CLARY et al.
ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY.
ELLINGTON, P. J., BRANCH and MERCIER, JJ.
Ellington, Presiding Judge
and Cathy Clary filed this action in the Superior Court of
Putnam County against their homeowners' insurance
carrier, Allstate Fire and Casualty Insurance Company,
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.
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 §
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
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.
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.
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.
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
January 20, 2012, the appraisers reached a final agreement
and issued an Appraisal Agreement in the following amounts:
Section I, Mitigation ...