Bilal v. Progressive Home Owners & Auto Insurance Company et al

Filing 52

ORDER granting 42 Motion for Summary Judgment. Signed by Judge D. P. Marshall Jr. on 10/27/2017. (kdr)

IN THE UNITED ST ATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
PLAINTIFF

KASIB T AUHEED BILAL

v.

No. 4:16-cv-675-DPM

IDS PROPERTY & CASUALTY
INSURANCE COMPANY

DEFENDANT

ORDER

1.

Bilal is an older African-American Muslim gentleman.

His

home was damaged by two storms, one in October 2014 and another in
January 2015.

IDS Property & Casualty Insurance Company had

Bilal' s homeowner' s coverage.

This case is about the allegedly

discriminatory things said and done in handling the insurance claims
from the storms.
After the first storm, IDS engaged Insurance Claims Adjusters,
Inc., to inspect the damage.

That company, in turn, assigned the claim

to Arkansas Insuring Adjusters, Inc.

This second company is owned

and operated by Garry Smith, who went to inspect, document, and
appraise the damage.

Bilal says, and the Court accepts as true, that

Smith asked him where the name "Bilal" comes from and how it's
pronounced.

When Smith learned that Bilal is Muslim, he said, "Oh,

you're one of them."
inspection.

This upset Bilal, but he went on with the

Smith appraised the damage at just more than $1,600.

A few months later, after the second storm, IDS hired a different
adjustment company, Associated Adjusters Network, to evaluate the
new damage.

The adjuster this time around was Daniel Parker.

He

evaluated the damage and estimated $1200 would cover the needed
repairs.
Bilal thought both appraisals were too low, so he hired a roofer
and sent his own estimates to the insurance company.

IDS rejected

Bilal' s estimates and sent him two checks, one for each storm, based on
the adjusters' numbers.

Bilal cashed those checks but continued

calling IDS seeking more money for repairs.
decided not to renew Bilal's policy.

In March 2015, IDS

The company cited increased

risks and hazards at Bilal' s house based on missing siding, peeling
paint, loose window trim, missing and lifting shingles, dry rotting
fascia, and other conditions.

NQ 42-4 at 3.

After months of back and forth, Bilal and IDS compromised.

The

company used one of Bilal' s estimates, which had pegged the total cost
of repairing the damage from both storms at $4800.

IDS divided that

amount between the claims, subtracted what had already been paid,
and sent Bilal two more checks.
2.

He cashed them, then filed this case.

Bilal made many federal claims in his prose complaint.

On

screening, the Court concluded that Bilal had stated a plausible "claim
under 42 U.S.C. § 1981 for unequal treatment based on race in a
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contractual relationship[,]" and dismissed all other claims without
prejudice.

NQ 5 at 2.

It became clear that IDS, not Progressive, was

the right insurance company, and that change was made.
was done.

Discovery

Bilal requested appointed counsel several times, but the

Court concluded he could handle his own case.

IDS seeks summary

judgment. The Court takes the genuinely disputed facts in the light
most favorable to Bilal.

Camfield Tires, Inc. v. Michelin Tire Corp., 719

F.2d 1361, 1363-64 (8th Cir. 1983).
3.

IDS' s argument that parties' compromise should end the

case might seem strong, but it isn't.

There is no written agreement.

The deal was made in a phone call. NQ 42-3 at 1-2. Bilal cashed the
checks, but they don't say "full and final settlement" or any similar
words.

There's just not enough here for the Court to rule that the

parties made a firm deal to resolve all differences.
Homes, Inc., 346 Ark. 397, 403-04 (2001).

Glover v. Woodhaven

Plus, any settlement was (at

most) about coverage, not any related discrimination claims.

On the

record presented, though, IDS is entitled to judgment as a matter of law
for several other reasons.
First, Bilal' s remaining claim was for race discrimination, and
there's no evidence that his race prompted IDS' s coverage decisions.
Green v . Dillard's, Inc., 483 F.3d 533, 538, 540 (8th Cir. 2007).

The

insurance company has offered sworn testimony that Bilal' s race
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played no role in the company's actions.

NQ 42-2 at 1 & NQ 42-3 at 2.

Bilal hasn't met this proof with contrary proof.

Matsushita Electric

Industrial Co., Ltd., v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).
Second,§ 1981 probably doesn't provide a vehicle for challenging

E.g., Noyes v. Kelly Services, 488 F.3d

discrimination based on religion.
1163, 1167 n.3 (9th Cir. 2007);

Manzanares v. Safeway Stores, Inc., 593

F.2d 968, 971-72 (10th Cir. 1979).

This Reconstruction-era statute

speaks of every person having the same rights to make and enforce
contracts as "white citizens" have.

42 U.S.C. § 1981(a).

While the

Eighth Circuit hasn't addressed this issue, the law's trend toward
limiting this statute to race-related claims is clear.
Third, assuming § 1981 does apply, based on discriminatory
animus that mixed race and religion, there's a vicarious-liability hurdle.
Smith wasn't an IDS employee.

He worked for an independent

adjustment company, which had been assigned the claim by another
independent adjustment company, which had been hired by Bilal's
insurance company.

So Smith was two steps removed from IDS.

If-as has been strongly urged in a two-judge concurrence-§ 1981
requires purposeful discrimination, then the record might well support
a claim against Smith individually, but not IDS.
F.3d 307, 326-28 (8th Cir. 2014).

Ellis v. Houston, 742

The unrebutted affidavits establish,

instead, that Bilal' s religion played no part in IDS' s decisions.
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NQ 42-2

at 1 & NQ 42-3 at 2.

And if Smith's estimate was a lowball, infected by

race and religion, IDS' s eventual acceptance of Bilal' s higher repair
estimate cured the infection.

There's no evidence that the insurance

company itself interfered with its own contract with Bilal because he
was an African-American Muslim.
Last, the policy cancelation.
on the reason why.

Bilal has not met proof with proof

IDS' s risk-based explanation is unrebutted.

Matsushita, 475 U.S. at 586-87.

On this record, a jury could not

reasonably conclude that Bilal' s race or religion had anything to do
with the non-renewal.

* * *
Motion for summary judgment, NQ 42, granted.
So Ordered.

D.P. Marilia!Jr.
United States District Judge

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