Donnell v. Hartford Central Property Claims Region et al
Filing
98
ORDER granting 82 Motion for Summary Judgment; denying 88 Motion for Summary Judgment to the extent Plaintiff seeks summary judgment as to his claims against Donan for the reasons set out in the order. Plaintiff's claims against Donan Engineering, Inc. are dismissed with prejudice. Signed by District Judge Daniel P. Jordan III on March 29, 2016. (SP)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
JOSEPH DONNELL
PLAINTIFF
V.
CIVIL ACTION NO. 3:13CV761 DPJ-FKB
THE HARTFORD CENTRAL PROPERTY
CLAIMS REGION, ET AL.
DEFENDANTS
CONSOLIDATED WITH
HARTFORD UNDERWRITERS INSURANCE CO.
V.
PLAINTIFF
CIVIL ACTION NO. 3:14CV344 DPJ-FKB
JOSEPH DONNELL
DEFENDANT
ORDER
This insurance-coverage dispute is before the Court on motion of Defendant Donan
Engineering Co., Inc. (“Donan”) for summary judgment pursuant to Federal Rule of Civil
Procedure 56. Plaintiff Joseph Donnell has responded in opposition. The Court, having
considered the submissions of the parties and the pertinent authorities, finds that Donan breached
no duties to Donnell and its motion [82] should be granted.
I.
Facts and Procedural History
This thrust of this suit is Plaintiff Joseph Donnell’s contention that his homeowners-
insurance carrier, Hartford Underwriters Insurance Company (“Hartford”), wrongfully denied
his claims for damage to his home and refused to renew his coverage. Against Hartford, Donnell
alleges claims of negligence, fraud, breach of contract, and violation of the “Miss. Deceptive
Trade Act.” Compl. [1] at 1.
During the investigation of Plaintiff’s claims, Hartford hired Defendant Donan, an
independent forensic-engineering firm, to provide it with a report describing the condition of
Plaintiff’s property and issue an opinion as to the causes of any damage. Donan employee
Robert J. Whelan, Jr. conducted site visits of the Donnell home on April 28, 2011, and
November 30, 2011, and issued reports to Hartford on May 10, 2011, and January 16, 2012.
Whelan Decl. at 2–5. Plaintiff was present for each inspection, pointing out areas of concern.
Id. at 2–5. In general terms, Whelan observed termite damage and wood rot on the property,
which he attributed to water from the soil and Plaintiff’s improperly maintained shower and
toilet. Id., Ex. B, May 10, 2011 Report.
The bulk of Plaintiff’s allegations in this lawsuit relate to Hartford’s claims handling.
Specific to Donan, Plaintiff’s Complaint states:
The Donan, “Provided Harford with it’s last of (5) five Restatements:” Allowing
Hartford to re-inspect damages post-denial and post-litigation. “Damages that
The Hartford had inspected during insurance/claim adjustment.”
2.
That The Donan and The Hartford, committed fraudulent
“Misrepresentation of relevant material evidence, by using foreign, non-relevant
photo/evidence, as being/reflecting serious, (failure to mitigate damages) damages
in my home, that didn’t/doesn’t exist: Photos #s 0017, 0022, and 0031.
3.
The Donan, nor The Hartford, “Have admitted or denied Their erroneous,
use of the above foreign-photos.” Nor to adequately explain their use. Plaintiff’s
Offer for approval; “That the photos, supported Hartford’s allegations of failure to
mitigate damages.” In error. (See. Ex. # 11)
4.
The Donan’s 4/28/11 “post-denial inspection, and 5/10/11 report
eliminated mold and rotted wood that Hartford had/was concealing at the time of
the 4/28/11 inspection.” The evidence of record, (intended or not) shows that the
defendants actions and inactions, “Was in Bad Faith, and showed disregard for
the damages done to Plaintiff and his family.” And will continuing With a Court
order to end the alleged Bad Faith.
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Id. at 6–7 (quoted as drafted, “sic” not used). Donan construed these allegations as embodying
two fraud claims: (1) it used photographs that were not of Donnell’s home in its report, and (2)
it omitted the presence of mold and rotted wood in its report. Donan moved for summary
judgment as to all of Plaintiff’s claims, and Plaintiff responded in opposition. The Court has
personal and subject-matter jurisdiction and is prepared to rule.
II.
Summary Judgment Standard
Summary judgment is warranted under Rule 56(a) of the Federal Rules of Civil
Procedure when evidence reveals no genuine dispute regarding any material fact and that the
moving party is entitled to judgment as a matter of law. The rule “mandates the entry of
summary judgment, after adequate time for discovery and upon motion, against a party who fails
to make a showing sufficient to establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986).
The party moving for summary judgment “bears the initial responsibility of informing the
district court of the basis for its motion, and identifying those portions of [the record] which it
believes demonstrate the absence of a genuine issue of material fact.” Id. at 323. The
nonmoving party must then “go beyond the pleadings” and “designate ‘specific facts showing
that there is a genuine issue for trial.’” Id. at 324 (citation omitted). In reviewing the evidence,
factual controversies are to be resolved in favor of the nonmovant, “but only when . . . both
parties have submitted evidence of contradictory facts.” Little v. Liquid Air Corp., 37 F.3d 1069,
1075 (5th Cir. 1994). When such contradictory facts exist, the court may “not make credibility
determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
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133, 150 (2000). Conclusory allegations, speculation, unsubstantiated assertions, and legalistic
arguments have never constituted an adequate substitute for specific facts showing a genuine
issue for trial. TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002);
Little, 37 F.3d at 1075; SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993).
III.
Analysis
A.
Disputed Photographs
In his Complaint, Plaintiff alleges that photographs “0017, 0022, and 0031” are
“foreign” and not from his home. Compl. [1] at 7 (numbered paragraphs 2 and 3). But
Donnell’s sworn testimony and representations to the Court belie that claim. For example, he
admitted in his deposition that two of the photographs (17 and 22) were of his house. Pl.’s Dep.
[82-2] at 9, 19 (CMECF pagination). Then, in his examination under oath, he testified that
photographs 31, 32, and 33 depicted water damage that, in his opinion, was caused by his hot
water heater. Pl.’s EUO [82-3] at 48–49. Finally, he acknowledged in his response to Donan’s
motion that the photos (17, 22, and 31) were of his home, but raised a new concern, claiming
Donan failed to provide clear or “undistorted” copies. Pl.’s Mem. [89] at 10. Claims raised for
the first time in response to a motion for summary judgment are not properly before the Court.
Cutrera v. Bd. of Sup’rs of La. State Univ., 429 F.3d 108, 113 (5th Cir. 2005). But even
overlooking this flaw, Donan has presented uncontroverted evidence that the photos were not
distorted; Donan merely used the zoom feature of the camera to capture a close-up shot of the
damage. See Whelan Decl., Ex. G [82-20], H [82-21]. Summary judgment is appropriate on all
claims related to the photographs.
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B.
Report Omission
As for Donnell’s claim that Donan’s May 21, 2011 Report “eliminated mold and rotten
wood that Hartford had/was concealing at the time of the 4/28/11 inspection,” Donan construes
this allegation as a claim of fraud and/or intentional misrepresentation. Compl. at 7 (paragraph
numbered 4). Under Mississippi law, the elements of fraud are as follows:
(1) a representation; (2) its falsity; (3) its materiality; (4) the speaker’s knowledge
of its falsity or ignorance of the truth; (5) his intent that it should be acted on by
the hearer and in the manner reasonably contemplated; (6) the hearer’s ignorance
of its falsity; (7) his reliance on its truth; (8) his right to rely thereon; and (9) his
consequent and proximate injury.
Gallegos v. Mid-S. Mortgage & Inv., Inc., 956 So. 2d 1055, 1059 (Miss. Ct. App. 2007) (noting
that elements for fraud and intentional misrepresentation are identical). Donan submits, and the
Court agrees, that Donnell has not created a question of fact as to whether these elements have
been shown by clear and convincing evidence. Id.
First, “[a]n omission constitutes fraud only if the speaker owed the hearer a duty of
disclosure.” Mooneyham v. Progressive Gulf Ins. Co., 910 So. 2d 1223, 1227 (Miss. Ct. App.
2005). Here, Donan was hired by Hartford, not Donnell, and provided its report and
photographs to Hartford. Letter to Pl. [40-1] at 91 (“Donan Engineering has no contractual or
business relationship with you as you are a third-party. As such I must direct any inquiries to
The Hartford.”); see also Whelan Decl., Ex. B [82-7] at 3 (May 10, 2011 Report addressed to
Hartford). Thus, it made no representation directly to Donnell. See also Taylor v. So. Farm
Bureau Cas. Co., 954 So. 2d 1045, 1049 (Miss. Ct. App. 2007) (“[A] claim of fraud by omission
arises only where the defendant had a duty to disclose material facts purportedly omitted. This
duty generally arises only where there is a fiduciary relationship between the parties.”).
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Second, even assuming an actionable representation (or omission), any claim that Donan
made a false report by concealing the presence of mold or rotted wood is disproved by the May
10, 2011 Report. The Report expressly discloses damage to wood due to “a fungal attack that is
commonly referred to as wood rot (deterioration).” Whelan Decl., Ex. B [82-7] at 6. And to the
extent Donnell is attempting to argue that Donan hid this information from him, he
acknowledged in a letter to Hartford on July 2, 2011, that he had received a copy of Donan’s
report from Hartford. Donnell Letter to Hartford [26-1] at 70.
Because Plaintiff cannot prove a false representation was made to him by Donan, he has
failed to prove the elements of his fraud claim. See Gallegos, 956 So. 2d at 1060 (noting that
failure to prove any of the element of fraud was grounds for dismissal). Defendant’s motion as
to the fraudulent omission claim is likewise granted.
III.
Conclusion
The Court has considered all argument raised by the parties. Those not addressed in this
Order would not have changed the outcome. Defendant’s motion for summary judgment [82] is
granted. To the extent Plaintiff seeks summary judgment as to his claims against Donan, his
motion [88] is denied.
Plaintiff’s claims against Donan Engineering, Inc. are dismissed with prejudice.
SO ORDERED AND ADJUDGED this the 29th day of March, 2016.
s/ Daniel P. Jordan III
UNITED STATES DISTRICT JUDGE
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