Robbins v. Auto-Owners Insurance Company
Filing
71
ORDER granting in part and denying in part 49 Motion for Summary Judgment; denying as moot 50 Motion to exclude. Plaintiff's claim related to the vandalism shall proceed to trial. Signed by Judge J. Randal Hall on 2/24/16. (cmr)
IN THE UNITED
FOR THE
STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION
FRANCES ROBBINS,
*
Plaintiff,
Tic-
v.
*
CV
614-095
*
*
OWNERS INSURANCE COMPANY,
*
*
Defendant.
*
ORDER
Two
motions
are
currently
motion for summary judgment
exclude testimony
Defendant's motion
DENIED in part,
(doc.
for
before
(doc.
50) .
49)
the
Defendant's
and Defendant's motion to
For the
summary
Court:
reasons
judgment
discussed below,
is GRANTED in part and
and Defendant's motion to exclude
is DENIED AS
MOOT.
I.
A.
Background
Factual Background1
Plaintiff Frances Robbins owns a house in Sylvania,
(the
"Dwelling"),
Robbins,
where
until 2012.
she
lived
In January 2012,
with
her
husband,
Georgia
Thomas
Plaintiff suffered a fall
that kept her in the hospital from January until March of that
1
Unless otherwise noted, the Court takes the factual background in
this case from Defendant's statement of undisputed material facts. (Doc. 49,
Ex.
2.)
year.
After being released from the hospital,
husband
returned
return,
it
because
had
son,
Plaintiff
to
was
ill.
So
Plaintiff
relevant
to
this
Dwelling.
apparent
Statesboro
and
had not
the
became
become
moved
to
in
live
continued
matter.
spent the night
In August
Owners
in
the
amount
Plaintiff
States
Company
of
removed
all
live
alone
wheelchair
and
Mr.
Robbins
Plaintiff
and
Mr.
Robbins
live
with
as
of
Stevens,
Stevens
June
Plaintiff's
at
all
2013,
times
Plaintiff
2012.
And
the Dwelling was listed for sale.
apparently
a
agreed to
Just
prior
change-of-address
Service.
home,
not
the Dwelling since April
$3,592.29.
changed her driver's
Stevens's
their
the Dwelling was vandalized,
submitted
Postal
after
could
Kenneth
fact,
soon
Robbins passed away.
2012,
Insurance
a
2012,
to
In
in
they
with
from May 2012 until May 2013,
In March 2013, Mr.
to
April
to
However,
that
confined
Plaintiff and her
Just
after
the
to
form
and Defendant
cover
the
with
vandalism,
registered to vote with Stevens's
by
October
2012.
In
damage
vandalism,
the
license to reflect her current
furniture
the
United
Plaintiff
address
address,
June
2013,
at
and
the
Dwelling was damaged by a fire.
B.
The Insurance Policy
Defendant issued an insurance policy (doc. 49, ex. 20)2 to
Plaintiff and her husband.
The Policy remained in effect at all
2 It appears that Defendant has filed multiple copies of the Policy on
the docket and that multiple documents were filed with the Policy each time.
The Court will refer to the copy filed at Document 49, Exhibit 20.
Moreover,
times
relevant
litigation.
to
The
this
matter
and
portion of the
is
the
subject
Policy in dispute
of
this
provides
as
follows:
a.
Coverage A—Dwelling
(1)
Covered Property
We
cover:
(a)
your
dwelling
located
at
the
residence
premises
including structures attached to
that dwelling.
This
dwelling
must
be
used
principally
as
your
private
residence
(Doc.
15.
49,
Ex.
....
20 at 27.)
Residence premises means:
a.
the one or two family dwelling where you reside,
including the building, the grounds and other structures on
the grounds;
b.
that
or
part
of
any
other
building
where
you
reside,
including grounds and structures
which is described in the Declarations.3
(Id.)
C.
The Current Litigation
After
Plaintiff
making
the
initiated
breached the Policy.
Plaintiff
claims
that
appropriate
this
(Doc.
demand
lawsuit,
1,
Ex.
Defendant
under
alleging
1;
is
Doc.
Georgia
that
13.)
liable
to
law,
Defendant
Specifically,
Plaintiff
for
because the page numbers on the Policy do not match the page numbers on the
exhibit filed with the Court, to avoid confusion,
the page numbers of the entire exhibit.
3
property.
the
Court
will
reference
The Declarations page reflects that the Dwelling is the described
(Doc.
49, Ex. 20 at 1.)
additional amounts related to the vandalism,
for losses suffered
because of the fire, and for bad-faith damages.4
moves
for summary judgment on the fire,
faith
claims
and
moves
to
Defendant now
vandalism,
exclude
and the bad-
Plaintiff's
expert's
testimony.
II.
Summary
genuine
dispute
entitled
56(a).
the
judgment
to
U.S.
in
941
to
judgment
under
Liberty Lobby,
the
party,
is
appropriate
any
as
a
material
matter
only
fact
of
if
"there
and
law."
Fed.
no
movant
the
is
is
R.
Civ.
P.
Facts are "material" if they could affect the outcome of
suit
view
as
Legal Standard
the
Inc.,
facts
in
Matsushita
574,
[its]
587
477
1428,
substantive
law.
Elec.
U.S.
242,
248
light
the
(1986),
favor."
F.2d
governing
most
favorable
Indus.
Co.
v.
(1986).
Anderson
v.
The Court must
to
the
non-moving
Zenith Radio
Corp.,
475
and must draw "all justifiable inferences
United States v.
1437
(11th
Four Parcels
Cir.
1991)
(en
of
Real
banc)
Prop.,
(internal
punctuation and citations omitted).
The
Court,
motion.
by
moving
party
reference
Celotex
has
the
initial
to materials
Corp.
v.
burden
on file,
Catrett,
477
U.S.
of
showing
the basis
317,
323
the
for the
(1986).
How to carry this burden depends on who bears the burden of
4
Plaintiff also sought damages related to theft, but those claims have
since been settled.
proof
1115
at
trial.
(11th
Fitzpatrick v.
Cir.
1993) .
proof at trial,
When
City of
the
Atlanta,
non-movant
2
has
F.3d
the
1112,
burden
of
the movant may carry the initial burden in one
of two ways—by negating an essential element of the non-movant's
case
or
by
showing
that
there
is
no
necessary to the non-movant's case.
Inc.,
v.
929 F.2d 604,
S.H.
Kress
&
477
U.S.
Catrett,
the non-movant's
whether
there
the
are
entitled
to
Columbus,
mere
Co.,
has
judgment
F.3d
conclusory
144
(1986)).
in
248,
a
initial
of
of
(11th Cir.
that
the
burden at trial is insufficient.
If—and only if—the movant
carries
the
Court
it must
burden
there
is
indeed
summary judgment."
a
Id.
material
issue
fact
fact
law.
v.
evaluate
first
consider
and
Jones
1997)
Corp.
can
of
(per
showing
that
it
is
City
v.
of
curiam).
cannot
that
meet
A
the
929 F.2d at 608.
its
initial
non-movant may avoid summary judgment only by
that
a
Coats & Clark,
Celotex
non-movant
Clark,
prove
(explaining Adickes
and
material
matter
254
statement
(1970)
Before
its
issues
as
1991)
opposition,
met
to
See Clark v.
(11th Cir.
U.S.
response
genuine
120
398
317
movant
no
606-08
evidence
of
fact
burden,
the
"demonstrat[ing]
that
precludes
When the non-movant bears the burden of
proof at trial, the non-movant must tailor its response to the
method by which the movant carried its initial burden.
If the
movant presents evidence affirmatively negating a material fact,
the
non-movant
"must
respond
with
evidence
sufficient
to
withstand
fact
a
directed
sought
to
be
verdict
motion
negated."
at
trial
Fitzpatrick,
2
on
the
F.3d
at
material
1116.
the movant
shows an absence of evidence on a material
non-movant
must
either
show
that
the
record
If
fact,
contains
the
evidence
that was "overlooked or ignored" by the movant or "come forward
with
additional
verdict
motion
deficiency."
burden
by
evidence
at
Id.
trial
at
relying
sufficient
on
based
1117.
the
to
on
The
the
pleadings
or
In
notice
the
1033-34
this
of
action,
the
summary
motion
judgment
other materials
(Doc.
51.)
Wainwright,
satisfied.
(11th Cir.
in
the
by
rules,
the
772 F.2d 822,
The
summary
the
opposition,
Therefore,
time
for
evidentiary
cannot
repeating
carry
its
conclusory
See Morris v. Ross,
of
the
Court
judgment
right
gave
663
and
to
Plaintiff
informed
file
her
of
affidavits
or
and the consequences of
notice
825
directed
1981).
Clerk
for
a
alleged
non-movant
allegations contained in the complaint.
F.2d 1032,
withstand
requirements
(11th Cir.
filing
1985)
materials
of
default.
Griffith
(per curiam),
in
opposition
v.
are
has
expired, and the motion is now ripe for consideration.
Ill.
A.
Discussion
Defendant's Motion for Summary Judgment:
Defendant
moves
for
summary
judgment
on
both
Plaintiff's
claim related to the fire at the Dwelling and Plaintiff's claim
related
to
the
vandalism.
Defendant
6
contends
that
the
claim
related
to
Plaintiff
fire.
that
the
did
With
fire
not
reside
respect
Plaintiff s
produce
is not
to
evidence
of
at the
the
claim
covered
Dwelling
the
at
fail
because
damages.
policy
the
vandalism claim,
must
her
under
because
time
of
Defendant
she
has
Defendant
the
argues
failed
also
moves
to
for
summary judgment on the bad-faith claim.
i.
The fire-loss
"Under Georgia
by
ordinary
Petroleum,
(Ga.
v.
1998).
in
marks omitted).
to
Mut.
are
are
interpreted
construction."
Ins.
rules
Co.,
of
498
Boardman
S.E.2d 492,
construction,
omitted)
(internal
reasonable
contract
alone
Ins.
to
interpretation,
ascertain
"Mw]ords
Co.,
State
482
the
Farm
S.E.2d
Fire
714,
&
parties'
716-17
intent."
Co.
(Ga.
and
is to
their usual
Cas.
the
quotation
the court
generally bear
494
"[a]ny
strictly construed against
(citation
signification.'"
Hardware
the
insurance
"Where the terms are clear and unambiguous,
Furthermore,
common
1997)
Id.
of
contract
contract
only one
the
Id.
of
Federated Mut.
the
insurer . . . ."
look
contracts
Following
ambiguities
capable of
law,
rules
Inc.
claim
v.
Ct.
and
Am.
App.
(quoting O.C.G.A. § 13-2-2(2)).
Defendant argues that Plaintiff is not permitted to recover
damages
resulting from the fire because,
under the Policy,
she
was required to have resided at the Dwelling at the time of the
fire.5
As noted above, the Policy covers Plaintiff's "dwelling
located at
to
that
your
the residence premises including structures
dwelling.
private
This
dwelling
must
residence . . . ."
be
(Doc.
used
49,
attached
principally
Ex.
20
at
as
27.)
Residence premises is defined as "the one or two family dwelling
where you reside ... or that part of
you
reside . . . ."
language
of
the
(Id. )
Policy
or
any other building where
Plaintiff
the
does
contention
not
that
challenge
she
must
the
have
resided at the Dwelling at the time of the fire for coverage to
be
appropriate.
interpreting
before
the
reside
at
Georgia
Georgia
Court
the
S.E.2d 13,
law
to
insured
13-14
courts
find
and
agreements
unambiguously
premises.
(Ga. Ct.
courts
App.
1988)
this
similar
require
See
in
Epps
that
v.
to
the
circuit
the
one
insured
Nicholson,
370
(finding a similar policy
to unambiguously require that the insured reside on the premises
and
finding
that,
rental property,
F.
Supp.
2d 1316,
unambiguously
and
finding
periods,
because
insured
she did not);
1318-20
require
that
the
she
that
did
Lyons
(N.D.
used
v.
insured
not
property
Allstate Ins. Co.,
Ga. 2014)
the
the
a
996
(finding a policy to
reside
because,
as
on
during
the
property
the
relevant
the house either remained empty or other people lived
there, even though the insured kept furniture and personal items
5
Defendant actually maintains that the Dwelling must have been
Plaintiff's exclusive residence.
Although not dispositive in this case,
Defendant's argument is meritless and overzealous.
Defendant points to no
portion of the Policy—and the Court cannot locate any—that mandates that the
Dwelling be Plaintiff's only residence.
8
at the house,
kept the utilities on,
the house in good repair,
year).
Thus,
this
case
maintained the lawn,
and slept at the house a few times a
hinges
on
whether
the Dwelling at the time of the fire. 6
in the Policy,
kept
Plaintiff
resided at
Reside is not defined
and neither side disputes its meaning.
the ordinary meaning of reside,
Following
Plaintiff did not reside at
the
Dwelling at the time of the fire.
Plaintiff
since
April
Plaintiff
has
not
2012.
Not
submitted
service,
changed
Stevens's
address,
and
informed
address.
her
spent
a
long
the
registered
doctors
to
after
address
Additionally,
favorable
single
night
she
and
for
a
Plaintiff,
that Plaintiff resided at
on
to
her
vote
banks
year
that
in
left
change-of-address
Dwelling was listed for sale.
most
a
form
the
the
to
driver's
with
Dwelling,
the
lived
following
her
postal
license
Stevens's
she
Dwelling
at
to
address,
Stevens's
leaving,
the
Viewing these facts in the light
no
reasonable
the Dwelling.
jury could
Accordingly,
conclude
Defendant
did not improperly deny coverage.
Essentially,
First,
she
because of
argues
Plaintiff raises two alternative arguments.
that
the August
she
did
not
2012 vandalism.
reside
Second,
at
the
Dwelling
she argues that
Defendant is estopped from denying coverage because it knew that
she had moved.
Both of these arguments fail.
6
The Court acknowledges that Defendant apparently did not deny
coverage on the vandalism claim, and Plaintiff alludes to a waiver argument.
However, Plaintiff does not cite any authority on that issue.
The
therefore, declines to engage in a lengthy discussion on that issue.
9
Court,
Although
the
there
Dwelling
was
evidence
reside
that
there.
is
in
the
evidence
disrepair,
vandalism
In
that,
an
is
attempt
to
following
Plaintiff
the
the
has
reason
vandalism,
pointed
Plaintiff
establish
a
no
did
not
between
link
vandalism and her not residing at the Dwelling,
to
the
Plaintiff points
to evidence that one of Defendant's employees instructed her not
enter
the
affidavit
Dwelling
that
she
establish
vandalism.
after
filed in
summary judgment.
not
soon
the
response to
The employee's
that
she
vandalism
did
not
her
own
Defendant's motion
statement,
reside
and
without more,
there
because
for
does
of
the
Plaintiff's affidavit simply states that she planned
to one day return to the Dwelling and that the Dwelling was not
livable.
This
adequately
conclusory
controvert
statement,
Plaintiff's
own
however,
does
deposition
not
testimony,
which establishes that she was incapable of moving back into the
Dwelling
15-16
case
from the
PP1.
where
vandalism,
home
burns
Dep.")
an
is
time
she
at
60-61,
insured
left
lives
through 2013.
83-88,
in
her
forced to move because
during
the
repairs.
119-20.)
home
of
This
until
is
the
the vandalism,
Plaintiff
because of her health in April 2012,
(Doc.
left
the
49,
Exs.
not
day
the
of
and the
dwelling
did not spend a night there
from then until the time of the vandalism,
and has acknowledged
that she was not capable of moving back into the Dwelling at the
time of the
fire.
10
With
that
respect
because
to
Plaintiff's
Defendant
corresponded with
estoppel
accepted
Plaintiff
while
argument,
premium
she
payments
lived at
Defendant is estopped from denying coverage.
claims
that
Dwelling
Defendant
so
it
could
knew
not
that
deny
because under Georgia law,
96
S.E.2d 502,
504
because
insurance
insureds
the
agent
(Ga.
that
it
argument
the
fails
[is] bound to know the
Ins.
Co.
of Conn,
(holding that
coverage,
was
covered) .
it
v.
was not
vacant
See
Plaintiff's
summary
estoppel
judgment
on
reside
at
claim fails.
the
claim
1,
(Ga.
the
assured
and
also
3-4
though
the
Chi.
Ins.
Co.
v.
Ct.
App.
1997).
Plaintiff was bound to know that for there to be coverage,
to
S.E.2d
even
Here,
required
494
at
Mut.
was
Co.,
excluded
building
would be
lived
Cent.
she
Ins.
the
home,
Plaintiff
This
Cas.
1957)
and
deny coverage based on a building's
policy
knew
Fire
Stevens's
longer
"the insured[]
improper for an insurer to
vacancy
no
argues
from
That is,
coverage.
rights of the insurer . . . ."
Fields,
she
she
the
Dwelling.
The
for
Court,
Accordingly,
therefore,
damages
from
finds
the
fire
appropriate.7
ii.
As
fire,
The vandalism claim
discussed
Plaintiff
vandalism.
above,
in
seeks
damages
On this
issue,
addition
to
damages
based
Defendant
on
the
claims
that
related to
August
the
2012
Plaintiff has
7
Defendant's brief separately addresses issues Defendant has with
Plaintiff's damage calculation for the fire claim.
Because the Court finds
that
Defendant
did
not
improperly
deny
separately address those arguments.
11
coverage,
it
is
not
necessary
to
failed to present evidence of certain damages and that
the damages are speculative.
Plaintiff seeks $21,533.44 related
(Doc. 13 1 20.)
to the vandalism claim.
some of
Defendant argues that
Plaintiff has failed to prove roughly $10,000.00 of that amount
because
the
receipts
she
disclosed total
just
and because
Stevens,
who
testified about
these
to adequately explain the missing amount.
supplemented
his
deposition
testimony
explained the missing amount.
Plaintiff
has
presented
$11,000,000
damages,
Stevens,
with
an
(Doc. 56, Ex.
sufficient
over
evidence
however,
has
affidavit
B.)
of
failed
and
Accordingly,
her
damages
to
survive summary judgment.
Next,
Defendant
challenges
Plaintiff's
installation
$4,800.00 HVAC system as part of the $21,533.44 claim.
Defendant's
Defendant
argument
is
appropriate
only
by
is
claiming:
repair
not
(1)
because
window-unit
air
entirely
that
the
the
clear,
HVAC
Dwelling
conditioners;
Plaintiff has failed to produce evidence to
the
repair.
arguments.
Defendant
First,
as
presented a handwritten
has
not
cited
any—and
does
not
cite
Defendant
receipt
the
Court
any
is
even
that
not
previously
(2)
a
Although
appears
system
was
and
it
of
an
cooled
if
it
is,
support the cost of
law to
acknowledges,
for
the
HVAC
is
not
aware
support
these
Plaintiff
unit.
of
has
Defendant
any—law
that
prevents the introduction of handwritten receipts as evidence of
expenses.
Second,
reasonableness
or
to the extent that
necessity
of
12
Defendant challenges the
spending
$4,800.00
on
an
HVAC
system,
it
may
do
so
to
a
jury,
but
summary
judgment
is
not
appropriate on this issue.
Defendant
also
asserts
simply
that
all
of
the
requested
damages related to the vandalism are not recoverable as
of
law.
Specifically,
Defendant
remodeling
the
and
costs
from the
flow
vandalism.
Dwelling
The
subsequent
remodel
Court
has
argues
not
affidavit,
Stevens
costs
In
were
his
explained
the
("Stevens Dep.")
at
62-77.)
That is,
was
shown
what
caused by the
deposition
receipts
and discusses how they relate to the vandalism.
12-13
Plaintiff
sufficiently
and what
disagrees.
that
a matter
and
and
(Doc.
his
costs
49,
Exs.
Stevens's deposition
testimony represents that expenses were incurred while repairing
the
to
vandalism damage.
regarding
that,
in
its
The
only evidence
renovation
the process
of
theory
is
repairing the
that
Defendant
Plaintiff's
damage,
points
testimony
Stevens may have
been attempting to make the Dwelling a bit more comfortable than
it
was
just
prior
to
seeks to argue that
the
vandalism.
To
the
extent
Defendant
Plaintiff's requested damages were actually
part of a remodeling project,
it must do so to a jury.
Summary
judgment is not appropriate on this issue.
iii.
In
pursuant
O.C.G.A.
faith.
Plaintiff's bad-faith claim
her
to
complaint,
O.C.G.A.
Plaintiff
§ 33-4-6.
also
An
seeks
insured
bad-faith
may
damages
recover
under
§ 33-4-6 if the insurer refused to cover a claim in bad
Bad faith means "any frivolous and unfounded refusal in
13
law or in fact to comply with the demand of the policyholder to
pay according
Mut.
Ins.
Co.,
omitted)
the
be
issue.
the
Court
for
Plaintiff's
bad
claim.
In
her
notes
in
that
a
the policy."
384
Fortson v.
(Ga. Ct.
Plaintiff's
that
App.
Defendant
damages
in
with
1983)
address
that
lengthy
of
Cotton
(citation
Defendant's
damages
Defendant
regard
to
vandalism
motion,
however,
Thus,
factual
dispute
which
would
claim.
See
this
the Court will
asserted
damages,
a
from the
on
a
that
motion—address
Defendant's
argument.
improperly
fire,
with
not
discussion
those
bad-faith
to
did
the
faith
regard to
response
has
from
bad
complaint—and
Defendant
reasonableness
for
acting
faith
Plaintiff did not
engage
finds
claim
liable
claim for
not
of
308 S.E.2d 382,
Plaintiff's
cannot
terms
(internal quotation marks omitted).
Because
deny
to
Fortson,
issue
308
and
simply
about
the
preclude
S.E.2d
at
385
("Penalties for bad faith are not authorized where the insurance
company has any reasonable ground to contest the claim and where
there is a disputed question of fact.").
Accordingly,
summary
judgment is appropriate on the bad-faith claims.
In
sum,
Defendant's
relates
to
Plaintiff's
GRANTED
because
motion
Plaintiff's
damages
has
claim
Plaintiff
Defendant's
Plaintiff
motion
for
for
for
did
summary
summary
damages
not
reside
judgment
judgment
from
at
as
the
the
it
as
it
fire
is
Dwelling;
relates
to
from the vandalism claim is DENIED because
presented
sufficient
14
evidence
of
those
damages;
and
Defendant's
Plaintiff's
motion
bad-faith
for
summary
claim is
judgment
GRANTED
as
because
it
relates
Defendant
to
did not
deny coverage in bad faith.
B.
Defendant's Motion
In
has
addition
moved
to
to
its
exclude
expert's
opinion
purposes
of
to Exclude
motion
summary
Plaintiff's
addresses
damages
for
value
the
Dwelling
for
it
it unnecessary
to
exclude.
Defendant's
motion
summary
part,
MOOT.
the
reasons
judgment
to
Accordingly,
(doc.
Conclusion
discussed
49)
is
above,
GRANTED
and Defendant's motion to exclude
Plaintiff's
has
is DENIED AS MOOT.
IV.
For
motion
finds
Court
The
granted summary judgment on that claim,
the
fire.
of
testimony.
the
address
the
expert's
Defendant
Because
separately
from
the
judgment,
Defendant's
in
part
(doc.
50)
motion
for
and DENIED
in
is DENIED AS
claim related to the vandalism shall proceed
to trial.
ORDER ENTERED at Augusta,
February,
Georgia this
C^CP^K day of
2016.
HONORABLE
J.
RANDAL HALL
UNITED/STATES DISTRICT JUDGE
IRN DISTRICT OF GEORGIA
15
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