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 Property and Casualty Insurance Company's ("Defendant") Motion for Summary Judgment , and Defendant's Motions in Limine to Exclude the Opinion Testimony of Bruce Fredrics  and Brainard Miller .
Defendant issued a homeowner's insurance policy ("Policy") to Plaintiff Elaine Armstead ("Plaintiff") for a house in Powder Springs, Georgia. On December 7, 2011, Plaintiff's home was damaged by an accidental grease fire. Plaintiff claims that the fire caused damage to her kitchen cabinets, countertop, stove and parquet floor, and caused smoke to spread throughout the home. Plaintiff reported the fire to Defendant. Between 2011 and 2012, Defendant assigned an adjuster and a third-party contractor to inspect the damage to Plaintiff's house. Plaintiff disputed the amount estimated by Defendant's representatives, and she claims that Defendant's preferred contractors and vendors did not competently repair the damage to her home. Plaintiff alleges that the house was further damaged during the repair process.
On February 3, 2013, Plaintiff submitted to Defendant her sworn proof of loss in which she claims that the amount of her "whole loss and damage" is $76, 409.43, that she has a $500 deductible under the Policy, and that the "amount claimed" under the Policy is $75, 909.43. Defendant claims that it has paid approximately $20, 000 towards Plaintiff's insurance claim.
On June 12, 2013, Plaintiff submitted to an Examination Under Oath (EUO), and on July 29, 2013, Brainard Miller ("Miller"), the contractor Plaintiff retained to assess the damage to her home also submitted to an EUO. During Miller's EUO, Plaintiff's counsel told Defendant that Plaintiff "tape recorded all her phone calls." Miller's EUO at 31:16-18. Miller testified that he recorded two or three of his telephone conversations with Defendant's representatives regarding Plaintiff's claim. Id. at 33:17-25. On August 1, 2013, Defendant's counsel emailed Plaintiff's counsel and requested that the telephone conversations Plaintiff recorded be produced. Plaintiff declined on the ground that the recordings were made in anticipation of litigation. Plaintiff stated that she would not produce the recordings she made unless Defendant produced any recordings it had relating to Plaintiff's claim.
On August 2, 2013, Defendant informed Plaintiff that it did not record any telephone conversations, and again requested Plaintiff to produce the telephone recordings in her possession. Plaintiff did not respond to Defendant's further request for the recorded calls.
On September 10, 2013, Defendant again requested that Plaintiff produce the recordings. Plaintiff again declined to produce the recordings unless Defendant provided a good faith basis for the request or explained how the recordings were relevant to Plaintiff's claim. On September 26, 2013, Defendant told Plaintiff that the recordings were relevant to the "veracity" of Plaintiff's "assertions" regarding "[Defendant's] conduct in this matter." See Ex. H, attached to Aff. of Marvin Dikeman. Plaintiff again refused to produce the recordings, claiming they are not relevant to issues regarding coverage, or the amount of damage claimed, under the Policy. On October 4, 2013, Defendant told Plaintiff that it intended to cease making payments on Plaintiff's claim. Defendant did not file a formal request seeking discovery of the recordings and did not otherwise move to require the production of the recordings.
On December 6, 2013, Plaintiff filed her Complaint in the State Court of Fulton County, Georgia, asserting claims against Defendant for breach of contract, breach of the implied covenant of good faith and fair dealing, bad faith, fraud, promissory estoppel, unfair claims settlement practices, and negligent hiring, retention, supervision and training. Plaintiff also asserted claims against Defendant and its counsel for violations of the Georgia Racketeer Influenced and Corrupt Organizations Act, punitive damages and attorneys' fees.
On October 15, 2014, Defendant moved for summary judgment on Plaintiff's claims for breach of contract, bad faith and promissory estoppel. Defendant argues that the action should be dismissed because the Policy required Plaintiff to produce the audio recordings, and by failing to do so, Plaintiff breached the terms of the Policy. As a result, Defendant contends the Policy's "no action" provision precludes Plaintiff's claims.
A. Legal Standard
A court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Parties "asserting that a fact cannot be or is genuinely disputed must support that assertion by... citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials." Fed.R.Civ.P. 56(c)(1).
The party seeking summary judgment bears the burden of demonstrating the absence of a genuine dispute as to any material fact. Herzog v. Castle Rock Entm't, 193 F.3d 1241, 1246 (11th Cir. 1999). Once the moving party meets this burden, the non-movant must demonstrate that summary judgment is inappropriate by designating specific facts showing a genuine issue for trial. Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir. 1999). Non-moving parties "need not ...