Lucas v. State Farm Fire and Casualty Company
Filing
34
ORDER granting 13 Motion for Summary Judgment. Ordered by Judge C. Ashley Royal on 3/29/12 (lap)
THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
R. WESLEY LUCAS,
:
:
Plaintiff,
:
:
Civil Action
:
No. 5:10‐cv‐460
STATE FARM FIRE AND CASUALTY :
COMPANY,
:
:
Defendant.
:
____________________________________:
ORDER ON STATE FARM’S
MOTION FOR SUMMARY JUDGMENT
Plaintiff R. Wesley Lucas brings this action against his insurance carrier,
Defendant State Farm, for failure to pay a fire loss claim under Plaintiff’s homeowner’s
insurance policy. State Farm has filed the current Motion for Summary Judgment.
Having considered the Motion, all responses and replies thereto, and the applicable law,
the Court finds that because Plaintiff failed to submit to a required examination under
oath, he breached the insurance contract, and State Farm is entitled to judgment as a
matter of law. Thus, for the reasons explained herein, Defendant’s Motion for
Summary Judgment [Doc. 13] is hereby GRANTED.
1
SUMMARY JUDGMENT STANDARD
Summary judgment must be granted if “there is no genuine issue as to any
material fact and ... the moving party is entitled to a judgment as a matter of law.” Fed. R.
Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Johnson v. Clifton,
74 F.3d 1087, 1090 (11th Cir. 1996). Not all factual disputes render summary judgment
inappropriate; only a genuine issue of material fact will defeat a properly supported
motion for summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247‐48
(1986). This means that summary judgment may be granted if there is insufficient
evidence for a reasonable jury to return a verdict for the nonmoving party or, in other
words, if reasonable minds could not differ as to the verdict. See id. at 249‐52.
In reviewing a motion for summary judgment, the court must view the evidence
and all justifiable inferences in the light most favorable to the nonmoving party, but the
court may not make credibility determinations or weigh the evidence. See id. at 254‐55;
see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000). The moving
party “always 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 demonstrate the absence of a genuine issue of material fact” and that entitle it to
a judgment as a matter of law. Celotex, 477 U.S. at 323.
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If the moving party discharges this burden, the burden then shifts to the
nonmoving party to go beyond the pleadings and present specific evidence showing that
there is a genuine issue of material fact (i.e., evidence that would support a jury verdict)
or that the moving party is not entitled to a judgment as a matter of law. See Fed. R. Civ.
P. 56(e); see also Celotex, 477 U.S. at 324‐26. This evidence must consist of more than
mere conclusory allegations or legal conclusions. See Avirgan v. Hull, 932 F.2d 1572,
1577 (11th Cir. 1991). Summary judgment must be entered where “the nonmoving
party has failed to make a sufficient showing on an essential element of [his] case with
respect to which [he] has the burden of proof.” Celotex, 477 U.S. at 323.
BACKGROUND
In the early morning hours of October 22, 2008, while Plaintiff was spending the
night away at his mother’s house, Plaintiff’s house caught fire, and his home and
personal property were damaged. Plaintiff had a homeowner’s insurance policy with
State Farm which covered fire loss (the “Policy”). In November, Plaintiff notified State
Farm he had retained legal counsel to represent him with his fire loss claim. A claim
specialist on behalf of State Farm initiated an investigation of the facts and circumstances
surrounding the fire. On December 1, 2008, State Farm sent the first of at least
seventeen letters to Plaintiff or his attorney, over an almost two year period of time,
outlining Plaintiff’s duties under the Policy and requesting Plaintiff comply with those
3
duties.
State Farm explained to Plaintiff in that first letter that certain terms and
conditions of the Policy mandate that Plaintiff produce documents and records in
support of his claim and submit to an examination under oath. Specifically, the Policy
provides as follows:
2.
Your Duties After Loss. After a loss to which this insurance may
apply, you shall see that the following duties are performed:
. . .
c.
prepare an inventory of damaged or stolen personal
property. Show in detail the quantity, description, age,
replacement cost and amount of loss. Attach to the
inventory all bills, receipts and related documents that
substantiate the figures in the inventory;
d. as often as we reasonably require
. . .
(2) provide us with records and documents we request
and permit us to make copies;
(3) submit to and subscribe, while not in the presence of
any other insured:
. . .
(b) examinations under oath; and
. . .
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e.
submit to us, within 60 days after the loss, your signed sworn
proof of loss which sets forth, to the best of your knowledge
and belief:
(1)
(2)
the time and cause of loss;
interest of the insured and all others in the property
involved and all encumbrances on the property;
(3)
other insurance which may cover the loss;
(4)
changes in title or occupancy of the property during
the term of this policy;
specifications of any damaged building and detailed
estimates for repair of the damage;
(5)
(6)
an inventory of damaged or stolen personal property
described in 2.c;
(7)
receipts for additional living expenses incurred and
records supporting the fair rental value loss; and
(8)
evidence or affidavit supporting a claim under the
Credit Card, Bank Fund Transfer Card, Forgery and
Counterfeit Money coverage, stating the amount and
cause of loss.
(Policy p. 13, Doc. 13, Exh. A).
On December 26, 2008, Plaintiff submitted proof of loss documents to State Farm.
Although disputed by State Farm, Plaintiff maintains that he provided State Farm with
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the proper information available to him.1 (Pl. Aff., para. 15, Doc. 19, Exh. A). Plaintiff
admits, however, that when he “submitted the proof of loss [he] did not use [State
Farm’s] form. [He] just listed everything on a piece of paper.” Id. Although Plaintiff
maintains he provided the requested information, on December 29, 2008, State Farm
rejected Plaintiff’s proof of loss. State Farm informed Plaintiff his proof of loss was
incomplete and requested that Plaintiff provide a signed, sworn proof of loss, personal
property inventory, and documents supporting each. State Farm also explained that
upon receipt of the proof of loss, State Farm would seek Plaintiff’s examination under
oath.
Plaintiff maintains that he provided the information when State Farm requested
it. Id. at para. 13. However, State Farm sent three follow up letters on February 4,
February 26, and April 1, 2009, to the attorney representing Plaintiff at that time,
reiterating its need for the specific documents and notifying Plaintiff’s attorney it would
demand Plaintiff’s examination under oath and the production of certain documents
(such as financial documents). (Doc. 24, #4‐6, Exhs. B‐1, B‐2, & B‐3).
On April 8, 2009, some five months after the fire loss, State Farm scheduled
Plaintiff’s examination under oath for April 21, 2009, and instructed Plaintiff to bring the
1
The record does not contain copies of the documents Plaintiff submitted to State Farm.
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requested documents and sworn proof of loss to the examination. Id., #7, Exh. B‐4.
Although Plaintiff had given State Farm a recorded statement, State Farm clearly stated
that it “requires not only [Plaintiff’s] proof of loss and inventory, but also his statement
under oath and the other documents listed below in order to make a decision on his
claim.” Id. Moreover, State Farm clearly informed Plaintiff that “because there are
questions regarding this fire loss and in order that the amount of the loss might be
ascertained by State Farm, [Plaintiff] should also bring with him at the time of his
statement under oath the following records and documents,” listing specific documents
and records regarding Plaintiff’s finances and income. Id. State Farm stated its
understanding that some of the documents could have been destroyed in the fire, and
suggested alternative ways to obtain the information. Id.
Due to a conflict with Plaintiff’s attorney’s schedule, however, the examination
was rescheduled for May 14, 2009. (Doc. 24, #8, Exh. B‐5). However, two days before the
examination was to take place, on May 12, 2009, Plaintiff’s counsel withdrew his
representation, and the examination was postponed. (Doc. 24, #9, Exh. B‐6). On May 27,
2009, Plaintiff secured new counsel. On June 10, 2009, State Farm corresponded with
Plaintiff’s new attorney and reiterated the need for the requested documents and
Plaintiff’s examination under oath in order to make a determination on Plaintiff’s claim.
Id. State Farm clearly stated that it understood from Plaintiff’s counsel’s “call to State
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Farm that [Plaintiff] may only be inclined, at this point, to give an unsworn, unrecorded
interview. However, State Farm must respectfully insist upon full compliance with the
policy.” Id.
Between June and September of 2009, State Farm sent four follow up letters to
Plaintiff’s counsel reiterating the need for Plaintiff to provide the requested documents
and submit to an examination under oath. (Doc. 24, #10‐13, Exhs. B‐7, B‐8, B‐9, & B‐10). In
September 2009, Plaintiff’s second attorney withdrew from his representation of
Plaintiff. On September 8, 2009, Plaintiff contacted his local State Farm agent asking
what he needed to do in order to resolve his claim. (Doc. 24, #13, Exh. B‐10). Plaintiff
made similar inquiries when he spoke with his local agent again on October 8, 2009.
(Doc. 24, #14, Exh. B‐11).
On October 8, 2009, almost a year after the fire loss, State Farm sent Plaintiff a
letter reiterating the Policy requirements Plaintiff needed to satisfy in order for State
Farm to be able to make a decision on the claim. Id. In no uncertain terms, State Farm
informed Plaintiff he must provide the specified documents and submit to an
examination under oath. State Farm notified Plaintiff that it had rescheduled Plaintiff’s
examination under oath for October 23, 2009, at 11:00 a.m. Id. State Farm sent this
letter to Plaintiff’s address and Plaintiff’s mother’s address.
Plaintiff failed to appear for the examination and now maintains that he did not
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receive the October 8, 2009 letter from State Farm and therefore did not receive notice of
the examination. However, five hours after the examination was scheduled to begin, at
4:11 p.m., Plaintiff called State Farm “and told [State Farm’s] receptionist that [he was]
aware of a meeting scheduled on [his] claim but that [he] would not be attending as [he]
needed to find an attorney. [He] indicated that the address information [State Farm]
had for [him] was incorrect. [He] refused to provide a new address.” (Letter from State
Farm dated October 29, 2009, Doc. 24, #15, Exh. B‐12). Plaintiff states he does not
remember making this telephone call on October 23, 2009. State Farm sent a follow up
letter to Plaintiff on October 29, 2009, and notified Plaintiff that his failure to comply with
State Farm’s requests might constitute a material breach of the Policy. Id. However,
State Farm offered Plaintiff the opportunity to cure the breach if Plaintiff immediately
and fully cooperated with State Farm’s requests. Id.
Plaintiff did not respond or contact State Farm for six months, until May 27, 2010,
and then again on June 10, 2010, when Plaintiff contacted his local agent to inquire about
the status of his claim. (Letter from State Farm dated June 10, 2010, Doc. 24, #17, Exh.
B‐14). On June 10, 2010, over a year and a half after the fire loss, State Farm sent Plaintiff
its fourteenth letter reiterating his obligation to provide the specific documents and
submit to an examination under oath. Id.
Plaintiff did not contact State Farm until some three months later, in September
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2010, when he called and requested that State Farm mail documents to various
addresses. (Doc‐24, #19, Exh. B‐16). On September 20, 2010, State Farm mailed blank
proof of loss and inventory forms to Plaintiff and copies of previous letters detailing the
specific documents State Farm had been requesting. Id. Moreover, State Farm informed
Plaintiff that he must comply with the Policy’s suit limitation provision, which provides
that the insured must comply with all conditions of the Policy before bringing suit, and
the suit must be brought within two years following the date of loss. Id. Specifically,
the Policy provides:
6. Suit Against Us. No action shall be brought unless there has been
compliance with the policy provisions. The action must be started within
one year after the date of loss or damage.2
(Policy, p. 14, Doc. 13, Exh. A). State Farm informed Plaintiff that the deadline for filing
suit, October 22, 2010, was fast approaching. (Doc‐24, #19, Exh. B‐16).
Three days before the suit limitation period expired, on October 19, 2010, Plaintiff
hand delivered certain documents to his local agent. (Doc. 24, #20, Exh. B‐17). Plaintiff
maintains that he provided State Farm with all of the requested documents that existed
or were not destroyed in the fire, including copies of his bank statements, tax returns,
The Policy provides that an action must be started within one year after the date of loss or damage.
However, in 2006, the Insurance Commissioner in Georgia extended the suit limitation period for fire
losses to two years.
2
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and documents relating to his home mortgage and truck loan. Plaintiff admits that he
“did not put the information on the forms that [State Farm] required. [He] just wrote it
out on regular paper.” (Pl. Aff., para. 13, Doc. 20, #1, Exh. A). However, Plaintiff
maintains that he “got State Farm everything they asked for. Every time I gave them
what they wanted, they asked for additional things. Some of what they asked for I did
not have because they did not exist.” Id.
The next day, on October 20, 2010, Plaintiff contacted State Farm and attempted to
reschedule his examination under oath before the suit limitation period was set to expire
two days later. (Doc. 24, #20, Exh. B‐17). State Farm advised Plaintiff it was unable to
accommodate his request on such short notice, and even if State Farm had been able to
accommodate his request, “there was not sufficient time left for the transcript to be
prepared, for [Plaintiff] to sign it and for State Farm to make a decision of [his] claim
before October 22.” Id. In its final letter to Plaintiff dated October 20, 2010, State Farm
said it would consider scheduling the examination after October 22, 2010, but it would
reserve all rights under the Policy, including the right to contend that it has no obligation
to Plaintiff because the time expired under the Policy. Id.
On October 22, 2010, Plaintiff filed suit in the Superior Court of Houston County
contending State Farm failed to pay his fire loss claim. State Farm removed the case to
this Court pursuant to the Court’s diversity jurisdiction and now contends Plaintiff’s
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case should be dismissed based on Plaintiff’s failure to comply with the Policy conditions
before filing suit.
Plaintiff maintains that he is mentally disabled. Plaintiff, his mother, and his
father have submitted affidavits stating that Plaintiff has been diagnosed with
schizo‐affective disorder and that he is bi‐polar, manic depressive, and paranoid. They
attest that as long as Plaintiff takes his medication, he is able to understand and cope
with life, but when he is not on this medication, he is not able to cope with stress or
perform everyday activities. Plaintiff states he was hospitalized in August of 2010 due
to a recurrence of his mental illnesses, and he attached copies of medical records from
that hospital visit to his affidavit. Plaintiff also attached copies of other medical records
from 2006, two years prior to the fire loss, and from 2011, after Plaintiff filed this lawsuit.
Despite the fact Plaintiff’s counsel fails to articulate the relevance and importance of the
evidence relating to Plaintiff’s mental disabilities, the Court, like State Farm, will assume
counsel offers this evidence to explain Plaintiff’s noncompliance with State Farm’s
requests.3
The Court notes Plaintiff made several other irrelevant arguments concerning the fact Plaintiff lived out
of his car in Atlanta approximately one year after the fire, and the suspension of Plaintiff’s additional
living expenses. This Court elects not address these issues because they have no bearing on or relevance
to whether Plaintiff complied with the conditions of the Policy before filing suit.
3
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ANALYSIS
State Farm contends Plaintiff failed to comply with Policy conditions prior to
filing suit both by failing to produce the material documents State Farm requested and
by failing to submit to an examination under oath. Plaintiff responds that whether he
complied with the terms of the Policy is a question for the jury. As explained below, the
Court finds that although factual disputes exist as to whether Plaintiff complied in
providing the requested documents and records, State Farm is entitled to summary
judgment due to Plaintiff’s failure to submit to the examination under oath.
Here, the Policy clearly required Plaintiff to provide records and documents
requested by State Farm and to submit to an examination under oath. (See Policy, p. 13,
Doc. 13, Exh. A). Fulfillment of both these requirements was a condition precedent to
bringing suit, as the Policy specifically states that “[n]o action shall be brought unless
there has been compliance with the policy provisions.” Id. at p. 14. Georgia case law is
clear that such conditions precedent are permitted and binding against the insured. Hill
v. Safeco Ins. Co. of Am., 93 F. Supp. 2d 1375, 1383 (M.D. Ga. 1999); Townley v. Patterson,
139 Ga. App. 249 (1976). “An insurer is entitled to require its insured to abide by the
policy terms[.]” Diamonds & Denims, Inc. v. First of Ga. Ins. Co., 203 Ga. App. 681, 683
(1992) (internal citations omitted). “Failure to comply with policy provisions which are
conditions precedent to bringing suit is a breach which precludes recovery as a matter of
13
law.” Roberts v. State Farm Fire and Cas. Co., Case No. 7:11‐CV‐86(HL), 2011 WL
6215700 (M.D. Ga., Dec. 14, 2011) (citing Farmer v. Allstate Ins. Co., 396 F. Supp. 2d 1379,
1382 (N.D. Ga. 2005)).
Failure to Provide Requested Documents and Records
“When questions exist as to the cause of a fire for which a claim is made, the
insurer has the right to investigate before reaching a decision as to whether to pay the
claim.” Farmer v. Allstate Ins. Co., 396 F. Supp. 2d 1379, 1381 (N.D. Ga. 2005). State
Farm clearly informed Plaintiff that it needed the requested records and documents
“because there are questions regarding this fire loss[.]” (Doc. 24, #7, Exh. B‐4).
Plaintiff’s proffered evidence and arguments that Plaintiff did not cause the fire are
irrelevant. State Farm had the right to investigate the cause of the fire in order to make a
determination of Plaintiff’s claim, and Plaintiff was “required to cooperate with the
insurer in investigation and resolution of the claim.” Diamonds & Denims, 203 Ga.
App. at 683.
Georgia law requires ʺan insured to provide any ʹmaterial informationʹ to the
insurer that the insurer is entitled to receive under the insurance policy, and, absent an
excusable failure to do so, [such failure] constitutes a breach of the insurance contract.ʺ
Hines v. State Farm Fire & Cas. Co., 815 F.2d 648, 651 (11th Cir. 1987) (citing Halcome v.
Cincinnati Ins. Co., 254 Ga. 742, 744 (1985)). Clearly the Policy entitles State Farm to
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receive any “records and documents [it] request[s].” (Policy, p. 13, Doc. 13). Thus, the
issue becomes whether the requested information State Farm claims Plaintiff failed to
provide was “material” to Plaintiff’s claim for coverage. “Georgia courts take a broad
view of materiality,” Meyers v. State Farm, 801 F. Supp. 709 (N.D. Ga. 1992), and
“[u]nder Georgia law, materiality is generally a mixed question of law and fact[.]” So.
Realty Mgt., Inc. v. Aspen Specialty Ins. Co., Case No. 1:08‐CV‐0572, 2009 WL 1174661 at
*4 (N.D. Ga. Apr. 28, 2009) (citing Woods v. Indep. Fire Ins. Co., 749 F.2d 1493, 1496 (11th
Cir. 1985)).
Here, genuine factual disputes exist that preclude this Court from granting State
Farm judgment as a matter of law on this issue. Plaintiff maintains that he provided
State Farm with all of the information that it requested. Specifically, Plaintiff states that
he provided copies of his bank statements and tax returns for the three years preceding
the fire, and he provided copies of his home mortgage and truck loan. Plaintiff states
that he also provided State Farm with the proof of loss statement which included the
personal property inventory. In addition, Plaintiff explains that any “material”
documents he failed to provide were destroyed in the fire.
Where “an insured cooperates to some degree or provides an explanation for its
noncompliance, a fact question is presented for resolution by the jury.” Diamonds &
Denims, Inc., 203 Ga. App. at 683. In this case, Plaintiff both cooperated to some degree
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and provided an explanation for any non‐compliance.4 State Farm points out that
Plaintiff only submitted the documents a mere three days prior to the expiration of the
suit limitation period. Plaintiff, however, states that he provided some documentation
before this time. Moreover, this Court cannot find as a matter of law that Plaintiff failed
to cooperate because he submitted the requested documents only three days prior to the
expiration of the suit limitation. Such facts would be for a jury to weigh.
State Farm argues that even though Plaintiff cooperated with State Farm’s
requests by providing some relevant documentation, State Farm is nevertheless is
entitled to summary judgment under the authority of Halcome, 254 Ga. at 744; Allstate
Ins. Co. v. Hamler, 247 Ga. App. 574 (2001); and Farmer, 396 F. Supp. 2d 1379. The
Court, however, disagrees. Contrary to State Farm’s arguments otherwise, this case is
clearly distinguishable from Halcome, Hamler, and Farmer. In each of those fire‐loss
cases, although the insureds provided a portion of the requested documents, they
completely refused to provide the insurance companies with certain financial
information or information relating to their income. Those courts found that the
requested financial information was material to the plaintiffs’ insurance claims because it
Plaintiff also appears to argue that his mental disabilities are a valid explanation for any non‐compliance
in failing to provide the requested documents. However, for the reasons explained in the next section of
this Order, the Court finds not only that the evidence regarding Plaintiff’s mental disabilities is
inadmissible, but, even if the evidence was admissible, no reasonable jury could find Plaintiff’s mental
illnesses excused any failure to provide material documents.
4
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was relevant to the insurers’ suspicions of fraud and to a financial motive. None of the
insureds provided an explanation for their refusal to provide the documents.
Therefore, the courts held that even though the insureds provided certain other
information, because they failed to provide material information relevant to the insurers’
investigation of their claims, they breached the contract and summary judgment was
appropriate for the insurance companies.
In the case currently at bar, Plaintiff did not refuse to provide the requested
information; he in fact did provide some documentation to the State Farm, including
information regarding his finances. Plaintiff maintains he provided all of the
information requested; State Farm maintains he did not provide all of the requested
information. The record does not contain copies of the information Plaintiff provided,
so a clear question of fact exists. Moreover, Plaintiff’s delay in providing the requested
information would be another fact for the jury to consider. Thus, the Court cannot find
as a matter of law that Plaintiff breached the insurance agreement for failure to provide
material information.
Failure to Submit to Examination Under Oath
The Court does find, as a matter of law, that Plaintiff’s failure to submit to the
requested examination under oath constitutes a breach of the insurance contract. The
Policy requires the insured, “as often as [the insurer] reasonably require[s to] submit to . .
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. examinations under oath.” (Policy, p. 13, Doc. 13, Exh. A). This clause, coupled with
the Policy’s standard provision forbidding insureds from bringing an action “unless
there has been compliance with the policy provisions,” provides that submission to an
examination under oath by the insured is a condition precedent to recovery on the
Policy. Brookins v. State Farm Fire & Cas. Co., 529 F. Supp. 386 (D.C. Ga. 1982)
(citations omitted). This contractual provision is commonly used in insurance policies
and has long been upheld by many courts. See, e.g., Halcome, supra; Nichols v. Pearl
Assur. Co., Ltd., 71 Ga. App. 378, 378 (1944) (“A requirement in a policy of fire insurance,
that the insured shall submit to an examination under oath . . . is binding and valid; and a
refusal to comply with this condition will preclude the insured from recovering upon the
policy, where it provides that no suit can be maintained until after compliance with such
conditions.”).
In at least seventeen letters, over an almost two year period of time, State Farm
clearly and specifically requested Plaintiff to submit to an examination under oath and
informed Plaintiff that it could not decide Plaintiff’s claim without the examination.
Indeed, State Farm attempted to accommodate Plaintiff in any way possible and
scheduled the examination four separate times. In scheduling each examination, State
Farm clearly designated the specific time and place. Compare Saft Am., Inc. v. Ins. Co.,
155 Ga. App. 500 (1980), and Brookins, 529 F. Supp. at 386 (although plaintiffs failed to
18
submit to examinations in violation of the insurance contracts, courts found no breach of
policies because insurers failed to designate time and place for examinations). Plaintiff,
however, failed to attend each time.
Plaintiff’s claim that he did not receive notice of the scheduled October 2009
examination is disingenuous, as the evidence shows Plaintiff called State Farm that
afternoon and told State Farm he “was aware of a meeting scheduled but that he would
not be attending as [he] needed to find an attorney.” (Doc. 24, #14, Exh. B‐11). Moreover,
Plaintiff would not provide an updated address. Plaintiff’s claim that he does not
remember making this phone call does not refute the fact that he was aware of the
meeting and therefore received notice of the scheduled examination. Plaintiff waited
until two days before the expiration of the two‐year suit limitation period to request that
the examination under oath be rescheduled. Contrary to Plaintiff’s insinuations
otherwise, the Court finds under these facts no reasonable jury could find Plaintiff made
a good faith effort to submit to the required examination. Thus, in failing to submit to
the examination under oath, Plaintiff failed to satisfy a condition precedent before filing
suit.
Plaintiff’s failure “to submit to the requested examination under oath constitutes a
breach of the insurance contract unless some privilege excuses plaintiff’s failure to
comply with the contractual condition.” Pervis v. State Farm Fire & Cas. Co., 901 F.2d
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944, 946 (11th Cir. 1990) (citing Halcome, 254 Ga. at 744; and Hines v. State Farm Fire &
Cas. Co., 815 F.2d 648, 651 (11th Cir. 1987)). In stating that Plaintiff has been diagnosed
with schizo‐affective disorder and that he is bi‐polar, manic depressive, and paranoid,
Plaintiff appears to claim that these mental disabilities excuse him from complying with
the provisions of the insurance contract.5 Indeed, the “failure to comply with a
condition precedent to coverage on an insurance policy may be excusable if the insured
is dead, missing[,] or physically or mentally disabled.” Blackburn v. State Farm Fire &
Cas. Co., 174 Ga. App. 157, 158 (1985) (citations omitted).
Although this Court is aware that “[t]he question of the sufficiency of the excuse
offered is generally a question of fact to be determined by the jury,” the Court finds that
Plaintiff’s proffered excuse ‐‐ that his mental disabilities excuse his failure to comply ‐‐ is
insufficient as a matter of law for several reasons. Id. (internal quotation and citation
omitted).
First, as State Farm points out, Plaintiff presents no admissible evidence that he
suffers from a diagnosed medical condition that would have prevented him from
complying with the Policy for the nearly two years before he filed suit. The statements
Plaintiff also appears to contend that the recorded statement he gave to State Farm satisfies his obligation
to submit to an examination under oath. However, the contract expressly requires “examinations under
oath” which are not recorded statements. Thus, the Court rejects this argument. See Pervis, 901 F.2d at
946, fn 3 (rejecting insurer’s argument that recorded statements satisfy the examination under oath
requirement).
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regarding Plaintiff’s illnesses contained in the affidavits of Plaintiff, his mother, and his
father are merely conclusory, self‐serving statements that possess no probative value.
See Evers v. Gen. Motor Corp., 770 F.2d 984, 986 (11th Cir. 1985) (court found affidavit
had no probative value where it failed to provide specific facts to support its conclusory
allegations) (citations omitted).
Moreover, the medical records purporting to establish Plaintiff suffers from these
mental disabilities are clearly inadmissible. Plaintiff attached the records to his
Affidavit; he did not attach the records to the affidavit of an affiant through whom the
records could be admitted into evidence. In addition, Plaintiff has laid no foundation for
the admission of these medical records, and the documents are neither certified nor
properly authenticated. “In order for a document to be considered in support of or in
opposition to a motion for summary judgment, it must be authenticated by and attached
to an affidavit that meets the requirements of Rule 56(e), and the affiant must be a person
through whom the exhibits could be admitted into evidence.” Burnett v. Stagner Hotel
Courts, Inc., 821 F. Supp. 678, 683 (N.D. Ga. 1993). Plaintiff has met none of these
requirements. Thus, all of the evidence establishing that Plaintiff suffers from a mental
disability is inadmissible and cannot be considered.
However, even if the Court was to consider the evidence that Plaintiff suffers
from a mental disability, no reasonable jury could conclude those disabilities excused his
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failure to comply with the examination under oath or any other condition of the Policy.
Out of all of the medical records Plaintiff submitted, only those records relating to
Plaintiff’s one week hospital admission in August 2010 are even relevant to Plaintiff’s
claim. At most these records would explain Plaintiff’s noncompliance for the time
period around August 2010, but they would not explain his noncompliance for the
nearly year and half before August 2010 or the two months after. Indeed, no evidence
exists from which a reasonable jury could find Plaintiff, for nearly two years,
continuously suffered from any illness which prevented him from cooperating with State
Farm’s requests. On the contrary, the facts that Plaintiff provided State Farm with at
least some (or as Plaintiff claims, all) of the requested documents, that he indicated he
would only give a recorded statement and not an examination under oath, and that he
actually gave a recorded statement to State Farm, completely undermine any such claim.
Moreover, Plaintiff himself initiated contact with State Farm on at least five separate
occasions inquiring about the status of his claim.
Finally, the Court finds Plaintiff’s medical excuse fails as a matter of law because
Plaintiff did not notify State Farm that he suffered from any illness or disability or its
possible side effects, thereby distinguishing this case from Blackburn v. State Farm Fire
& Cas. Co., 174 Ga. App. 157 (1985). In Blackburn, the Georgia Court of Appeals held
that the insured’s medical excuse for non‐compliance in submitting to an examination
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under oath was an issue of fact because the insured submitted medical evidence to the
insurer establishing he was unable to submit to an examination before suit was filed.
The insured in that case presented the insurer with a note from his physician who stated
that the insured was unable to give testimony at that time because of the influence of the
medication prescribed for his neuromuscular disorder, secondary to cerebrovascular
disease. The case currently at bar is clearly distinguishable. Here, the record contains
absolutely no evidence that Plaintiff even notified State Farm that he suffered from any
medical illness, much less that Plaintiff presented any medical evidence to State Farm
establishing he could not comply with the examination under oath. Thus, Plaintiff’s
medical excuse for failing to comply with a condition precedent to filing suit fails as a
matter of law, and State Farm is entitled to summary judgment.
CONCLUSION
For the foregoing reasons, Defendant State Farm’s Motion for Summary Judgment
[Doc. 13] is GRANTED.
SO ORDERED this 29th day of March, 2012.
SSH/aes
S/ C. Ashley Royal
C. ASHLEY ROYAL
UNITED STATES DISTRICT JUDGE
23
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