Union Insurance Company v. Blakeney Palmer Co LLC

Filing 103

MEMORANDUM OPINION. Signed by Judge R David Proctor on 12/12/2014. (AVC)

FILED
2014 Dec-12 PM 03:32
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
UNION INSURANCE COMPANY,
Plaintiff,
v.
BLAKENEY PALMER CO., LLC.,
Defendant.

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Case No.: 7:12-cv-04072-RDP-TMP

MEMORANDUM OPINION
Plaintiff, Union Insurance Company (“Plaintiff”/Counter-Defendant), and Defendant,
Blakeney Palmer Co. L.L.C., (“Defendant” or “Counter-Plaintiff”) have both moved for
summary judgment on Plaintiff’s fraud claim. (Docs. # 83 and 87). After careful review, the
court concludes that there are material issues of fact that preclude a grant of summary judgment
for either party.
I.

Introduction
This case presents an insurance dispute.

Plaintiff insured Defendant’s apartment

complex, University Village, which was damaged in the April 27, 2011 tornado in Tuscaloosa,
Alabama. Defendant made a claim under the policy for repairs, lost rents, and depreciation.
Plaintiff paid the claim in the amount of $877,682.09 and Defendant represented that it had made
repairs.
Defendant later submitted a claim ostensibly for additional damage incurred in the April
27, 2011 tornado in the amount of $2,292,753.84. Defendant asserts that its initial claim was
only for a portion of “necessary” repairs sufficient to enable it to rent the apartments, and that it

always contemplated undertaking more extensive repairs.

Plaintiff’s position is that it

understood that the initial claim was to repair all of the damage caused by the tornado.
Plaintiff investigated and eventually refused to pay the supplemental claim. It thereafter
filed this declaratory judgment action seeking to void the policy under its terms and under
Alabama Code Section 27-14-28 due to Defendant’s alleged fraud. Plaintiff asserts that, in
investigating Defendant’s supplemental claim, it discovered, among other things, that Defendant
had not made all of the repairs that were the basis for the initial claim it had previously paid.
Therefore, Plaintiff asserts that Defendant made intentional, material misrepresentations in
relation to its initial claim. Plaintiff also asserts that the damage sought to be repaired under the
supplemental claim was not the result of wind or tornado damage and is not covered by the
policy. (Doc. # 1).
II.

Relevant Undisputed Facts
Plaintiff insured Defendant’s apartment complex, University Village, located in

Tuscaloosa, Alabama, which suffered damage during a tornado on April 27, 2011. (Docs. # 1,
17). Defendant made a claim under its policy with Plaintiff related to the tornado damage. (Doc.
# 1). The policy provides in relevant part:
A. Concealment, Misrepresentation or Fraud
This Coverage Part is void in any case of fraud by you as it relates to this
Coverage Part at any time. It is also void if you or any other insured, at any time,
intentionally conceal or misrepresent a material fact concerning:
1. This Coverage Part;
2. The Covered Property;
3. Your interest in the Covered Property; or
4. A claim under this Coverage Part.
(Doc. # 90-2 at p. 79 (Bates No. 0078)).

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Union assigned an adjuster, Mickey Carney, to the claim, and Carney obtained three
estimates for the repairs to University Village. (Doc. # 84-1). The estimate from Blakeney
Company was the lowest. (Doc. # 84-1). Blakeney Company is a separate entity from Blakeney
Palmer.1
Blakeney Company’s initial estimate of $465,750.00 included as the first repair item
“Replace all damaged fencing & all damaged gates.” (Doc. # 90-8). After being told that the
fencing and gates were not covered, Blakeney Company submitted a revised estimate removing
the line item for fencing and gates, but the estimate remained $465,750.00. (Doc. # 96-2; Doc. #
84-3 at p. 108-9).

Billy Blakeney explained in his deposition that the amount of money

estimated for the work did not change because “the fence had to be replaced. Y’all just said you
weren’t – Your client said they weren’t going to pay for it. … But I needed to get paid for it.”
(Doc. # 84-3 at 108-9).
Both the initial and revised estimates state that “Blakeney Company proposes to make all
necessary repairs and furnish all labor, materials and equipment for a lump sum of $465,750.00.”
(Doc. # 84-2; Doc. # 90-8). Blakeney walked the property, but used the other estimates and
scopes of work to prepare his estimate. (Doc. # 90-8 at pp. 84-90)
In connection with the claim, Defendant submitted to Plaintiff at least two Sworn
Statements in Proof of Loss to Plaintiff: one for an advance payment of $50,000 which contains
the handwritten note “Partial” next to the title “Sworn Statements in Proof of Loss”; and another
without any such notation for a payment of $289,105.15. (Docs. # 90-10 at pp. 14-19). As of
July 29, 2011, Plaintiff had paid Defendant $452,740.09 for damage repairs to University

1

Defendant Blakeney Palmer is owned by Billy Blakeney and Todd Palmer. (Doc. # 84-4 at p. 20).
Blakeney Company is solely owned by Billy Blakeney. (Doc. # 84-3 at p. 13-14).

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Village, $12,408.00 for business personal property, and $294,313.59 for business income loss
and extra expense. (Doc. # 90-10 at pp. 6-13).
After making payments on the Proofs of Loss and other items, on July 29, 2011, Plaintiff
wrote Defendant and explained that, as part of its claim, Defendant had funds available for
recoverable depreciation “once you have completed the repairs to the property and replaced
business personal property.” (Doc. # 90-10 at pp. 6-13).
Blakeney Company submitted a Statement to Defendant dated August 18, 2011, which
stated that it had “completed all storm repairs and makes final request for $465.750.00.” (Doc. #
84-6). Carney, the adjuster, requested this document on behalf of Plaintiff to enable Defendant
to receive approximately $69,000 in holdback money. (Doc. # 84-8 at pp. 97-99). Defendant
submitted a “Statement as to Full Cost of Repair or Replacement” containing a “supplemental
claim” for “applicable depreciation” in the amount of $69,035.47. (Doc. # 9-10 at p. 15).
Carney expected the work done by Blakeney Company under the initial claim to “totally
repair the buildings.” (Doc. # 84-8 at 103-4). However, Defendant believed that there was
additional property damage from the tornado that needed to be repaired. (Doc. # 84-4 at pp. 6972). Therefore, on December 6, 2011, Defendant made a supplemental claim in the amount of
$2,292,753.84 and, together with its supplemental claim, made a demand to invoke the policy’s
appraisal process. (Doc. # 90-12 at 2).
On December 12, 2011, Plaintiff responded that it had already indemnified Defendant for
repairs to University Village based on Blakeney Company’s estimate, and Plaintiff requested
information on the items Defendant disputed and sought appraisal. (Doc. # 90-13 at pp. 6-9).
On April 17, 2012, Defendant wrote to Plaintiff and provided a CD containing a 3,400-page
estimate of additional damages it claimed were in dispute. (Doc. # 90-14 at 96).

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Because of the extent of additional damages claimed, Plaintiff employed an engineer to
inspect the property.

(Doc. # 84-9).

After investigating Defendant’s supplemental claim,

Plaintiff’s engineers reported to Plaintiff their conclusions (1) that they were not able to identify
any tornado related damages in the supplemental $2,292,753.84 estimate; (2) that they could not
identify any other covered losses in the $2,292,753.84 estimate; and (3) that some of the repairs
which were the subject of Defendant’s initial repair estimate had not been made. (Doc. # 84-9).
Plaintiff’s engineers also reported that the value of what had previously been repaired was only
$371,000. (Doc. # 90-14 at pp. 190, 151-52).
After receiving this information, Plaintiff filed its Complaint for Declaratory Judgment
which seeks to declare Defendant’s policy void and/or that no coverage exists for the
supplemental $2,292,753.84 claim due to Defendant’s fraud. (Doc. # 1). Both parties have
moved for summary judgment on the issue of fraud: Plaintiff arguing that the Rule 56 record
demonstrates fraud as a matter of law (Doc. # 88); and Defendant arguing that the Rule 56 record
demonstrates there was no fraud as a matter of law (Doc. # 83).
III.

Summary Judgment Standard
Under Federal Rule of Civil Procedure 56(c), summary judgment is proper “if the

pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). The party asking for summary judgment always bears the initial responsibility of
informing the court of the basis for its motion and identifying those portions of the pleadings or
filings which it believes demonstrate the absence of a genuine issue of material fact. Celotex,
477 U.S. at 323. Once the moving party has met its burden, the Rule requires the non-moving
party to go beyond the pleadings and -- by pointing to affidavits, or depositions, answers to
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interrogatories, and/or admissions on file -- designate specific facts showing that there is a
genuine issue for trial. See id. at 324.
The substantive law will identify which facts are material and which are irrelevant. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All reasonable doubts about the facts
and all justifiable inferences are resolved in favor of the non-movant. See Fitzpatrick v. City of
Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). A dispute is genuine “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. If
the evidence is merely colorable, or is not significantly probative, summary judgment may be
granted. See id. 249.
When faced with a “properly supported motion for summary judgment, [the non-moving
party] must come forward with specific factual evidence, presenting more than mere
allegations.” Gargiulo v. G.M. Sales, Inc., 131 F.3d 995, 999 (11th Cir. 1997). As Anderson v.
Liberty Lobby, Inc. teaches, Rule 56(c) “does not allow the plaintiff to simply rest on his
allegations made in the complaint; instead, as the party bearing the burden of proof of trial, he
must come forward with at least some evidence to support each element essential to his case at
trial.” Anderson, 477 U.S. at 252. “Mere allegations” made by plaintiffs are insufficient. Id.
Summary judgment is mandated “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., 477 U.S. at 322. “Summary judgment may be
granted if the non-moving party’s evidence is merely colorable or is not significantly probative.”
Sawyer v. Southwest Airlines Co., 243 F. Supp.2d 1257, 1262 (D.Kan. 2003) (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. at 250-51).
“[A]t the summary judgment stage the judge’s function is not himself to weigh the
evidence and determine the truth of the matter but to determine whether there is a genuine issue
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for trial.” Anderson, 477 U.S. at 249. “Essentially, the inquiry is ‘whether the evidence presents a
sufficient disagreement to require submission to the jury or whether it is so onesided that one
party must prevail as a matter of law.’” Sawyer, 243 F. Supp.2d at 1262 (quoting Anderson, 477
U.S. at 251-52); see also LaRoche v. Denny’s, Inc., 62 F. Supp.2d 1366, 1371 (S.D. Fla. 1999)
(“The law is clear … that suspicion, perception, opinion, and belief cannot be used to defeat a
motion for summary judgment.”).
IV.

Analysis
Alabama law states 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 EMCASCO Ins. Co. v. Knight, 2014 WL 5020044 (N.D. Ala. 2014);
Pearson v. Travelers Home & Marine Ins. Co., 2014 WL 4681939, * 14 (N.D. Ala. 2014).
“[A]ll insurance contracts must be read to include this statutory expression of public policy.”
Auto Club Family Insurance Co. v. Mullins, 2012 WL 6043652, at *7 (N.D. Ala. Nov. 29, 2012)
(alteration supplied) (citing Ex parte State Farm and Casualty Co., 523 So.2d 119, 120–21
(Ala.1988)). “[F]or summary judgment to be granted[], this court must find, as a matter of law,
that the [insureds] made misrepresentations with an actual intent to deceive.” EMCASCO Ins.
Co. v. Knight, 2014 WL 5020044 (N.D. Ala. 2014). “However, ‘a slight exaggeration of the
amount of the value of the property destroyed will not defeat the claim entirely.’” Auto Club
Family Insurance Co., 2012 WL 6043652 at *7 (citing Hartford Fire Ins. Co. v. Clark, 61 So.2d
19, 27 (Ala. 1952)). “‘To bar recovery, the overvaluation must be so extravagant as to lead to the
conclusion that it was due not to a mistake in judgment but to an intention to defraud.’” Auto
Club Family Insurance Co., 2012 WL 6043652 at *7 (citing Hartford Fire Ins. Co., 61 So.2d at
27).
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In addition to this provision of Alabama law (which again is read into every policy),
Defendants’ policy with Plaintiff contains a provision providing that coverage is void if the
insured intentionally conceals or misrepresents a material fact concerning a claim. (Doc. # 90-2
at p. 79 (Bates No. 0078)).
Admittedly, the overvaluation asserted by Plaintiff -- in the amount of $2,292,753.84 -could be considered extravagant under the case law interpreting Section 27–14–28. Plaintiff
argues that it is an extravagant overvaluation showing an intent to deceive as a matter of law
because Defendant previously represented that all tornado repairs were complete following the
initial claim, and then submitted an additional claim for almost $2.3 million.

However,

Defendant presented an explanation for its supplemental claim which is at least plausible.
Defendant’s witnesses testified that they never sought to rectify all tornado damage when the
initial claim was submitted. Rather, Defendant contends that it (1) merely sought to make
“necessary” repairs to the property so that the apartments would be inhabitable for students
during the following academic year, and (2) always intended to follow up with a list of more
complete repairs following the processing of its initial claim.
To void the policy under § 27–14–28, Plaintiff must present undisputed evidence not only
showing that Defendant made a misrepresentation in a Proof of Loss, but also that that
misrepresentation was made with an actual intent to deceive. Ala. Code. § 27–14–28. The
policy provision regarding “Concealment, Misrepresentation or Fraud” is not limited to Proofs of
Loss. Rather, it provides that coverage is void if, at any time, the insured intentionally conceals
or misrepresents a material fact concerning a claim. (Doc. # 90-2 at p. 79 (Bates No. 0078)).
The record contains evidence from which a reasonable jury could conclude that
Defendant made misrepresentations in connection with the claims under the policy issued by
Plaintiff in relation to University Village, and that those representations were intentional. The
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court will not comb through the record and discuss all the evidence that supports this Rule 56
conclusion. However, it will provide examples.
First, Blakeney Company submitted an initial estimate for repairs to University Village
which included fencing and gates. Thereafter, it provided a revised estimate in the same dollar
amount, but which omitted the fencing and gates line item. Defendant’s explanation regarding
this change of scope but not dollar claims is that, although Plaintiff said it would not pay for
fencing and gates, Defendant “needed to get paid for it.” (Doc. # 84-3 at 108-9).
Second, the record contains the Blakeney Company Statement dated August 18, 2011,
which Defendant provided to Plaintiff, and which stated that Blakeney Company had “completed
all storm repairs and makes final request for $465.750.00.” (Doc. # 84-6) (emphasis added). In
light of the $2.3 million supplemental claim and the information from Plaintiff’s engineers that
the all of the earlier repairs had not been made, a reasonable jury could conclude from this and
other record evidence that Defendant made an intentional and material misrepresentation to
Plaintiff in stating that all repairs had been completed.
The record also contains evidence that Defendant submitted a “Statement as to Full Cost
of Repair or Replacement” containing a “supplemental claim” for “applicable depreciation” in
the amount of $69,035.47. (Doc. # 9-10 at p. 15). Plaintiff had previously written to Defendant
to explain that recoverable depreciation was available “once you have completed the repairs to
the property.” (Doc. # 90-10 at pp. 6-13). In light of the $2.3 million supplemental claim and
the information from Plaintiff’s engineers that the all of the earlier repairs had not been made, a
reasonable jury could conclude from this and other record evidence that Defendant made a
material misrepresentation to Plaintiff by requesting recoverable depreciation because repairs
had not been completed.

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Alabama courts, however, have set a high bar for a party (and particularly one who
carries the burden of proof) to receive summary judgment when intent is at issue. Generally, a
party’s intent to deceive is a question more appropriately reserved for a jury. Hillery v. Allstate
Indem. Co., 705 F.Supp.2d 1343, 1359–60 (S.D. Ala. 2010); Murphy v. Droke, 668 So.2d 513,
517 (Ala. 1995) (holding that even “[w]here the plaintiff presents substantial evidence that the
defendant had an intent to deceive, it is for the jury to decide whether the defendant actually had
such an intent.” (alteration supplied)); State Farm Mutual Automotive Insurance Co. v. Borden,
371 So.2d 28, 30 (Ala. 1979) (“Whether specific conduct constitutes an intent to deceive is a jury
question .”) (citing Metropolitan Life Insurance Co. v. James, 191 So. 352 (Ala. 1939)).
“Alabama law clearly provides that a determination of a party’s intent to deceive is a question
more appropriately reserved for the jury.” EMCASCO Ins. Co. v. Knight, 2014 WL 5020044
(N.D. Ala. 2014) (citing Murphy, 688 So.2d at 517).
On the other hand, there is evidence in the record that could be viewed by a reasonable
trier of fact and which would support a finding that there was no intentional fraud in this case.
Again, the court will not detail all of this evidence. However, and as an example, there is
evidence -- albeit, disputed evidence -- in the record from which a trier of fact could conclude
that: (1) the initial claim was filed for the purpose of allowing Defendant to obtain a certificate
of occupancy and house students during the upcoming academic year; (2) there were special
circumstances here because the subject apartments catered to university students, and that unique
market had rental cycles from August 1 through July 31 which necessitated a supplemental claim
after initial work was done on the apartment complex; (3) Plaintiff’s adjuster, Mickey Carney,
purportedly understood there would be supplemental claims going forward; (4) the work
proposal was done by Blakeney Company and was put together quickly because of the
exigencies of the circumstances; and (5) the repairs done under the initial claim were at times
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referred to as “temporary.” Again, these facts are disputed. But that is the point. There are
factual disputes for a jury to resolve. That is how Rule 56 works.
Both § 27–14–28 and the policy provision under which Plaintiff seeks to void coverage
require that any fraud be intentional. The court’s review of the Rule 56 record reveals that there
remain genuine issues of material fact as to whether any asserted misrepresentations were
intentional and/or made with an actual intent to deceive.
V.

Conclusion
For the foregoing reasons, the parties’ cross motions for summary judgment on the issue

of fraud (Docs. # 83 and 87) are due to be denied.
A separate order will be entered.
DONE and ORDERED this December 12, 2014.

_________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

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