Williams v. Nationwide Mutual Fire Insurance Company

Filing 68

MEMORANDUM OPINION and ORDER granting 53 MOTION for Summary Judgment filed by Nationwide Mutual Fire Insurance Company. Signed by District Judge Nancy G. Edmunds. (CBet)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

Yvette Williams,
Case No. 12-13904
Plaintiff,
Honorable Nancy G. Edmunds
v.
Nationwide Insurance Company,
Defendant.
/

OPINION AND ORDER GRANTING DEFENDANT NATIONWIDE INSURANCE
COMPANY’S MOTION FOR SUMMARY JUDGMENT [53]

Currently before the Court is Defendant Nationwide Insurance Company’s motion for
summary judgment. Plaintiff, Yvette Williams, opposes the motion, arguing that there are
multiple issue of material fact and that Defendant waived certain requirements under the
policy. For the reasons set forth below, the Court GRANTS Defendant’s motion for
summary judgment and DISMISSES this case with prejudice.
I.

FACTS
This case arises out of Defendant’s denial of a claim Plaintiff submitted on her

homeowner’s policy for damage to her house. Plaintiff owns the house located at 17562
Ramsgate, Southfield, Michigan (the “Ramsgate property). She has maintained
uninterrupted insurance coverage on the Ramsgate property through Defendant, under
policy number 91-HP-082-537 since October 15, 2002.
Plaintiff’s policy states, in pertinent part:

We will provide the insurance described in this policy, which includes the
Declarations and attached endorsements or schedules, in return for the
premium and fees, and compliance with all the policy provisions.
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POLICY EXCLUSIONS
We do not cover loss to any property resulting directly or indirectly from any
of the following. Such a loss is excluded even if another peril or event
contributed concurrently or in any sequence to cause the loss.
c) Neglect, meaning neglect of the insured to use all reasonable means to
save and preserve property at the time of and after a loss, or when property
is endangered by a covered peril.
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POLICY CONDITIONS
3. Your Duties after Loss. In case of loss, you must:
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b) protect the property from further damage ....
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d) submit to us, within 60 days after we request, your signed, sworn proof of
loss which sets forth, to the best of your knowledge and belief:
(1)
(2)

the time and cause of loss.
interest of the insured and all others in the property involved
and all liens on the property.
(3)
other insurance that may cover the loss.
(4)
changes in title or occupancy of the property during the term of
the policy.
(5)
specifications of any damaged property and detailed
estimates
for repair of damage.
(6)
a list of damaged personal property showing in detail the
quantity, description, actual cash value, and amount of loss.
Attach all bills and receipts that support the figures.
(7)
receipts for additional living expenses and records supporting
the fair rental value loss.

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(8)

evidence or affidavit supporting a claim under the Credit Card,
Electronic Fund Transfer Card, Access Device and Forgery
Coverage. It should state the amount and cause of loss.
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Michigan Amendatory Endorsement
GENERAL POLICY CONDITIONS
(e) You have a duty to notify us as soon as possible of any change which
may affect the premium risk under this policy. This includes, but is not limited
to, changes:
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(2) in the occupancy or use of the residence premises . . . .
CONCEALMENT, FRAUD, OR MISREPRESENTATION
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b) We may void this policy, or deny coverage for a loss, or at our election,
assert any other remedy available under applicable law, if any insured person
or any other person seeking coverage under this policy has knowingly or
unknowingly concealed or misrepresented any material fact or engaged in
fraudulent conduct in connection with the filing or settlement of any claim.

The policy defines "residence premises" as "the one, two, three or four-family
dwelling, other structures and grounds located at the mailing address shown on the
Declarations unless otherwise indicated." The policy lists the residence premises in the
declarations as 17562 Ramsgate Lathrup Village, Michigan.
On March 18, 2011 Plaintiff notified Defendant of substantial water damage to the
Ramsgate property. The damage to the house was the result of a broken water pipe which
was running for an unknown amount of time prior to Plaintiff’s discovery of the condition.
On April 1, 2011, Defendant, pursuant to the insurance policy, requested that Plaintiff

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provide a “proof of loss” within sixty days. Plaintiff admits receiving the proof of loss request
letter, and Plaintiff's attorney sent a letter to Defendant indicating that she had a copy of
the policy and requesting clarification of the proof of loss requirements. Although Plaintiff
claims that the proof of loss was submitted at a June 3, 2011 deposition taken during
Defendant’s investigation of the claim, no such document has been submitted to the Court
by either party, Defendant maintains that it never received the proof of the loss, and the
record indicates that Defendant continued to ask Plaintiff about the proof of loss after the
date on which she claims that it was provided to Defendant, up to and including during
discovery in this case.
Additionally, Defendant has unearthed an overwhelming amount of evidence that
suggests that Plaintiff did not live at the Ramsgate property from 2008 through 2011.
Specifically, Defendant points to Plaintiff’s employment records, which indicate that she
was working first in Arizona, and then in Hawaii for three different companies. Defendant
also has submitted Plaintiff’s Arizona driver’s license, Plaintiff’s Hawaiian bank account and
Hawaiian unemployment benefits information, in addition to an affidavit sworn to by
Plaintiff’s Hawaiian roommate. Defendant has provided two records from its Fraud Hotline,
indicating that calls were placed to Defendant to report that the Ramsgate property was
vacant, and Defendant has provided deposition testimony from individuals living near the
Ramsgate property who state that the property appeared vacant. Additionally, Defendant
has provided records from the two moving companies that were contracted to move
Plaintiff’s belongings from Michigan to Arizona and Hawaii. Finally, Defendant has provided
records of the utility usage for the Ramsgate property from 2008 through 2011 which does
not comport with the usage of an occupied home.
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In response, Plaintiff states that she has always lived in the Ramsgate property, but
only traveled to Arizona and Hawaii for work. She submits a limited amount of information
regarding flights back and forth from Hawaii to Michigan. Plaintiff also submits her bank
account statements, which show some purchases in Michigan between 2008 and 2011.
Plaintiff also points to the deposition testimony of Michael Abood. Mr. Abood testified that
he saw Plaintiff coming and going from the Ramsgate property between 2008 and 2011.
The Court notes, however, that Michael Abood is one of the people Defendant has a record
of calling in to report that the Ramsgate property was vacant.
On February 14, 2011 Plaintiff secured a position with Henry Ford Hospital in
Michigan. This employment coincided with Plaintiff taking on the role as a care giver for her
ailing father, who also lives in Michigan.
Additionally, the Court notes that Plaintiff’s refusal to comply with the discovery
rulings issued by the Magistrate in this case have resulted in multiple sanctions being
issued against her.
Defendant filed its motion for summary judgment on February 10, 2014. Plaintiff’s
response was due on March 3, 2014, but was not filed until April 1, 2014, almost a month
late. Defendant timely filed a reply.
II.

ANALYSIS
A. The Standard on Motion for Summary Judgment
The Sixth Circuit employs the familiar standard for summary judgment, namely, that

summary judgment is proper when the movant "shows that there is no genuine dispute as
to any material fact, and that the movant is entitled to judgment as a matter of law." U.S.
SEC v. Sierra Brokerage Services, Inc., 712 F.3d 321, 326-27 (6th Cir. 2013) (citing
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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986)) (quotations omitted). When
reviewing the record, "the court must view the evidence in the light most favorable to the
non-moving party and draw all reasonable inferences in its favor." Id. Furthermore, the
"substantive law will identify which facts are material, and summary judgment will not lie if
the dispute about a material fact is 'genuine,' that is, if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party." Id.
When considering the material facts on the record, a court must bear in mind that
“[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be
insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.”
Anderson, 477 U.S. at 252.
Moreover, “[i]n order to survive a motion for summary judgment, the non-moving
party must be able to show ‘sufficient probative evidence [that] would permit a finding in
[their] favor on more than mere speculation, conjecture, or fantasy.” Arendale v. City of
Memphis, 519 F.3d 587, 605 (6th Cir. 2008) (citing and quoting Lewis v. Philip Morris Inc.,
355 F.3d 515, 533 (6th Cir. 2004)).
Additionally, this case is before the Court by way of diversity jurisdiction, and as
such, this Court must apply the substantive law of Michigan. Erie R.R. v. Tompkins, 304
U.S. 64, 78 (1938). Furthermore, where an issue of state law has not been decided by the
Michigan Supreme Court, this Court will determine how Michigan’s Supreme Court would
decide the issue were it faced with it. The Court will heed the decisions of Michigan’s
intermediate appellate courts except where the Court is persuaded that the Michigan
Supreme Court would not so decide, and the Court may consider applicable dicta of
Michigan’s highest court. Pack v. Damon Corp., 434 F.3d 810, 818 (6th Cir. 2006)
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B. There Is No Dispute Regarding Plaintiff's Failure to Timely Provide the
Requested Proof of Loss
Defendant argues that it is entitled to summary judgment because Plaintiff never
provided a proof of loss as required by the insurance policy at issue and Michigan law.
Plaintiff argues that she did provided the proof of loss, and, regardless, that Defendant
waived the proof of loss requirement.
Here, there is no evidence, other than Plaintiff's own testimony, that a proof of loss
was ever submitted. However, taking all of the facts before the Court in the light most
favorable to Plaintiff, and assuming for the purposes of argument that Plaintiff did submit
a proof of loss on June 3, 2011, as she claims, Defendant is still entitled to summary
judgment.
The Sixth Circuit has squarely addressed Michigan's proof of loss requirement. In
Westfield Ins. Co. v. Appleton, 132 F. App'x 567 (6th Cir. 2005), the Sixth Circuit found that
failure to timely submit a proof of loss statement, as required by an insurance policy, is fatal
to a claim for coverage. Westfield Insurance dealt with an untimely proof of loss and the
plaintiffs' claims, inter alia, that the insurance company had waived the proof of loss
requirement. The Sixth Circuit noted that Michigan law "strongly favors insurance
companies in connection with insurance policies that contain the somewhat standard 'proof
of loss' requirement." Westfield Ins. Co. 132 F. App'x at 570. Further, the Westfield
Insurance Court noted that
[i]t has long been the practice under Michigan law that an insured has the
burden of proving that the insurer waived the policy provision requiring a
proof of loss statement. Further, the question of whether there has been a
waiver of the requirement of ... proof of loss is a question of law where the
material facts are not disputed, or where the evidence is insufficient to go to
the jury. An insurer may impliedly waive the “proof of loss” requirement in its
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policy if its conduct could reasonably create a belief in an insured's mind that
proof of the loss is unnecessary.

Id., 132 F. App'x at 572 (internal citations and quotations omitted).
It is undisputed that Defendant requested the proof of loss on April 1, 2011, making
Plaintiff's alleged submission of the proof of loss on June 3, 2011 three days late. Plaintiff,
in passing, notes that the proof of loss was not late because she did not receive the letter
requesting it until April 6, 2011. Plaintiff points to no law to support the position that the sixty
days should be calculated from the date she received the request, as opposed to the day
Defendant made the request. The Court is not convinced that the sixty days should being
to run from April 6, especially under the facts of this case, where the policy specifically
states that the proof of loss is due sixty days after the insurer requests it, and the letter
requesting the proof of loss reiterates that time frame with no mention as to Plaintiff's
receipt of the letter.
Plaintiff's waiver argument is based on Defendant's alleged failure to provide a copy
of the insurance policy to aid in completing the proof of loss. That argument is contrary to
the facts before the Court. Plaintiff's attorney states that on May 6, 2011 she advised
Defendant that she did not have a copy of the policy. In a letter provided by Plaintiff dated
May 6, 2011, however, no such statement is made. In fact, the language of the letter
suggests that Plaintiff's attorney was in possession of the policy. Specifically, the letter
merely requests that Defendant "clarify" its instructions and, moreover, makes reference
to various sections of the policy, creating the inference that Plaintiff’s attorney was in
possession of a copy of the policy at the time she wrote the May 6 letter. The fact that
Plaintiff’s attorney did not receive the help she sought from Defendant in filing out the proof
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of loss form does not create waiver on Defendant’s part, especially where, as here,
Defendant repeatedly requested the proof of loss. This is not a case where Defendant’s
acts prevented Plaintiff from completing the form. Rather, in this case Plaintiff had the
benefit of legal counsel, and still failed to provide the proof of loss in a timely manner.
In light of this, Plaintiff's waiver argument is meritless. Westfield Ins. Co., 132 F. App'x at
573.
The Court, therefore, is left with a Plaintiff who claims to have submitted a proof of
loss late, and nothing beyond her statements that supports the assertion that she submitted
it at all.

As noted above, Michigan law strongly favors proof of loss requirements, and it

is undisputed that - if she submitted one at all - Plaintiff's proof of loss was untimely. The
Sixth Circuit has explicitly stated that “it remains the general rule under Michigan law
(admittedly unlike in many other states) that ‘the failure to file a signed and sworn proof of
loss within sixty days bars recovery on a claim without regard to whether the insurer is
prejudiced by such failure.’” Westfield Ins. Co. v. Appleton, 132 F. App'x at 573 (citing
Dellar v. Frankenmuth Mut. Ins. Co., 433 N.W.2d 380, 383 (Mich. Ct. App. 1988) (citing
Reynolds v. Allstate Ins. Co., 332 N.W.2d 583 (Mich. Ct. App. 1983)).

Defendant,

therefore, is entitled to summary judgment, as it was within its rights to deny coverage.
The Court, having reached its decision in favor of Defendant by way of the proof of
loss issue need not delve into Defendant's three other arguments, however, a brief outline
of the issues is called for.

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C. Defendant's Remaining Arguments for Summary Judgment and the
Overwhelming Evidence in its Favor
Defendant also argues that it should be granted summary judgment because Plaintiff
moved out of the house in 2008 and never made the notifications regarding a change of
use that her policy requires; that Plaintiff misrepresented facts in connection with her claim,
and; that Plaintiff neglected to take reasonable care of the property. Plaintiff maintains that
while she traveled to Arizona and Hawaii for work from 2008 through 2011, nevertheless
she kept the Ramsgate property as her residence.
Without ruling on the issues, the Court notes that Defendant has provided
substantial evidence suggesting that no one was living in the Ramsgate property from 2008
to 2011, and that Plaintiff, while she may have visited Michigan and the Ramsgate property
during that time, was living and working in Arizona and then Hawaii. As noted above, in
support of its arguments Defendant has submitted records detailing Plaintiff's employment
in Arizona and Hawaii, utility usage records for the Ramsgate property, and government
records from the states of Arizona and Hawaii just to name a few. Plaintiff's evidence, on
the other hand, is consistent with that of a person living in Arizona and Hawaii, but visiting
Michigan on a regular basis. Indeed, Plaintiff's evidence, while indicating trips to Michigan,
does not require the conclusion that she stayed in, or even visited the Ramsgate property
on those trips. Furthermore, Plaintiff's deposition testimony on these issues is highly
evasive and her conduct throughout the course of this lawsuit has resulted in more than
one sanction being issued against her.
It is in the above context that the Court's applies Michigan's precedent on the timely
filing of proofs of loss to the undisputed facts of this case.
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The Court therefore, GRANTS Defendant's motion for summary judgment and
hereby DISMISSES this case with prejudice.
III.

CONCLUSION
For the reasons stated above, and because it is undisputed that if a proof of loss

was submitted, it was not submitted within the sixty day time frame required by the policy,
Defendant's motion for summary judgment is hereby GRANTED and this case is
DISMISSED with prejudice.

SO ORDERED.

s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge
Dated: June 6, 2014
I hereby certify that a copy of the foregoing document was served upon counsel of record
on June 6, 2014, by electronic and/or ordinary mail.
s/Carol J. Bethel
Case Manager

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