American National Property and Casualty Company v. Stutte et al

Filing 29

STATEMENT of Material Facts re 27 MOTION for Partial Summary Judgment filed by American National Property and Casualty Company. (Attachments: # 1 Appendix Index of Exhibits)(Kinsman, N)

02802-71561 (RER)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE

AMERICAN NATIONAL PROPERTY
AND CASUALTY COMPANY,
Plaintiff, Counterclaim-Defendant,
V.
CAROL ANN STUTTE; LAURA JEAN
STUTTE,
Defendants, Counterclaim- Plaintiffs,
and
CHASE HOME FINANCE, LLC,
Defendant.

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CIVIL ACTION
NO. 3:11-CV-219
JURY TRIAL DEMANDED

ANPAC’S STATEMENT OF UNDISPUTED FACTS
IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT
REGARDING PLAINTIFFS’ CLAIMS OF BAD FAITH AND VIOLATION OF THE
TENNESSEE CONSUMER PROTECTION ACT

Comes now American National Property and Casualty Company (”ANPAC”), by and
through counsel, pursuant to Federal Rule of Civil Procedure 56 and in support of its Motion
for Partial Summary Judgment regarding Carol Ann Stutte and Lauran Jean Stutte’s claims for
the statutory bad-faith penalty and violation of the Tennessee Consumer Protection Act, would
state that the following facts are undisputed in this matter:
1.

On September 4, 2010, the insured premises located at 2715 Highway 360,

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02802-71561 (RER)

Vonore, Tennessee 37885, owned by Carol Anne Stutte and Laura Jean Stutte
was destroyed by fire. Monroe County Sheriff’s Office Incident Report.
RESPONSE:
2.

Someone spray painted the word “QUEERS” on the garage at some point in
between the afternoon of the day of the fire and when the fire occurred. Carol
Stutte EUO, p. 45; Laura Stutte EUO, p. 90; Photo.
RESPONSE:

3.

The Stuttes claim this was a “hate crime” directed against them. Publicly
available news media reports.
RESPONSE:

4.

As a result of the fire, the Stuttes submitted a fire insurance claim to ANPAC
requesting $206,000.00 for the dwelling, $69,133.31 for destroyed personal
property, and $1,142.15 for damage to other structures. Sworn Statement in
Proof of Loss.
RESPONSE:

5.

In addition, the Stuttes have claimed additional living expenses under the policy.
Stuttes’ Answer and Counterclaim.
RESPONSE:

6.

Upon being notified of the fire, ANPAC began to handle the insurance claim.
Complaint; Answer and Counterclaim.
RESPONSE:

7.

Within days of being notified of the fire, ANPAC had explained to the Stuttes the
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loss process, had mailed them claim reporting forms, had engaged an
independent adjuster to scope the loss, had engaged a company called Bright
Claims to help the Stuttes prepare their personal property inventory forms, and
began the process of obtaining temporary housing for the Stuttes. Affidavit of
Stacey Jennings, ¶6; Laura Stutte EUO. P. 83.
RESPONSE:
8.

ANPAC located and paid for temporary housing for the Stuttes. Laura Stutte
EUO, p. 13; Affidavit of Stacey Jennings, ¶ 6-9.
RESPONSE:

9.

ANPAC hired a private investigator, Gary Noland, to assist in its investigation of
the fire loss. Affidavit of Stacey Jennings, ¶11; Affidavit of Gary Noland, ¶3-5.
RESPONSE:

10.

Gary Noland provided regular updates to ANPAC concerning the results of his
investigation work and regarding the witness interviews he conducted. Affidavit of
Stacey Jennings, ¶12; Affidavit of Gary Noland, ¶4-5.
RESPONSE:

11.

ANPAC hired an origin and cause expert, Gary Young with EFI Global, to conduct
an origin and cause investigation. Young Report.
RESPONSE:

12.

While performing his debris examination and removal process, Mr. Young
observed faint odors of gasoline. Young Report, p. 6-7.
RESPONSE:
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13.

As part of this investigation, Mr. Young collected debris samples and sent the
samples to a laboratory, AK Analytical Services, Inc., for analysis. Young Report,
p. 8.
RESPONSE:

14.

AK Analytical Services, Inc. determined that there were ignitable liquids, identified
as gasoline, in two of the debris samples. AK Lab Report; Young Report, p. 6, 8.
RESPONSE:

15.

After ruling out other possible causes, Mr. Young opined that the fire was
incendiary, caused by the intentional application of a large amount of gasoline
which was then ignited. Young Report, p. 7-8, 11.
RESPONSE:

16.

The fire was also classified as incendiary by the Tennessee State Bomb and
Arson Investigator, Gary Elliott. Young Report, p. 10.
RESPONSE:

17.

ANPAC requested that the Stuttes and Kimberly Holloway, also a resident of the
insured premises, submit to Examinations Under Oath, and they did so on
December 21, 2010. EUOs of Laura Stutte, Carol Stutte, and Kimberly Holloway.
RESPONSE:

18.

The Stuttes reported that at the time of the fire, they were in Nashville with
Kimberly Holloway and Lora Black celebrating the fact that the Stuttes had been
in the subject home for five years and had completed remodeling it. Carol Stutte
EUO, p. 6; Laura Stutte EUO, p. 94.
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RESPONSE:
19.

The Stuttes reported that while at the Wildhorse Saloon in Nashville, Lora Black’s
daughter called and said that the Stuttes’ house was on fire. Carol Stutte EUO, p.
11; Laura Stutte EUO, p. 99-100.
RESPONSE:

20.

The Stuttes reported that the group stayed at the bar for a while, returned to the
hotel, and then Carol Stutte decided to drive home later that night. Carol Stutte
EUO, p. 13-14; Holloway EUO p. 22-23.
RESPONSE:

21.

The Stuttes’ house was listed for sale at the time of the fire. Carol Stutte EUO, p.
40-41.
RESPONSE:

22.

Lora Black reported that the Stutte house was going to be shown by a realtor two
or three times that weekend while the group was away in Nashville. Affidavit of
Gary Noland, ¶26.
RESPONSE:

23.

Lora Black reported that this was the reason the vehicles were parked away from
the house at the time of the fire. Affidavit of Gary Noland, ¶26.
RESPONSE:

24.

Realtor Dan Watson told ANPAC that the house was not scheduled to be shown
on the weekend of the fire. Affidavit of Gary Noland, ¶62.
RESPONSE:
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25.

The Stuttes had recently removed important papers and belongings from the
subject property, including their insurance policy, titles to vehicles, tax returns,
real estate contract, living wills, divorce papers, family photos, clothing, guns,
books, tools, landscaping supplies, office supplies, furniture and other items.
Laura Stutte EUO, p. 60-61, 85-86, 109-110; Carol Stutte EUO, p. 51-53, 63.
RESPONSE:

26.

Some of the removed items were taken to another house owned by the Stuttes,
located at 216 Depot Street, while others were taken to a storage unit. Carol
Stutte EUO, p. 53-55.
RESPONSE:

27.

Carol Stutte reported that any gasoline containers on the property were empty
before the fire and that there were no other flammable liquids around. Carol
Stutte EUO, p. 75-78.
RESPONSE:

28.

Kimberly Holloway is the biological adult daughter of Carol Stutte and was
reported as living with the Stuttes at the time of the fire.
RESPONSE:

29.

Holloway was never involved with and never had any trouble with neighbor Janice
Millsaps, nor did she observe any threats being made against the Stuttes by
Janie Millsaps. Holloway EUO, p. 9-10.
RESPONSE:

30.

The Stuttes reported that Carol Stutte decided to drive home alone on the night of
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the fire. Holloway EUO, p. 22-23.
RESPONSE:
31.

The Stuttes reported that the next day, Kimberly Holloway, Laura Stutte, and Lora
Black got a rental car, continued to explore Nashville, and eventually drove back
to Vonore. Holloway EUO, p. 24-25.
RESPONSE:

32.

ANPAC interviewed several witnesses, including Eddie Hammondtree, Larry
Bookout, Carl Self, Pam Self, Catherine Daughtery, Gerald Daughtery, Jack
Welch, Jade Black, Lora Black, Kimberly Holloway, Janice Millsaps, Realtor Dan
Watson, Fire Marshall Gary Elliott, and Postmaster Mark Smith, Agent Eric Kurtz,
Detective Travis Jones, Tommy Self, and Rick Harrris. Affidavit of Gary Noland,
¶ 9, 11, 14, 18, 20, 44, 61, 64.
RESPONSE:

33.

Witnesses Larry Bookout and Eddie Hammondtree reported that they had been
fishing near the Stutte house on the day of the fire. Affidavit of Gary Noland , ¶10.
RESPONSE:

34.

Their attention was drawn to the house when they heard a large explosion, so
they went to the house to make sure no one was inside or injured. Affidavit of
Gary Noland, ¶10.
RESPONSE:

35.

Larry Bookout reported that after he heard the explosion, he smelled what
appeared to be an odor of kerosene. Affidavit of Gary Noland, ¶12.
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RESPONSE:
36.

Neither Bookout nor Hammondtree recalls anyone coming or going from the
Stutte driveway on the day of the fire. Affidavit of Gary Noland, ¶13.
RESPONSE:

37.

Carl Self reported that he went to the fire scene and was able to see into the
house due to the light provided by the flames. Affidavit of Gary Noland, ¶15,17.
RESPONSE:

38.

Carl Self reported that he could see into the kitchen, sunroom, front bedroom,
and back bedroom, and that he did not see any furniture or pictures on the wall in
those rooms. Affidavit of Gary Noland, ¶17.
RESPONSE:

39.

The Stuttes blame neighbor Janice Millsaps for the fire. Carol Stutte EUO, p. 22,
35-36, 39; Laura Stutte EUO, p. 63-64; Complaint and Answer in Stutte v.
Millsaps case.
RESPONSE:

40.

Janice Millsaps has denied the Stuttes’ accusations. Answer of Janice Millsaps
files in Stuttes’ lawsuit against her; Affidavit of Gary Noland, ¶30.
RESPONSE:

41.

Janice Millsaps voluntarily underwent and passed a polygraph test. Affidavit of
Gary Noland, ¶31, 46.
RESPONSE:

42.

Monroe County Detective Travis Jones examined Janice Millsaps’ fingers after
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the fire. Affidavit of Gary Noland, ¶47, 65.
RESPONSE:
43.

Monroe County Detective Travis Jones found no evidence of paint on Janice
Millsaps’ hands. Affidavit of Gary Noland, ¶47, 65.
RESPONSE:

44.

Neighbors gave a different description of Janice Millsaps than did the Stuttes.
Affidavit of Gary Noland, ¶48-55; 67, 70-71.
RESPONSE:

45.

Neighbors indicated that the Stuttes and their friend, Joe Neubert, had exhibited
hostile behavior to neighbors and others who came near their property. Affidavit
of Gary Noland, ¶67-71.
RESPONSE:

46.

The receipt provided by the Stuttes from the Wildhorse Saloon states that there
were five (5) guests and that the ticket for (2) two sandwiches was paid for with
Lora Black’s credit card. Holloway EUO, p. 21; Carol Stutte EUO, p. 9; Laura
Stutte EUO, p. 103-104; Wildhorse Saloon Receipt.
RESPONSE:

47.

National Car Rental opened for business at 6:00 a.m. the day after the fire.
Affidavit of Gary Noland, ¶63.
RESPONSE:

48.

The Stuttes provided their cell phone records to ANPAC or otherwise allowed
ANPAC to obtain them. Laura Stutte EUO, p. 101.
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02802-71561 (RER)

RESPONSE:
49.

ANPAC hired a forensic expert, Kevin Levy with TKR Technologies, to analyze
the Stuttes’ cell phone records, as well as the corresponding cell tower records.
Levy Forensic Report, dated May 3, 2011.
RESPONSE:

50.

Mr. Levy’s analysis of the cell tower records indicated that Carol Stutte was in an
area northeast of Vonore, towards Knoxville, Tennessee during the time period of
midnight to 2:00 a.m. on September 5, 2010. Levy Forensic Report, dated May 3,
2011.
RESPONSE:

51.

Mr. Levy’s analysis of the cell tower records indicated that Laura Stutte was in the
Vonore area at approximately 3:00 a.m. on September 5, 2010. Levy Forensic
Report; Laura Stutte EUO, p. 113.
RESPONSE:

52.

Mr. Levy’s analysis indicated that there was no conclusive evidence of travel to
Nashville by either of the Stuttes and that the records indicated northerly or
northeast travel away from the direction of reported travel to Nashville. Levy
Forensic Report.
RESPONSE:

53.

ANPAC denied the Stuttes’ insurance claim by letter dated May 12, 2011. Denial
Letter.
RESPONSE:
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02802-71561 (RER)

54.

Before the insurance claim was denied, ANPAC paid $2,847.00 on or about
September 20, 2010 for temporary housing from September 15, 2010 through
October 15, 2010. Affidavit of Stacey Jennings, ¶7.
RESPONSE:

55.

Before the insurance claim was denied, ANPAC paid $610.17 directly to the
Stuttes on February 11, 2011 for gas, water and sewer for the time period of
October 19, 2010 through January 26, 2011. Affidavit of Stacey Jennings, ¶8.
RESPONSE:

56.

Before the insurance claim was denied, ANPAC further paid $3,500.00 directly to
the Stuttes on April 15, 2011 for a pet deposit, security deposit and rent from
November 1, 2010 through January 19, 2011. Affidavit of Stacey Jennings, ¶9.
RESPONSE:

57.

At the time of the fire, the Stuttes’ owned two pieces of real property, with three
mortgages and had a monthly car payment. Laura Stutte EUO, p. 40-48, 51-53,
57.
RESPONSE:

58.

At the time of the fire, the Stuttes had credit cards, one of which had a balance of
approximately $7,000.00, another which had a balance of approximately
$2,000.00, and they owed Lumber Liquidators approximately $4,000.00. Laura
Stutte EUO, p. 40-48, 51-53, 57.
RESPONSE:

59.

At the time of the fire, the Stuttes owed approximately $3,0000.00 to the IRS.
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Laura Stutte EUO, p. 40-48, 51-53, 57.
RESPONSE:
60.

The Stuttes’ home was for sale at the time of the fire and Dan Watson was the
real estate agent who listed the property on or about August 4, 2010. Laura Stutte
EUO, p. 58-59; Carol Stutte EUO, p. 40; Affidavit of Gary Noland, ¶61.
RESPONSE:

61.

At the time of the fire, the Stuttes wanted to move away from where they lived
and had wanted to sell the house for some time. Holloway EUO, p. 27-28-29;
Laura Stutte EUO, p. 62.
RESPONSE:

62.

Only Laura Stutte, Carol Stutte, and Kimberly Holloway had keys to the property.
Laura Stutte EUO, p. 68.
RESPONSE:

63.

The Stuttes described their dogs as their “alarm system.” Carol Stutte EUO, p.
60-61; Laura Stutte EUO, p. 108.
RESPONSE:

64.

Neighbors reported that the Stuttes removed a large amount of furniture from the
house during the two weeks before the fire. Affidavit of Gary Noland, ¶ 21.
RESPONSE:

65.

Before the fire, the Stuttes changed their mailing address at the post office and
electric company. Carol Stutte EUO, p. 83-84; Laura Stutte EUO, p. 88-90;
Affidavit of Gary Noland, ¶40-41.
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RESPONSE:
66.

Before the fire, the Stuttes increased their insurance coverage on the house and
the contents. Laura Stutte EUO, p. 80; Affidavit of Gary Noland, ¶43.
RESPONSE:

67.

The Stuttes own another house located at 216 Deport Street in Vonore. Laura
Stutte EUO, p. 27.
RESPONSE:

68.

ANPAC retained a handwriting expert, Theresa F. Dean, to analyze and compare
the handwriting used to write on the plywood at the Stuttes’ 216 Depot Street
house with the handwriting used to spray paint the word “QUEERS” on the
Stuttes’ garage. June 6, 2011 Letter from Theresa F. Dean.
RESPONSE:

69.

Ms. Dean opined, based on a reasonable degree of certainty, that the person
who spray painted the word “QUEERS” on the Stuttes’ garage was probably the
same person who spraypainted on the plywood at the Stuttes’ 216 Depot Street
House. June 6, 2011 Letter from Theresa F. Dean.
RESPONSE:

70.

In its Complaint for Declaratory Judgment, ANPAC asserted the defense or arson
as well as the intentional act exclusion and the concealment of fraud provision
contained in the policy. Complaint.
RESPONSE:

71.

In response to the Complaint for Declaratory Judgment, the Stuttes
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counterclaimed against ANPAC, alleging breach of contract, violation of the
Tennessee Consumer Protection Act, and statutory bad faith. Answer and
Counterclaim.
RESPONSE:

Respectfully submitted,
___s/ N. Mark Kinsman_________________
N. MARK KINSMAN, BPR No. 06039
Baker, Kinsman, Hollis, Clelland & Winer, P.C.
701 Market Street, Suite 1500
First Tennessee Building
Chattanooga, TN 37402-4825
[phone]
[e-mail]
___s/ Russell E. Reviere_________________
RUSSELL E. REVIERE, BPR No. 07166
Rainey, Kizer, Reviere & Bell, P.L.C.
209 East Main Street
P. O. Box 1147
Jackson, TN 38301-1147
[phone]
[e-mail]
Counsel for ANPAC

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CERTIFICATE OF SERVICE
The undersigned certifies that a true copy of this pleading or document was
served via the Court’s ECF filing system upon:
Peter J. Alliman
135 College Street
Madisonville, TN 37354
Tel: [phone]
Attorney for Carol Stutte and Laura Stutte
Seth A. Tucker
Scott J. Levitt
Jonathan G. Hardin
Darien S. Capron
1201 Pennsylvania Avenue NW
Washington, DC 20004-2401
Tel: [phone]
Attorneys for Carol Stutte and Laura Stutte

This the 25th day of October, 2011.
___s/ N. Mark Kinsman_________________

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