the plaintiffs’ basement. In support of its summary judgment motion, the
insurance company offered expert testimony that the wall collapsed because it was not
properly designed or built. The plaintiffs argued that a burst water pipe caused the
collapse. As in this case, the plaintiffs neglected to offer expert testimony in rebuttal,
but rather only offered two lay witnesses—the homeowner and a contractor. The
Eleventh Circuit explained that the plaintiffs’ witnesses did not observe the wall
collapse or have personal knowledge of the construction, and therefore were
inadmissible lay opinion testimony as to the cause. Nix, 444 Fed. App’x at 390. As

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such, the “uncontroverted evidence” from the insurance company’s expert
established that the claim was excluded from coverage. Id.
As in Nix, Petty’s testimony is not based on first hand knowledge, and therefore
is not admissible as a lay witness’s opinion. Consequently, Plaintiffs have no evidence
at all to counter Nationwide’s position that the water damage arose from surface and
ground water accumulation.2 Without evidence that their loss is covered by the Policy,
Plaintiffs cannot show Nationwide breached the terms of the Policy by refusing to pay
their claim. As in Nix, Plaintiffs are unable to rebut Nationwide’s “uncontroverted
evidence.” Therefore, Nationwide’s Motion for Summary Judgment is due to be
GRANTED with regard to Plaintiffs’ breach of contract claim.
B.

Bad Faith Claims

In their complaint, Plaintiffs assert two different bad faith claims: (1) bad faith
failure to pay (“normal” bad faith) and (2) bad faith failure to investigate
(“abnormal” bad faith). Plaintiffs’ responsive brief fails to distinguish between these
two claims. However, because these two causes of action are distinct and should not

2

Plaintiffs additionally offer newspaper excerpts detailing the heavy rain that occurred in
September and October of 2009. See Doc. 23-2. However, these excerpts are merely evidence
showing that such rains occurred; the newspaper reports do nothing to show that the rain was the
cause of the damage to Plaintiffs’ roof and home.
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be confused, the Court addresses them separately. See, e.g., Jones v. Alfa Mut. Ins. Co.,
1 So. 3d 23 (Ala. 2008).
1) Bad Faith Refusal to Pay
In order to establish a claim of bad faith refusal to pay under Alabama law, a
plaintiff must prove: “(1) the existence of an insurance contract; (2) an intentional
refusal to pay the claim; and (3) the absence of any lawful basis for refusal and the
insurer’s knowledge of that fact or the insurer’s intentional failure to determine
whether there is any lawful basis for its refusal.” Acceptance Ins. Co. v. Brown, 832
So.2d 1, 16 (Ala. 2001). “If [the plaintiff’s] evidence fails to eliminate any arguable
reason for denying payment, any fairly debatable reason on a matter of fact or a matter
of law, he cannot recover under the tort of ‘bad faith refusal [to pay].’” Nat’l Sec. Fire
& Cas. Co. v. Bowen, 417 So. 2d 179, 185 (Ala. 1982). In fact, a plaintiff’s burden is so
heavy that “[f]or a ‘normal’ bad-faith claim to be submitted to the jury, the underlying
contract claim must be so strong that the plaintiff would be entitled to a preverdict
judgment as a matter of law.” Shelter Mut. Ins. Co. v. Barton, 822 So.2d 1149, 1155
(Ala. 2001). Thus, “if the evidence produced by either side creates a fact issue with
regard to the validity of the claim and thus, the legitimacy of the denial thereof, the

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tort claim must fail.” Nat’l Savings Life Ins. Co. v. Dutton, 419 So. 2d 1357, 1362 (Ala.
1982).
Plaintiffs’ breach of contract claim hinges on a factual issue: whether a leaky
roof or standing water caused the water damage to their home. It is undisputed that
Nationwide’s claim adjuster investigated Plaintiffs’ home on two separate occasions
and that Nationwide hired an a private engineering firm to conduct a third inspection.
After each of these inspections, Nationwide received oral and written reports stating
that standing water runoff and surface water accumulation—a cause of loss excluded
by the Policy—caused the water damage to Plaintiffs’ home. In refusing payment on
Plaintiffs’ insurance claim, Nationwide articulated its belief that these reports were
accurate. Nationwide offered enough evidence to establish a “fairly debatable reason”
for the denial. Bowen, 417 So. 2d at 185. And Plaintiffs did not produce any evidence
to eliminate “any arguable reason” for Nationwide to deny payment. Id. Thus,
Nationwide presented reasonable grounds for disputing Plaintiffs’ claim, thereby
making summary judgment appropriate on the bad faith claim.
Furthermore, as outlined above, there is certainly not evidence to entitle
Plaintiff to a preverdict judgment as a matter of law. In fact, as discussed above, the
Court has concluded that Plaintiffs’ breach of contract claim fails as a matter of law.

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Because summary judgment is due to be granted against Plaintiffs’ breach of contract
claim, Plaintiffs’ bad faith claim certainly cannot survive. Therefore, Nationwide’s
Motion for Summary Judgment is due to be GRANTED with regard to Plaintiffs’ bad
faith failure to pay claim.
2)

Bad Faith Failure to Investigate

In order to recover under an “abnormal” bad faith failure to investigate theory,
the a plaintiff must show “(1) that the insurer failed to properly investigate the claim
or subject the results of the investigation to a cognitive evaluation and review and (2)
that the insurer breached the contract for insurance coverage with the insured when
it refused to pay the insured’s claim.” Slade, 747 So. 2d at 318. “Practically, the effect
is that in order to prove a bad-faith-failure-to-investigate claim, the insured must prove
that a proper investigation would have revealed that the insured's loss was covered
under the terms of the contract.” Id.
Unlike a “normal” bad faith claim, “[t]he rule in ‘abnormal’ cases dispensed
with the predicate of a preverdict JML [judgment as a matter of law] for the plaintiff
on the contract claim.” White v. State Farm Fire & Cas. Co., 953 So. 2d 340, 348 (Ala.
2006). That said, an abnormal bad faith claim is still ultimately dependent on the
breach of contract claim, since a plaintiff may not recover under an abnormal bad faith

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claim unless the defendant is found liable under the breach of contract theory as well.
See Slade, 747 So. 2d at 318 (stating that, while abnormal bad faith cases are excepted
from the JML standard of proof, the plaintiff must still ultimately “prove an
entitlement to benefits under the policy”). Thus, because the Court has already
determined that summary judgment is due to be entered against Plaintiffs on their
breach of contract claim, their abnormal bad faith claim must fail as well.
Notwithstanding the foregoing analysis, the Court would reach the same
conclusion even if summary judgment were not due to be entered in Nationwide’s
favor on the breach of contract claim. Plaintiffs do not dispute that Nationwide
conducted three separate inspections of the water damage in their home, including
one which was performed by an independent private engineering firm. Both
Nationwide’s adjuster and the private engineer submitted oral and written reports
concluding that the water damage resulted from surface water accumulation, and not
damage to the roof. Plaintiffs have not offered any suggestion about what type of
additional investigation should have been performed, much less have they shown that
a “proper investigation” would have shown that their loss was covered under the
terms of the Policy. In reality, Plaintiffs do not argue that Nationwide did not perform
an adequate investigation. Rather, they simply take issue with Nationwide’s post-

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inspection conclusion that a leaky roof did not cause the water damage to Plaintiffs’
home.
The uncontested evidence shows that Nationwide conducted a complete
evaluation of Plaintiffs’ home before denying payment. Furthermore, the Court has
already found that Plaintiffs failed to establish a prima facie case of breach of contract.
For these reasons, Nationwide’s Motion for Summary Judgment is due to be
GRANTED with regard to Plaintiffs’ bad faith failure to investigate claim.
VI.

Conclusion
For the reasons stated in this opinion, Nationwide’s Motion to Strike (Doc. 24)

is due to be GRANTED in part and DENIED in part, and Nationwide’s Motion for
Summary Judgment (Doc. 21) is due to be GRANTED in all respects. A separate
order will be issued consistent with this opinion.
Done this 12th day of April 2013.

L. Scott Coogler
United States District Judge
[170956]

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