Looking Good Properties LLC et al v. Johnson & Johnson Incorporated
Filing
70
ORDER granting 45 Motion for Summary Judgment. Plaintiff's claims are herby dismissed. Signed by Judge William T. Moore, Jr on 3/12/2014. (loh)
IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
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LOOKIN GOOD PROPERTIES, LLC
and BARBARA KRINSKY,
Plaintiffs,
CASE NO. CV412-138
V.
ASCOT CORPORATE NAMES
LIMITED, an Underwriter of
Lloyd's London, subscribing
to Policy ASC1000121
Defendant.
ORDER
Before the Court is a Motion for Summary Judgment
filed by Defendant Ascot Corporate Names Limited, an
Underwriter at Lloyd's London subscribing to Policy
ASC1000121. (Doc. 45.) Plaintiffs Lookin Good Properties,
LLC, and Barbara Krinsky have filed a. response in
opposition. (Doc. 51.) For the following reasons,
Defendant's motion is GRANTED and Plaintiffs' claims are
hereby DISMISSED. The Clerk of Court is DIRECTED to close
this case.
BACKGROUND
This action stems
from Plaintiffs'
homeowner's
insurance claim following a November 12, 2011 fire on
Plaintiffs' property (the "Second Fire").'
(Doc.
45,
Attach. 6 ¶ 31.) The insurance policy in question provided
in part for dwelling coverage of the structures at 836 East
Park Avenue, Savannah, Georgia (the "Property") with a
policy limit of liability in the amount of
subject to an 80 1
1
$354,114,
coinsurance requirement and a $1,000
deductible (the "Policy"). (Id. at 111 2-3.)
On May 20, 2011,
the Property sustained a fire loss
that resulted in damage throughout the structure (the
"First Fire"). (Id.
¶11 6, 10.) After investigating the
damage, both Defendant and Plaintiffs agreed that the
Property was a total loss. (Id. ¶ 11.) Plaintiffs
executed a sworn statement attesting under oath that the
Property was a total loss in exchange for payment equal to
the Policy's coverage limits. (Id. ¶ 13.)
On August 11,
2011, Defendant paid the Plaintiffs the maximum policy
limit of $354,114 for the total loss of the Property, less
1.
Although for purposes of a motion for summary judgment all
facts are decided in the light most favorable to the
nonmoving party, Plaintiffs failed to file an appropriate
and timely statement of material facts. Accordingly, the
facts contained in Defendant's statement of material facts
are deemed admitted. See S.D.LI.R. 56.1 ("All material
facts set forth in the statement [of material facts]
required to be served by the moving party will be deemed to
2
$1,000 for the deductible.
(Id. ¶ 17.)
In addition,
Defendant paid Plaintiffs $17,705.70 to demolish the
remaining structure on the Property. (Id. ¶ 18.)
However, Plaintiffs ultimately decided not to demolish
the remaining structure. (Id. ¶ 22.) Plaintiffs hired a
number of individuals to board up the windows, clear up
debris, and perform some basic repairs in anticipation of
ultimately renovating the structure for future use.
¶j 23-27.)
(Id.
Plaintiffs also hired an architect to draw up
plans for a rebuild of the property. (Id. ¶ 28.)
On November 12, 2011, the Second Fire burned to the
ground the remaining structure. (Id. ¶ 31.) On December
8, 2011, Plaintiffs reported the Second Fire to Defendant
and indicated the probable amount of loss to be zero
dollars. (Id. ¶j 32-33.) However, Plaintiffs eventually
did seek to recover for losses incurred by the Second Fire.
(Id. ¶ 34.)
On April 5, 2012, Plaintiffs brought this action in
state court against former defendant Johnson and Johnson, 2
be admitted unless controverted by a statement served by
the opposing party.").
2
Former defendant J&J is the managing general agent for
Defendant's insurance policies, but not an insurer in
itself. (Doc. 29, Attach. 3.)
3
Inc. ("J&J"), alleging breach of contract and statutory bad
faith.
(Id. ¶ 35.)
Former defendant J&J removed this
action to this Court. (Doc. 1.) However, Plaintiffs
learned through interrogatories that the real insurer was
Defendant, a syndicate of Ascot Corporate Names Limited, an
Underwriter at Lloyd's London, subscribing to Policy No.
ASC1000121. (Doc. 17 at 3.) Defendant was joined in this
case (Doc. 43) and former defendant J&J was terminated
after this Court granted summary judgment in its favor
(Doc. 47). Subsequently, Defendant moved for summary
judgment with regard to all of Plaintiffs' claims (Doc.
45), to which Plaintiffs filed a response (Doc. 51).
ANALYSIS
I. DOCUMENTS TO BE REVIEWED BY THE COURT
In addition to Defendant's Motion for Summary Judgment
(Doc. 45) and Plaintiffs' response (Doc. 51), both parties
have filed numerous other documents pertaining to this
matter. Defendant filed a reply (Doc. 53) and a surreply
(Doc. 61). Plaintiffs filed a Memo in Opposition, along
with a purported supplemental statement of material facts
(Doc. 56); an Amended Response (Doc. 58); and three
surreplies (Docs. 59, 63, 64). Defendants then filed a
4
Motion to Strike Plaintiffs' third surreply (Doc. 65), to
which Plaintiffs filed a response (Doc. 66). However, all
of Plaintiffs' filings, with the exception of their second
surreply (Doc. 63) and response to Defendant's Motion to
Strike (Doc. 66), suffer from various procedural defects.
Consequently, before addressing the merits of the
underlying motion for summary judgment, the Court must
determine which documents are properly before the Court and
which should be struck from the record.
On July 9, 2013, one day after the deadline
had
passed, Plaintiffs filed a response to Defendant's summary
judgment motion. (Doc. 51.) Defendant argues, in its
reply, that the response should be struck from the record
for untimeliness. (Doc. 53 at 3.) On August 7, 2013,
Plaintiffs' first surreply was filed two days late. (Doc.
59.) Defendant argues, in its surreply, that this document
should also be struck from the record for untimeliness.
(Doc. 61 at 1-2.) On September 11, 2013, Plaintiffs filed
a third surreply, 4 this time without having given prior
The Court had previously granted Plaintiffs an extension
to file their response and moved the deadline from July 1,
2013 to July 8, 2013.
' Plaintiffs are not immune from the notice requirements and
filing deadlines simply because they title their surreply a
5
notice to the Court and seven days late.
(Doc. 64.)
Defendant subsequently filed a motion to strike this
document as untimely and inappropriate (Doc. 65), to which
Plaintiffs filed a response
(Doc. 66).
While the Court does not approve of Plaintiffs'
habitual tardiness in filing, it nonetheless finds that
striking the documents in these instances would be overly
harsh. When a party submits an untimely filing, it is
ultimately the Court's discretion whether to strike or
consider the document. Young v. City of Palm Bay, 358 F.3d
859, 863-864 (11th Cir. 2004) . The late filings caused no
real prejudice to Defendant because it continually had
opportunities to respond to Plaintiffs' arguments. The
original response (Doc. 51) was only one day late and
Defendant duly filed a reply. Consequently, the Court sees
no reason to strike it from the record. As to Plaintiffs'
surreplies (Docs. 59, 64), the Court has previously taken a
liberal stance on such briefs, finding that the notice and
supplemental brief. Podger v. Gulf stream Aerospace Corp.,
212 F.R.D. 609 n.2 (S.D. Ga. 2003).
In their response, Plaintiffs also argued their original
points concerning the Defendant's Motion for Summary
Judgment. Because these arguments are clearly beyond the
scope of Defendant's Motion to Strike, they will not be
considered by the Court.
6
filing deadlines are for the benefit of the Court, not the
opposing party.
See Brown v. Chertoff, 2008 WL 5190638
(S.D. Ga. Dec. 10, 2008) (unpublished) ("(F]ailure to
satisfy the notice and timing provisions of Local Rule 7.6
cannot be used by an opposing party as a sword to have a
brief stricken."). Accordingly, while these documents will
be reviewed with caution, the Court declines to strike them
from the record.
However, Plaintiffs filed two other documents with far
greater problems. On July 22, 2013, Defendant filed its
reply and pointed out that Plaintiffs had failed to file a
separate statement of material facts along with their
response as required by the Southern District of Georgia
Local Rules. (Doc. 53 at 3-4.) On July 28, 2013,
Plaintiffs attempted to rectify this failure by filing a
Memo in Opposition with a purported statement of material
facts. (Doc. 56, Attach. 1.) On August 3, 2013,
Plaintiffs also filed an Amended Response. (Doc. 58.) In
its surreply, Defendant argues against the admission of
both of these filings as "untimely and inappropriate."
(Doc. 61 at 10.) The Court agrees.
7
With regard to its purported statement of material
facts (Doc. 56, Attach. 1), the Court can discern no reason
to accept the document. In their continuing struggle with
the procedural requirements of this Court, Plaintiffs
submitted this document almost three weeks after it was
due, did not seek leave from the Court or give notice of
their intent to file it, and did so only after Defendant
pointed out in its reply the significance of Plaintiffs'
failure. Even if the Court were to excuse Plaintiffs'
untimeliness and procedural missteps, the document is still
materially defective. As opposed to the short and concise
statement of material facts required by Local Rule 56.1,
Plaintiffs' statement is almost entirely argumentative,
frequently fails to cite to the record, and at times only
guesses as to what the facts might be. 6 Furthermore,
Plaintiffs' argument that the local rules do not impose a
deadline for a statement of material facts is completely
without merit. (Doc. 63 at 9.) No reasonable
6
For instance, Defendant's statement of facts includes a
Plaintiffs'
corporate
representative
reference
to
testifying that the Defendant's only wrongdoing was failing
(Doc.
to pay the Plaintiffs' claim for the Second Fire.
45, Attach. 6 ¶ 36.) Plaintiffs respond in their purported
statement of facts that "[i]f he said that, then he
8
interpretation of Local Rule 56. 1, which requires that a
"[r) esponse to a motion for summary judgment shall be made
within twenty-one (21) days of service of the motion" could
suggest that the nonmoving party's statement of facts is
not due with its response. 7 S.D.L.R. 56.1.
The Court also finds Plaintiffs' Amended Response
(Doc. 58) wholly unlike the replies for which the Court
granted Plaintiffs leniency. In similarity to their
purported statement of material facts, Plaintiffs filed
this Amended Response—again without leave from the Court—
almost a month after the deadline had passed and well after
Defendant had already filed its reply. Plaintiffs' actions
amount to nothing more than an attempt to gain an unfair
advantage by tailoring their response with the benefit of
viewing Defendant's counter-arguments and without the
probably was not thinking about the statutory bad faith
claim." (Doc. 56, Attach. 1 at 17.)
' Plaintiffs also argue, throughout their multiple replies,
that their view of the facts is conveyed generally in other
documents filed with the Court, thus making a statement of
material facts unnecessary. See, e.g., Doc. 63 at 7 C".
Plaintiff [sic] had already (prior to the Defendant's
current MSJ) cited facts in the record [in support of
This argument is wholly
Plaintiff's position.]").
The Court has no interest in piecing
unpersuasive.
together Plaintiffs' argument for them or searching through
unrelated filings to estimate what Plaintiffs' statement of
material facts might have entailed.
9
burden of a deadline. The Court will not allow Plaintiffs
to undermine or subvert the purpose of court procedures.
Plaintiffs are unable to establish good cause as to
why these documents should not be struck, stating only that
they "forgot that a reply was required to the Defendant's
Statement of Material Facts" (Doc. 59 at 2) and that they
"poorly planned the time need to complete [their response)"
(Doc. 58 at 1 n.l) . Plaintiff's sole legal argument on
this matter is to suggest that a decision on the merits 8
should not "be avoided on the basis of . . . mere
technicalities." Forman v. Davis, 371 U.S. 178, 181
(1962). However, Plaintiffs' failures cannot be described
as "mere technicalities." Plaintiffs have shown continual
disregard for the procedural rules of this Court and to
allow these filings would effectively strip the Local
Rules' pleading requirements and deadlines of all meaning.
Accordingly, Plaintiffs' purported statement of material
facts (Doc. 56, Attach. 1) and Amended Response (Doc. 58)
are hereby
STRICKEN
from the record and will not be
Despite the striking of these two documents, the Court is
nonetheless able to render a decision on the merits. See
infra Part III.
10
considered by the Court in reviewing Defendant's motion for
summary judgment.
II. STANDARD OF REVIEW
According to Federal Rule of Civil Procedure 56(a),
"[a] party may move for summary judgment, identifying each
claim or defense—or the part of each claim or defense—on
which summary judgment is sought." Such a motion must be
granted "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." Id. The "purpose of
summary judgment is to 'pierce the pleadings and to assess
the proof in order to see whether there is a genuine need
for trial.' " Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56
advisory committee notes).
Summary judgment is appropriate when the nonmovant
"fails to make a showing sufficient to establish the
existence of an element essential to that party's case, and
on which that party will bear the burden of proof at
trial."
Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986).
The substantive law governing the action
determines whether an element is essential. DeLong Equip.
11
Co. v. Wash. Mills Abrasive Co., 887 F.2d 1499, 1505 (11th
Cir. 1989)
As the Supreme Court explained:
[A] party seeking summary judgment 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.
Celotex, 477 U.S. at 323. The burden then shifts to the
nonmovant to establish, by going beyond the pleadings, that
there is a genuine issue as to facts that are material to
the nonmovant's case. Clark v. Coats & Clark, Inc., 929
F.2d 604, 608 (11th Cir. 1991)
The Court must review the evidence and all reasonable
factual inferences arising from it in the light most
favorable to the nonmovant. Matsushita, 475 U.S. at 58788. However, the nonmoving party "must do more than simply
show that there is some metaphysical doubt as to the
material facts." Id. at 586. A mere "scintilla" of
evidence, or simply conclusory allegations, will not
suffice.
See, e.g., Tidwell v. Carter prods., 135 F.3d
1422, 1425 (11th Cir. 1998).
Nevertheless, where a
reasonable fact finder may "draw more than one inference
12
from the facts, and that inference creates a genuine issue
of material fact, then the Court should refuse to grant
summary judgment." Barfield v. Brierton, 883 F.2d 923, 933
(11th Cir. 1989).
III. DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Defendant argues that Plaintiffs may not recover for
any possible damage incurred by the Second Fire because they
exhausted the limits of the Policy after the First Fire.
(Doc. 45 at 15.) Specifically, Defendant argues that its
initial payment to Plaintiffs accounted for any potential
value of the remaining structure. (Doc. 53 at 4-5.)
Plaintiffs respond that this is a misstatement of the
situation and that the pertinent question is whether the
remaining structure had any value at the time of the Second
Fire. (Doc. 50 at 16.) Plaintiffs argue that so long as
the Policy had not been cancelled, Defendants are liable for
the Property's remaining value. (Doc. 59 at 4.)
Defendant's argument hinges on whether its total
coverage liability for the structure is restricted on a
"policy limit basis" rather than a "per occurrence" basis.
(Doc. 45, Attach. 6 ¶ 3; Doc. 53 at 5 n.2.) If Defendant's
liability is governed by a policy limit, Plaintiffs will
have exhausted their possibility of recovery by receiving
the Policy's maximum award after the First Fire. As stated
above, Plaintiffs' failure to timely file an appropriate
statement of material facts severely hinders their
arguments, as the Court now accepts Defendant's factual
assertions as admitted. See S.D.L.R. 56.1 ("All material
facts set forth in the statement [of material facts]
required to be served by the moving party will be deemed to
be admitted unless controverted by a statement served by the
opposing party."). Such an admission, however, is not
necessarily fatal to Plaintiffs' claims because the Court
will not grant summary judgment by default. See United
States v. 5800 SW 74th Ave., 363 F.3d 1099, 1101 (11th Cir.
2004) ("[A] district court cannot base the entry of summary
judgment on the mere fact that the motion was unopposed.").
Furthermore, a motion for summary judgment may only be
granted when appropriate—there must be an evidentiary
showing that the moving party is entitled to judgment as a
matter of law. Id. To this end, the Court cannot simply
accept the factual statements in an unopposed motion as
true, "but must ensure that the motion itself is supported
by evidentiary materials." Id.
14
The Court has reviewed the evidentiary record
supporting Defendant's statement of facts and finds it has
met its burden. The Policy contains two parts: one for the
coverage of the Property (Doc. 8, Attach. 1 at 10-23) and a
second for liability coverage of the owners (Id. at 23-31).
The term "occurrence" is used only in the second portion and
relates to instances when the owners themselves may incur
liability to others. There is no language in the Policy
that suggests coverage for the Property is subject to a per
occurrence" limit, and no reasonable jury could find
otherwise based on the facts presented. See Richards v.
Hanover Ins. Co., 299 S.E.2d 561, 563; 250 Ga. 613, 614
(1983) ("In Georgia, insurance is a matter of contract, and
the parties to an insurance policy are bound by its plain
and unambiguous terms."). Accordingly, the Court finds
Defendant's statement that Plaintiffs' recovery is subject
to a policy limit basis is sufficiently supported by
evidence in the record. Because Plaintiffs already
recovered the maximum amount allowed under the Policy, 9 the
As further confirmation that the remaining structure's
value was already calculated into the award after the First
Fire, the total recovery amount included $17,705.50
designated for the demolition of the remaining structure
15
remaining structure's value is entirely irrelevant to this
case.
Because the Court has established that Plaintiffs are
entitled to no further recovery under the Policy, their bad
faith claims fail as a matter of law. Pursuant to O.C.G.A.
33-4-6, a Plaintiff may recover damages for an insurer's bad
faith refusal to pay a claim if (1) the claims is covered
under the policy; (2) a demand for payment was made against
the insurer within 60 days prior to filing suit; and (3) the
insurer's failure to pay was motivated by bad faith.
BayRock Mortg. Corp. v. Chicago Title Ins. Co., 648 S.E.2d
433, 435; 286 Ga. App. 18, 19 (2007) . Because Plaintiffs
fail to satisfy the very first element of this requirement,
Defendant is entitled to summary judgment as to Plaintiffs'
bad faith claims.
The Court finds that Defendant's statement of material
facts is sufficiently supported by the evidentiary record,
and thus there are no issues of material fact in this case.
Accordingly, Defendant is entitled to summary judgment as a
matter of law.
and clearing of debris on the property. (Doc. 21, Attach. 3
16
CONCLUSION
For the foregoing reasons, Plaintiffs have failed to
demonstrate that there exist any genuine issues of material
fact as to their claims against Defendant. Accordingly,
Defendant's Motion for Summary Judgment (Doc. 45) is
GRANTED and Plaintiffs' claims are hereby DISMISSED.
The
Clerk of Court is DIRECTED to close this case.
SO ORDERED this
Ave day of March 2014.
WILLIAM T. MOORE, JR.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
at 2.)
17
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