Javits et al v. State Farm Fire and Casualty Company
Filing
50
ORDER: IT IS HEREBY ORDERED that Plaintiffs' Motion to Remand 45 is DENIED. IT IS FURTHER ORDERED that Plaintiffs' Motion for Oral Argument 32 is DENIED. IT IS FURTHER ORDERED that Defendant's Motion for Partial Summary Judgment [ 25] is GRANTED. Defendant is entitled to summary judgment on Counts II-IX of Plaintiffs' Complaint. IT IS FURTHER ORDERED that Defendant's Motion to Strike 34 and Plaintiffs' Motion to Appoint Expert 39 are DENIED WITHOUT PREJUDICE. Signed by Judge William S. Duffey, Jr. on 8/26/14. (jdb)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
SHOSHANA JAVITS and HAIM
JAVITS,
Plaintiffs,
v.
1:13-cv-487-WSD
STATE FARM FIRE AND
CASUALTY COMPANY,
Defendant.
OPINION AND ORDER
This matter is before the Court on Defendant State Farm Fire and Casualty
Company’s (“Defendant” or “State Farm”) Motion for Partial Summary Judgment
[25] and Motion to Strike [34]. Also before the Court are Plaintiffs Shoshana Javits
(“Mrs. Javits”) and Haim Javits (“Mr. Javits”) (together, “Plaintiffs”) Motion for
Oral Argument [32], Motion to Appoint Expert [39], and Motion to Remand [45].
I.
BACKGROUND
This is an insurance coverage dispute in which Plaintiffs seek coverage,
under a homeowners’ insurance policy issued by State Farm, for damage caused to
their home by a fire in their kitchen. It is undisputed that damage caused by the
fire is covered under the policy. The parties, however, dispute the extent of the
damage and how to remedy it. State Farm asserts that it is entitled to partial
summary judgment because their refusal to pay the entire amount of Plaintiffs’
claimed lost was not in bad faith, and because most of the claims in their
Complaint are precluded, as a matter of law, in an action based on an alleged
breach of contract.
A.
Facts
State Farm issued to Plaintiffs a homeowners’ insurance policy, number
11-PC-2781-0 (the “Policy”), covering damage, including as a result of fire, for
Plaintiffs’ home in Marietta, Georgia. The Policy states that Defendant “will pay
the cost to repair or replace with similar construction . . . the damaged part of the
property. . . .” (Policy [1.1 at 23-49] at 11).
On April 11, 2012, Mrs. Javits put two pots of oil on the stove in her
kitchen, turned on the heat, and left the kitchen. (DSMF [25.4] ¶ 2). When she
returned, the oil had ignited. (Id. ¶ 3). Mrs. Javits opened the kitchen window,
sprayed the fire with water from a garden hose, re-entered the house and threw the
pots outside. (Id. ¶¶ 4-5). Mrs. Javits reported the fire to her State Farm insurance
agent that night. (S. Javits Aff. [31.4] ¶ 7).
On April 19, 2012, Andrew Morris (“Morris”), a State Farm claim
representative, inspected the damage to Plaintiffs’ home. (DSMF ¶ 7). Mrs. Javits
2
showed Morris the damaged areas in her kitchen and living room, and told him that
smoke had filled the home. (S. Javits Aff. ¶ 8).
On April 20, 2012, Morris prepared an estimate of the cost to repair the
damage to Plaintiffs’ home. (DSMF ¶ 9). Morris’s estimate included the cost to
replace the cabinets damaged by the fire, the tile countertop, the range and
stovetop, to clean the refrigerator, double oven and kitchen floor, and to paint all of
the cabinets in the kitchen, including those that were not damaged by the fire, to
ensure uniformity of color. (First Morris Aff. [25.3] at Ex. A; Second Morris Aff.
[35.1] ¶¶ 11-12). Morris’s estimate included cleaning or repairs in the breakfast
area, office and hallway, but did not include repairs or cleaning to other areas of
the home. (First Morris Aff. at Ex. A). Morris estimated the total cost to repair the
damage caused by the April 11, 2012, fire would be $10,783.29. (Id.).
Based on Morris’s estimate, State Farm issued payment to Plaintiffs in the
amount of $5,870.43. (DSMF ¶ 10). The remaining $3,912.86 was to be paid to
Plaintiffs after the repairs were completed. (Id.).1
On April 26, 2012, Plaintiffs sent to Defendant an estimate they had
received from Imperial Design to replace all of their cabinets and install granite
countertops. (DSMF ¶ 11). The estimate includes upgrades to the materials used
1
Plaintiff had a $1,000.00 deductible under the Policy.
3
in Plaintiffs’ existing kitchen2 and totaled $32,000.00. (Id.).
In response to the estimate it received from Plaintiffs, State Farm retained
Georgia Water and Fire Restoration, a third-party contractor, to conduct a second
inspection of the damage to Plaintiffs’ home. (DSMF ¶ 12). On May 1, 2012,
Georgia Water and Fire Restoration inspected Plaintiffs’ home and prepared an
estimate, totaling $11,708.41, which indicated a scope of damage and repairs to be
performed similar to the damage and repair scope in Morris’s estimate. (Id. ¶ 13;
First Morris Aff. at Ex. C).
Plaintiffs replied by submitting to State Farm an estimate for kitchen repairs
from another contractor. This new estimate totaled approximately $17,000.00,
about half of the estimate Plaintiffs submitted previously. (DSMF ¶ 14). This
estimate also included replacement of all of the cabinets, and also included
upgrades to the kitchen, including an island, crown molding, soft close cabinets
and wine storage. (Id.). Because the estimates Plaintiffs submitted provided for
upgrades and replacement of all the cabinetry, State Farm rejected both estimates
that Plaintiffs submitted.
2
For example, the countertops damaged in the fire were tile.
4
At some point, Plaintiffs hired Bruce Fredrics (“Fredrics”), a “public
adjuster,”3 to inspect the damage to Plaintiffs’ home. Fredrics conducted his
inspection on May 7, 2012, and he prepared an estimate in the amount of
$70,347.20 for the repair and replacement of “structural damage” to Plaintiffs’
home, and $12,720.84 for cleaning of the entire house and its contents. (DSMF
¶¶ 15, 17). Fredrics’s estimate included, among others, replacing all the cabinets,
countertop, appliances and flooring in the kitchen, but did not include any
upgrades. (PSMF [31.2] ¶ 14). Fredrics included replacement of all the cabinetry
because, he claims, “any repairs would not match the existing cabinets.” (Fredrics
Aff. [31.3] ¶ 36). On May 30, 2012, Plaintiffs submitted Fredrics’s estimate to
State Farm. (DSMF ¶ 18).
On June 5, 2012, Plaintiffs executed an Appraisal Appointment Form,
seeking to invoke the appraisal provision in the Policy, which states that if
Plaintiffs and Defendant “fail to agree on the amount of loss, either one can
demand that the amount of the loss be set by appraisal. If either makes a written
3
Georgia law defines a “public adjuster” as “any person who solicits,
advertises for, or otherwise agrees to represent only a person who is insured under
a policy covering fire . . . and other physical damage to real and personal property
. . . and who, for compensation on behalf of an insured . . . [a]cts or aids . . . in
negotiating for . . . a claim for loss or damage covered by an insurance contract
. . . .” See O.C.G.A. § 33-23-1.
5
demand for appraisal, each shall select a competent, disinterested appraiser. . . .”
(Id. ¶ 19; Policy at 14).
On June 20, 2012, State Farm sent to Fredrics, who was acting as Plaintiffs’
representative, a letter stating that the appraisal provision in the Policy did not
apply because the scope of repairs had not yet been determined. (DSMF ¶ 20).
The letter also states:
Unfortunately, at this time, the disagreement has to do primarily with
scope of repairs. Per our conversation on May 31, 2012, I am willing
to meet with you and a fire mitigation and restoration company at the
loss location to review and determine if there is anything additional I
need to consider in my scope.
(Id. ¶ 21; June 20, 2012, Letter [1.1 at 51-52]).
Morris and Fredrics did not meet to discuss the scope of repairs. On
July 24, 2012, Defendant sent a letter to Fredrics demanding, pursuant to the terms
of the Policy, to re-inspect the damage to Plaintiffs’ home caused by the
April 11, 2012, fire. 4 (Fredrics Aff. ¶ 27; July 24, 2012, Letter [31.3 at 21-22]).
The letter states that State Farm considers Plaintiffs’ appraisal request improper
because
[a]ppraisal may be invoked only if [Plaintiffs] and State Farm disagree
on the cost to repair the covered damage.
4
The Policy requires Plaintiffs to “exhibit the damaged property” “as often as
[Defendant] reasonably requires.” (Policy at 13).
6
Additionally, State Farm hereby demands that [Fredrics] and
[Plaintiffs] meet with Mr. Morris and a representative from a fire
mitigation and restoration company to conduct an inspection of the
damage. Mr. Morris will review the damage and determine whether
he needs to reconsider the scope of the damage.
(July 24, 2012, Letter at 1).
Plaintiffs did not comply with State Farm’s request for re-inspection,
including because they had already demolished the kitchen. (DSMF ¶ 22; S. Javits
Aff. ¶ 20).
On August 13, 2012, Defendant sent a letter to Plaintiffs requesting that they
comply with the terms of the Policy and allow Defendant to re-inspect the damage
to their home. (S. Javits Aff. at Ex. A [33.1] 17-18). The letter states that “Morris
will bring an expert in fire damage mitigation and restoration and jointly inspect
[Plaintiffs’] property with [Plaintiffs] and Ms. Javits’ repair contractor of choice.
Mr. Morris will review the damage and determine whether he needs to reconsider
the scope of the damage.” (Id.).
On August 14, 2012, Plaintiffs sent to Defendant a “Demand for Payment
Pursuant to O.C.G.A. § 33-4-6” (“Demand Letter”), demanding that Defendant pay
to Plaintiffs $83,068.04, the total amount of Fredrics’s estimate, for the damage to
Plaintiffs’ home as a result of the April 11, 2012, fire. (DSMF ¶ 23; Demand
Letter [1.1 at 53-55]). Plaintiffs’ Demand Letter also states that Plaintiffs’
7
“position is that Mr. Morris already had the opportunity to inspect the damage and
failed to reasonably include all damages in his calculations in breach of the
[Policy] and in violation of Georgia insurance law.” (Demand Letter at 2).
Plaintiffs’ Demand Letter provides further that Plaintiffs “consider the refusal to
participate in Appraisal to be a material breach of the [Policy] and said refusal has
been made in bad faith . . . .” (Id.).
On September 7, 2012, Defendant sent to Plaintiffs another letter requesting
that Plaintiffs, and their contractor of choice, meet with Morris and an independent
expert in fire damage mitigation and restoration to re-inspect the damage.
(S. Javits Aff. at Ex. A [33.1] 9-11). The letter states that, on several occasions,
Morris explained to Plaintiffs and Fredrics that the three (3) repair estimates they
provided “cannot be reconciled with State Farm’s estimate because [Plaintiffs’]
estimates are not for the same scope and materials similar to those in the house,”
including because “the estimates are not for the same type and quality of materials
damaged by the fire,” they call for “replac[ing] more of the structure than sustained
damage and Mr. Fredrics’ estimate includes cleaning and painting portions of the
interior structure and cleaning contents that did not appear to sustain smoke or
water damage.” (Id. at 10). The letter states further that
Mr. Morris offered to meet [Plaintiffs] or Mr. Fredrics with a smoke
damage restoration expert to inspect the premises together. That way
8
they can discuss [Plaintiffs’] repair estimates and resolve any
confusion about the type [of] materials in the house and the extent to
which the structure needs to be cleaned and painted and the extent to
which the contents need to be cleaned. [Plaintiffs’] estimates are to
replace all kitchen cabinets and countertops with custom cabinets and
granite countertops. This is more work than is needed to repair the
damage and constitutes a considerable material upgrade. State Farm
determined the cabinets can be cleaned and repaired. However, State
Farm has offered to discuss the estimates and re-inspect the damages.
It is State Farm’s position that Ms. Javits prematurely demanded
Appraisal. Appraisal is not available to determine the scope of the
loss. State Farm requested Mrs. Javits comply with a condition of the
[P]olicy precedent to recovery in an effort to come to an agreement on
the scope of the kitchen fire damage. If there is a disagreement as to
the material used in the house once [Plaintiffs] and State Farm have
agreed on the extent of the damage, State Farm will entertain a
demand for Appraisal.
(Id.). Defendant suggested a conference call with Morris to discuss the differences
in the estimates and again requested that Plaintiffs schedule an inspection of the
damage with Morris and an independent expert. (Id. at 10-11).
On November 7, 2012, Defendant sent to Plaintiffs a letter “[f]or the third
time . . . conveying [Defendant’s] request to re-inspect the damage,” “reminding
[Plaintiffs of their] obligation to comply” with the terms of the Policy regarding
re-inspection, and restating State Farm’s position concerning the estimates
Plaintiffs submitted and their demand for Appraisal. (Id. at 6-8).
On December 27, 2012, Defendant sent to Plaintiffs another letter nearly
identical to the September 7, and November 7, 2012, letters, again requesting
9
re-inspection and restating Defendant’s objection to the estimates submitted by
Plaintiffs and its denial of Plaintiffs’ demand for Appraisal. (Id. at 3-5).
On January 22, 2013, Defendant sent to Plaintiffs a letter “to explain [its]
request for an additional inspection.” (Id. at 1-2). The letter states that Plaintiffs
claim the fire damage is much larger in scope than Mrs. Javits initially
claimed . . . [and they submitted] an estimate alleging there is fire
damage throughout the house and that painting and heavy cleaning
needs to be performed in every room. However, [Morris] did not
observe soot or smoke damage outside the areas open to the kitchen
and he was not given the opportunity to inspect all of the rooms in
which [Plaintiffs] now claim damage occurred. Additionally, on April
16, 2012, Mrs. Javits told Claim Representative Daryl Jenkins that she
did not need anyone to come to the house to clean out smoke. She
was able to remove it herself.
. . . State Farm requested an additional inspection after receiving
[Fredrics’s] estimate [which] is about five times higher than Mrs.
Javits’ original estimate and it includes work in areas of the house
Mrs. Javits stated were undamaged. . . .
State Farm paid for damage to the areas of the house open to the
kitchen . . . . Mr. Morris inspected the dining room and observed no
damage and Mrs. Javits did not complain of any damage in the room.
Mrs. Javits did not ask Mr. Morris to inspect areas of the house not
directly open to the kitchen. The initial disagreement about the claim
payment involved the need to replace all of the kitchen cabinets.
There was no discussion of cleaning. As a result when Mr. Morris
received Mr. Fredrics’ estimate . . . he requested an additional
inspection with Mr. Fredrics and [Plaintiffs] to observe the damage
Mr. Fredrics listed in his estimate. In response Mr. Fredrics asked Mr.
Morris to negotiate with him without allowing Mr. Morris to inspect
areas of damage he had not accessed previously.
10
In response to [Plaintiffs’] claim that the fire damage is larger in scope
than State Farm observed, [Morris] is happy to retain an independent
expert in fire damage mitigation, repair and restoration at State Farm’s
expense to inspect the damage and to prepare a report of the findings
. . . . [Defendant is] happy to review the names and credentials of
qualified independent experts [Plaintiffs] recommend. . . . For the
expert’s inspection, please save all material removed from the house
as repairs were made.
. . . State Farm has not been given the opportunity to determine
whether there has been a compensable accidental direct physical loss
in areas of the house beyond those contiguous to the kitchen. Mr.
Fredrics’ estimate was State Farm’s first notice [Plaintiffs] were
complaining of accidental direct physical loss in rooms other than the
breakfast room, hall, kitchen and office.
(Id.). Defendant also stated that it “look[ed] forward to hearing from [Plaintiffs] to
arrange for an additional inspection of the property with an independent qualified
expert in fire damage repair. Hopefully, [the parties] can resolve this dispute
without litigation.” (Id. at 2). The record does not show that Plaintiffs responded
to State Farm’s request.
B.
Procedural History
On January 10, 2013, Plaintiffs filed their Complaint [1.1 at 2-21] in the
State Court of Fulton County, Georgia,5 asserting claims against State Farm for:
breach of contract (Count I); breach of implied covenant of good faith and fair
dealing (Count II); bad faith (Count III); promissory estoppel (Count IV);
5
No. 13EV016505E.
11
“negligent claims handling” (Count V); negligent hiring, retention, supervision and
training (Count VI); unfair business practices (Count VII); unfair claims settlement
practices (Count VIII); and punitive damages (Count IX).
On February 14, 2013, State Farm removed the Fulton County action to this
Court based on diversity of citizenship jurisdiction. (Notice of Removal [1]).
On January 14, 2014, State Farm moved for summary judgment on all of
Plaintiffs’ claims, except their claim for breach of contract [25].
On February 18, 2014, Defendant filed its Motion to Strike [34]. Defendant
contends that certain portions of Fredrics’s Affidavit constitute expert testimony
and must be struck because Plaintiffs identified Fredrics only as a fact witness and
failed to identify him as an expert. Defendant moves to strike portions of
Plaintiffs’ affidavits because they conflict with testimony given during their
depositions.
On March 4, 2014, Plaintiffs responded to Defendant’s Motion to Strike and,
in the alternative, moved for leave to supplement discovery to identify Fredrics as
an expert witness [39].
On May 10, 2014, Plaintiffs filed their Motion to Remand [45]. Plaintiffs
argue that Defendant failed to show that the amount-in-controversy requirement
was satisfied at the time of removal. Plaintiffs contend further that the amount in
12
controversy does not exceed $75,000.00 because, on February 17, 2014, Plaintiffs
sent to Defendant an offer to settle this action for $54,071.17, which consisted of
$36,750.22 for Plaintiffs’ breach of contract claim reflecting their actual out of
pocket cost incurred to repair the damage, $12,127.57 in attorney’s fees, and
$5,193.38 in fees for their public adjuster. (Feb. 17, 2014, Letter [45.1]).
The Court first considers Plaintiffs’ Motion to Remand.
II.
DISCUSSION
A.
Motion to Remand
1.
Legal Standard
28 U.S.C. § 1441(a) provides that “any civil action brought in a State court
of which the district courts of the United States have original jurisdiction, may be
removed by the defendant.” The Court’s jurisdiction in this case is premised on
diversity of citizenship, which authorizes federal jurisdiction over suits between
citizens of different states where the amount in controversy exceeds $75,000.00.
28 U.S.C. § 1332(a). Plaintiffs and Defendant are citizens of different states, but
they dispute whether the jurisdictional amount in controversy has been satisfied.
A removing defendant must file with the district court a notice of removal
“containing a short and plain statement of the grounds for removal.” 28 U.S.C.
§ 1446. “If a plaintiff makes an unspecified demand for damages in state court, a
13
removing defendant must prove by a preponderance of the evidence that the
amount in controversy more likely than not exceeds the jurisdictional
requirement.” Roe v. Michelin N. Am., Inc., 613 F.3d 1058, 1061 (11th Cir. 2010)
(internal quotation marks omitted). When a plaintiff makes a timely motion to
remand, “the district court has before it only the limited universe of evidence
available when the motion to remand is filed – i.e., the notice of removal and
accompanying documents.” Lowery v. Ala. Power Co., 483 F.3d 1184, 1213
(11th Cir. 2007). “If that evidence is insufficient to establish that removal was
proper or that jurisdiction was present, neither the defendants nor the court may
speculate in an attempt to make up for the notice’s failings.” Id. at 1215. “The
absence of factual allegations pertinent to the existence of jurisdiction is
dispositive and, in such absence, the existence of jurisdiction should not be divined
by looking to the stars.” Id.
2.
Analysis
Plaintiffs argue that the amount-in-controversy requirement is no longer
satisfied, and the Court now lacks subject-matter jurisdiction, because on
February 17, 2014, they sent to Defendant a “Written Offer to Settle Tort Claim,”
seeking $54,071.17. ([45.1]). The Court disagrees. In an action removed from
state court, the amount in controversy is measured on the date of removal. The
14
Burt Co. v. Clarendon Nat. Ins. Co., 385 F. App’x 892, 894 (11th Cir. 2010).
Thus, “events occurring after removal, such as the post-removal amendment of a
complaint . . . which may reduce the damages recoverable below the amount in
controversy requirement, do not divest the district court of jurisdiction.” Id. (citing
Poore v. Am.-Amicable Life Ins. Co. of Tex., 218 F.3d 1287, 1290-91 (11th Cir.
2000) overruled in part on other grounds, Alvarez v. Uniroyal Tire Co., 508 F.3d
639, 640-41 (11th Cir. 2007). Plaintiffs’ post-removal settlement offer is not a
basis for remand. The Court thus considers the Complaint and Notice of Removal
in evaluating the amount-in-controversy requirement and whether it was satisfied.
Plaintiffs’ Complaint does not request a specific amount of damages.
Rather, Plaintiffs seek to recover for, among others, Defendant’s alleged breach of
contract and bad faith for failing to pay the full amount of Plaintiffs’ Claim for
coverage under the Policy. Plaintiffs’ August 14, 2012, Demand Letter, which is
attached to their Complaint and is the basis for their bad faith claim, states: “This
letter constitutes formal demand for payment of Mrs. Javits’ [sic] claims for special
damages in the amount of $12,720.84 for cleaning of contents of the home plus
$70,347.20 for the structural repairs to the home.” ([1.1 at 55]). Plaintiffs’
Demand Letter thus supports that, at the time of removal, the amount in
15
controversy exceeded $75,000.6 See, e.g., Southern Ins. Co. of Va. v. Karrer,
2011 WL 1100030, at *3-4 (M.D. Ga. Mar. 22, 2011) (amount in controversy
determined by, among others, damages estimated in demand letter); Lowery,
483 F.3d at 1212 n.62 (noting that courts have considered settlement offers and
demand letters in determining the amount in controversy). Because Plaintiffs and
Defendant are citizens of different states and, at the time of removal, the amount in
controversy exceeded $75,000, the Court has subject-matter jurisdiction over this
action. Plaintiffs’ Motion to Remand is required to be denied.
B.
Motion for Partial Summary Judgment
1.
Legal Standard
A court “shall grant summary judgment 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.” Fed. R. Civ. P. 56(a). Parties “asserting that a fact cannot be or is
genuinely disputed must support that assertion by . . . citing to particular parts of
6
To the extent Defendant, based on Morris’s estimate, has admitted liability
for Plaintiffs’ loss in the amount of $10,783.29, the amount-in-controversy
requirement is still satisfied because the difference between Morris’s estimate and
Plaintiffs’ claimed amount of loss in their Demand Letter is $72,284.75, and, if
successful on their bad faith claim, Plaintiffs would be entitled to recover, at a
minimum, an additional $5,000 plus their reasonable attorney’s fees. See
O.C.G.A. § 33-4-6 (penalty for insurer’s bad faith refusal to pay amount of
insured’s loss is, “in addition to the loss, not more than 50 percent of the liability
of the insurer for the loss or $5,000.00, whichever is greater, and all reasonable
attorney’s fees for the prosecution of the action against the insurer.”).
16
materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations (including those made for
purposes of the motion only), admissions, interrogatory answers, or other
materials.” Fed. R. Civ. P. 56(c)(1).
The party seeking summary judgment bears the burden of demonstrating the
absence of a genuine dispute as to any material fact. Herzog v. Castle Rock
Entm’t, 193 F.3d 1241, 1246 (11th Cir. 1999). Once the moving party has met this
burden, the non-movant must demonstrate that summary judgment is inappropriate
by designating specific facts showing a genuine issue for trial. Graham v. State
Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir. 1999). Non-moving parties
“need not present evidence in a form necessary for admission at trial; however,
[they] may not merely rest on [their] pleadings.” Id.
The Court must view all evidence in the light most favorable to the party
opposing the motion and must draw all inferences in favor of the non-movant, but
only “to the extent supportable by the record.” Garczynski v. Bradshaw, 573 F.3d
1158, 1165 (11th Cir. 2009) (quoting Scott v. Harris, 550 U.S. 372, 381 n.8
(2007)). “[C]redibility determinations, the weighing of evidence, and the drawing
of inferences from the facts are the function of the jury . . . .” Graham, 193 F.3d at
1282. “If the record presents factual issues, the court must not decide them; it must
17
deny the motion and proceed to trial.” Herzog, 193 F.3d at 1246. But, “[w]here
the record taken as a whole could not lead a rational trier of fact to find for the
non-moving party,” summary judgment for the moving party is proper. Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
2.
Analysis
a.
Breach of the Duty of Good Faith and Fair Dealing,
Promissory Estoppel, and Violation of the Unfair
Business Practices Act (Counts II, IV, and VII)
In their Response, Plaintiffs assert that they “do not wish to proceed on their
claims for promissory estoppel, fraud [sic], breach of implied good faith and fair
dealing and violation of the unfair business practices act.” (Pls’ Resp. [31] at 23).7
The Court thus finds that Plaintiffs have abandoned these claims. See Resolution
Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (“Grounds alleged
in the complaint but not relied upon in summary judgment are deemed
abandoned.”); see also LR 7.1(B), NDGa (“Failure to file a response shall indicate
that there is no opposition to the motion.”). Defendant is entitled to summary
judgment on Plaintiffs’ claims for breach of the duty of good faith and fair dealing,
promissory estoppel, and violation of the Unfair Business Practices Act.
7
Plaintiffs’ Complaint does not include a claim for fraud.
18
b.
Statutory Bad Faith (Count III)
O.C.G.A. § 33-4-6 authorizes statutory damages and an award of attorney’s
fees when, “in the event of a loss which is covered by a policy of insurance,” the
insurer refuses in “bad faith” to pay the covered loss “within 60 days after a
demand has been made by the holder of the policy.” O.C.G.A. § 33-4-6. “[T]his
additional liability is not automatically imposed on an insurance company ever
time it refuses to pay the underlying claim prior to trial,” even if the insured
successfully litigates the dispute. Winningham v. Centennial Ins. Co., 708 F.2d
658, 659 (11th Cir. 1983). “‘Bad faith’. . . means any frivolous and unfounded
refusal in law or in fact to comply with the demand of the policyholder to pay
according to the terms of the policy.” Southern Gen. Ins. Co. v. Kent, 370 S.E.2d
663 (Ga. Ct. App. 1988) (quoting Interstate Life & Accident Ins. Co. v.
Williamson, 138 S.E.2d 668, 324-25 (Ga. 1964)).
“Penalties for bad faith are not authorized where the insurance company has
any reasonable ground to contest the claim.” JLM Enters., Inc. v. Hous. Gen. Ins.
Co., 196 F. Supp. 2d 1299, 1314 (S.D. Ga. 2002); see also Progressive Am. Ins. Co.
v. Horde, 577 S.E.2d 835, 837 (Ga. Ct. App. 2003) (“As a matter of law, bad faith
penalties and attorney fees under [Section] 33-4-6 are not awardable if an insurer
has a reasonable and probable cause for refusing to pay a claim.”); Comm. Union
19
Ins. Co., 322 S.E.2d at 921. “Where there is a reasonable basis for so doing, an
insurer is entitled to maintain and defend its position as to the amount of its liability
without the imposition of penalty and attorney’s fees, even if doing so results in
considerable delay in bringing the matter to a conclusion.” Ga. Farm Bureau Mut.
Ins. Co. v. Boney, 148 S.E.2d 457, 460 (Ga. Ct. App. 1966). “[T]he insured bears
the burden of proving that the refusal to pay the claim was in bad faith.” Jimenez v.
Chicago Title Ins. Co., 712 S.E.2d 531, 535 (Ga. Ct. App. 2011).8
In Winningham v. Centennial Ins. Co., the insured’s home was damaged by
a fire and she filed a claim with her insurer seeking, among others, $110,625 for
loss to the dwelling. 708 F.2d 658 (11th Cir. 1983). The insurer acknowledged its
8
Plaintiffs argue that summary judgment is only appropriate where “genuine
factual issues involve a bona fide dispute over coverage,” that is,
“where there was a genuine issue of coverage i.e. insurance company was
withholding all payment and denying claims based on no liability under a policy.”
(Resp. at 4). Georgia law is clear that “‘[a]ny rule or principle which would deny
to the company the right of full and free litigation’ on the question of its liability or
of the amount thereof, is wrong.” See Boney, 148 S.E.2d at 460 (quoting Travelers
Ins. Co. v. Sheppard, 12 S.E. 18, 39 (Ga. 1890)) (emphasis added); see also
Winningham v. Centennial Ins. Co., 708 F.2d 658 (11th Cir. 1983) (stating,
“[s]ince the insurer never contested its liability, the question is whether it had a
reasonable basis for defending the amount of the claim;” finding no evidence to
support insurer acted in bad faith by refusing to pay full amount sought by
insured); B.S.S.B., Inc. v. Owners Ins. Co., No. 7:08-cv-112 (HL), 2010 WL
320229 (M.D. Ga. Jan. 20, 2010) (As insurer pointed to evidence showing that the
reason for delay in payment was a dispute over how much was owed under the
policy and there was a lack of evidence as to its bad faith, insurer was entitled to
summary judgment on insured’s bad faith claim).
20
liability but refused to pay the full amount claimed, including because a contractor
told the insurer that he could repair the home for $99,627. Id. at 659. The insurer
believed that the insured did not intend to rebuild the house, and made an offer to
the insured of approximately $83,000 for the dwelling damage, which represented
depreciation because the insurance policy provided for depreciation in the event
repairs were not undertaken. Id. The insured rejected the offer. Id. The insured
filed a complaint for breach of contract and bad faith, and the insurer admitted
liability in the amount of $83,923.96 for the dwelling. Id. at 659-660. At trial, the
insurer’s independent contractor testified in support of his $99,627 repair estimate
and a claims representative testified regarding the depreciation value under the
policy. Id. at 660. A second contractor testified for the insured that he estimated
the repair cost to be $110,625, the amount the insured had requested throughout the
claim process, and another contractor and a real estate broker testified that the
value of the structure was between $100,000 and $115,000. Id. The jury awarded
the insured general damages, a bad faith penalty and attorney’s fees. On appeal,
the Eleventh Circuit reversed, holding that “[a]s a matter of law no bad faith
penalty could be imposed” because, although the insured presented evidence
supporting her claim of $110,000, she presented no evidence suggesting that the
insurer acted in bad faith in failing to pay the full amount. Id. The court found
21
that the insurer reasonably based its final offer on an assessment of the cost of
repairs furnished by an independent contractor and on the depreciation provision in
the policy, and “the testimony merely established that, based in large part on two
disparate estimates of the cost to repair and perhaps different readings of the policy
in regard to depreciation, a bona fide dispute existed as to the extent of [the
insurer’s] liability for the dwelling.” Id.
State Farm does not contest liability and the question is whether State Farm
has a reasonable basis for not paying the full amount sought in Plaintiffs’ Demand
Letter, where three (3) separate inspections produced different opinions on the
extent of, and how to remedy, the damage to Plaintiffs’ home caused by the
April 11, 2012, fire.
The record is that State Farm offered to Plaintiffs $10,783.29, less their
$1,000.00 deductible, based on Morris’s April 19, 2012, inspection of Plaintiffs’
home, his observations of the extent of the damage caused to Plaintiffs’ property
by the April 11, 2012, fire, and his estimate of the cost to repair the damage.
Mrs. Javits testified that she showed Morris what she believed was smoke on the
ceiling and walls of the rooms adjacent to the kitchen. (S. Javits Aff. ¶ 8). Morris
testified that he inspected the area of the loss, that he did not detect color variance
in the walls or ceiling which would suggest smoke or soot damage, and that he did
22
not detect any smoke or soot damage in those areas which were not immediately
adjacent to the kitchen. (Second Morris Aff. ¶¶ 7-10). Morris testified that, based
on his observations, he determined that there was no smoke damage to the other
rooms. (Id. ¶ 10). Morris also testified that his estimate included the cost to
replace cabinets damaged by the fire, clean the kitchen floor and replace the range
and stovetop, and to paint all of the cabinets in the kitchen, including those that
were not damaged by the fire, to ensure uniformity of color. (Id. ¶ 11-12). He
testified that he did not prepare an estimate to replace all of Plaintiffs’ cabinets
because the fire damage was limited to only a few of the kitchen cabinets; that he
included cleaning, but not replacement, of the double oven because Plaintiffs did
not respond to his request to have an electrician determine whether the damage was
caused by the fire and whether to repair or replace it; and that, based on his
observations, he determined that the damage to the kitchen floor and refrigerator
required cleaning, which he included in his estimate, but did not warrant
replacement of those items. (Id. ¶¶ 22-26). State Farm retained Georgia Water and
Fire Restoration for a second inspection of the loss, which it conducted on
May 1, 2012. (First Morris Aff. ¶¶ 10-11 & Ex. C). The estimate prepared by
Georgia Water and Fire Restoration indicated a similar scope of damage as
Morris’s estimate, and totaled $11,708.41. (Id.).
23
Plaintiffs fail to show that State Farm’s refusal to pay to Plaintiffs the
additional $73,284.75 requested in their Demand Letter was frivolous or
unfounded.9 Fredrics determined, based on his observations and information
Plaintiffs told him, that cleaning of the entire house and its contents was required
and that additional damage existed, including replacement of Plaintiffs’ entire
kitchen because “any repairs would not match the existing cabinets.” Fredrics’s
estimate supports, at most, that a bona fide dispute exists regarding the extent of
the damage caused by the April 11, 2012, fire, and how Defendant was required to
address the damage under the terms of the Policy. That is, because conflicting
opinions regarding the scope of damage and how to remedy it, Plaintiffs cannot
show that Defendant did not have reasonable grounds to contest the amount of
their claim and cannot show that Defendant’s refusal to pay the full amount was
frivolous or unfounded.10 No reasonable juror would find that Defendant’s refusal
was in bad faith.
9
Plaintiffs presented two estimates for kitchen repairs from other contractors.
The first was for $32,000.00 and the second for $17,000.00, but both included
upgrades to the kitchen. Fredrics’s estimate for the kitchen and repairs, including
substantial ones, to other areas in the home, was for $70,347.20. There is thus a
substantial dispute over repair scope and cost.
10
Plaintiffs argue that it was unreasonable for Defendant to refuse to pay for
cleaning because, based on Mrs. Javits’s testimony, it is undisputed that smoke
filled the entire house. The issue is, however, whether smoke damage occurred.
That smoke travelled through the house does not necessarily require a finding of
24
The evidence is further that, after receiving Fredrics’s estimate, Defendant
attempted to continue its investigation of Plaintiffs’ claim and sought to re-inspect
the Property with Fredrics and a third-party fire mitigation company to determine
whether Morris needed to adjust the scope of his estimate. Plaintiffs refused
Defendant’s request, claiming that a re-inspection was not necessary and, later, that
a re-inspection would be futile because they had already demolished the kitchen.
To the extent Plaintiffs contend that Defendant’s request for a re-inspection shows
the inadequacy of Morris’s previous inspection, Plaintiffs’ argument is illogical
and there is nothing to support, as Plaintiffs appear to suggest, that Defendant was
required to simply accept Fredrics’s estimate without further investigation.
Defendant was entitled to rely on Morris’s estimate, which was substantially
similar in scope and price to the independent assessment provided by third-party
contractor Georgia Water and Fire Restoration. Plaintiffs’ demand was more than
$70,000 greater. Regrettably, soon after receiving Morris’s letter offering to reinspect the home with Fredrics, Plaintiffs elected to demolish the kitchen and
refused to allow a re-inspection.11 Plaintiffs’ refusal to allow Defendant to
damage requiring cleaning, and the record is that three (3) inspections resulted in
two (2) opinions that smoke damage did not exist.
11
That Plaintiffs “demolished” their kitchen suggests that, shortly after
Fredrics’s estimate was completed, they had already decided that they intended a
full replacement of their kitchen.
25
re-inspect the loss is a further reasonable ground for Defendant to contest paying
the demanded amount. Plaintiffs fail to show that Defendant’s refusal to pay the
over $70,000 difference between Morris’s and Fredrics’s estimates was in bad
faith, and Defendant is entitled to summary judgment on Plaintiffs’ claim for bad
faith.12, 13
c.
Negligence (Counts V and VI)
To support a claim for negligence in Georgia, a plaintiff must show:
(1) a legal duty to conform to a standard of conduct raised by the law
for the protection of others against unreasonable risks of harm; (2) a
breach of this standard; (3) a legally attributable causal connection
between the conduct and the resulting injury; and (4) some loss or
12
That Plaintiffs stated in their February 17, 2014, Demand Letter that their
actual out-of-pocket expenses totaled $36,750.22, further supports that Defendant
was reasonable in refusing to pay the more than $83,000 requested in Plaintiffs’
August 14, 2012, Demand Letter. See Winningham, 708 F.2d at 661 (“That [the
insurer] had a reasonable basis for disputing [insured’s] initial claim of
approximately $24,000 [for additional living expenses] is evidence from
[insured’s] subsequent reduction of the amount requested to $16,000 in her
complaint and to $8,646.79 in closing argument.”).
13
To the extent Plaintiffs’ bad faith claim is also based on State Farm’s denial
of their request for Appraisal, Georgia law is clear that an appraisal clause in an
insurance policy can only resolve a disputed issue of value, not liability, and that
the scope of an appraisal—that is, the extent of damage caused by a covered loss—
should be determined before the appraisal process can begin. See, e.g., McGowan
v. Progressive Pref. Ins. Co., 637 S.E.2d 27 (Ga. 2006); Anders v. State Farm Fire
& Cas. Co., 675 S.E.2d 490 (Ga. Ct. App. 2009); Bell v. Liberty Mut. Fire Ins. Co.,
734 S.E.2d 894 (Ga. Ct. App. 2012). State Farm thus had a reasonable basis to
deny as premature Plaintiffs’ request for Appraisal before the parties could
determine the scope of damage caused by the April 11, 2012, fire.
26
damage flowing to the plaintiff's legally protected interest as a result
of the alleged breach of the duty.
Burch v. Chase Manhattan Mortg. Corp, No. 1:07-cv-0121-JOF,
2008 WL 4265180, at *15 (N.D. Ga. Sept. 15, 2008) (quoting Bradley Ctr., Inc. v.
Wessner, 296 S.E.2d 693, 695 (Ga. 1982)). However, “[a] defendant’s mere
negligent performance of a contractual duty does not create a tort cause of action;
rather, a defendant’s breach of a contract may give rise to a tort cause of action
only if the defendant has also breached an independent duty created by statute or
common law.” Fielbon Dev. Co. v. Colony Bank of Houston Cnty.,
660 S.E.2d 801, 808 (Ga. Ct. App. 2008). Georgia law is clear that “[a]bsent a
legal duty beyond the contract, no action in tort may lie upon an alleged breach of
[a] contractual duty.” Id. (quoting Wallace v. State Farm Fire & Cas. Co.,
539 S.E.2d 509, 512 (Ga. Ct. App. 2000)).
In Tate v. Aetna Cas. & Surety Co., the insured asserted a negligence claim
against his insurer for “violating accepted standards in the industry,” “using an
unlicensed and incompetent adjuster and personnel,” “failing to use due care to
include all of plaintiff's losses under the law,” “failing to properly inspect
plaintiff's losses and property,” and “failing to properly consider plaintiff’s
estimates of his loss.” 253 S.E.2d 775, 776 (Ga. Ct. App. 1979). The plaintiff
alleged that he suffered delay in processing his claim and sought to recover
27
damages for emotional suffering and his expense and time spent acquiring repair
estimates. Id. The trial court granted the insurer’s motion for summary judgment,
and the Georgia Court of Appeals affirmed. The court found that
[e]ven where it is shown that the defendant’s failure to perform
resulted in great annoyance or hardship to the plaintiff, recovery in
tort is available only if the insurance contract is within those certain
classes of contracts that create a relation from which the law implies
duties a breach of which will constitute a tort . . . . [Although i]t is
well settled that misfeasance in the performance of a contractual duty
may give rise to a tort action . . . in such cases the injury to the
plaintiff has been an independent injury over and above the mere
disappointment of plaintiff's hope to receive his contracted-for benefit.
Id. at 777. The court held that, “[i]f the duties in question arose at all, they arose
out of the contract. All concern the insured’s actions in settling under terms of the
contract . . . [and] at most, there was a breach of contract on the part of the
[insurer] by failing to pay the plaintiff the full amount of damages owed under the
terms thereof.” Id.
Here, Plaintiffs assert that Defendant negligently breached its “duty under its
insurance contract with Plaintiffs to perform certain duties investigating and
resolving Plaintiffs’ claim,” (Compl. ¶ 67), and that Defendant was negligent in
hiring, retaining, supervising and training its “agents.” Plaintiffs contend that
Defendant knew that its agents did not have the capacity to conduct claims
investigations, that Defendant failed to properly train its agents to handle the
28
investigation of Plaintiffs’ claims, and that Defendant failed to properly supervise
its agents including because it failed to detect the incompleteness, inaccuracies or
incompetence of its agents’ inspections, the “multiple duplicative and unnecessary
inspection requests,” and the “negligent and unfair claims practices engaged in by
its agents.” (Id. ¶¶ 74-83).
Plaintiffs’ negligence claims are based on the manner in which Defendant
processed Plaintiffs’ claim for coverage under the Policy.14 Defendant’s alleged
duty to Plaintiffs arises, if at all, under the Policy and thus can only support a claim
for breach of contract. Plaintiffs fail to support that Defendant breached any duty
owed to them independent of the Policy. See Tate, 253 S.E.2d 775; Camacho v.
Nationwide Mut. Ins. Co., 2014 WL 1396427, at *15 (N.D. Ga. Mar. 31, 2014)
(granting summary judgment for insurer on negligence claim because “no
independent duty to handle the claims with care exists in tort under Georgia law”);
14
To the extent Plaintiffs assert that they were harmed “beyond the mere
breach of contract” because Defendant’s negligence caused a delay in payment to
Plaintiffs, and they incurred costs to hire a public adjuster, attorney’s fees and
litigation expenses, recovery for failure to timely pay a claim and for attorney’s
fees and costs is limited to a claim under O.C.G.A. § 33-4-6, on which the Court
has already granted summary judgment for Defendant. See Tate, 253 S.E.2d at
777; Leonard v. Firemen’s Ins. Co. of Newark, N.J., 111 S.E.2d 773, 775 (Ga. Ct.
App. 1959) (“The penalties imposed against insurance companies . . . for their
failure or refusal to pay claims within a reasonable time after demand has been
made are fixed by the provisions of [O.C.G.A. § 33-4-6]. This remedy is exclusive
. . . .”) (construing former § 56-706, the predecessor to § 33-4-6); Camacho v.
Nationwide Mut. Ins. Co., 2014 WL 1396427, at *15 (N.D. Ga. Mar. 31, 2014).
29
Arrow Exter., Inc. v. Zurich Am. Ins. Co., 136 F.Supp.2d 1340 (N.D. Ga. 2001)
(where insured claimed that insurer was negligent in handling claims and training,
retraining, and employing its adjusters, “based on the general rule precluding tort
liability and the Georgia courts [sic] determination in Tate that the incompetency
of adjusters and processors does not fall within the special exception, the Court
must grant summary judgment in favor of [the insurer] on [the insured’s]
negligence claims against it.”); Watson v. Zurich-Am. Ins. Co., 470 S.E.2d 684,
687 (Ga. Ct. App. 1996) (acknowledging general rule that there is no confidential
relationship between an insurer and insured). Defendant is entitled to summary
judgment on Plaintiffs’ claims for negligent claims handling and negligent hiring,
retention, supervision and training.
d.
Unfair Claims Settlement Practices (Count VIII)
Under the Unfair Claims Settlement Practices Act (the “Act”), O.C.G.A.
§ 33-6-30 et seq., insurance companies are prohibited from engaging in certain
activities when settling claims with their insureds. See O.C.G.A. § 33-6-34. The
Act provides that “[n]othing contained in this article shall be construed to create or
imply a private cause of action for a violation of this article,” and Section 33-6-34
does not support Plaintiffs’ claim for violation of the Act. See O.C.G.A. § 33-6-37.
30
Defendant is entitled to summary judgment on Plaintiffs’ Unfair Claims Settlement
Practices claim.
To the extent Plaintiffs appear to argue, for the first time in their Response,
that O.C.G.A. § 51-1-615 provides a mechanism for them to assert a claim for
violation of the Act, this argument was not raised in their Complaint and the Court
will not consider it. See Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315
(11th Cir. 2004) (“plaintiff may not amend her complaint through argument in a
brief opposing summary judgment.”). Although courts have construed additional
allegations in a pro se plaintiff’s response as a motion to amend the complaint,
Plaintiffs have been represented by counsel throughout this litigation. Compare
Newsome v. Chatham Cnty. Detention Center, 256 F. App’x 342, 344 (11th Cir.
2007) (“Because courts must construe pro se pleadings liberally, the district court
should have considered [plaintiff’s] additional allegations in the objection as a
motion to amend his complaint and granted it.”) with Rule v. Chase Home Fin.
LLC, No. 3:11-cv-146-CAR, 2012 WL 1833394, at *4 (M.D. Ga. May 18, 2012)
(“Plaintiff is not proceeding pro se, and therefore this Court is under no obligation
to construe these additional allegations as a motion to amend the Complaint.”).
15
O.C.G.A. § 51-1-6 provides: “When the law requires a person to perform an
act for the benefit of another or to refrain from doing an act which may injure
another, although no cause of action is given in express terms, the injured party
may recover for the breach of such legal duty if he suffers damage thereby.”
31
Even if properly before the Court, Plaintiffs cannot assert a claim for
violation of the Act under O.C.G.A. § 51-1-6 because causes of action—breach of
contract and statutory bad faith—already exist to remedy the violations alleged,
and, considering the unambiguous language of Section 33-6-37—that “[n]othing in
this article shall be construed to create or imply a private cause of action for
violation of [the Act]”—the Court declines to create one here. See
Thercy v. Allstate Prop. & Cas. Ins. Co., No. 1:13-cv-1099, Doc. 18 (N.D. Ga.
Aug. 13, 2013) (dismissing insured’s negligence claim based on violation of the
Act because the Act does not create an independent duty); cf. Miller v. Gen.
Wholesale Co., Inc., 101 F. Supp. 2d 1374 (N.D. Ga. 2000) (“It seems clear from
the language of [O.C.G.A. § 51-1-6] that no cause of action is created where, as
here, an express cause of action already exists;” express cause of action for
disability discrimination already existed under Americans with Disabilities Act);
Reilly v. Alcan Alum. Corp., 528 S.E.2d 238 (Ga. 2000) (on certified question
from Eleventh Circuit, stating “the general tort provisions of § 51-1-6 and § 51-1-8
cannot be read so as to create a civil action for age discrimination based upon a
violation of either § 34-1-2 or the ADEA,” including because the legislature did
not create a civil remedy for age discrimination under § 34-1-2, and Georgia law
expressly prohibits a claim for wrongful termination based on at-will employee
32
agreement). Defendant is entitled to summary judgment on Plaintiffs’ Unfair
Settlement Practices claim.
e.
Punitive Damages (Count IX)
Under Georgia law, punitive damages cannot be awarded for breach of
contract. See O.C.G.A. §§ 13-6-10, 51.12-5.1; Metro Complete Svcs., Inc. v.
Liberty Mut. Ins. Co., 372 S.E.2d 491, 493 (Ga. Ct. App. 1988) (where summary
judgment was granted for insurer on negligence claim, insurer was also entitled to
summary judgment on claim for punitive damages, even though material issue of
fact remained on breach of contract claim; punitive damages are not authorized in a
case arising out of contract). Because Plaintiffs’ only claim remaining in this
action is for breach of contract, Defendant is entitled to summary judgment on
Plaintiffs’ claim for punitive damages.16
16
The Court finds that the testimony in Fredrics’s and Plaintiffs’ affidavits that
Defendant has moved to strike do not create an issue of fact material to Plaintiffs’
claims addressed in this Order. Defendant’s Motion to Strike and Plaintiffs’
Motion to Appoint Expert are denied without prejudice.
The Court notes that much of the testimony in Fredrics’s Affidavit which
Defendant contends is expert opinion testimony, does not appear to be relevant to
Plaintiffs’ breach of contract claim, Plaintiffs’ only claim remaining in this action.
If Plaintiffs intend to present at trial any of Fredrics’s testimony which is the
subject of Defendant’s Motion to Strike or which could be considered expert
testimony, Defendant may move in limine to exclude such testimony. Plaintiffs are
admonished that even an expert witness may not testify to legal conclusions,
including the interpretation of an insurance policy, and thus opinions such as
coverage, the parties’ respective duties, and whether an insured “is entitled to” any
33
III.
CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Plaintiffs’ Motion to Remand [45] is
DENIED.
IT IS FURTHER ORDERED that Plaintiffs’ Motion for Oral Argument
[32] is DENIED.
IT IS FURTHER ORDERED that Defendant’s Motion for Partial
Summary Judgment [25] is GRANTED. Defendant is entitled to summary
judgment on Counts II-IX of Plaintiffs’ Complaint.
IT IS FURTHER ORDERED that Defendant’s Motion to Strike [34] and
Plaintiffs’ Motion to Appoint Expert [39] are DENIED WITHOUT
PREJUDICE.
funds, under an insurance policy are not admissible and will not be allowed at trial,
whether the testimony is offered by a fact or an expert witness. See, e.g.,
Montgomery v. Aetna Cas. & Surety Co., 898 F.2d 1537, 1541 (11th Cir. 1990);
Nationwide Mut. Fire Ins. Co. v. Somers, 591 S.E.2d 430, 433 (Ga. Ct. App. 2003)
(en banc) (per curiam) (expert opinion as to an insurer’s duty under a policy was
not admissible); FCCI Ins. Grp. v. Rodgers Metal Craft, Inc., No. 4:06-cv-107,
2008 WL 2951992, at *3 (M.D. Ga. July 28, 2008) (expert opinion as to whether
coverage applied under a policy was not admissible).
34
SO ORDERED this 26th day of August, 2014.
35
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