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Armstead v. Allstate Property & Casualty Insurance Co.

United States District Court, N.D. Georgia, Atlanta Division

December 3, 2014

ELAINE ARMSTEAD, Plaintiff,
v.
ALLSTATE PROPERTY & CASUALTY INSURANCE COMPANY and WEBB, ZSCHUNKE, NEARY & DIKEMAN, LLP. Defendants.

OPINION AND ORDER

WILLIAM S. DUFFEY, Jr., District Judge.

This matter is before the Court on Defendant Allstate Property & Casualty Insurance Company's ("Defendant" or "Allstate")[1] Motion to Dismiss [4] and Plaintiff Elaine Armstead's ("Plaintiff" or "Armstead") Motion to Remand [13]. Also before the Court is Allstate's Motion for Leave to File a Reponse in Opposition to Plaintiff's Motion to Remand [16] ("Motion for Leave")[2]

I. BACKGROUND

This is an insurance coverage dispute in which Plaintiff seeks coverage, under a homeowner's insurance policy issued by Allstate (the "Policy"), for damage caused to her home by a fire in her kitchen. Plaintiff asserts claims for breach of contract, promissory estoppel and bad faith against Allstate for refusing to pay the full amount of her damages claimed under the Policy. Plaintiff also asserts several claims based on the manner in which Allstate processed Plaintiff's claim for coverage under the Policy. Allstate contends that most of the claims in Plaintiff's Complaint must be dismissed because they are precluded, as a matter of law, in an action based on an alleged breach of contract.

A. Facts

On December 7, 2011, Plaintiff's home was damaged by an accidental grease fire. (Compl. [1.1] at 3). Plaintiff asserts that the fire caused damage to her kitchen cabinets, countertop, stove and parquet floor, and caused smoke to go throughout the home. (Id.). Plaintiff also asserts that the "lights in her kitchen were flickering on and off." (Id.).

Plaintiff reported the fire to Allstate. (Id.). She requested "emergency services and Allstate dispatched a company called Steamatic to clean the house." (Id.). Allstate also recommended that Plaintiff stay in a hotel while her home was being cleaning and repaired. (Id.).

On December 13, 2011, Erin Verville ("Verville"), an Allstate adjuster, inspected the damage to Plaintiff's home. (Id.). Aubrey Brown ("Brown"), Plaintiff's contractor, and Breinard Miller ("Miller"), Plaintiff's nephew, were also present during Verville's inspection. (Id. at 4). Verville estimated the cost to repair the damage caused by the fire would be $2, 771.50. (Id.). Based on Verville's estimate, Allstate issued a check to Plaintiff in the amount of $1, 467.35. (Id.). Plaintiff did not cash or deposit the check. (Id.).

Plaintiff claims that Verville's estimate was not complete, including because it "did not address the electrical damages and did not provide for complete replacement of burned cabinets, burned countertop, damaged parquet floor, damaged carpet and did not provide for any cleaning of the home. It also failed to provide for cleaning and replacement of damaged contents." (Id.). Plaintiff contends that Verville's estimate "was not enough to restore Plaintiff's home to its pre-fire condition, " because "Allstate wanted to pay for patchwork that would not match the existing structures, leaving the home asthetically [sic] less attractive than it was" before the fire. (Id.). Plaintiff attempted to contact Verville to discuss her disagreement with Verville's estimate, but Verville did not return Plaintiff's telephone calls and messages. (Id.).

On December 21, 2011, Plaintiff spoke to another Allstate representative regarding the damage to Plaintiff's home, including the damage she claims Verville's estimate did not include and the "lack of compensation for food and lodging." (Id. at 5).

Allstate retained Paul Davis Restoration, a third-party contractor, to conduct another inspection of the damage to Plaintiff's home. (Id.). On December 21, 2011, Paul Davis Restoration inspected Plaintiff's home and prepared an estimate, totaling $5, 398.76. (Id.). Plaintiff claims that Paul Davis Restoration's estimate was not complete, including because "Paul Davis [sic] was not willing to replace the kitchen cabinets, floor, or carpet and was not going to address the living room and attic insulation repairs, etc., " and it did not include repair and replacement of contents. (Id.). Miller, Plaintiff's nephew, also told Verville that Paul Davis Restoration's estimate failed to include damage to wallpaper, carpet, countertop and floor, and smoke damage, including in the attic. (Id. at 6-7).

On December 23, 2011, [3] Plaintiff contacted Steamatic to re-clean the carpet and some of the personal contents damaged by smoke. (Id. at 5).

On December 29, 2011, Allstate sent to Plaintiff a letter stating that Allstate was "in the process of concluding the claim' that [it would] continue to update [her] on the status of the claim until it is resolved' and that [it] expect[s] this will be resolved in 30 days or sooner.'" (Id. at 6) (second alteration in original).

On December 30, 2011, Plaintiff sent to Allstate an estimate prepared by Brown, Plaintiff's contractor. (Id. at 6 & Ex. B [1.1 at 46-49]). Brown estimated the cost to repair the damage caused by the December 7, 2011, fire would be $8, 934.42. (Id.).

On January 6, 2012, Plaintiff had Steamatic re-clean the carpet to address the spots which had not been on the carpet prior to the fire. (Id. at 6). Plaintiff asserts that "[t]he spots got worse." (Id.).

On January 7, 2012, Plaintiff sent to Allstate copies of "receipts for food as additional living expenses." (Id.).

On January 17, 2012, Allstate issued payment to Plaintiff, in the amount of $921.34, to replace her stove. (Id. at 7). Plaintiff deposited the check and "was informed that the check... bounced causing her account to be overdrawn." (Id.).

On January 24, 2012, Paul Davis Restoration told Plaintiff that Verville "had communicated on Allstate's behalf that Plaintiff was going to use her own contractor." (Id. at 6). Plaintiff asserts that she "specifically informed Allstate to use [its] own contractors as long as all repairs were made and her property restored to its pre-fire condition." (Id.). At some point, Plaintiff "decided she did not want to use Allstate's contractor because his estimates were inadequate and left off obvious damages." (Id. at 7).

On January 26, 2012, Plaintiff spent an evening at her home instead of a hotel, and "felt sick and experienced difficulty breathing due to mold that had developed in the carpet as a result of inadequate and delayed cleaning." (Id.). Plaintiff returned to the hotel and stayed there until January 31, 2012. (Id.).

On January 30, 2012, Plaintiff again sent to Allstate receipts for additional living expenses in response to Allstate's claim that it did not receive her prior submission. (Id.).

In response to Plaintiff's complaints that the carpet was "discolored" and "moldy" after Steamatic cleaned it, Steamatic again inspected Plaintiff's carpet on January 31, 2012. (Id.). Steamatic stated that they are "not wasting time and money cleaning the carpet." (Id.). Steamatic sent photographs of the carpet to Verville, but Verville claims she did not received them. (Id. at 7-8).

On January 31, 2012, Paul Davis Restoration "revised" the total amount of its estimate to $6, 857.51, which is $1, 458.75 more than its original estimate of $5, 398.76. (Id. at 7). Plaintiff claims that this was "still not a complete estimate, " and Plaintiff again disputed the amount of the estimate. (Id.).

On February 17, 2012, Plaintiff's counsel "wrote to Allstate and submitted estimates on Plaintiff's behalf." (Id. at 8). On February 24, 2012, in response to the letter, Verville stated that "Plaintiff had cancelled' Allstate's contractor, " and that "Allstate will issue Payment to Ms. Armstead." (Id.).

On May 29, 2012, Plaintiff "was hospitalized due to the stress caused by Allstate's claims handling practices and not having full use of her home." (Id.).

In June 2012, Plaintiff submitted to Allstate an estimate for repairs, in the amount of $14, 500.00, prepared by Unique Home Improvement. (Id.).

On July 4, 2012, Allstate issued payment to Plaintiff in the amount of $1, 467.35. (Id.).

On August 3, 2012, Plaintiff retained Bruce Fredrics ("Fredrics"), a "public adjuster, "[4] "to demand an appraisal ...


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