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Durden v. State Farm Fire and Casualty Co.

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

February 27, 2017

TRESA DURDEN, f/k/a Tresa McCowell, and MICHAEL LANE DURDEN, Plaintiffs,



         This matter is before the Court on Defendant State Farm Fire and Casualty Company's (“Defendant”) Motion for Summary Judgment [24].

         I. BACKGROUND

         A. Insurance Policy

         In July 2014, Defendant issued a renters insurance policy (“Policy”) t o Plaintiffs Tresa Durden (“Mrs. Durden”) and Michael Lane Durden (“Mr. Durden”) (together, “Plaintiffs”). ([24.4] at 2). The Policy provides coverage, from July 15, 2014, to July 15, 2015, for “ accidental direct physical loss” to Plaintiffs' personal property. ([24.4] at 2, 22). Plaintiffs are not entitled to payment under the Policy if they “cause[] or procure[] a loss to property . . . for the purpose of obtaining insurance benefits” or if they “intentionally conceal[] or misrepresent[] any material fact or circumstance relating to th[e] insurance, whether before or after a loss.” (Plaintiffs' Response to Defendant State Farm Fire and Casualty Company's Statement of Undisputed Material Facts [31.2] (“ P l. Resp. DSMF”) ¶¶ 57-58). The Policy requires Plaintiffs to take certain steps after suffering a covered loss:

         After a loss to which this insurance may apply, you shall see that the following duties are performed:

a. give immediate notice to us or our agent. Also notify the police if the loss is caused by theft. Also notify the credit card company or bank if the loss involves a credit card or bank fund transfer card;
b. protect the property from further damage or loss, make reasonable and necessary temporary repairs required to protect the property, keep an accurate record of repair expenditures;
c. prepare an inventory of damaged or stolen personal property. Show in detail the quantity description, age, replacement cost and amount of loss. Attach to the inventory all bills, receipts and related documents that substantiate the figures in the inventory; d. as often as we reasonably require:
(1) exhibit the damaged property;
(2) provide us with records and documents we request and permit us to make copies;
(3) submit to and subscribe, while not in the presence of any other insured:
(a) statements; and
(b) examinations under oath; . . . .

(Pl. Resp. DSMF ¶ 28).

         The Policy limits the circumstances in which Plaintiffs may file suit against Defendant: “No action shall be brought unless there has been compliance with the policy provisions. The action must be started within one year after the date of loss or damage.” (Pl. Resp. DSMF ¶ 55).

         B. Plaintiffs' Claims under the Policy

         On September 10, 2014, Plaintiffs were evicted from their home for withholding lease payments from their landlord. (Pl. Resp. DSMF ¶¶ 1-3, 8).[1]Deputies from the Sheriff's Office of Butts County were present when the eviction occurred. (Pl. Resp. DSMF ¶ 3). The eviction was conducted pursuant to a writ of possession issued by the Magistrate Court of Butts County. (Pl. Resp. DSMF ¶ 3).

         On September 19, 2014, Mrs. Durden told the Sheriff's Office that approximately $10, 109 of Plaintiffs ' personal property was stolen during the eviction. ([24.7] at 6; Pl. Resp. DSMF ¶ 17). She said that she hired two strangers to help move her belongings from her home, that they took two loads of Plaintiffs' property in a truck and trailer, and that they “took the property some where [sic] other than the storage location” to which they were instructed to deliver the property. ([24.7] at 6; Pl. Resp. DSMF ¶ 16). On September 26, 2014, Plaintiffs filed a claim under the Policy. (Pl. Resp. DSMF ¶ 6). On October 16, 2014, Mrs. Durden supplemented her police report, stating that $19, 311 of Plaintiffs ' personal property was stolen. (Pl. Resp. DSMF ¶ 18).

         On December 5, 2014, Mrs. Durden provided Defendant with her recorded statement. (Pl. Resp. DSMF ¶ 7). She said that Plaintiffs' personal property was stolen or damaged during the eviction. (Pl. Resp. DSMF ¶ 8). She claimed $30, 000 in missing property. (Pl. Resp. DSMF ¶ 8). She said the Sheriff's Office did not believe she lost as much property as she claimed. (Pl. Resp. DSMF ¶ 8). She said the Sheriff's Office interviewed the ind iv id ua ls invo lved in the eviction, and could not corroborate Plaintiffs' story. (Pl. Resp. DSMF ¶ 8).

         In December 2014, Defendant asked Plaintiffs to provide the following documents in support of their claim: the police report, eviction documents, an inventory of the stolen or damaged property, and proof of Plaintiffs' ownership of the property. (Pl. Resp. DSMF ¶ 9). On January 12, 2015, Plaintiffs provided Defendant with an inventory of hundreds of items, totaling $41, 223 in stolen property and $32, 312.99 in damaged property. (Pl. Resp. DSMF ¶¶ 11-12). The list of stolen items included thousands of dollars of jewelry, twenty lighters valued at $30 each, and several holiday decorations. (Pl. Resp. DSMF ¶ 12). The list of damaged items included frozen food and food from Plaintiffs' pantry. (P l. Resp . DSMF ¶ 12). The inventory also included baby items such as a F is her Price electric swing, a Graco travel system car seat and stroller, and a Graco bouncy seat. (Pl. Resp. DSMF ¶ 13). Plaintiffs' youngest child was seventeen years old at the time of the eviction. (Pl. Resp. DSMF ¶ 13).

         On January 26, 2015, Plaintiffs provided Defendant with a copy of the Sheriff's Office Incident Report. (Pl. Resp. DSMF ¶¶ 15-18). Plaintiffs also provided Defendant with other documents, including photographs, receipts, and product manuals. (Pl. Resp. DSMF ¶ 10). In light of the information submitted by Plaintiffs, Defendant determined that Plaintiffs' reported losses were “questionable, ” that they included “numerous family heirlooms, ” that they included the “total contents of business/home including items of little or no value, ” and that Plaintiffs' inventory of items “differ[ed] significantly from the police department's crime report.” (Pl. Resp. DSMF ¶ 19).

         On January 30, 2015, Defendant received a telephone call from Lt. Darrel Powers of the Butty County Sheriff's Office. (Pl. Resp. DSMF ¶ 20). Lt. Powers told Defendant (1) that Mrs. Durden “goes by several different names, ” (2) that he has a video showing that Plaintiffs' property was appropriately removed from the ir home, (3) that Mrs. Durden has “ a his to ry of being evicted and making claims of theft, ” (4) that Mrs. Durden repeated ly returned to the Sheriff's Office to add items to the list of allegedly stolen property, (5) that he told Mrs. Durden she was no longer permitted to add items to the list, and (6) that the Sheriff's Office “don't believe her and they are closing the case and are not going to deal with her any longer.” (Pl. Resp. DSMF ¶ 20).

         On February 2, 2015, Plaintiffs provided Defendant with an amended inventory, listing $34, 553.86 in stolen property, with a rep lacement cost of $59, 608.23. (Pl. Resp. DSMF ¶ 21). On February 17, 2015, Plaintiffs' landlord told Defendant that he had a judgment against Plaintiffs for thousands of dollars, that Mrs. Durden was previously evicted from a house in Jasper County, and that Mrs. Durden claimed, on four prior occasions, in different counties, that it ems were stolen from her during evictions. (Pl. Resp. DSMF ¶ 22).[2] On February 24, 2015, Lt. Darrel Powers told Defendant that “the theft was completely fabricated, ” that “the eviction was videotaped and done legally, ” that Mrs . Durden was a ...

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