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Clary v. Allstate Fire and Casualty Insurance Co.

Court of Appeals of Georgia, Fourth Division

February 2, 2017

CLARY et al.
v.
ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY.

          ELLINGTON, P. J., BRANCH and MERCIER, JJ.

          Ellington, Presiding Judge

         John and Cathy Clary filed this action in the Superior Court of Putnam County against their homeowners' insurance carrier, Allstate Fire and Casualty Insurance Company, [1] asserting multiple claims in tort and contract based on circumstances surrounding Allstate's handling of their claim against their homeowners' insurance policy. Allstate defended the action, inter alia, on the basis that it had satisfied its obligations under the policy by tendering the amount determined to be due by appraisers selected pursuant to the policy. Allstate filed a motion for entry of judgment on the appraisal award and motions for partial summary judgment as to the Clarys' claims for inceptive fraud, breach of implied contract, negligence, emotional distress, and attorney fees. The Clarys filed a cross motion for partial summary judgment on its claim for a declaratory judgment that the appraisal award was not final. After a hearing, the trial court granted Allstate's motion for judgment on the appraisal award and its motions for partial summary judgment; the trial court denied the Clarys' cross motion. The Clarys appeal, and, for the reasons explained below, we affirm.

         Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law[.]" OCGA § 9-11-56 (c).

Summary judgments enjoy no presumption of correctness on appeal, and an appellate court must satisfy itself de novo that the requirements of OCGA § 9-11-56 (c) have been met. In our de novo review of the grant [or denial] of a motion for summary judgment, we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.

(Citations and punctuation omitted.) Cowart v. Widener, 287 Ga. 622, 624 (1) (a) (697 S.E.2d 779) (2010). The relevant facts that follow are undisputed unless otherwise noted.

         The Clarys obtained a homeowners' insurance policy with Allstate in October 2009 for their lakeside residence in Eatonton. Section 1.4 of the policy provides:

Our Settlement Options. In the event of a covered loss, we have the option to:
a) repair, rebuild, or replace all or any part of the damaged, destroyed or stolen property with property of like kind quality within a reasonable time; or
b) pay for all or any part of the damaged, destroyed or stolen property as described in Condition 5 "How We Pay For a Loss." Within 30 days after we receive your signed, sworn proof of loss we will notify you of the option or options we intend to exercise.[2]

Section 1.7 provides:

Appraisal. If you and we fail to agree on the amount of loss, either party may make written demand for an appraisal. Upon such demand, each party must select a competent and impartial appraiser and notify the other of the appraiser's identity within 20 days after the demand is received. . . .
The appraisers shall then determine the amount of loss, stating separately the actual cash value and the amount of loss to each item. If the appraisers submit a written report of an agreement to you and to us the amount agreed upon shall be the amount of the loss.

         On August 3, 2010, lightning struck the Clary residence, resulting in a fire, which was extinguished by firefighters. The fire and ensuing water penetration caused severe damage to the residence and the personal property it contained. The Clarys reported the fire to their Allstate insurance agent, Chris Jackson, on August 3, 2010. Jackson called Paul Davis of Restoration of Athens to the home to begin water mitigation. On August 5, 2010, Matt Hunter, an Allstate adjuster, met with the Clarys to view the damage to their home. The parties agree that the lightning fire that partially destroyed the premises was a covered occurrence under the policy. Hunter advised the Clarys that "if it were my property I would let Allstate handle it all." According to the Clarys, Hunter terminated Paul Davis from the mitigation work, hired Elite Response, Inc., to perform that work, hired Icon Restoration, Inc. to perform the repairs, and supervised the repair and rebuilding of the residence until a dispute arose regarding the measures necessary to remediate mold that had formed as a result of the fire and water damage.[3]

         When the Clarys reported to Allstate that they thought mold was present at the property, Allstate hired Marge Philbin, an industrial hygienist, to inspect the property. Although there was no dispute the mold was covered under the policy, the parties could not agree on how to remediate the problem. On December 30, 2010, Allstate made a written demand for an appraisal. Allstate selected Larry Masters, and the Clarys selected Chris Dawkins. The appraisers obtained a repair estimate prepared by Icon and used that estimate in determining the amount to allow for structural repairs. The final structural repair estimate by Icon was $329, 664.75. The appraisers obtained a protocol for mold remediation from Elizabeth Witten, a certified microbial consultant, agreed to by Allstate and the Clarys. In determining the amount to allow for mold remediation, the appraisers relied on an estimate from Luke Smith of ServiceMaster who advised the appraisers he would complete the remaining mold remediation for $95, 000. The appraisers set the total mold remediation loss at $114, 546.44, which reflected remediation work already performed.

         On January 20, 2012, the appraisers reached a final agreement and issued an Appraisal Agreement in the following amounts:

Section I, Mitigation ...

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