Neidenbach et al v. Amica Mutual Insurance Company

Filing 58

MEMORANDUM AND ORDER -.....IT IS HEREBY ORDERED that defendant Amica Mutual Insurance Company's motion for summary judgment is GRANTED. [Doc. 48] IT IS FURTHER ORDERED that Dale and Kim Neidenbach's motions for a Daubert< /U> hearing and to exclude expert opinions are DENIED as moot. [Doc. 35] IT IS FURTHER ORDERED that the April 13, 2015 trial date is VACATED. IT IS FURTHER ORDERED that on or before March 31, 2015, and in accordance with this Memora ndum and Order, Amica Mutual Insurance Company shall either (1) file a summary judgment motion or other appropriate dispositive motion on its counterclaim, or (2) file a motion to voluntarily dismiss its counterclaim. Plaintiffs Dale and Kim Neiden bach shall file their memorandum in opposition to any such motion in accordance with the time limits of this Court's Local Rules. Any reply shall also be filed in accordance with the Local Rules. Failure to comply with the terms of this Memoran dum and Order shall result in the dismissal of Amica Mutual Insurance Company's counterclaim. An appropriate partial judgment will accompany this Memorandum and Order. ( Response to Court due by 3/31/2015.). Signed by District Judge Charles A. Shaw on 3/10/2015. (MRC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DALE NEIDENBACH, et al.,
Plaintiffs,
v.
AMICA MUTUAL INSURANCE
COMPANY,
Defendant.

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No. 4:13-CV-1604 CAS

MEMORANDUM AND ORDER
This matter is before the Court on defendant’s motion for summary judgment. The motion
is fully briefed and ready for disposition. For the following reasons, defendant’s motion for
summary judgment is granted.
I. Background
Plaintiffs Dale and Kim Neidenbach allege in their first amended complaint that on or about
October 10, 2012, a fire started on their property, and they sustained damage amounting to the total
loss of their home and personal belongings. They claim that defendant Amica Mutual Insurance
Company (“Amica”) had issued them an insurance policy covering this damage, which was in full
force and effect at the time. They also claim that they satisfied all conditions precedent under the
policy. Plaintiffs contend they made a demand for coverage under the policy, which defendant
failed to pay. Plaintiffs allege that they have been damaged in excess of $612,000.00, and without
specifying what type of claim they are bringing, they request in their amended complaint that the
Court enter judgment in their favor against defendant Amica in excess of $25,000.00.
Defendant Amica filed an answer in response to the amended complaint, in which it asserted
a number of affirmative defenses and a counterclaim against plaintiffs. Defendant alleges in its

affirmative defenses, among other things, that plaintiffs are barred from recovery and there is no
coverage under the policy at issue because the loss arose out of an intentional act by the insured, and
that plaintiffs intentionally concealed and/or misrepresented material facts about the circumstances
of the fire and the extent of the loss. Amica asserts a counterclaim for declaratory judgment.
Amica requests, pursuant to 28 U.S.C. § 2201 and Rule 57 of the Federal Rules of Civil Procedure,
that the Court declare the Neidenbachs are barred from recovery and there is no coverage under the
policy at issue.
In the motion presently before the Court, defendant Amica moves that the Court enter
judgment in its favor as to plaintiffs’ claims against the company.1 Amica argues that the
Neidenbachs are barred from recovering under the policy due to a number of material
misrepresentations they made during the claims process. More specifically, Amica argues that the
amount plaintiffs claimed in their proof of loss differs dramatically from the amount they valued
their personal property in connection with a bankruptcy petition they filed just one year prior to the
fire. Amica also argues that the Neidenbachs failed to inform Amica about the existence of financial
documents and other property items that they had moved to two storage units following the fire.
Amica further argues that the Neidenbachs concealed their involvement in the demolition of their
home and the removal of their underground swimming pool before Amica had completed its
investigation. Finally, the company argues that the Neidenbachs failed to cooperate in Amica’s

1

In its summary judgment motion, Amica has not referred to its counterclaim. In its
prayer for relief, Amica requests “that plaintiffs’ claims be dismissed with prejudice and for any
further relief the Court deems just and proper, under the circumstances.” Doc. 48 at 2. See also
Doc. 50 at 18.
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investigation and filed suit prematurely, before Amica had made any coverage decision. Plaintiffs
oppose the motion for summary judgment, which is fully briefed.
II. Summary Judgment Standard
The Eighth Circuit has recently articulated the appropriate standard for consideration of
motions for summary judgment, as follows:
Summary judgment is proper if the pleadings, the discovery and disclosure materials
on file, and any affidavits show that there is no genuine issue as to any material fact
and that the movant is entitled to judgment as a matter of law. The movant bears the
initial responsibility of informing the district court of the basis for its motion, and
must identify those portions of the record which it believes demonstrate the absence
of a genuine issue of material fact. If the movant does so, the nonmovant must
respond by submitting evidentiary materials that set out specific facts showing that
there is a genuine issue for trial. On a motion for summary judgment, facts must be
viewed in the light most favorable to the nonmoving party only if there is a genuine
dispute as to those facts. Credibility determinations, the weighing of the evidence,
and the drawing of legitimate inferences from the facts are jury functions, not those
of a judge. The nonmovant must do more than simply show that there is some
metaphysical doubt as to the material facts, and must come forward with specific
facts showing that there is a genuine issue for trial. Where the record taken as a
whole could not lead a rational trier of fact to find for the nonmoving party, there is
no genuine issue for trial.
Torgerson v. City of Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011) (en banc) (internal citations
and quotation marks omitted). “Although the burden of demonstrating the absence of any genuine
issue of material fact rests on the movant, a nonmovant may not rest upon mere denials or
allegations, but must instead set forth specific facts sufficient to raise a genuine issue for trial.”
Wingate v. Gage Cnty. Sch. Dist., No. 34, 528 F.3d 1074, 1078–79 (8th Cir. 2008) (cited case
omitted).
With this standard in mind, the Court accepts the following facts as true for purposes of
resolving the parties’ motions for summary judgment.

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III. Facts
Dale and Kim Neidenbach were named insureds on a homeowners insurance policy issued
by Amica, Policy number 630524-20HX (“the Policy”), with effective dates May 8, 2012, through
May 8, 2013. On October 10, 2012, a fire occurred at the Neidenbachs’ residence, located at 991
Decker Road, Labadie, Missouri 63055.2 After the fire was extinguished, portions of the home
remained standing, but there was considerable damage. The parties dispute whether the fire resulted
in a total loss of the dwelling and personal property.
Following the fire loss, the Neidenbachs made a claim under the Policy. They submitted
a Sworn Statement Proof of Loss (“Proof of Loss”) claiming their dwelling and garage suffered a
total loss, and seeking $375,000.00 in alleged damage to the dwelling and garage. They also sought
$262,500.00 for fire damaged personal property items, such as household goods, furnishings,
clothing, tools, firearms, and other hobby equipment. In the record submitted to the Court, there is
an inventory of the Neidenbach’s personal property attached to the Proof of loss.3 Doc. 50, Ex. U
at 2-36.
Approximately one year prior to the fire loss, the Neidenbachs had filed for bankruptcy in
the United States District Court for the Eastern District of Missouri, Eastern Division, Case No.

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The parties dispute whether there were one or two fires at the residence. The Court
recognizes this factual dispute, but for purposes of summary judgment, the Court finds this
disputed fact is not material and the Court will refer to the event as a fire.
3

The Neidenbachs do not dispute the authenticity or the existence of the inventory attached
to the Proof of Loss. They do, however, point to a note in Amica’s internal claims file that the
Neidenbachs had not submitted a contents inventory. Doc. 52, Ex. 7 at 1. This internal note does
not create a dispute of fact. There is also a letter in the record from Amica to the Neidenbachs
acknowledging that the company had received the couple’s inventory of personal property, which
totaled $340,770.00. Doc. 50, Ex. T at 1.
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11-46383-399. In signing and filing their 2011 Chapter 13 Bankruptcy Petition, the Neidenbachs
attested that the value of their house was $300,000.00. They further declared under penalty of
perjury that they jointly owned only $7,000.00 worth of household goods, furnishings, clothing, furs,
jewelry, firearms, other hobby equipment, and other such personal property contents items. It is
undisputed that the Neidenbachs did not accumulate over $255,500.00 worth of household contents
in the year between the 2011 filing of the couple’s bankruptcy petition and the 2012 fire loss.
During the claims process, Amica examined the plaintiffs under oath. At their examinations,
Dale and Kim Neidenbach each denied removing any personal property items from the house, other
than a bag containing dog food, an urn containing a late pet’s ashes, a few blankets and their dogs.
Both claimed that all other content items were destroyed in the fire. A month after their
examinations, the Neidenbachs informed Amica of the existence of a rented storage unit where the
couple had stored personal property items removed from their home following the fire. Several
months after learning about the existence of the Neidenbachs’ first storage unit, Amica learned that
the Neidenbachs had rented a second storage unit at the same facility where they had also stored
items removed from the fire. The Neidenbachs did not volunteer the existence of the second unit
when Amica’s investigator visited the facility to inspect the first storage unit. The Neidenbachs
sought recovery from Amica for personal property that was removed from the dwelling and placed
in the two storage units. It is disputed, however, as to whether these items were salvageable.
As part of its claim investigation, Amica requested certain financial information from the
Neidenbachs, such as bank records and income tax documentation, as well as receipts related to the
Neidenbachs’ purchases of various personal property items. The Neidenbachs did not produce all
the financial information Amica requested. They claimed that the financial information had been

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destroyed in the fire. Upon inspecting the storage units that were rented by the Neidenbachs,
Amica’s investigator discovered that there were boxes of financial documents that were not
destroyed in the fire. Neither party provided the Court with an inventory of these documents. It is
disputed whether the stored documents were documents Amica had requested during its
investigation of the fire loss but which the Neidenbachs had not produced.
Following the fire, Amica’s adjuster secured an extension of the normal municipal
demolition deadline to accommodate Amica’s investigation. The company advised the Neidenbachs
about the extension and asked that the Neidenbachs not disrupt the scene of the fire to provide the
company with a reasonable opportunity to investigate the loss. Before Amica had an opportunity
to complete its investigation of the scene, Amica discovered that the Neidenbach’s dwelling had
been demolished and pushed into the lower level, and that their swimming pool had been removed
from the property. During the Neidenbachs’ examinations, each denied participating in, paying for,
or requesting anyone’s assistance in demolishing the fire-damaged dwelling. Joe Lindemann,
however, provided an affidavit in which he stated that the Neidenbachs paid him $600.00 in cash
to demolish the fire-damaged dwelling by pushing the remains of the house into the dwelling’s lower
level. During their examinations, both of the Neidenbachs denied participating in, paying for, or
otherwise requesting the removal of the couple’s in-ground fiberglass pool. Mr. Lindemann also
stated in his affidavit that the Neidenbachs paid him to remove and store their fiberglass pool. Amica
also submitted to the Court copies of a permit Mr. Lindemann obtained from the state to transport
the pool, invoices paid to a crane operator that removed the pool, and photos of the pool he removed
from the ground. Mr. Lindemann stated in his affidavit that Mr. Neidenbach paid him $7,000.00 in
cash to remove, transport, and store the pool, and that a $7,000.00 balance remains. Mr. Neidenbach

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testified under oath that the pool remained at the insured property, claiming someone must have
filled the pool in with dirt.
The Policy contains the following language:
SECTION I - CONDITIONS
C. Duties After Loss
In case of a loss to covered property, we have no duty to provide coverage under this
policy if the failure to comply with the following duties is prejudicial to us. These
duties must be performed either by you, or an insured seeking coverage, or a
representative of either:
***
4. Protect the property from further damage…
5. Cooperate with us in the investigation of a claim;
6. Prepare an inventory of damaged personal property showing the
quantity, description, actual cash value and amount of loss. Attach all
bills, receipts and related documents that justify the figures in the
inventory.
7. As often as we reasonably require:
a. Show the damaged property;
b. Provide us with records and documents we request and permit us to
make copies…
Doc. 2, Ex. A. at 28.
H. Suit Against Us
No action can be brought against us unless there has been full compliance with all
the terms Under Section I of this policy and the action is started within 10 years after
the date of loss.
Id. at 15 and 39-40.

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R. Concealment Or Fraud
We provide coverage to no insureds under this policy if, whether before or after a
loss, an insured has:
1. Intentionally concealed or misrepresented any material fact or
circumstance;
2. Engaged in fraudulent conduct; or
3. Made false statements;
Relating to this insurance.
Id. at 31.
At the time the Neidenbachs filed this lawsuit, in April of 2013, no coverage determination
had been made, and Amica had not completed its investigation.
IV. Discussion
Amica argues in its motion for summary judgment that plaintiffs are barred from recovery
under the terms of the Policy because the Neidenbachs intentionally concealed or misrepresented
material facts and circumstances concerning the nature and extent of their claimed loss and damages.
Amica argues, based on the provisions in the Policy, that the Neidenbachs are not entitled to recover
because they concealed material facts and made numerous false statements with “relating to [the]
insurance.” Id.
This is a diversity case and both parties agree that Missouri law applies. The Eighth Circuit
has held that under Missouri law, the interpretation of an insurance contract is “generally a question
of law, particularly in reference to the question of coverage.” Spirtas Co. v. Nautilus Ins. Co.,715
F.3d 667, 671 (8th Cir. 2013) (quoting D.R. Sherry Constr., Ltd. v. American Family Mut. Ins. Co.,
316 S.W.3d 899, 902 (Mo. banc 2010)). As noted by the Eighth Circuit, “Missouri courts interpret

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terms in an insurance contract according to their plain meaning.” Id. (citing Shahan v. Shahan, 988
S.W.2d 529, 535 (Mo. banc 1999)). “The plain or ordinary meaning is the meaning that the average
layperson would understand.” Shahan, 988 S.W.2d at 535. What is more, ambiguities are resolved
in favor of the insured. Burns v. Smith, 303 S.W.3d 505, 509-10 (Mo. banc 2010). Some insurance
policies, like the Policy at issue in this case, contain language that provides the entire policy will be
void if an insured committed fraud or knowingly concealed or misrepresented any material fact or
circumstances related to the insurance. Such misrepresentation clauses have been deemed valid and
enforceable in Missouri. Liberty Mut. Fire Ins. Co. v. Scott, 486 F.3d 418, 422–23 (8th Cir. 2007);
see also, Childers v. State Farm Fire & Cas. Co., 799 S.W.2d 138, 141 (Mo. Ct. App. 1990).
According to Missouri law, despite the reference to the term, “fraud” in most
misrepresentation clauses, the insurer is not required to prove the elements of fraud to avoid
coverage if the policy language also indicates, as here, that the policy is rendered void for intentional
concealment or misrepresentation of a material fact. Employers Mut. Cas. Co. v. Tavernaro, 4 F.
Supp. 2d 868, 870 (E.D. Mo. 1998). In order to avoid liability under a policy, the insurer is
required to sufficiently establish the existence of the insured’s material misrepresentation or
concealment. Kearns v. Interlex Ins. Co., 231 S.W.3d 325, 331 (Mo. Ct. App. 2007); see also, Hayes
v. United Fire & Cas. Co., 3 S.W.3d 853, 857 (Mo. Ct. App. 1999).
A.

Misrepresentations in the Proof of Loss

Amica argues that it is entitled to summary judgment because plaintiff made gross
misrepresentations following the fire when they submitted their Proof of Loss. In their Proof of
Loss, which was notarized and signed under oath, the Neidenbachs sought reimbursement for
$262,500.00 in personal property content items and $375,000.00 in alleged damage to the dwelling

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and garage. It is also undisputed that when the Neidenbachs filed for bankruptcy in 2011, they
swore under oath that their home had a value of $300,000.00, and that they owned only $7,0000.00
worth of household goods, furs, jewelry, firearms and other such personal property. According to
Amica, the $255,500.00 discrepancy between the claimed value of the personal property and the
bankruptcy petition demonstrates as a matter of law that plaintiffs intentionally misrepresented
material information in the Proof of Loss.
Plaintiffs maintain that the disparity between their Proof of Loss and the value of their
personal property during bankruptcy proceedings is attributable to the different methods they used
to calculate such amounts. Specifically, plaintiffs both state that during the bankruptcy proceedings
their attorney advised them to value their personal property items at their current resale value. In
sworn affidavits, both plaintiffs state “[i]n discussing the bankruptcy filing with our attorney, it was
explained to us that the values used in a bankruptcy were ‘garage sale value’ – in other words, what
a willing buyer would pay.” See Doc. 52, Exs. 1 and 2. In contrast, they argue that the amounts
listed on the Proof of Loss represented the fair market value, which they interpreted to mean “what
a willing buyer would pay AND what a willing seller would sell it for.” Id. They also explain in
their memorandum that they considered their house to be a total loss, and therefore, they asked for
the policy limits, to which they contend they are entitled under Missouri law. The Court finds
plaintiffs’ explanations are not supported by the evidence in the record and controlling case law
requires the entry of summary judgment in Amica favor.
In a case with similar facts, Liberty Mutual Fire Insurance Company v. Scott, 486 F.3d 418
(8th Cir. 2007), the insured’s home was damaged by fire and she claimed $93,077.19 in personal
property damages. Id. at 420. In the year preceding the fire, however, the insured had filed for

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bankruptcy and in her bankruptcy petition she declared only $7,340.00 worth of personal property,
$6,510.00 of which was attributed to her car. Id. The insured attempted to explain the disparity by
pointing to different methods of calculating value. In affirming the judgment of the district court,
the Eighth Circuit Court of Appeals held that the $92,247.19 difference between the value of the
insured’s stated personal property in bankruptcy and the amount in her insurance claim less than a
year later was “too great to be reconciled,” even if the insured used different methods of calculation.
Id. at 423. According to the Eighth Circuit, “in the absence of contrary proof,” it is correct to
assume that a verified bankruptcy petition is “a true an accurate representation” of personal property.
The Eighth Circuit noted that there was no evidence “that the figures [the insured] listed in her
bankruptcy petition were inaccurate or that the insurance proof of loss amounts resulted from
mistake or were otherwise inadvertent.” Id. Therefore, “[t]he only reasonable inference on the
evidentiary record is that [the insured] made a material misrepresentation in submitting her personal
property claim” which voided her coverage. Id.
In the case at bar, plaintiffs estimated the fair market value of their personal property to be
$262,000.00 for purposes of collecting insurance benefits, and yet for purposes of listing assets in
bankruptcy, they represented that their personal property was valued at $7,000.00 – a 97% discount.
The Court finds that the difference between the amount claimed on the Neidenbach’s Proof of Loss
for personal property and that amount they listed as assets in bankruptcy – a $255,000.00 difference
– cannot be reconciled, even assuming plaintiffs used different methods of calculation. Plaintiffs
here, like the insured in Liberty Mutual, have presented no evidence to suggest that there was a
mistake in the bankruptcy filings, or that they accumulated a vast amount of additional property
following their bankruptcy filing. They have not argued that the figures they listed in bankruptcy

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were inaccurate or that the amount on the Proof of Loss was the result of a mistake. As the insured
did in Liberty Mutual, they rest on the explanation that the difference is the result of their methods
of calculation. The huge discrepancy between the values submitted to Amica and the couple’s
bankruptcy petition cannot be explained by a mere difference in the methods of calculation. The
amount is far too great. Liberty Mutual, 486 F.3d at 423; see also Mathes v. Mid-Century Ins. Co.,
No. 4:06-CV-1161 SNL, 2008 WL 2439744, at *3 (E.D. Mo. Jun. 16, 2008) (finding $91,366.70
discrepancy between value of personal property listed in bankruptcy and that claimed for purposes
of insurance too great to reconcile). Based on the record before it, the Court finds plaintiffs either
omitted major ticket items from their bankruptcy schedule or they have misrepresented to Amica
the amount and value of their personal property.4 Plaintiffs do not assert that they intentionally or

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The Court reviewed the inventory that was attached to the Proof of Loss in the record. In
addition to the enormous difference in the total value that they assigned to their personal property,
plaintiff listed a number of items in the inventory that they had at the time they filed for bankruptcy
and should have been included in the Schedule B they filed. In re Neidenbach, No. 11-46383
(Bankr. E.D. Mo. filed Jun. 28, 2011), ECF 14 at 4. For example, in bankruptcy, the Neidenbachs
represented that they had no “[b]ooks, pictures, other art objects, antiques, stamp, coin, record, tape,
compact disc, and other collections or collectibles.” Id. Yet in the inventory, they listed $6,400.00
worth of collector cards; $5,100.00 worth of paintings and framed pictures; $3,142.00 in books; a
$1,000.00 Beanie Baby collection; and $6,380.00 in DVDs, CDS, records and VHS tapes. Doc. 50,
Ex. U at 8, 10-11, 13-14, 16-19, 21, 23-4, 29-30. In bankruptcy, the Neidenbachs listed $200.00 in
clothing, but in their inventory they listed over $20,000.00 in apparel, including two cashmere and
silk suits worth $2,000.00 and leather coats worth $3,390.00. Id. at 12, 18-20, 23. In bankruptcy,
the Neidenbachs only described a $1,500.00 wedding ring when asked to claim “[f]urs and jewelry.”
In re Neidenbach, ECF 14 at 4. But in the inventory submitted to Amica, they claimed they had a
“Med length women’s fur coat Stix-Baer & Fuller” worth $1,500.00. Doc. 50, Ex. U at 20. They
also listed a number of pieces of jewelry, including a pair of large diamond earrings, a pair of small
diamond earrings, a black onyx dinner ring, and a gold anklet, for which they did not provide a
value. Id. As for “[f]irearms and sports, photographic, and other hobby equipment,” plaintiffs only
listed two shotguns worth $200.00 in their bankruptcy petition. In re Neidenbach, ECF 14 at 4. In
the inventory, the Neidenbachs claimed they had three shotguns worth $1,275.00 and two rifles
worth $650.00. Doc. 50, Ex. U at 27. They did not list any sporting equipment in bankruptcy, but
in the inventory they listed three bicycles worth $4,900.00, two treadmills worth $2,000.00 and other
exercise equipment, including weights, worth $4,350.00, a tanning bed worth $3,000.00, and three
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mistakenly omitted items from their bankruptcy petition, therefore, the Court must assume that the
verified bankruptcy petition is “a true an accurate representation” of the Neidenbach’s personal
property. Liberty Mutual, 486 F.3d at 423. Applying Eighth Circuit law to this case, the Court finds
that the “reasonable inference on the evidentiary record” must be that plaintiffs made “material
misrepresentation[s]” in their Proof of Loss, and that the Policy is void. Id.
Plaintiffs cite to two cases in support of their position that there is an issue of material fact
as to whether they intended to deceive Amica. The Court finds these cases are distinguishable from
the case at hand. First, in Young v. Allstate Insurance Company, 685 F.3d 782 (8th Cir. 2012), the
Eighth Circuit reversed the district court’s granting of summary judgment to the insurance company
on the ground that there was a triable issue as to whether the insureds intended to deceive the
defendant. In the Young case, there was testimony that the insureds’ daughter initially prepared the
inventory list for the insurance company. Id. at 483. Later the insureds requested, during the claims
process, that several items be removed from the inventory because mistakes were made, and they
admitted that some of the values were overstated. Id. Here, there is no evidence that someone else

sets of golf clubs worth $2,900.00. Doc. 50, Ex. U at 4, 13, 18-20, 30, 32. They also listed
$1,290.00 worth of camera and video recorders on the inventory. Id. at 5, 8, 10, 23, 30. In
bankruptcy, for the category “[a]utomobiles, trucks, trailers, and other vehicles and accessories,”
plaintiffs listed three motor vehicles and a “Murry Riding Lawnmower worth $150.00. In re
Neidenbach, ECF 14 at 4. In the inventory they listed a “Commercial Lawn Mower (Honda)” worth
$1,500.00, a Craftsmen lawn mower worth $800.00, and a MTD mower worth $700.00. Doc. 50,
Ex. U at 31. In bankruptcy, the Neidenbachs were asked to list “[h]ousehold goods and furnishings,
including audio, video, and computer equipment.” They listed “various household goods and
furnishings” worth $5,000.00. In the inventory, the Neidenbachs listed over $49,055.00 in big-ticket
furniture items, nine TVS worth $6,395.00, computers, computer equipment, and printers worth
$7,760.00, $4,964.00 in video games and gaming equipment, and $113,594 worth of tools, including
“3 lower tool boxes, 2 upper large tool boxes w/ complete tech tools” worth $35,000.00. Doc. 50,
Ex. U at 3-36.
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beside the Neidenbachs prepared the Proof of Loss, and there is nothing to suggest that they have
ever tried to revise the amount they are claiming was lost.
Plaintiffs also cite to Merseal v. Farm Bureau Town & Country Insurance Company of
Missouri, 396 S.W.3d 467 (Mo. Ct. App. 2013) in opposition to summary judgment. This case, from
the Missouri Court of Appeals, is also distinguishable. In Merseal, the plaintiffs, like the
Neidenbachs, claimed that the discrepancy between their bankruptcy petition and the amount
claimed in insurance was the result of different methods of calculation. In Merseal, plaintiffs also
provided evidence that their bankruptcy petition was prepared pro se, and that a computer program
guided them through different categories of items to report in bankruptcy. The plaintiffs in that case
testified that they did not include a number of personal items in bankruptcy “because these items
would have no resale value in a garage sale.” Id. 472. Furthermore, the plaintiffs in Merseal
provided the insurance company with a detailed explanation of the difference between the values
in bankruptcy and the amounts they claimed, and they also submitted a proposed amendment to their
bankruptcy filing. Id. 473. The same cannot be said in this case. Although the Neidenbachs both
attested to the fact that in bankruptcy they valued their personal property based on “garage sale
values,” they have not stated that they excluded certain items in their Schedule B because they had
no value.5 Furthermore, unlike the Merseal plaintiffs, there is no evidence in the record to suggest
that plaintiffs intend or have attempted to amend their bankruptcy schedule.
Plaintiffs also argue that Amica is not entitled to summary judgment because their house was
a total loss, and therefore, under Missouri law they are entitled to their policy limits, which is what

5

From all appearances, it would seem the Neidenbachs excluded a number of big ticket
items from their bankruptcy petition. And unlike the plaintiffs in Merseal, the Neidenbachs cannot
claim that they omitted these items in bankruptcy because they would have no value in resale.
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they were claiming in the Proof of Loss. Plaintiffs’ argument is not supported in law, and it is
inconsistent with the record, including their own affidavits.
First, in submitting their claim to Amica, plaintiffs did not merely claim the policy limits.
There is evidence in the record that the Neidenbachs provided a detailed inventory of their personal
property and, as they attest in their affidavits, they calculated the value of their personal property
for purposes of insurance based on what they believed was the fair market value of these items.
They do not state in their affidavits that in making their insurance claim and submitting the Proof
of Loss, they valued their personal property based on the policy limits.
Second, the misrepresentations were material. Plaintiffs appear to be arguing that even if
they had made misrepresentations as to the nature and value of their personal property, which they
deny they did, any such misrepresentations would have been immaterial because their house was a
total loss and, therefore, they are entitled to the policy limits. In other words, plaintiffs argue that
it does not matter what they claimed for lost personal property because they should receive the
policy limits. The Court does not agree with plaintiffs’ analysis. Plaintiffs’ misrepresentations as
to the value of their personal property were material misrepresentations because Amica disputes that
there was a total loss due to the fire. The company contends that portions of the dwelling were still
standing, and that some of the personal property was salvageable. Therefore, an accurate list of
Proof of Loss was material to the administration of the Neidenbach’s claim. Because Amica
disputed that there was a total loss due to the fire, the amount and value of personal property would
be have been at issue had this case gone to trial. Plaintiffs’ assertion that the values claimed in the
bankruptcy are irrelevant is simply not true.

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Finally, even if the house were a total loss, plaintiffs would not automatically be entitled to
the policy limits for their personal property as they claim. Under Missouri law when there is a total
loss by fire, the insured are not entitled to the policy limits for personal property. The measure of
damages for total loss of personal property is the amount for which the property was insured, minus
depreciation. West v. Shelter Mutual Ins. Co., 864 S.W.2d 458, 461 (Mo. Ct. App. 1993).
Furthermore, “the burden of proof as to the loss of personal property is on the insured.” Id. “In
order to recover the full amount of coverage on the personal property, the insured [ ] has the burden
of proving lack of depreciation from the date of the policy. This burden can be satisfied by proof of
value at the time of the loss or the extent of depreciation in value from the date of the insurance
policy to the time of the loss.” Id. (citing Riccardi v. United States Fidelity & Guaranty Co., 434
S.W.2d 737, 741 (Mo. Ct. App. 1968). Plaintiffs argue that because their house was a total loss,
they are simply entitled to the policy limits for their personal property and, therefore, evidence of
the value of there personal property would be irrelevant. This argument is based on a false premise.
Under Missouri law plaintiffs carry the burden to prove the value of their personal property at the
time of the fire, even when there is a total loss. Id. Evidence regarding the value of the
Neidenbachs’ personal property would have been relevant, even if their home was a total loss.
In sum, the Court finds there is a huge discrepancy between the amount plaintiffs claimed
for lost personal property in their Proof of Loss and what they listed in their bankruptcy petition,
which cannot be explained as simply a difference in methods of calculation. Furthermore, plaintiffs’
contention that they merely claimed the policy limits is not supported by the record. Finding there
is no other reasonable explanation for the great discrepancy between the Proof of Loss and the
bankruptcy petition, the Court finds Amica is entitled to judgment as a matter of law because

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plaintiffs knowingly or willing concealed or misrepresented to Amica the nature and value of their
personal property, which amounted to material misrepresentations that voided the Policy. Liberty
Mutual, 486 F.3d at 423.
B.

Other Misrepresentations

Defendant also argues plaintiffs made material misrepresentations regarding the existence
of two storage units. Amica argues plaintiffs are not entitled to recover under the terms of the Policy
because they removed personal items from their dwelling following the fire, and they concealed this
fact from Amica. Amica further argues that plaintiffs informed the company that their financial
documents were destroyed in the fire, and yet Amica’s adjuster found financial documents in the two
concealed storage units. Amica has also presented compelling evidence that the Neidenbachs have
not been truthful about the demolition of their home following the fire and the removal of their
fiberglass underground pool. Finding there is no coverage because the Neidenbachs misrepresented
the value of their personal property, the Court declines to address these issues. The Court also
declines to address Amica’s arguments that the Neidenbachs were uncooperative during the claims
process and they prematurely filed suit before Amica had made a coverage determination.
V.

Amica’s Counterclaim

In responding to plaintiffs’ complaint, Amica filed a counterclaim against the Neidenbachs
for declaratory judgment. The company in its counterclaim alleges, among other things, that the
Neidenbachs are barred from recovery and there is no coverage under the Policy because they
intentionally concealed and misrepresented material facts, including the extent of their claimed loss.
Amica asks the Court to:
(1) determine the rights and obligations of the parties under the Policy and enter a
judgment construing the Policy, including the applicable coverage provisions,
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exclusions, and conditions thereunder, in favor of Amica; (2) declare that Amica is
entitled to recover the total amount of said advance payments and additional living
expenses, the amount of any payment to a mortgage holder, and the amount of
expenses incurred in investigation, adjustment, and evaluation of the claim, including
reasonable attorney’s fees; and (3) for any and all further relief that the Court deems
just and proper, under the circumstances. Doc. 19 at 22.
In its summary judgment motion, Amica moves for judgment as to the claims plaintiffs brought
against it. The company does not mention its counterclaim. The Court therefore does not construe
Amica’s motion for summary judgment as seeking judgment on its declaratory judgment
counterclaim. That said, the Court has determined that the Policy is void, and plaintiffs are not
entitled to recovery. In light of the fact that the Court has determined that there is no coverage under
the Policy, the Court will vacate the trial date in this case, and order the parties to brief the issue as
to what relief Amica is entitled under its counterclaim. Amica asked that the Court declare it is
entitled to recover the amount of advance payments and living expenses, payments to a mortgage
holder, and expenses it incurred in its investigation, adjustment, and evaluation of Neidenbachs’
claim, in additional to reasonable attorney’s fees. Amica must provide legal authority and evidence
in support of the relief it requests, perhaps in the form of a properly supported motion for summary
judgment. Alternatively, Amica may indicate that it is dismissing its counterclaim.
VI. Conclusion
For the foregoing reasons, the Court finds there are no genuine issues of material fact and
Amica is entitled to summary judgment as a matter of law as to plaintiffs’ claims against it. The
undisputed facts establish that plaintiffs knowingly or willingly concealed a material fact relating
to the Policy at issue in this case. The only reasonable inference based on the evidence before the
Court is that plaintiffs made material misrepresentations in submitting their personal property claim.
The Court finds is no coverage under the Policy.
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Accordingly,
IT IS HEREBY ORDERED that defendant Amica Mutual Insurance Company’s motion
for summary judgment is GRANTED. [Doc. 48]
IT IS FURTHER ORDERED that Dale and Kim Neidenbach’s motions for a Daubert
hearing and to exclude expert opinions are DENIED as moot. [Doc. 35]
IT IS FURTHER ORDERED that the April 13, 2015 trial date is VACATED.
IT IS FURTHER ORDERED that on or before March 31, 2015, and in accordance with
this Memorandum and Order, Amica Mutual Insurance Company shall either (1) file a summary
judgment motion or other appropriate dispositive motion on its counterclaim, or (2) file a motion
to voluntarily dismiss its counterclaim. Plaintiffs Dale and Kim Neidenbach shall file their
memorandum in opposition to any such motion in accordance with the time limits of this Court’s
Local Rules. Any reply shall also be filed in accordance with the Local Rules. Failure to comply
with the terms of this Memorandum and Order shall result in the dismissal of Amica Mutual
Insurance Company’s counterclaim.
An appropriate partial judgment will accompany this Memorandum and Order.

__________________________________
CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE

Dated this

10th

day of March, 2015.

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