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Durden v. State Farm Fire And Casualty Company

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

August 29, 2017

TRESA DURDEN, f/k/a Tresa McCowell, and MICHAEL LANE DURDEN, Plaintiffs,
v.
STATE FARM FIRE AND CASUALTY COMPANY, Defendant.

          OPINION AND ORDER

          WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Plaintiffs Tresa Durden (“Mrs. Durden”) and Michael Lane Durden's (“Mr. Durden”) (together, “Plaintiffs”) Motion for Reconsideration of this Honorable Court's Granting of Defendant's Motion for Summary Judgment [37] (“Motion for Reconsideration”), Motion to Extend Time for Plaintiffs to Amend Motion for Reconsideration of this Honorable Court's Granting of Defendant's Motion for Summary Judgment [39] (“Motion for Extension”), and Amended Motion for Reconsideration of this Honorable Court's Granting of Defendant's Motion for Summary Judgment [42] (“Amended Motion for Reconsideration”). Also before the Court is Michael B. Weinstein's (“Weinstein”) Motion to Withdraw as Counsel for Tresa Durden f/k/a Tresa McCowell and Michael Lane Durden [40] (“Motion to Withdraw”).

         I. BACKGROUND[1]

         A. Insurance Policy

         In July 2014, Defendant State Farm Fire and Casualty Company (“Defendant”) issued a renters insurance policy (“Policy”) to 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] (“Pl. 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).[2]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 individuals involved 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. (Pl. Resp. DSMF ¶ 12). The inventory also included baby items such as a Fisher 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 their home, (3) that Mrs. Durden has “a history of being evicted and making claims of theft, ” (4) that Mrs. Durden repeatedly 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 replacement 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 previously was evicted from a house in Jasper County, and that Mrs. Durden claimed, on four prior occasions, in different counties, that items were stolen from her during evictions. (Pl. Resp. DSMF ¶ 22).[3] 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 “liar, ” that she previously was evicted from Jasper County, and that she had used a variety of aliases to commit the same “scam” in other counties. (Pl. Resp. DSMF ¶ 24).

         On March 2, 2015, Defendant sent Mrs. Durden a copy of the Policy provision that lists her “duties after loss, ” including her duty to “provide [Defendant] with records and documents [that Defendant] request, ” and her duty to provide any requested statements and to submit to examinations under oath. ([24.9]; (Pl. Resp. DSMF ¶ 26). Defendant asked Mrs. Durden to comply with this provision and to complete, by May 2, 2015, a Sworn Statement in Proof of Loss. (Pl. Resp. DSMF ¶ 26).

         On March 27, 2015, Defendant asked Mrs. Durden to submit, on April 3, 2015, in Atlanta, to an examination under oath (“EUO”). (Pl. Resp. DSMF ¶ 27). Defendant sought to resolve several coverage issues, including whether Plaintiffs intentionally caused their losses or misrepresented any material facts regarding their claim. (Pl. Resp. DSMF ¶ 25).[4] Defendant asked Mrs. Durden to provide several documents in advance of the EUO, including the following:

. A completed Sworn Proof of Loss;
. Copies of all Leases where she had resided (2010 to ...

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