United States District Court, N.D. Georgia, Atlanta Division
TRESA DURDEN, f/k/a Tresa McCowell, and MICHAEL LANE DURDEN, Plaintiffs,
STATE FARM FIRE AND CASUALTY COMPANY, Defendant.
OPINION AND ORDER
WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE.
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  (“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  (“Motion for Extension”), and
Amended Motion for Reconsideration of this Honorable
Court's Granting of Defendant's Motion for Summary
Judgment  (“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  (“Motion to Withdraw”).
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 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
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
(a) statements; and
(b) examinations under oath; . . . .
(Pl. Resp. DSMF ¶ 28).
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).
Plaintiffs' Claims under the Policy
September 10, 2014, Plaintiffs were evicted from their home
for withholding lease payments from their landlord. (Pl.
Resp. DSMF ¶¶ 1-3, 8).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).
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).
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).
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).
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
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).
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 ¶
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 ¶
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).
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). Defendant asked Mrs. Durden to provide
several documents in advance of the EUO, including the
. A completed Sworn Proof of Loss;
. Copies of all Leases where she had resided
(2010 to ...