COOK v. USAA CASUALTY INSURANCE COMPANY

Filing 196

MEMORANDUM DECISION granting in part and denying in part 100 Motion for Summary Judgment. By MAGISTRATE JUDGE JOHN C. NIVISON. (MFS)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
JENNIE M. COOK,

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Plaintiff
v.
USAA CASUALTY
INSURANCE COMPANY,
Defendant

1:16-cv-00207-JCN

MEMORANDUM OF DECISION
ON MOTION FOR SUMMARY JUDGMENT
In this action, Plaintiff alleges that Defendant breached an insurance contract and
unfairly resolved her insurance claim after her house was damaged by a fire. (First
Amended Complaint, ECF No. 8.) The matter is before the Court on Defendant’s motion
for summary judgment. (ECF No. 100.)
Following a review of the record, and after consideration of the parties’ arguments,
the Court grants in part and denies in part Defendant’s motion.
PROCEDURAL BACKGROUND
Plaintiff filed her complaint in Maine Superior Court alleging a claim for breach of
contract and an unfair claims settlement claim. (Complaint, ECF No. 1-2.) Defendant
removed the case to federal court based on diversity jurisdiction. (Notice of Removal, ECF
No. 1.) Plaintiff subsequently filed a motion to amend the complaint, which motion the
Court granted. (Motion and Order, ECF Nos. 6 – 7.)

In her amended complaint, Plaintiff alleged: (1) breach of contract claiming that she
was entitled to the full repair or replacement value of the loss and to additional fair rental
value payments; (2) unfair claims settlement practices; (3) negligence; and (4) negligent
misrepresentation regarding coverage for ordinances and building codes. (Amended
Complaint, ECF No. 8.) In her response to the motion for summary judgment, Plaintiff
sought to dismiss the negligence and negligent misrepresentation claims. (Opposition to
Motion for Summary Judgment at 4, ECF No. 114.)
After the close of discovery, Defendant filed a motion for summary judgment.
(Motion, ECF No. 100.) At the hearing on the motion, Plaintiff raised for the first time a
potential jurisdictional issue. Plaintiff then filed a motion to amend the complaint, a motion
to join an indispensable party, and a motion to remand the matter to state court. (Motions,
ECF Nos. 125 – 127.) The Court denied the motions. (Order, ECF No. 157.)
Plaintiff’s counsel subsequently moved to withdraw (Motion, ECF No. 165) and
Plaintiff moved to stay the proceedings. (Motions to Stay, ECF Nos. 159, 162.) The Court
granted the motion to withdraw and denied the motion to stay, but the Court permitted
Plaintiff the opportunity to file a motion to supplement her summary judgment filing.
(Order, ECF No. 168.)

Plaintiff then requested leave to amend her opposition to

Defendant’s motion for summary judgment. (Fourth Amended Motion for Leave to File
Amended Opposition, ECF No. 191; Plaintiff’s Supplemented Opposition, ECF No. 1903.) The Court granted Plaintiff leave to amend her opposition. (Order, ECF No. 192).

2

Defendant filed a memorandum in reply to the supplemental opposition.1 (Reply, ECF No.
194.)
FACTUAL BACKGROUND
A.

The Property and the Policy
In October 2012, Plaintiff contacted Defendant to secure a Rental Dwelling Policy

on real property located at 188 Veazie Street, Old Town, Maine (the Property).
(Defendant’s Statement of Facts ¶ 1, ECF No. 101, hereinafter DSMF.) Plaintiff originally
purchased the Property with her husband in 1984 as their primary residence. (Plaintiff’s
Additional Statement of Material Facts ¶ 137, ECF No. 113, hereinafter PASMF.) Plaintiff
is a trained and experienced real estate appraiser, and she describes the Property as a
beautiful, older, Victorian or Colonial home. (Id. ¶¶ 138 – 140.) Plaintiff made a number
of improvements to the Property. (Id. ¶ 141.) During Plaintiff’s initial phone call with
Defendant, Plaintiff discussed “characteristics of [the] house,” and Defendant’s
representative then provided an estimated monthly premium and explained the application
process. (DSMF ¶ 2.) No other matters were discussed on this call. (Id.) On November
16, 2012, Defendant issued Policy No. 00278416380A, insuring the Property. (Id. ¶ 3.)
The initial coverage was made conditional on an inspection. (PASMF ¶ 176.)

The Court granted Defendant an opportunity to reply to Plaintiff’s amended opposition; Defendant objects
to Plaintiff’s effort to amend not only her responsive legal argument, but also her responses to Defendant’s
statement of material facts. (ECF No. 194.) As to Plaintiff’s attempt to amend her response to Defendant’s
statement of material facts, Defendant’s arguments are not without merit. Plaintiff’s amended opposition
response includes a significant number of paragraphs which apparently change her position on many of
Defendant’s factual statements, referring to a separate document, “Cook’s amended denial of USAA’s
Statement of Fact,” which document does not appear in the record. Furthermore, the paragraphs in which
Plaintiff’s position is changed regarding Defendant’s factual statements do not comply with Local Rule 56.
Nevertheless, the Court has considered Plaintiff’s amended legal arguments.
1

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On November 28, 2012, Mueller Inspections performed an inspection of the
Property, which inspection revealed a series of “Condition Concerns,” including extensive
moss growth, particularly on the roof, as well as a crumbling chimney. (DSMF ¶ 4.) In
March 2013, Plaintiff had a series of phone calls with an underwriter for Defendant in
which they “talked about just the conditions and just some other safety conditions,” and
the underwriter addressed her questions related to increased coverage limits based on the
inspection and repairs that would be needed in order to maintain coverage. (Id. ¶ 5.) After
the inspections, Defendant increased the cost of replacement to $444,000. (PASMF ¶ 177.)
Tenants occupied the Property from July 2012 through July 2013. (DSMF ¶ 6.) The
Property was vacant between from July 2013 to the date of the fire in September 2013. (Id.
¶ 7.) During this time, Plaintiff lived in Virginia. (Id. ¶ 11.)
B.

The Fire
On September 24, 2013 at approximately 7:00 a.m., a fire was reported at the

Property. (Id. ¶ 16.) The Fire Department determined that the fire was confined to an area
of approximately six square feet on the second-floor rear portion of the Property. (Id. ¶
18.) The Fire Department estimated that “not much water” (less than 1,000 gallons) was
used to extinguish the fire, and they were able to suppress it in a short period of time. (Id.
¶ 19.) The Fire Department’s report reflects that only one story of the Property suffered
any minor or serious damage, and that there was no heat damage on the first floor. (Id. ¶
20.)

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C.

Water Mitigation and Initial Claim Estimate
At approximately 4:15 p.m. on September 24, 2013, Plaintiff called Defendant and

advised that the Fire Department was performing water mitigation at that time. (Id. ¶ 21.)
Paul Davis Restoration (Davis) was a participant in Defendant’s Property Direct Repair
Program, the details of which program Defendant outlined in a letter to Plaintiff. (Id. ¶
22.) On September 25, 2013, at 8:23 a.m., Plaintiff called Defendant, during which call
the nature of Defendant’s relationship with Davis was explained; Plaintiff consented to the
retention of Davis to perform post-fire mitigation services. (Id. ¶ 23.)
On September 25, 2013, Plaintiff and Davis entered into a contract to perform postfire mitigation services. (Id. ¶ 24.) Joe Ouellette, a Davis representative, inspected the
Property and documented its condition with a series of photographs. (Id. ¶ 25.) Plaintiff
returned to Virginia on September 26, 2013. (Id. ¶ 26.)
On September 27, 2013, Mr. Ouellette advised Defendant that the claim was a
“fairly large loss.” (Id. ¶ 27.) On the same day, the matter was assigned to Dennis
McLaughlin, a general adjuster who handles losses in excess of $50,000. (Id. ¶ 28.) Mr.
Ouellette advised Mr. McLaughlin that there was extensive fire damage in the second-floor
back bedroom and hallway and “heat and smoke damage throughout the house.” (Id. ¶ 29.)
Mr. McLaughlin also spoke with Old Town Fire Chief O’Malley about the origin and cause
of the fire. (Id. ¶ 30.) Mr. McLaughlin called Plaintiff the same day to explain the claims
process and documented that “she will be working with Paul Davis Restoration to do the
repairs.” (Id. ¶ 31.) Mr. Ouellette spoke with Defendant which authorized the start of the
demolition and clean-up. (Id. ¶ 32.)
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On September 30, 2013, Mr. McLaughlin first inspected the Property. (Id. ¶ 33.)
Mr. McLaughlin met with Mr. Ouellette at the Property to conduct a second inspection on
October 3, 2013. (Id. ¶ 34.) On October 3, 2013, the reconstruction assignment under the
Property Direct Repair Program was cancelled, as Mr. McLaughlin said he would write his
own estimate.

(Id. ¶ 35.)

On October 3, 2013, Mr. Ouellette advised Contractor

Connection that there were minimal water levels and that no dry out was needed. (Id. ¶
36.) On October 7, 2013, Mr. Ouellette again advised Contractor Connection that water
mitigation was not necessary. (Id. ¶ 37.) On October 9, 2013, Mr. McLaughlin prepared
an initial estimate of structural damage and sent a check to Plaintiff, payable to her and her
mortgage company, OCWEN Loan Servicing, LLC (“OCWEN”) as follows:
Replacement Cost:
Less Depreciation
Actual Cash Value
Less Deductible
Net Claim

$184,836.16
($55,557.71)
$129,278.45
($2,500.00)
$126,778.45

(Id. ¶ 38.) On October 10, 2013, Mr. McLaughlin spoke with Plaintiff and confirmed that
all settlement documents had been sent and she would receive them soon. (Id. ¶ 39.)
On October 11, 2013, Keith Trembley, a Davis representative, advised Defendant
that no water mitigation (fans and dehumidifiers) was needed and requested a cancellation
of the water mitigation assignment. (Id. ¶ 40.)
D.

Demolition and Cleaning
On October 11, 2013, Davis began the cleaning portion of the loss after Plaintiff

called and provided Davis with verbal authorization to begin demolition and cleaning

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services. (Id. ¶¶ 41 – 42.) On October 13, 2013, Davis began the demolition portion of
the loss by tearing out wet and damaged material. (Id. ¶ 43.)
On November 5, 2013, Mr. McLaughlin reviewed and paid Davis’ invoice for
structural cleaning and fire mitigation in the amount of $14,255.70. (Id. ¶ 48.) Payment
was issued to Plaintiff, Davis, and to Plaintiff’s mortgage company, OCWEN. (Id.) Mr.
McLaughlin contacted Plaintiff to explain the amount being paid based on Davis’
November 5, 2013 invoice and the services that had been rendered. (Id. ¶ 49.) Davis
submitted an invoice in the amount of $15,005.61 for the cost of demolition, temporary
power, plumbing repairs and debris removal. (Id. ¶ 50.) On November 15, 2013, Mr.
McLaughlin received the invoice and paid Plaintiff, Davis, and OCWEN. (Id. ¶ 51.)
On November 20, 2013, Mr. McLaughlin received and paid a board-up bill in the
amount of $1,222, payable to Northeast Restoration, Plaintiff and OCWEN. (Id. ¶ 52.) On
the same day, Mr. McLaughlin also received an asbestos removal and disposal estimate in
the amount of $2,100 and issued payment to Davis, Plaintiff, and OCWEN. (Id. ¶ 53.)
Several months later, on June 6, 2014, Davis forwarded a revised cleaning invoice. (Id. ¶
95.) On June 9, 2014, Mr. McLaughlin prepared a revised estimate and issued payment
for the additional structural damage in the amount of $3,373.98. (Id. ¶ 98.)
E.

Contractor Repair and Reconstruction Estimate
In November 2013, Keith Trembley prepared an estimate for a rebuild of the

Property; he presented a final estimate in February 2014. (Id. ¶ 61.) Plaintiff did not
proceed with the rebuild. (Id.)

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On or about December 3, 2013, Plaintiff hired public adjuster, Todd Smith of
Adjusters International. (Id. ¶ 64.) Mr. Smith never submitted an estimate to Mr.
McLaughlin. (Id. ¶ 65.) Plaintiff at no time provided Mr. McLaughlin with an alternative
structural repair estimate. (Id. ¶ 66.)
F.

Fair Rental Value
Plaintiff sought to recover payment for the fair rental value of the Property while it

was not suitable to rent. On October 16, 2013, at 7:55 a.m., CST, about three weeks after
the fire, Plaintiff called Defendant and inquired about fair rental value coverage and was
told there was a coverage question regarding the claim for rent, as the Property was not
occupied by a tenant on the date of loss. (Id. ¶ 44.) At 8:17 a.m. CST, Plaintiff called
Defendant again, spoke with a second representative, and asked about fair rental value
coverage. (Id. ¶ 45.) During this conversation, Plaintiff was informed that there was no
coverage for loss of rent. (Id.)
On November 22, 2013, at approximately 1:00 p.m., Plaintiff sent several messages
to Mr. McLaughlin through the online “claims portal.” (Id. ¶¶ 54 – 56.) Plaintiff requested
clarification about whether she could recover depreciation if she spent the settlement funds
on the Property, even if the money was not used for a specific line item, whether she could
recover loss of rent, even if there was no tenant, and said she would fax a copy of her lease.
(Id.) A few minutes later, Mr. McLaughlin responded to the series of messages and advised
Plaintiff that she could make a claim for the recoverable depreciation provided the money
was spent on repairs; he requested that Plaintiff send a copy of the prior lease and property
management contract for evaluation of her fair rental value claim. (Id. ¶¶ 57, 60.)
8

On December 20, 2013, which was a Friday, Plaintiff informed Defendant that prior
to the loss, Mr. Derek DeCeser - the owner of Mynt Investments - had an option to lease
the Property “for whatever market rate was” or $700 per month, as well as an additional
option to purchase the Property for $130,000. (Id. ¶ 67.) At approximately 5:23 p.m.,
Plaintiff sent a message to Mr. McLaughlin through the “claims portal” advising that Mr.
Smith had failed to forward the correct information in furtherance of the fair rental value
claim. (Id. ¶ 68.) Defendant’s “claims portal” system confirmed receipt of the message
and confirmed that a USAA representative would follow-up when normal weekday
business hours resumed. (Id. ¶ 69.) On December 23, 2013, Mr. McLaughlin responded
to Plaintiff’s message regarding the documentation from Mr. Smith, confirmed receipt of
the same documentation, and advised that he would review and respond. (Id. ¶ 70.)
On December 31, 2013, at approximately 8:16 a.m., Plaintiff sent a message to Mr.
McLaughlin to ask about the status of her fair rental value claim. (Id. ¶ 71.) On December
31, 2013, at approximately 8:47 a.m., Defendant responded and advised Plaintiff that Mr.
McLaughlin would return to the office on January 3, 2014. (Id. ¶ 72.) From approximately
10:23 p.m. to 11:09 p.m., Plaintiff sent four messages to Mr. McLaughlin containing six
numbered paragraphs of questions related to the claim. (Id. ¶ 73.) On or about January 1,
2014, Plaintiff cancelled her contract with Adjusters International (Mr. Smith) and
requested that Mr. McLaughlin no longer communicate with Mr. Smith. (Id. ¶ 74.)
Plaintiff also sent a message to Mr. McLaughlin with additional questions related to her
claim. (Id. ¶ 75.) On January 2, 2014, Mr. McLaughlin confirmed receipt of Plaintiff’s
inquiries and said he would review and advise. (Id. ¶ 76.)
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On January 8, 2014, Plaintiff sent a message to Mr. McLaughlin stating that she
would fax a letter to him with all her questions. (Id. ¶ 77.) On the same day, Plaintiff faxed
nine-pages regarding certain terms, including Replacement Cost, Actual Cash Value, and
Fair Rental Value. (Id. ¶ 78.) Plaintiff also sent a message to Mr. McLaughlin through the
“claims portal” indicating she had just sent him a separate e-mail attaching the January 8,
2014 fax. (Id. ¶ 79.) On January 10, 2014, Mr. McLaughlin confirmed receipt of Plaintiff’s
inquiries and stated he would call her to discuss. (Id. ¶ 80.) On January 11, 2014, Mr.
McLaughlin called and spoke with Plaintiff for about forty-five minutes and sent her a
claims communication to confirm receipt of the January 8, 2014 correspondence. (Id. ¶
81.)

On January 15, 2014, Plaintiff sent a message to Mr. McLaughlin requesting

documentation and other inquiries related to her claim, and on January 17, 2014, Mr.
McLaughlin responded. (Id. ¶ 82.)
On January 28, 2014, Mr. McLaughlin extended fair rental value coverage, advised
Plaintiff of the decision, and forwarded payment in the amount of $4,200 for the estimated
period of restoration, which was six months from the date of loss. (Id. ¶ 83.) Several
months later, on June 6 and June 9, 2014, Mr. McLaughlin agreed to pay an additional two
months’ fair rental value, bringing the total estimated period of restoration to eight months,
and sent payment for the additional $1,400. (Id. ¶¶ 96 – 97.) Several months later, on
October 27, 2014, Mr. McLaughlin forwarded an additional $1,400 payment for fair rental
value, bringing the total fair rental value to ten months from the date of loss. (Id. ¶ 120.)

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G.

Roof, Lead Abatement, and Other Claims Communications and Payments
Plaintiff also pursued several other issues with Defendant. On October 21, 2013, at

11:26 a.m., about one month after the fire, Plaintiff e-mailed Mr. McLaughlin with
questions concerning coverage of damage to the back side of the roof. (Id. ¶ 46.) At 12:53
p.m., Mr. McLaughlin responded and confirmed that damage to the back side of the roof
was covered in the October 9, 2013 payment. (Id. ¶ 47.)
On December 2, 2013, at 10:06 a.m., Plaintiff sent a message to Mr. McLaughlin
with a question about how the deductible was applied on the most recent payment to Davis.
(Id. ¶ 62.) On December 3, 2013, at 7:59 a.m., Mr. McLaughlin responded to Plaintiff’s
inquiry regarding application of the deductible. (Id. ¶ 64.)
Through January, March and April 2014, Plaintiff brought other issues to the
attention of Mr. McLaughlin and Defendant.

(Id. ¶ 84.)

On April 22, 2014, Mr.

McLaughlin issued a supplemental payment of $7,369.14, covering payment for the
hardwood floor under the carpet and additional insulation. (Id. ¶ 85.)
On or about April 22, 2014, Plaintiff faxed a letter along with “many other
documents” to Mr. McLaughlin regarding issues with the claim.

(Id. ¶ 86.)

Mr.

McLaughlin confirmed receipt of the submission through the claims communications site,
and following review, returned to the Property to conduct another inspection. (Id. ¶ 87.)
On or about April 25, 2014, Plaintiff faxed approximately seventy pages of
documents to Mr. McLaughlin. (Id. ¶ 88.) On or about April 30, 2014, Plaintiff faxed an
additional thirty-six pages of documents to Mr. McLaughlin, including a nine-page, singlespaced letter regarding issues with the claim and many pages of e-mail correspondence
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between Plaintiff and various individuals. (Id. ¶ 89.) Mr. McLaughlin confirmed receipt
of the submission through the claims communications site, and later discussed the letter
with Plaintiff in-person at her home. (Id. ¶ 90.)
On May 5, 2014, Mr. McLaughlin called the Department of Environmental
Protection regarding Plaintiff’s concerns over lead contamination. (Id. ¶ 91.) On the same
day, Mr. McLaughlin scheduled a follow-up inspection with Plaintiff. (Id. ¶ 92.) On May
8, 2014, Plaintiff faxed sixteen pages of documents to Mr. McLaughlin, including a six
page, single-spaced typed letter and several pages of e-mail correspondence. (Id. ¶ 93.)
On May 14, 2014, Mr. McLaughlin re-inspected the Property. (Id. ¶ 94.)
Between June 9, 2014 and June 11, 2014, Plaintiff sent eleven e-mails to Mr.
McLaughlin and Defendant. (Id. ¶ 99.) Mr. McLaughlin responded to every e-mail
received from Plaintiff. (Id. ¶ 100.) Mr. McLaughlin returned every phone call from
Plaintiff. (Id. ¶ 101.)
H.

Plaintiff Retains Counsel
On June 9, 2014, Plaintiff advised Mr. McLaughlin that she was seeking the advice

of an attorney. (Id. ¶ 102.) On June 11, 2014, Mr. McLaughlin wrote to Plaintiff
confirming that she was retaining an attorney and requested that she provide counsel’s
contact information. (Id. ¶ 103.) On June 16, 2014, Plaintiff advised Mr. McLaughlin that
her attorney was Joe Ferris. (Id. ¶ 104.)
After retaining counsel, Plaintiff continued to contact Defendant directly. (Id. ¶
105.) Mr. Ferris advised Mr. McLaughlin that communication was to go through his office.
(Id. ¶ 106.) Mr. Ferris and Mr. McLaughlin communicated several times in July 2014. (Id.
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¶ 107.) Although Plaintiff was represented by counsel, and counsel advised that all
communications should go through counsel, Plaintiff continued to contact Defendant
directly in July, August and September 2014. (Id. ¶ 108.)
On September 5, 2014, Plaintiff sent an e-mail to Defendant stating that she was not
permitting her lawyer to contact Mr. McLaughlin until Defendant took certain actions
relating to payments to her mortgage company, OCWEN. (Id. ¶ 109.) On September 8,
2014, counsel advised that Defendant could communicate directly with Plaintiff. (Id. ¶
110.) On September 9, 2014, a stop-pay was issued for the $126,778.45 check and reissued
payable to Plaintiff and OCWEN Loan Servicing. (Id. ¶ 111.)
On or about September 24, 2014, Plaintiff requested and received a payoff quote
from OCWEN reflecting the total amount of $140,868.66 needed to satisfy the balance of
the loan. (Id. ¶ 112.) In or about October 2014, shortly after receiving the check reissued
on September 9, 2014, as well as the September 24, 2014 payoff quote, Plaintiff paid off
her mortgage with OCWEN. (Id. ¶ 113.) As part of the payment, Plaintiff endorsed to
OCWEN at least two of the checks Defendant had issued. (Id. ¶ 114.)
I.

Lead and Asbestos Report and Final Claim Estimate
On October 3, 2014, about one year after the fire, Defendant received Donan

Engineering’s report dated September 26, 2014 concerning the presence of asbestos. (Id.
¶ 115.) On October 9, 2014, Defendant provided Plaintiff with a copy of the Donan
Engineering Report and requested the updated lead findings. (Id. ¶ 116.) On October 27,
2014, Defendant received an updated Donan Engineering report containing the lead
findings provided by Plaintiff. (Id. ¶ 117.)
13

The same day, on October 27, 2014, Mr. McLaughlin updated his overall estimate
based on the most recent Donan Engineering Report and forwarded a $17,857.02
supplemental payment to Plaintiff. (Id. ¶¶ 118 – 119.) Mr. McLaughlin’s explanation of
the loss was as follows:
Replacement Cost:
Less Depreciation
Actual Cash Value
Less Deductible
Net Claim

$244,944.33
($56,794.43)
$187,149.90
($2,500.00)
$184,649.90

(Id. See also Letter, ECF No. 105-16.)
J.

Commencement of Litigation
On August 5, 2015, Plaintiff’s attorney, Joe Ferris, requested an extension of the

policy’s two-year “Suit Against Us” provision and forwarded a proposed Tolling
Agreement for Defendant’s review. (Id. ¶ 121.) Plaintiff called Defendant the same day
and had a lengthy conversation with a representative regarding various concerns about her
claim. (Id. ¶ 122.) On August 10, 2015, Plaintiff called Defendant upset that Mr.
McLaughlin contacted her attorney and advised that only a manager was authorized to
speak with her attorney. (Id. ¶ 123.) On August 17, 2015, Mr. McLaughlin sent the signed
Tolling Agreement to Plaintiff’s counsel. (Id. ¶ 124.)
On February 25, 2016, Plaintiff called Defendant to advise that she was considering
discharging her attorney. (Id. ¶ 125.) On March 14, 2016, Plaintiff called Defendant to
advise that she was changing lawyers. (Id. ¶ 126.) On March 16, 2016, Plaintiff’s then
attorney (Matthew Warner) contacted Defendant for the first time. (Id. ¶ 127.) On March
25, 2016, Plaintiff filed a complaint in Maine Superior Court (Kennebec County) against
14

Defendant, in which complaint she asserted claims for breach of contract and unfair claims
settlement practices. (ECF Nos. 1-2, 1-3.) Defendant subsequently removed the case to
federal court, citing the Court’s diversity jurisdiction over the matter. (ECF No. 1.)
K.

Mr. McLaughlin’s Deposition Testimony
During the discovery process, Mr. McLaughlin said that as a general adjuster of

large losses for Defendant, he takes the contract and best interests of the insureds into
account while trying to assist them in the claims process. (PASMF ¶¶ 147 – 51). As a
matter of course, Mr. McLaughlin does not make requests for sworn statements or a sworn
proof of loss from insureds, and he did not make any such request of Plaintiff. (Id. ¶¶ 152
– 53.)
Mr. McLaughlin uses Defendant’s Xactimate computer program in preparing
estimates for adjusting claims, as Defendant requires all of its large loss adjusters to use
the program. (Id. ¶ 157.) Mr. McLaughlin has no knowledge of the underlying functioning
of the program. (Id. ¶ 158.) While there is a line item in Xactimate for a three-coat plaster
over metal lath, in preparing his estimate Mr. McLaughlin chose acoustic plaster over
Gypsum blue board because he believed that it is the most similar modern material that
could be used to replace Plaintiff’s damaged walls. (Id. ¶¶ 159 – 60.)
L.

Plaintiff’s Expert Evidence
Bruce Knowlton, a building contractor and licensed senior public adjuster,

described the scope of the work to be done on the Property and prepared an estimate for
the reconstruction of the Property in the approximate amount of $460,000, which estimate
did not include the cost of remediation. (Id. ¶¶ 161 – 64.) Mr. Knowlton explained that
15

there can be discrepancies between estimates of adjusters based on different assumptions
and there can be differences between contractors’ estimates and those of adjusters.
(Knowlton Deposition at 40 – 42, ECF No. 113-1.) Mr. Knowlton characterized the dispute
between the parties as one involving whether the proper remediation steps were done.
(Knowlton Deposition at 77.) Mr. Knowlton asserted that an insured could not move
forward on repairs until loss mitigation had been undertaken and an agreement as to the
scope of repairs is reached with the insurance company. (PASMF ¶ 174.)
Mark Coleman opined as to water damage, mold contamination, and lead
contamination within the Property. (Id. ¶¶ 166 – 67.) Mr. Coleman provided an estimate
in the approximate range of $105,000 for remediation necessary to prepare the site for a
general contractor to commence reconstruction work. (Id. ¶ 168.)
SUMMARY JUDGMENT STANDARD
“The 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). “After the moving party has presented evidence in support
of its motion for summary judgment, ‘the burden shifts to the nonmoving party, with
respect to each issue on which he has the burden of proof, to demonstrate that a trier of fact
reasonably could find in his favor.’” Woodward v. Emulex Corp., 714 F.3d 632, 637 (1st
Cir. 2013) (quoting Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 158 (1st Cir. 1998)).
“Cross-motions for summary judgment do not alter the basic Rule 56 standard, but
rather simply require [the Court] to determine whether either of the parties deserves

16

judgment as a matter of law on facts that are not disputed.” Adria Int'l Grp., Inc. v. Ferre
Dev., Inc., 241 F.3d 103, 107 (1st Cir. 2001).
A court reviews the factual record in the light most favorable to the non-moving
party, resolving evidentiary conflicts and drawing reasonable inferences in the nonmovant’s favor. Perry v. Roy, 782 F.3d 73, 77 (1st Cir. 2015). If a court’s review of the
record reveals evidence sufficient to support findings in favor of the non-moving party on
one or more of his claims, a trial-worthy controversy exists and summary judgment must
be denied as to any supported claim. Id. (“The district court’s role is limited to assessing
whether there exists evidence such that a reasonable jury could return a verdict for the
nonmoving party.” (internal quotation marks omitted)). Unsupported claims are properly
dismissed. Celotex Corp. v. Catrett, 477 U.S. 317, 323 – 24 (1986) (“One of the principal
purposes of the summary judgment rule is to isolate and dispose of factually unsupported
claims or defenses.”).
DISCUSSION
A.

Breach of Contract
In her amended complaint, Plaintiff alleges that Defendant “was contractually

obligated to pay the replacement cost without deduction for depreciation,” but that
Defendant “refused to cover the full replacement value of the loss and refused to cover fair
rental value of the home for the full duration that the home was not fit to live in.” (Amended
Complaint ¶¶ 8, 9.)
The elements of a breach of contract action in Maine are “(1) breach of a material
contract term; (2) causation; and (3) damages.” Me. Energy Recovery Co. v. United Steel
17

Structures, Inc., 1999 ME 31, ¶ 7, 724 A.2d 1248. “The interpretation of a contract,
including whether or not its terms are ambiguous, is a question of law . . . .” Farrington’s
Owners’ Ass’n v. Conway Lake Resorts, Inc., 2005 ME 93, ¶ 10, 878 A.2d 504, 507.
“[W]hen interpreting a contract, a court needs to look at the whole instrument.” Am. Prot.
Ins. Co. v. Acadia Ins. Co., 2003 ME 6, ¶ 12, 814 A.2d 989, 993. Accordingly, courts
“will interpret a contract according to the plain meaning of its language, and will avoid
any interpretation that renders a provision meaningless.” Richardson v. Winthrop Sch.
Dep't, 2009 ME 109, ¶ 9, 983 A.2d 400, 403 (internal citation omitted). “The interpretation
of ambiguous language in a contract, however, is a question of fact.” Id. Language is
ambiguous if it is susceptible to more than one reasonable interpretation. Id. If a material
term is ambiguous, a factual inquiry is required and the finder of fact must consider
extrinsic evidence of the parties’ intended meaning. Bangor Pub. Co. v. Union St. Mkt.,
1998 ME 37, ¶ 6, 706 A.2d 595, 597.
A few additional principles apply in the insurance context. “The meaning of
language used in insurance contracts is a question of law.” York Ins. Grp. of Maine v. Van
Hall, 1997 ME 230, ¶ 8, 704 A.2d 366, 369. Ambiguous terms are generally construed in
favor of the insured and against the insurer. Id. Courts are to “view the contract language
from the perspective of an average person, untrained in either the law or the insurance field,
in light of what a more than casual reading of the policy would reveal to an ordinarily
intelligent insured. Peerless Ins. Co. v. Wood, 685 A.2d 1173, 1174 (Me. 1996). The
insured bears the initial burden of showing that coverage for the injury exists, then the
insurer bears the burden of showing that there is an exclusion from coverage, and the
18

insured then bears the burden of showing there is an exception to an exclusion. Middlesex
Mut. Assur. Co. v. Fish, 738 F. Supp. 2d 124, 132 (D. Me. 2010).
1.

Repair or Replacement Cost

The parties agree that the fire was a covered loss, but they dispute the proper basis
of recovery. In the ordinary homeowner’s insurance policy, there are two bases upon
which an insured can recover for a loss: actual cash value and replacement cost. See Gilbert
v. Gilbert, 2002 ME 67, n.2, 796 A.2d 57, 59; 46 C.J.S. Insurance § 1756. Repair or
replacement cost “is an estimate of the amount it would cost to restore a damaged structure
to its prefire condition.” Boudreau v. Manufacturers & Merchants Mut. Ins. Co., 588 A.2d
286, 288 (Me. 1991). Actual cash value “means the replacement cost of an insured item
of property at the time of loss, less the value of physical depreciation as to the item
damaged.” 24-A M.R.S. § 3004-A. According to at least one Maine court, the reduction
for physical depreciation “makes sense because the policyholder is to be restored to the
position it was in before the covered loss.” Cliff House & Motels, Inc. v. Commercial
Union York Ins. Co., No. CIV.A. CV-01-311, 2002 WL 31235885, at *1 (Me. Super. Sept.
16, 2002). In other words, unless an insured has paid for the additional coverage and met
the conditions for the insured to recover for the full replacement cost, the actual cash value
of a loss accounts for depreciation because “[i]t would be unjust and not part of the bargain
to require the insurance companies to pay for a brand new building to replace one that
might have had a roof in need of replacing or windows and floors that had substantial wear
and tear.” Id. Here, Plaintiff alleges she is entitled to full repair or replacement cost;
Defendant maintains that the summary judgment record establishes that Plaintiff cannot
19

recover the full repair or replacement cost because she did not commence and thus not
complete the repairs.
Under the replacement cost loss settlement provisions of the policy, (see Policy at
14, Condition 5-b-(1), (5), ECF No. 101-2), when a damaged building is fully insured:
[Defendant] will pay the cost to repair or replace, after application of
deductible and without deduction for depreciation, but not more than the least
of the following amounts:
(a) the limit of liability under this policy that applies to the building;
(b) the replacement cost of that part of the building damaged for like
construction and use on the same premises; or
(c) the necessary amount actually spent to repair or replace the
damaged building.
(Condition 5-b-(1).)2 The policy restricts an insured’s ability to recover for a loss on a
repair or replacement cost basis: “[Defendant] will pay no more than the actual cash value
of the damage unless: (a) actual repair or replacement is complete . . . .” (Condition 5-b(4).) Insureds need not wait until actual repair or replacement is complete to pursue some
measure of recovery, however, because the policy provides that insureds may initially
recover the actual value of a loss and “may then make claim within 180 days after loss for
any additional liability on a replacement cost basis.” (Condition 5-b-(5).)

The policy contains two different loss settlement provisions, one for a “fully insured” property and one
for where the insurer and the insured share the costs of repair. A property is commonly termed “fully
insured” when the policy limit is at least 80% of the cost to replace the entire property; a separate
coinsurance provision applies when the policy limit is less than 80% of the cost to replace the entire
property. See generally Boudreau v. Manufacturers & Merchants Mut. Ins. Co., 588 A.2d 286, 287, 288
(Me. 1991). The parties do not dispute which provision applies to this loss.
2

20

There is no genuine dispute regarding the question of whether the “actual repair or
replacement is complete.”

The summary judgment record is clear that repair and

reconstruction never commenced. Under the unambiguous terms of the policy, therefore,
Defendant was never obligated to pay Plaintiff any more than the actual cash value of the
loss. See, Corner v. Farmers Ins. Exch., 899 F.2d 1224, 1990 WL 42270 at *2 – 4 (9th
Cir. 1990) (affirming summary judgment in favor of insurer who paid actual cash value of
loss but insured then sought recovery of repair or replacement cost without actually
completing repairs); Vakas v. Hartford Cas. Ins. Co., 361 F. App’x 1, 4 (10th Cir. 2010)
(same); Novogroder Companies, Inc. v. Hartford Fire Ins. Co., 528 F. App’x 644, 647 (7th
Cir. 2013) (same).
Here, the uncontroverted record establishes that despite the fact Defendant paid
Plaintiff on an actual cash value basis for the loss, Plaintiff did not make or even commence
the repairs. To the extent Plaintiff argues that she could not commence the construction
due to the dispute over the extent of the loss or the need for further loss mitigation,
Plaintiff’s argument is unavailing. The plain language of the policy controls. See
Woodhams v. Allstate Fire and Cas. Co., 453 Fed. App’x 108, 112 (2nd Cir. 2012)
(“However understandable these reasons for delay in the undertaking of repairs [time for
building permit to issue, road construction project], plaintiffs can point to no policy
language obligating [defendant] to reimburse for repairs not commenced – let alone
completed” within the time period required under the policy). Unless Plaintiff prevails on
her argument that Defendant is estopped from relying on the express terms of the policy,
which argument is addressed below, Defendant would be entitled to summary judgment on
21

Plaintiff’s claim that she is entitled to the full cost of repair or replacement for the fire
damage.
2.

Estoppel

Plaintiff argues that Defendant should not be able to rely on the policy provision
conditioning replacement cost payment on the actual completion of repairs because
Defendant’s conduct prevented her from undertaking the repairs. In other words, Plaintiff
contends Defendant is estopped from relying on the policy language.
Estoppel “is an equitable affirmative defense that . . . preclude[s] a party ‘from
asserting rights which might perhaps have otherwise existed, either of property, of contract,
or of remedy, as against another person who has in good faith relied upon such conduct,
and has been led thereby to change his position for the worse. . . .’” Waterville Homes,
Inc. v. Maine Dep’t of Transp., 589 A.2d 455, 457 (Me. 1991) (quoting Martin v. Me.
Central R.R. Co., 83 Me. 100, 104, 21 A. 740 (1890)). “Equitable estoppel requires a
misrepresentation.” Dep’t of Health & Human Servs. v. Pelletier, 2009 ME 11, ¶ 18, 964
A.2d 630, 636. A misrepresentation can be an affirmative misstatement, a combination of
misleading statements, or silence when there is a duty to speak. Id.; Longley v. Knapp,
1998 ME 142, ¶ 12, 713 A.2d 939, 943. “Equitable estoppel is a doctrine that should be
carefully and sparingly applied.” Dasha v. Maine Med. Ctr., 665 A.2d 993, 995 (Me. 1995)
(internal quotation marks omitted).
While in some situations, Maine courts have granted insureds relief from policy
language that would have limited their recovery because insurers misrepresented material
facts causing insureds to omit steps that would otherwise have been necessary to recover
22

for their loss, see Maine Mut. Fire Ins. Co. v. Watson, 532 A.2d 686, 689 (Me. 1987) (when
insurer’s “blatant misrepresentation,” caused delay in reconstruction because the insured
never knew if the insurer would recognize the claim, “[t]o agree with the [insurer] would
be to allow a party to take advantage of his own wrong, which we will not countenance”),
the summary judgment record does not support such a finding in this case. Plaintiff
evidently believes the contractors who performed cleanup and remediation efforts did not
perform adequately regarding water infiltration, soot, lead, and asbestos, but Plaintiff has
not demonstrated how Defendant’s conduct, statements, or omissions were misleading or
unfairly caused a delay in reconstruction.3 Indeed, the record lacks any evidence of a
material misrepresentation by Defendant. Plaintiff’s estoppel argument, therefore, fails.
Accordingly, given that the record establishes that Plaintiff has not commenced and
thus has not completed construction on the repairs, under the plain terms of the policy,
Plaintiff has not demonstrated any facts upon which a fact finder could reasonably conclude

3

The Policy provides coverage for debris removal and mitigation costs following a loss, which includes
“necessary measures taken solely to protect against further damage.” (Policy at 8 – 9, Other Coverages 2
and 6.) The record reflects that Plaintiff faults some of the contractor’s decisions during its efforts to clean
and protect the house from further damage, particularly the contractor’s decisions involving lead testing,
drying, and weatherizing windows and a damaged portion of the roof. (See Plaintiff’s Deposition at 55-67,
ECF No. 101-1.) Plaintiff evidently believes some of the decisions made it more difficult for her to initiate
and complete reconstruction. (Id.) The uncontradicted evidence in the record, however, shows that
Defendant promptly paid all the contractor’s cleaning and mitigation estimates and invoices. Plaintiff’s
claims against the contractor and the contractor’s claims against Plaintiff were litigated in a separate case
in state court. (Id.) Plaintiff has not demonstrated any legal basis to support a determination that the
contractor’s alleged deficient work should be imputed to Defendant, or that Defendant is otherwise
responsible for any disagreements or shortcomings during the time that Plaintiff and the contractor took
“necessary measures . . . to protect against further damage” in the months following the fire. To the extent
that there is a dispute as to the propriety of the mitigation measures, that dispute is not material to Plaintiff’s
claims against Defendant, including Plaintiff’s estoppel argument.

23

that Defendant breached the parties’ contract by not paying the full repair and replacement
cost.
3.

Calculation of Actual Cash Value of the Loss

Plaintiff asserts that even if she cannot recover the full repair or replacement cost,
Defendant’s assessment of the actual cash value is flawed and she is entitled to a recover a
greater amount than Defendant paid. Defendant contends that Plaintiff did not allege such
a claim.
Plaintiff contends that under principles of notice pleading, the amended complaint
can reasonably be construed to assert a claim that Defendant failed to satisfy its contractual
obligation to pay Plaintiff for her loss regardless of the measure of recovery. (Transcript of
Oral Argument on Motion for Summary Judgment (Tr.) at 23, ECF No. 128.) At oral
argument on the motion, Plaintiff asked the Court to permit an amendment to the complaint
to assert the claim in the event the amended complaint is deficient. (Tr. at 23-24.)
Defendant does not dispute Plaintiff’s contention that Plaintiff has claimed in this case that
Defendant’s calculation of the loss was insufficient and that Defendant owed more money
to Plaintiff. (Tr. at 15, 22.)
When assessing whether a party should be permitted to pursue a claim, a court must
be mindful that the “failure to comply with Rule 8(a)(2),” which requires a short plain
statement of a claim showing that the pleader is entitled to relief, “may render an unpleaded
claim noncognizable” when discovered later. Rodriguez v. Doral Mortg. Corp., 57 F.3d
1168, 1171 (1st Cir. 1995). However, even when a party does not formally amend a
pleading pursuant to Rule 15, in some circumstances, a pleading “may be constructively
24

amended as a case proceeds.” Id. at 1172; House of Flavors, Inc. v. TFG Michigan, L.P.,
643 F.3d 35, 41 (1st Cir. 2011) (citing Fed. R. Civ. Pro. 15(b)). When a party asserts that
a pleading has been constructively amended, courts focus on whether the opposing party
had adequate notice of the claim. Doral Mortg. Corp., 57 F.3d at 1171 (“The bottom line
is simply this: while courts should construe pleadings generously, paying more attention to
substance than to form, they must always exhibit awareness of the defendant's inalienable
right to know in advance the nature of the cause of action being asserted against him.”)
Regardless of whether the amended complaint can be construed to assert a claim for
an additional actual cash value payment, the record establishes that the issue of whether
Defendant paid an appropriate amount for the actual cash value of the loss has been an
issue throughout discovery.4 Defendant has been aware of Plaintiff’s claim and thus
Defendant would not be surprised or prejudiced by the inclusion of the claim in the case.
In other words, to amend the complaint as Plaintiff requested at oral argument would not
result in the inclusion of a “totally unpleaded, unlitigated claim in circumstances that
threaten significant prejudice to a defendant.” Doral Mortg. Corp. 57 F.3d at 1171. To
the extent, therefore, that the amended complaint does not include a claim for an additional
payment under Defendant’s contractual obligation to pay the actual cash value of the loss,
the amended complaint is amended to include the claim.

Because the record includes

The parties’ procedural and discovery disputes during discovery also demonstrate that the Plaintiff has
challenged the extent of the loss as determined by Defendant and not simply whether Defendant is obligated
to pay the full repair or replacement cost. (See e.g., Order on Request to Reopen Discovery, ECF No. 86;
Order on Motion for Reconsideration, ECF No. 99.)
4

25

several disputed issues of fact regarding Defendant’s calculation of the actual cash value
of the loss, summary judgment on the claim is not warranted.
4.

Fair Rental Value

Plaintiff contends Defendant “refused to cover fair rental value of the home for the
full duration that the home was not fit to live in.” (Amended Complaint ¶ 9.) Under the
“fair rental value” provisions of the policy, if the insured property is “rented to others” or
“held for rental” by the insured and becomes “unfit for its normal use” due to a covered
loss, Defendant will make payments for the fair rental value. (Policy at 9, Condition D.)
Defendant is obligated to cover fair rental value “for the shortest time required to repair or
replace” the damaged portions of the rental property. (Id.) As the person claiming
coverage, Plaintiff has the burden of establishing the claim is within the coverage of the
insurance policy. Fortin v. Titcomb, 671 F.3d 63, 75 (1st Cir. 2012) (citing Pelkey v. Gen.
Elec. Capital Assurance Co., 804 A.2d 386, 387 (Me. 2011)). In addition, as the plaintiff
in this action, Plaintiff has the burden of proving her claim by a preponderance of the
evidence.
Under the terms of the policy, Defendant is not required to make fair rental
payments indefinitely. The original estimate for the time to complete the repairs was six
months. (DSMF ¶ 83.) Defendant subsequently paid the fair rental value for ten months.
Plaintiff has not provided evidence (e.g., time estimate) that more than ten months was
necessary to complete repairs to the Property. Plaintiff cannot preserve her fair rental value
claim for trial by relying on the parties’ dispute as to the proper scope of the repairs. If a
disagreement over the scope of repairs, without more, were sufficient to survive summary
26

judgment, a trial would be required in nearly every dispute involving a fair rental value
claim, regardless of the time period for which the insurer extended payments.
Not only has Plaintiff failed to present evidence from which a fact finder could
reasonably conclude that a longer time was necessary to make the repairs, but the
uncontroverted evidence is consistent with the ten-month period for which Defendant paid.
Within two weeks of the fire, Defendant tendered a check to Plaintiff and her mortgage
company in the amount of $126,778.45, which amount was based on replacement cost less
depreciation. (DSMF ¶ 38.) Over the seven months immediately following the fire,
Defendant paid Plaintiff a total of $164,630.90 for the replacement value less depreciation.
(DSMF ¶ 85.)5 Plaintiff, however, did not repair the Property.
In short, Plaintiff has provided no evidence to support a finding that the repairs
required to make the property “fit to live in” would have taken more than ten months to
complete had Plaintiff timely initiated repairs according to her preferred scope with the
insurance proceeds paid by Defendant. Because Plaintiff has not presented facts that would
support a finding that Defendant was required to pay the fair rental value for more than ten
months after the fire, Plaintiff cannot prevail on her fair rental claim. See Gilbert v. Gilbert,
2002 ME 67, ¶ 21, 796 A.2d 57, 62 (in claim for damages for loss of use of a home damaged
by fire, the plaintiff “failed to present evidence in his opposition to [the defendant’s]
summary judgment motion sufficient to establish that the four months . . . was not a

Plaintiff “qualified” her response to the statement as follows: “The record references (incorporated by
reference from paragraph 85) identify the payments made but do not support the description or
characterization of the payments.”
5

27

reasonably sufficient time in which to complete the repairs. Thus, the court did not err in
entering a summary judgment in favor of [the defendant]”). Defendant, therefore, is
entitled to summary judgment on Plaintiff’s fair rental value claim.
B.

Unfair Claims Settlement Practices Act
Maine’s Unfair Claims Settlement Practices Act (UCSPA) generally prohibits

insurers from making threats or knowing misrepresentations, failing to act within a
reasonable time, or contesting liability or the amount of liability without a reasonable basis.
24-A M.R.S. § 2436-A; see generally Curtis v. Allstate Ins. Co., 787 A.2d 760, 766 (Me.
2002). The summary judgment record lacks evidence of any threats, misrepresentations,
unreasonable delay in claim processing, or unreasonable contest of liability.

The

uncontested evidence shows that Defendant promptly responded to Plaintiff’s
communications and remitted payments on the basis of actual cash value, as required by
the policy. Plaintiff evidently maintains that Defendant’s failure to pay the full repair and
replacement cost constitutes a violation of the UCSPA. 6 (Plaintiff’s Opposition at 32-34,
ECF No. 114.) The UCSPA does not provide for recovery in an ordinary contract dispute;
it “does not require the insurer to pay both undisputed and disputed amounts immediately
upon demand.” Id. Here, there is no “evidence demonstrating something more than a mere

In her amended response to the motion for summary judgment, Plaintiff asserts that Defendant’s
representative misrepresented the coverage for the cost of removing asbestos roofing tile and that he later
paid for the loss without informing Plaintiff. (Amended Response at 8-10, ECF No. 190-3.) Plaintiff
contends that this was an effort to conceal coverage or the actual cash value payments from Plaintiff. (Id.
at 9-10.) Plaintiff’s assertions are not supported by the summary judgment record as required by the Federal
Rules of Civil Procedure and the District of Maine Local Rules. Plaintiff does not point to anything in the
record to distinguish that particular revision and payment from the many other periodic updates Defendant
made after the October 9, 2013 estimate based on the developing information in the months following the
fire or that anything more was required of Defendant. (See e.g., DSMF ¶¶ 48, 51, 52, 85, 95, 98, 118 – 19.)
6

28

dispute between the insurer and insured as to the meaning of certain policy language” or
the amount of certain line items in repair estimates. Id. at 767. Accordingly, Defendant is
entitled to summary judgment on Plaintiff’s UCSPA claim.
C.

Negligence Claims
In response to Defendant’s summary judgment motion, Plaintiff attempted to

voluntarily dismiss without prejudice her negligent misrepresentation and negligence
claims (Counts III and IV). (Opposition at 4.) Defendant maintains that it is entitled to
summary judgment on the claims. Plaintiff, however, is not entitled to dismiss voluntarily
either her entire action or less than all her claims at this stage of the proceedings. See Fed.
R. Civ. P. 41(a)(1) (cannot without court order voluntary dismiss action after answer or
motion for summary judgment is filed); Hells Canyon Preservation Council v. U.S. Forest
Service, 403 F.3d 683, 687 – 90 (9th Cir. 2005) (plaintiff cannot dismiss even with court
approval fewer than all claims under Rule 41(a)(2)).
Plaintiff’s request is properly considered a motion to amend the complaint in
accordance with Federal Rule of Civil Procedure 15. Hells Canyon, 403 F.3d at 688-89.
A motion to amend that is filed beyond the scheduling order deadline requires an
amendment of the scheduling order. To obtain an amendment of the scheduling order, a
party must demonstrate “good cause.” Johnson v. Spencer Press of Maine, Inc., 211 F.R.D.
27, 30 (D. Me. 2002) (quoting El–Hajj v. Fortis Benefits Ins. Co., 156 F. Supp. 2d 27, 34
(D. Me. 2001)); Fed. R. Civ. P. 16(b)(4). A court’s decision on good cause “focuses on
the diligence (or lack thereof) of the moving party more than it does on any prejudice to
the party-opponent.” Steir v. Girl Scouts of the USA, 383 F.3d 7, 12 (1st Cir. 2004).
29

Here, Plaintiff’s request is made after lengthy discovery and extensive motion
practice. Plaintiff had ample time to amend her pleading to remove the negligence claims
prior to Defendant’s motion for summary judgment. See id. (“Where the motion to amend
is filed after the opposing party has timely moved for summary judgment, a plaintiff is
required to show substantial and convincing evidence to justify a belated attempt to amend
a complaint”) (internal quotations omitted). Given the time and resources Defendant has
devoted to the defense of the claims, Defendant would be prejudiced if it were deprived at
this stage of the proceedings of an opportunity for finality on the negligence claims. To
the extent, therefore, Plaintiff seeks to amend her complaint to remove the negligent
misrepresentation and negligence claims and thus avoid a determination on the merits of
the claims, Plaintiff’s request is denied.
As to Defendant’s request for summary judgment on Plaintiff’s negligent
misrepresentation and negligence claims, because Plaintiff did not offer an argument
against summary judgment on the claims, Plaintiff has waived the right the challenge
summary judgment on the claims. See Grenier v. Cyanamid Plastics, Inc., 70 F.3d 667,
678 (1st Cir. 1995) (“If a party fails to assert a legal reason why summary judgment should
not be granted, that ground is waived . . .”); Montany v. Univ. of New England, 858 F.3d
34, 41 (1st Cir. 2017) (failure to assert argument in response to summary judgment motion
constitutes abandonment); Adams v. Universal Underwriters Ins. Co., No. 1:10-CV-00146JAW, 2011 WL 1900043, at *5 (D. Me. May 19, 2011) (“In his Response to Universal’s
motion for summary judgment, Mr. Adams elected to concentrate solely on the
applicability of 24–A M.R.S.A. § 2904 and did not respond to Universal’s arguments
30

concerning Counts II and III. By failing to respond to Universal's motion on these points,
Mr. Adams waived the right to challenge a judgment in Universal’s favor on these
counts.”); Mahmoud v. Jacques, No. 2:14-CV-255-JHR, 2016 WL 1734076, at *7 (D. Me.
Apr. 29, 2016) (“a failure to respond to a movant’s bid for summary judgment on certain
claims is, in itself, a basis on which to grant summary judgment as to those issues.”)
Defendant is thus entitled to summary judgment on Plaintiff’s negligent misrepresentation
and negligence claims.
CONCLUSION
Based on the foregoing analysis, the Court grants in part and denies in part
Defendant’s Motion for Summary Judgment. (ECF No. 100.) The Court finds and orders:
1. Summary judgment is entered in favor of Defendant on Plaintiff’s breach of
contract claim that Plaintiff is entitled to the full repair or replacement cost.
2. Summary judgment is denied on Plaintiff’s breach of contract claim that she is
entitled to an additional payment under Defendant’s contractual obligation to
pay the actual cash value of the loss.
3. Summary judgment is entered in favor of Defendant on Plaintiff’s breach of
contract claim that she is entitled to further payment under Defendant’s
contractual obligation to pay for the fair rental value of the Property.
4. Summary judgment is entered in favor of Defendant on Plaintiff’s claim under
Maine’s Unfair Claims Settlement Practices Act.
5. Summary judgment is entered in favor of Defendant on Plaintiff’s negligent
misrepresentation claim.
31

6. Summary judgment is entered in favor of Defendant on Plaintiff’s negligence
claim.
/s/ John C. Nivison
U.S. Magistrate Judge
Dated this 4th day of February, 2020.

32