United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUFFEY, Jr., District Judge.
This matter is before the Court on Defendant Allstate Insurance Company's ("Allstate" or "Defendant") Motion for Summary Judgment .
This is an insurance coverage dispute in which Plaintiffs Gerald Alexander ("Mr. Alexander") and Cotena Alexander ("Mrs. Alexander") (together, "Plaintiffs" or the "Alexanders") seek coverage, under an insurance policy issued by Allstate, for the alleged theft of 2004 BMW automobile. Allstate denied Plaintiffs' insurance claim, including because Plaintiffs failed comply with the policy's requirement that they submit to an examination under oath. Allstate asserts that it is entitled to summary judgment because Plaintiffs' claims in this action are barred by the policy's one-year limitation period for bringing suit against Allstate. Plaintiffs argue that there is a genuine issue of material fact whether Allstate waived the one-year limitation period because, they assert, Allstate took actions indicating its intention to pay their claim without litigation, Plaintiffs received Allstate's letter denying coverage after the expiration of the limitation period, and Plaintiffs were lulled into believing that Allstate would not insist upon strict compliance with the policy, including the limitation period.
On January 29, 2011, Allstate issued to Plaintiffs an "Allstate Fire and Casualty Insurance Company Auto Policy" (the "Policy") for the policy period of January 29, 2011 to July 29, 2011. (Policy [15.1, 15.2]). The Policy provides coverage for Plaintiffs' 2004 silver BMW 745i (the "Vehicle") against, among others, "loss... caused by theft or larceny." ([15.2] at 12). The Policy provides:
What You Must Do If There Is A Loss
1. As soon as possible, any person making claim must give [Allstate] written proof of loss, including all details reasonably required by [Allstate].... [Allstate] may also require that person to submit to examinations under oath.
(Id. at 17). The Policy also states:
Action Against Us
No one may bring an action against [Allstate] in any way related to the existence or amount of coverage, or the amount of loss for which coverage is sought, under Part IV-Protection Against Loss to The [Vehicle], unless there is full compliance with all policy terms and such action is commenced within one year after the date of loss.
(Id. at 16-17).
On July 13, 2011, Plaintiffs noticed that the Vehicle was missing from their home. (Alexander Affs. [16.3, 16.4] at ¶ 4). Plaintiffs "immediately" filed a police report and notified Allstate that the Vehicle had been stolen. (Id. ¶ 5). Allstate began its investigation into Plaintiffs' claim seeking coverage under the Policy for the theft of the Vehicle (the "Claim").
On November 1, 2011, Allstate sent a letter to Mr. Alexander and a separate letter to Mrs. Alexander. (Nov. 1, 2011, Letters [15.3 at 4-7]). The letters request, pursuant to the terms of the Policy, that Plaintiffs appear on November 17, 2011, for an Examination Under Oath ("Examination") and they bring with them certain documents related to their Claim. The letters state further that Allstate "does not waive any terms or provisions or conditions or forfeiture of the [Policy], but demands and shall conduct the Examination reserving all of its rights." (Id.).
Plaintiffs did not appear for their November 17, 2011, Examinations. On December 15, 2011, Allstate sent another letter to Plaintiffs, which states:
With respect to the automobile loss which occurred on July 13, 2011, involving your [Vehicle], which was reported, stolen... you are now advised [Allstate] reserves all rights and defenses which it has in conjunction with [the Policy]. We further notify you that any activity on our part by way of investigation, damage determination, or emergency advance payments to you, does not constitute a waiver of our rights.
We are reserving our right to later deny our coverage obligation under the [P]olicy and assert a defense of no coverage because [the Policy] requires that any person making claim must give [Allstate] a written proof of loss, including all details reasonably required by us. You must also submit to an [Examination]. Specifically you failed to submit to [the Examinations] which were scheduled on Thursday, November 17, 2011....
Our investigation is continuing and we will avail ourselves of any other [P]olicy defenses that may arise.
(Dec. 15, 2011, Letter [15.3 at 8-9]).
On February 9, 2012, Allstate sent to Plaintiffs an email, which states:
As part of its investigation [into Plaintiffs' Claim], Allstate has asked that this firm conduct [Examinations of Plaintiffs] per the terms of [the Policy]....
As representative of [Plaintiffs], please provide several dates and times that you are available to proceed with the [Examinations]....
Allstate reserves all rights relative to this claim. In this regard, should correspondence or communication from Allstate be received which purports to waive any term, condition, or provision found in the [P]olicy or under Georgia law, including any correspondence or communication which purports to represent the status of the claim or which indicates that claim resolution will occur at some future date, said correspondence or communication should be disregarded in its entirety. Allstate will continue to insist upon strict compliance with policy terms, conditions, and provisions.
([15.4 at 4-5]).
On February 13, 2012, Allstate sent to Plaintiffs by email, facsimile, and mail a letter identical to February 9, 2012, email, requesting Plaintiffs' availability for their Examinations and stating that "Allstate reserves all rights relative to this claim" and "will continue to insist upon ...