Vehse et al v. Liberty Mutual Fire Insurance Company

Filing 57

ORDER: Defendant Liberty Mutual Fire Insurance Company's Motion for Summary Judgment (Doc. # 42 ) is GRANTED. The Clerk is directed to enter Judgment in favor of Liberty Mutual and thereafter to close the case. Signed by Judge Virginia M. Hernandez Covington on 3/1/2017. (KAK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
GOETZ D. VEHSE,
Plaintiff,
v.

Case No. 8:16-cv-599-T-33JSS

LIBERTY MUTUAL FIRE INSURANCE
COMPANY,
Defendant.
________________________________/
ORDER
This cause is before the Court pursuant to Defendant
Liberty Mutual Fire Insurance Company’s Motion for Summary
Judgment (Doc. # 42), filed on December 14, 2016.

Plaintiff

Goetz Vehse filed a Response in Opposition to the Motion for
Summary Judgment (Doc. # 46) on January 17, 2017, and Liberty
Mutual filed a Reply (Doc. # 51) on January 25, 2017. The
Court grants the Motion for the reasons that follow.
I.

Preliminary Discussion
On

February

23,

2017,

this

Court

entered

an

Order

explaining that Vehse’s response to Liberty Mutual’s Motion
for Summary Judgment was procedurally deficient. (Doc. # 56).
The Court noted that Liberty Mutual’s “Motion

for Summary

Judgment fully complies with the undersigned’s directives
regarding

a

Statement

of

Material

Facts.

Specifically,

Liberty Mutual outlines 35 specific Material Facts.” (Id. at

1).

However, Vehse’s Response to the Motion for Summary

Judgment

“is

a

‘non-response’

when

it

comes

to

either

admitting or denying Liberty Mutual’s factual contentions.”
(Id. at 2).

The Court’s practices and procedures, which are

prominently displayed on the Court’s website, require a party
opposing a Motion for Summary Judgment to
include a specifically captioned section titled,
“Response to Statement of Material Facts.”
The
opposing party’s response must mirror the statement
of material facts by admitting and/or denying each
of the moving party’s assertions in matching
numbered paragraphs. Each denial must set forth a
pinpoint citation to the record where the fact is
disputed. Although the opposing party’s response
must correspond with the paragraph scheme used in
the statement of material facts, the response need
not repeat the text of the moving party’s
paragraphs. In deciding a motion for summary
judgment, the Court will deem admitted any fact in
the statement of material facts that the opposing
party does not specifically controvert, provided
that the moving party’s statement is supported by
evidence in the record.
(Id.).
Here, the Court warned Vehse that it would be acting well
within its discretion to grant Liberty Mutual’s Motion for
Summary Judgment based on Vehse’s deficient response, but in
an abundance of fairness, granted Vehse the opportunity to
conform to the Court’s procedures.

The Court directed Vehse

“to file a submission admitting or denying Liberty Mutual’s

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factual allegations, with citation to the record, by February
28, 2017.” (Id. at 3).

Vehse did not file anything in

response to the Court’s Order.

Therefore, the Court finds

that Vehse does not oppose Liberty Mutual’s Statement of
Material Facts.
II.

A truncated version of those facts follow.

Undisputed of Material Facts
Liberty Mutual issued Vehse a homeowners insurance policy

# H32-251-404160-100 3 (the 2010 Policy), effective April 12,
2010, to April 12, 2011, for Vehse’s home in New Port Richey,
Florida. (Doc. # 42-2). The 2010 Policy states that Liberty
Mutual will pay for necessary repairs in case of a sinkhole
loss that occurs during the effective period. (Id. at 31-32).
On

July

20,

2010,

adjuster

Jeff

Pyatt,

reported

a

possible sinkhole claim on behalf of Vehse to Liberty Mutual.
(Van Hooven Aff. Doc. # 42-3 at ¶ 5).

Liberty Mutual, in

turn, retained Rimkus Consulting Group, Inc., an independent
engineering firm, to investigate Vehse’s claim. (Id. at ¶ 6).
Rimkus issued a Report dated October 28, 2010, concluding that
sinkhole activity existed at Vehse’s property and recommended
a repair protocol consisting of limited mobility displacement
grouting, underpinning of the structure, and polyurethane
injections. (Doc. # 42-4).

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Rimkus’s

2010

Report

contained

several

limitations,

including:
Please be aware that the grouting program is
designed and intended to treat only for sinkhole
activity. The grouting program is not intended to
treat
or
remediate
other
detrimental
soil
conditions that may or may not exist at the site
such as buried debris, organic material, expansive
(shrink/swell) clays or improper foundation design
problems.
The homeowner should be aware that
compaction
grouting
may
induce
additional
settlements
and
additional
cracking
of
the
structure
before
deep
soil
conditions
are
stabilized.
. . . .
[I]t should also be noted that portions of the
observed damage are due to normal settlement,
material characteristics, deterioration due to age,
etc., and are unrelated to sinkhole activity. As
such, it is unrealistic to expect that cracks and
separation will never again form in the building
after the sinkhole has been remediated, regardless
of what method of remediation is performed.
(Id. at 27, 29).
Liberty Mutual identified several available contractors
to perform the required repairs, and solicited bids for the
work. (Van Hooven Aff. Doc. # 42-3 at ¶ 2).

Liberty Mutual

obtained bids from NEC Keystone, Inc., Earth Tech, LLC, and
L.R.E. Ground Services, Inc. (Id. at ¶ 8).

Vehse did not

choose any contractors suggested by Liberty Mutual.

Instead,

Vehse retained a company that he located and selected on his
own, RAB Foundation Repair, LLC. (Doc. # 42-5).

The RAB

Foundation Contract is dated November 17, 2010, and specifies:
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“OBJECTIVE: RAB will provide sinkhole remediation and/or
foundation repair services [hereinafter referred to as ‘The
Work’]

at

the

above-referenced

property

using

Injection/Pressure Pier and/or Compression Grout System.

the
No

purpose, expressed or implied, other than to stabilize the
soil, is intended.” (Id. at 1).
RAB performed the repairs Rimkus recommended beween
January and April of 2011, and Rimkus monitored the repairs,
as reflected in Rimkus’s Report of Findings dated June 9,
2011. (Doc. # 42-6). That Report noted that RAB completed the
subsurface

grouting

program,

steel

underpinning,

and

polyurethane injections as recommended by Rimkus. (Id.).
After these repairs, Vehse hired R.J. Simone Enterprises
to perform cosmetic or above-ground repairs to the property.
Vehse testified about this during his Examination Under Oath
on July 24, 2015. (Doc. # 42-7 at 26). Liberty Mutual paid
Vehse for the cosmetic repairs. (Van Hooven Aff. Doc. # 42-3
at ¶ 10).

Vehse testified that after R.J. Simone completed

its work, all damage to his home had been repaired and no
unrepaired damage remained. (Doc. # 42-7 at 27-28).
Liberty Mutual did not renew Vehse’s homeowners insurance
coverage
insurance

after
from

July

2012,

Citizens

and

Vehse

Property
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procured

Insurance

homeowners

Corporation,

without sinkhole coverage. (Doc. # 42-7 at 16).

Vehse

explained: “I did not [obtain sinkhole coverage] because I
figured everything was fixed; so I didn’t need it.” (Id.).
In June of 2015, years after the effective date of the
2010 Policy with Liberty Mutual, Vehse notified Liberty Mutual
of new damage to the home. (Id. at 30).
no

damage

to

the

home

occurred

at

Vehse testified that
his

home

after

the

completion of the 2011 repairs until 2015. (Id. at 29-37). He
further testified that the cracks at his home were new, rather
than re-opening of damage that existed prior to the 2011
repairs. (Id. at 37-38).
III. Procedural History
On January 21, 2016, Vehse sued Liberty Mutual in state
court for breach of contract. (Doc. # 2).

Liberty Mutual

removed the case to this Court based on complete diversity of
citizenship. (Doc. # 1). Vehse filed an Amended Complaint on
May 13, 2016, containing two counts for breach of contract.
(Doc. # 18).
Vehse asserts in Count One of his Amended Complaint that:
Defendant has materially breached the Policy by:
(a) failing to stabilize the land or repair the
foundation following a verified sinkhole loss; or
failing to pay the policy limits without reduction
for the amounts paid for the prior repairs. (b)
failing to adjust the subsurface remediation in
consultation with the Plaintiff as required by the
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sinkhole endorsement. (c) refusing to pay all
amounts due and owing to the Plaintiff under the
policy of insurance.
(Doc. # 18 at ¶ 17).
Liberty

Mutual

breached

In Count Two, Vehse contends that
the

insurance

contract

because:

“Defendant undertook a repair of Plaintiff’s Property.

By

virtue of Defendant’s purported election to repair under the
above-referenced insurance contract, a new repair contract
arose by implication of law, under which Defendant was bound
to restore Plaintiff’s home to a pre-loss condition within a
reasonable time.” (Id. at ¶¶ 27-28).
On May 23, 2016, Liberty Mutual filed its Answer and
Affirmative Defenses to Vehse’s Amended Complaint. (Doc. #
20). Among other defenses, Liberty Mutual claims that Vehse’s
suit “is barred by accord and satisfaction” because “Liberty
Mutual has tendered all amounts due under the Policy, and
these amounts were accepted by the Plaintiff.” (Id. at 4).
Liberty Mutual also contends that Vehse “did not suffer damage
during the Policy Period” with respect to the damages Vehse is
now claiming. (Id.).

As noted, Liberty Mutual seeks summary

judgment and Vehse has submitted a procedurally deficient
response to the Motion.

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IV.

Legal Standard
Summary judgment is appropriate “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.”
Civ. P. 56(a).

Fed. R.

A factual dispute alone is not enough to

defeat a properly pled motion for summary judgment; only the
existence of a genuine issue of material fact will preclude a
grant of summary judgment.

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 247-48 (1986).
An issue is genuine if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.

Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742

(11th Cir. 1996) (citing Hairston v. Gainesville Sun Publ’g
Co., 9 F.3d 913, 918 (11th Cir. 1993)).

A fact is material if

it may affect the outcome of the suit under the governing law.
Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.
1997).

The moving party bears the initial burden of showing

the court, by reference to materials on file, that there are
no genuine issues of material fact that should be decided at
trial. Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256,
1260 (11th Cir. 2004) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986)).

“When a moving party has discharged

its burden, the non-moving party must then ‘go beyond the
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pleadings,’ and by its own affidavits, or by ‘depositions,
answers to interrogatories, and admissions on file,’ designate
specific facts showing that there is a genuine issue for
trial.”

Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590,

593-94 (11th Cir. 1995) (citing Celotex, 477 U.S. at 324).
If there is a conflict between the parties’ allegations
or evidence, the non-moving party’s evidence is presumed to be
true and all reasonable inferences must be drawn in the nonmoving party’s favor.

Shotz v. City of Plantation, Fla., 344

F.3d 1161, 1164 (11th Cir. 2003). If a reasonable fact finder
evaluating the evidence could draw more than one inference
from the facts, and if that inference introduces a genuine
issue of material fact, the court should not grant summary
judgment.

Samples ex rel. Samples v. City of Atlanta, 846

F.2d 1328, 1330 (11th Cir. 1988) (citing Augusta Iron & Steel
Works, Inc. v. Employers Ins. of Wausau, 835 F.2d 855, 856
(11th Cir. 1988)).
consists

of

conclusional

However, if the non-movant’s response

nothing

“more

allegations,”

proper, but required.
(11th Cir. 1981).

than

summary

a

repetition

judgment

is

of
not

his
only

Morris v. Ross, 663 F.2d 1032, 1034

In addition, this Court has outlined its

own mandatory procedures for expediting the summary judgment

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process in accordance with Rule 56, which are outlined on its
website.
V.

Analysis
Vehse seeks relief for breach of contract.

The Court

applies the law of Florida in this diversity case.

The

elements of a breach of contract claim are: (1) the existence
of a contract; (2) a breach of the contract; and (3) damages
resulting from the breach. Rollins, Inc. v. Butland, 951 So.
2d 860, 876 (Fla. 2d DCA 2006).
Liberty Mutual is entitled to summary judgment for the
simple reason that it did not contract for the repairs of the
home.

Liberty Mutual does not dispute that a valid contract

existed between it and Vehse, the 2010 Policy.

However, the

2010 Policy is an indemnity contract, not a repair contract.
The 2010 Policy explains: “(1) We will pay to stabilize the
land and building and repair the foundation in accordance with
the

recommendations

of

a

professional

engineer

and

in

consultation with you as under 627.7073.” (Doc. # 42-2 at 32).
Notably, the 2010 Policy states that this coverage is only for
losses that occur during the effective period: “SECTIONS I AND
II - CONDITIONS - 1.

Policy Period. This policy applies only

to loss . . . which occurs during the policy period.” (Id. at
21).
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In accordance with the 2010 Policy, Liberty Mutual was
responsible to pay for repairs, but not responsible for
conducting the repairs itself. That is, the 2010 Policy is an
indemnity contract.

See Castleberry v. Goldome Credit Corp.,

418 F.3d 1267, 1272 (11th Cir. 2005)(“[I]nsurance agreements
are indemnity agreements.”).
Vehse contracted directly with RAB to perform the repairs
and Liberty Mutual was not a party to the contract.

Liberty

Mutual had no relationship with RAB. Liberty Mutual certainly
made suggestions to Vehse as to who Vehse should hire to make
the repairs, and even solicited bids in an effort to ensure
that a qualified contractor was available to render all
repairs.

However,

Vehse

independently

contracted with RAB to make repairs.

selected

RAB

and

As suggested by Liberty

Mutual, if Vehse now contends that RAB negligently repaired
the land, Vehse should sue RAB, not Liberty Mutual. (Doc. # 42
at 14).
Interestingly, in response to the Motion for Summary
Judgment,

Vehse

argues,

“Defendant

elected

to

repair

Plaintiff’s home which ultimately failed.” (Doc. # 46 at 1).
Vehse states that there is a material issue of fact as to
“whether Defendant elected to repair Plaintiff’s home;” but
Vehse has supplied no citation to the record to support this
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vague contention. (Id.).

Vehse also maintains: “Very simply,

under Florida law, if an insurer elects to repair damaged
property covered under an insurance policy, this creates a new
contract under which the insurer is bound to restore the
property to its pre-loss condition within a reasonable time.”
(Doc. # 46 at 6)(citing Nationwide Mut. Ins. Co. v. Chillura,
952 So. 2d 547 (Fla. 2d DCA 2007)).
In no instance does Vehse support his argument that
Liberty Mutual elected to repair the property with a citation
to the record.

In fact, the record amply demonstrates that

Vehse himself hired contractors to make the repairs.

Liberty

Mutual was obligated to pay for the repairs made to the
property, and it cannot be disputed that Liberty Mutual
fulfilled its obligations under the 2010 Policy.

To be sure,

this is not a case where insurance coverage has been denied
during an insurance policy’s effective period based on an
insurer’s determination that damage was not caused by sinkhole
activity.

Here,

Vehse

reported

a

sinkhole

during

the

effective period of his 2010 insurance policy, and Liberty
Mutual,

his

property.

insurer,

paid

for

all

repairs

made

to

the

Now, the period of insurance coverage has ended,

and Vehse has not contracted for sinkhole coverage with any
insurance company.

This situation cannot be attributed to
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Liberty Mutual, a party that fully complied with all of its
obligations under a contract that has expired and is no longer
in effect.

Vehse has not provided any citation to facts in

the record that justify extending liability years after the
effective

date

of

the

2010

Policy

and

years

after

the

termination of the relevant 2010 insurance policy.
The party opposing a motion for summary judgment must
rely

on

more

than

conclusory

statements

or

allegations

unsupported by facts. Evers v. Gen. Motors Corp., 770 F.2d
984, 986 (11th Cir. 1985)(“Conclusory allegations without
specific supporting facts have no probative value.”). In sum,
Vehse cannot create a genuine issue of material fact merely by
stating that such an issue exists.

The Court agrees with

Liberty Mutual that “Plaintiff’s Response [to the Motion for
Summary Judgment] is a self-serving collection of circular
arguments.” (Doc. # 51 at 1).
When confronted with Vehse’s circular and procedurally
deficient response to the Motion for Summary Judgment, the
Court, in an abundance of fairness, provided Vehse with an
opportunity to provide a factual basis for his arguments.
Vehse did not avail himself of the opportunity. Vehse has not
identified any genuine issues of material fact, supported by
the record, for resolution by a jury.
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The Court finds that

Liberty Mutual is entitled to judgment as a matter of law and
therefore grants Liberty Mutual’s Motion for Summary Judgment.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

Defendant Liberty Mutual Fire Insurance Company’s Motion
for Summary Judgment (Doc. # 42) is GRANTED.

(2)

The Clerk is directed to enter Judgment in favor of
Liberty Mutual and thereafter to close the case.
DONE and ORDERED in Chambers in Tampa, Florida, this 1st

day of March, 2017.

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