United States District Court, M.D. Georgia, Macon Division
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
E. SELF, III, JUDGE UNITED STATES DISTRICT COURT
a doubt, the insurer in this case will pay a claim to cover
fire damage to Plaintiff's home. But if her house was
“wholly destroyed, ” Plaintiff reaps a windfall
of at least $136, 000. Unfortunately, there are patently
clear cases of a scorching fire engulfing a home so that only
charred wood remains; in those instances, one easily
concludes such structures are “wholly destroyed.”
This is not one of those cases.
fire and months of back-and-forth between Plaintiff, her
insurer Defendant LM Insurance Corporation
(“LM”), and various contractors, Plaintiff filed
a lawsuit against LM for breach of contract and for bad faith
with regard to its duties under the insurance
policy. LM moves for summary judgment against
Plaintiff on each claim, and after consideration of the
parties' briefs, statements of material facts, and
accompanying exhibits, the Court rules as follows.
the disputed facts of this case revolve around minor issues
such as who said what to whom, and in what email or letter
was something said or left unsaid. But three facts remain
absolutely undisputed: (1) only Plaintiff claims that her
home was “wholly destroyed” by fire on September
6, 2017; (2) LM provided the insurance policy in effect at
the time of the fire; and (3) “[n]ine months after the
fire, Plaintiff still had not commenced any repairs” to
her home. [Docs. 1 at ¶ 8; 24-2 at ¶ 41; 26-2 at
¶ 41]. However, the following facts, be they undisputed
or disputed (and resolved by the record before the Court),
illustrate what the parties believe to be the pivotal issues
of this case.
after the fire, Plaintiff filed a claim with LM which
provides the policy of insurance covering Plaintiff's home
located at 988 High Street, Macon, Bibb County, Georgia (the
“Property”). [Doc. 1 at ¶¶ 1, 6, 8];
see also [Doc. 26-4 at pp. 31-33]. Field
Representative Howard Yancey and another LM representative
were assigned to Plaintiff's claim, and about eight days
after the fire Yancey took photographs of Plaintiff's
damaged home. [Doc. 26-3 at pp. 1, 3-6]. At that time, Yancey
and Plaintiff did not discuss whether the damages to her home
rendered it a total loss. [Doc. 28-1 at 20:24-21:2]. However,
given the nature of the damage to the Property,
Plaintiff's claim was reassigned from Yancey to one of
LM's “large loss” adjusters five days later.
[Doc. 26-1 at ¶ 3]; see also [Doc. 26-4 at p.
first met with the large loss adjuster-a senior field claims
resolution specialist-Keith Kinscherf, on September 21,
2017. [Doc. 26-4 at p. 24]. As with Yancey,
Kinscherf also did not discuss with Plaintiff whether her
home was a total loss following his initial inspection. [Doc.
28-1 at 22:17-20]. After the inspection, it was
Plaintiff's understanding that Kinscherf “was going
to write up an estimate.” [Id. at 23:3-4].
Eight days after its inspection, LM provided Plaintiff with
its initial written building repair estimate of $190, 299.00.
[Docs. 24-2 at ¶ 2; 26-2 at ¶ 2]; see also
[Doc. 24-5 at p. 48]. Kinscherf also outlined the general
claims process, discussed the overall scope of the repairs
and their estimated time for completion, and subsequently
advised Plaintiff that her Property was not a total loss.
[Docs. 24-2 at ¶¶ 3-4; 26-2 at ¶¶ 3-4].
Plaintiff was required to choose her own contractor for
repairs, she began to obtain estimates from three different
companies. [Doc. 28-1 at 23:5-24]. First, Plaintiff met with
Ralph Burris from Parker Young Construction (“Parker
Young”) who also did not discuss with Plaintiff whether
“the damages resulted in [her] home being totally
destroyed.” [Doc. 26-1 at ¶ 10]; see also
[Docs. 24-2 at ¶ 8; 26-2 at ¶ 8; 28-1 at 26:2-6,
26:25- 27:3]. However, that business relationship was
short-lived. According to Plaintiff's deposition
testimony, Burris was “rude and dismissive, ” and
said that Parker Young would make repairs based off of
LM's estimate. [Doc. 28-1 at 26:6-8, 26:22-24]. In light
of this exchange, Plaintiff states that she “quickly
eliminated [Parker Young]” without having received any
estimate from them. [Id. at 26:6-10]. Moreover,
Burris sent an email to Chuck Butwill (another senior field
claims resolution specialist for LM) stating, “After
meeting with her[, ] I think I will not get involved.”
[Doc. 26-3 at pp. 13-14, 18]. Following “that
experience, ” Plaintiff claims that she was
“having trouble getting three local reputable
companies, ” and it was then that she decided to call
LM for contractor recommendations “within [its]
network, ” who recommended Plaintiff's second
contractor, Paul Davis Restoration of Central Georgia
(“PDR”). [Docs. 26-4 at p. 20; 28-1 at
their initial meeting, Doug Blount from PDR provided a verbal
ballpark-figure estimate of $325, 500.00 to repair the
smoke damage to Plaintiff's home. Compare [Doc.
24-4 at pp. 2-3] with [Doc. 28-1 at 28:9-11];
see also [Docs. 24-2 at ¶ 11; 26-2 at ¶
11]. Before PDR would issue its final written estimate,
Blount needed to consult with an electrical sub-contractor
from B3 Home Innovations (“B3 Home”) regarding
potential rewiring due to code upgrades. [Doc. 28-1 at
27:20-22, 28:12-23]. Even after Blount received B3 Home's
$38, 878.55 electrical quote and despite Plaintiff's
repeated attempts to receive one, PDR never provided a
written estimate. [Id. at 27:12-28:4]. And, contrary
to LM's contentions, Plaintiff states that Blount never
told her that the Property was not a total loss.
Compare [Doc. 24-2 at ¶ 26] with [Doc.
26-2 at ¶ 26].
third contractor, Sentry Construction Company
(“Sentry”), provided a written estimate of $366,
599.03 to repair the fire damage but “did not, at any
point, provide . . . an opinion that the Property was a total
loss.” [Docs. 26-8 at pp. 1, 40; 28-1 at 32:7-10];
see also [Docs. 24-2 at ¶¶ 13-14; 26-2 at
¶¶ 13-14]. Three days after Plaintiff received
Sentry's written estimate, she informed Blount from PDR
of her decision “to go with another firm” because
she was “more comfortable with a local contractor with
local trades who deliver in a more timely and responsive
manner.” [Doc. 26-3 at p. 21]; see also [Docs.
24-2 at ¶¶ 29-30; 26-2 at ¶¶ 29-30]. On
November 10, 2017, just before she released PDR, Plaintiff
emailed LM, detailing her belief that Georgia's Valued
Policy statute, Ga. Code Ann. § 33-32-5(a), applied to
her claim. [Doc. 26-3 at pp. 24-25]; Compare [Doc.
24-2 at ¶ 31] with [Doc. 26-2 at ¶ 31].
point after receiving LM's initial repair estimate of
$190, 299.00, Plaintiff also reached out to Engineered
Solutions of Georgia (“Engineered
Solutions”) to conduct an assessment of her home and
sought the opinion of the local building
inspector. [Docs. 26-3 at pp. 13-14; 28-1 at 24:5-7].
Plaintiff decided to contact Engineered Solutions after
becoming concerned-based on her previous remodeling
experience and her “diploma in Carpentry”-about
the amount of electrical work and the proposed repairs to her
house's foundation and crawl space. [Doc. 26 at p.
3]. About a month later, Kinscherf, after reviewing the
report and drawings from Engineered Solutions, prepared and
sent Plaintiff a revised written estimate increasing its
initial cost of repair from $190, 299.00 to $232, 698.27, and
LM told Plaintiff she could expect an actual cash value
payment in the amount of $163, 427.95 within five
business days. [Doc. 26-5 at p. 2]; see also [Docs.
14-1 at p. 4; 24-2 at ¶¶ 34-35; 26-2 at
¶¶ 34-35]. According to Kinscherf, the revised
estimate included, among other things, the quote from
PDR's electrical sub-contractor and “reflect[ed] an
agreed cost of restoration with [PDR]” which was
previously set at a ballpark figure of $325, 500.00. [Doc.
26-5 at p. 5]; see also [Doc. 24-4 at pp. 2-3].
the price difference between LM ($232, 698.27) and
Sentry's ($366, 599.03) estimates, Kinscherf and Cole
“agreed to work towards reaching an agreed scope of
damages” and developed “a mutual plan to inspect
certain exterior walls to investigate for any smoke
damage.” [Docs. 24-2 at ¶¶ 54-55; 26-2 at
¶¶ 54-55]. However, this inspection never occurred
because 38 days after sending her demand letter, Plaintiff
filed suit. [Docs. 24-2 at ¶¶ 56-57; 26-2 at
¶¶ 56-57]. During the pendency of this litigation,
LM requested Jeff Tarbutton, an engineer with Honest
Forensics, LLC, to inspect the Property. [Doc. 24-8 at p. 5].
With the understanding that Plaintiff considered her Property
to be “a total loss, ” Tarbutton visited the
Property on August 8, 2018, and performed a visual and
photographic survey of the house. [Id.]. His report
listed detailed findings as well as his conclusion that in
his “professional opinion [ ] [the Property] is not
damaged to the extent that it should be considered a total
loss.” [Id. at pp. 6-7]; see also
[Docs. 24-2 at ¶¶ 61-62; 26-2 at ¶¶
receiving multiple assessments and estimates, Plaintiff
concedes that she “has not spoken with any engineer or
building consultant who has opined”-any different to
LM's own advisement-“that the Property was wholly
destroyed by fire.” [Docs. 24-2 at ¶¶ 32, 36;
26-2 at ¶¶ 32, 36]. At the end of the day, we are
left with three cost-to-repair estimates, PDR's ballpark
estimate of $325, 500.00, Sentry's written estimate of
$366, 599.03, and LM's revised estimate of $232, 698.27.
Again, many of the disputes between the parties are
immaterial to the Court's decision, however, the Court is
fully aware of the intricacies surrounding Plaintiff's
issues with certain repair recommendations relating to
building materials. But as Plaintiff testifies in her
deposition, her “ultimate goal” in this case is
to retain the policy limits as contemplated by Georgia's
Valued Policy statute and to recover damages for bad faith.
[Doc. 28-1 at 98:8-15].
Standard of Review
entitled to summary judgment “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.”
Fed.R.Civ.P. 56(c). As to issues for which the movant would
bear the burden of proof at trial, the “movant must
affirmatively show the absence of a genuine issue of material
fact and support its motion with credible evidence
demonstrating that no reasonable jury could find for the
non-moving party on all of the essential elements of [her]
case.” Landolfi v. City of Melbourne, 515
Fed.Appx. 832, 834 (11th Cir. 2013) (citing Fitzpatrick
v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993)).
As to issues for which the non-movant would bear the burden
of proof at trial, the movant may (1) simply point out an
absence of evidence to support the non-moving party's
case or (2) provide “affirmative evidence demonstrating
that the [non-movant] will be unable to prove [her] case at
trial.” United States v. Four Parcels of Real Prop.
in Greene & Tuscaloosa Ctys., 941 F.2d 1428, 1438
(11th Cir. 1991) (citing Celotex Corp. v. Catrett,
477 U.S. 317, 325 (1986)).
the movant satisfies its burden, the burden shifts to the
non-movant, who must “go beyond the pleadings and
present affirmative evidence to show that a genuine
issue of material fact exists.” Porter v. Ray,
461 F.3d 1315, 1320 (11th Cir. 2006) (citing
Fitzpatrick, 2 F.3d at 1115-17) (emphasis added).
“A factual dispute is genuine ‘if the evidence is
such that a reasonable jury could return a verdict for the
[non-moving] party.'” Four Parcels, 941
F.2d at 1437 (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248, (1986)). However, “[a]
court need not permit a case to go to a jury . . . when the
inferences that are drawn from the evidence, and upon which
the non-movant relies, are implausible.” Mize v.
Jefferson City Bd. of Educ., 93 F.3d 739, 743 (11th Cir.
1996) (internal quotations omitted). With the foregoing
standard in mind, and with careful consideration of the facts
as outlined above and the applicable law, the Court rules as
Plaintiff's Breach of Contract Claim Against
claims that LM's failure to pay the replacement costs of
her Property (in other words, build her a brand new house)
gives rise to a breach of contract claim. [Doc. 1 at ¶
11]. In response to this claim, LM moves for summary judgment
arguing that Plaintiff's home is not “wholly
destroyed” under Georgia law. If LM is entitled to
summary judgment on the issue of whether Plaintiff's home
was “wholly destroyed, ” then it has complied
with the portion of the insurance policy requiring it to
issue a check for the actual cash value of the damage so that
Plaintiff's breach of contract claim fails as a matter of
Application of Georgia's Valued Policy Statute When
Property Is Wholly Destroyed by Fire
first argues that there is no genuine issue of material fact
as to whether Plaintiff's home was “wholly
destroyed” so that Georgia's Valued Policy statute
does not apply to her insurance claim. [Doc. 24-1 at pp.
8-11]. This statute provides in relevant part:
Whenever any policy of insurance is issued to a natural
person or persons or to any legal entity wholly owned by a
natural person or persons insuring a specifically described
one or two family residential building or structure located
in this state against loss by fire and the building or
structure is wholly destroyed by fire without
fraudulent or criminal fault on the part of the insured or
one acting in his or her behalf, the amount of insurance
set forth in the policy relative to the building or structure
shall be taken conclusively to be the value of the
property . . . .
Ga. Code Ann. § 33-32-5(a). Stated differently, under
Georgia law, when a party proves that a dwelling is
“wholly destroyed, ” she is entitled to the full
policy limits, which in this case is $502,
600.00. [Doc. 24-1 at p. 9 (citing Ga. Code Ann.
§ 33-32-5(a))]. The statute is intended to protect
property owners from the burden of proving the value of
property after it has been “wholly destroyed” by
fire, thus entitling a property owner to recover the policy
limit. Marchman v. Grange Mut. Ins. Co., 500 S.E.2d
659, 661 (Ga.Ct.App. 1998) (“[The statute] protects
property owners from the overwhelming burden of proving the
value of property after it has been totally destroyed by fire
by ‘conclusively' establishing that the value of
the property equals the face value of the policy. In this
way, a property owner is entitled to the benefits of the
insurance coverage without the difficult and perhaps
impossible task of proving actual damages.”) (emphasis
omitted). However, the Valued Policy statute does not apply
to an insurance claim if the “building or structure is
not wholly destroyed by fire[.]” Ga. Code Ann. §
parties agree that Georgia law does not define “wholly
destroyed, ” however, two cases from the Georgia Court
of Appeals,  as well as a case from this Court,
provide exceptional guidance. First, in Allstate
Insurance Co. v. Baugh, 327 S.E.2d 576, 579 (Ga.Ct.App.
1985), the insurer contended that the trial court erred in
charging the jury on Georgia's Valued Policy statute and
its effects on recovery, arguing that such a charge was
unauthorized by the evidence. In Baugh, the home and
its contents owned by appellees were destroyed by fire. 327
S.E.2d at 577. The insurance company argued that the evidence
at trial established that appellees' home was not wholly
destroyed. Id. at 579. However, “[t]here being
at least some evidence of ...