American National Property and Casualty Company v. Stutte et al

Filing 39

REPLY to Defendants' Supplemental Memorandum in Opposition to 27 MOTION for Partial Summary Judgment filed by American National Property and Casualty Company. (Reviere, Russell) Modified text on 2/24/2012 (AYB).

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

REPLY TO DEFENDANTS’ SUPPLEMENTAL MEMORANDUM IN OPPOSITION TO
ANPAC’S MOTION FOR PARTIAL SUMMARY JUDGMENT

Comes now American National Property and Casualty Company (”ANPAC”), in reply to
the “Supplemental Memorandum” that Defendants have filed in response to Plaintiff’s Motion
for Partial Summary Judgment, in which they would state and show the Court as follows:
Respectfully, Defendants’ Supplemental Memorandum misses the point of the motion
that ANPAC has filed seeking a summary disposition of all of the extra-contractual claims
brought against it for the simple reason that ANPAC possessed at the time of denial and, for
that matter, still possesses, information that provides a good faith basis for its claims decision.
In essence, Defendants are challenging the validity of information that was provided to ANPAC
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02802-71561 (RER)

interpreting the cellular phone records which was conducted by Kevin Levy of TKR
Technologies which provide part, but certainly not all, of the basis for the denial of the claim.
While ANPAC is aware that this Court is not going to resolve the issue of whether Defendants’
argument in their Supplemental Memorandum represents any valid substantive response to
the analysis done by the forensic expert, Kevin Levy (noted above), what is important and
significant for the purposes of the present motion is that Mr. Levy’s analysis, as provided to
ANPAC, directly contradicted the alleged location of Carol Stutte at a critical time in relation to
the fire loss in question. While ANPAC is certainly planning on showing this Court that the
argument that the cellular records contradict Mr. Levy’s conclusion is wholly inaccurate, it also
is not relevant to the question at hand, that being whether ANPAC could reasonably rely upon
the report of this expert in interpreting these records as part of the information upon which it
based its decision denying Defendants’ claim for the fire loss in question.
ANPAC has cited a great deal of legal authority to this Court which ANPAC believes
fully supports the position that it has taken that the information upon which it was relying at the
time of its claims decision, as a matter of law, constitutes a good faith basis for denial. This is a
conclusion reached on much less incriminating evidence by other courts as has been shown
and nothing Defendants have filed changes that or shows, in any way, that ANPAC was guilty
of “deceit or other misleading conduct” or was guilty of “deception or unfairness” in the way
that it handles this claim. (Hamer v. Harris, 2002 WL 31469213 (Tenn. Ct. App. Feb. 18,
2002)). As this Court has been reminded, “a penalty is not appropriate when the insurer’s
refusal to pay rests on legitimate and substantial legal ground”. (Tyber v. Great Central
Insurance Company, 572 F.2d 562, 564 (6th Cir. 1978). In the interest of brevity, ANPAC
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02802-71561 (RER)

refers the Court back to its original memorandum filed in support of the present motion for a
more full statement of the applicable law in this area. However, it is certainly worth
reiterating, at this point, that ANPAC is merely seeking to have this case proceed where the
actual valid dispute is, that being whether the evidence ultimately supports the conclusion
that the Defendants caused or procured the burning of the insured property, which is a
complete and absolute defense. For the parties to needlessly engage in expensive and
unnecessary discovery and expend efforts on extra-contractual matters, given the factual
basis for the decision of which this Court is now aware, does not serve the interest of
either side and is also an unnecessary drain on this Court’s time and resources.
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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02802-71561 (RER)

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 24th day of February, 2012.
___s/ Russell E. Reviere________________

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