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Berry v. State Farm Fire and Casualty Co.

United States District Court, E.D. Wisconsin

May 9, 2019

AKIDA BERRY, Plaintiff,


          HON PAMELA PEPPER United States District Judge

         Two weeks after the plaintiff purchased a homeowners policy from the defendant, a fire severely damaged the property he had purchased from the City of Milwaukee for $3, 750. The plaintiff filed a claim for the policy limits, but failed to timely provide the defendant with all of the supporting documentation. One year to the date of the fire, the defendant denied the plaintiff's claim under the fraud/concealment provision of the policy. At the same time, the defendant extended the one-year limitations period for filing a lawsuit to February 8, 2015. The plaintiff waited until five months after the deadline had passed to file a lawsuit in Milwaukee County Circuit Court. The defendant now moves for summary judgment on the grounds that (1) the lawsuit is time barred and (2) the undisputed facts establish that the plaintiff violated the fraud/concealment provision of the policy. Because the court finds no basis in the record to toll the limitations period or estop the defendant from invoking the bar, the court will grant the defendant's motion and dismiss the plaintiff's breach of contract and promissory estoppel claims as time barred.

         I. Summary Judgment Standard

         The court grants a summary judgment motion if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Ames v. Home Depot U.S.A., Inc., 629 F.3d 665, 668 (7th Cir. 2011). “Material facts” are those under the applicable substantive law that “might affect the outcome of the suit.” Anderson, 477 U.S. at 248. A dispute over a “material fact” is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

         A party asserting that a fact cannot be disputed or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1). “An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed.R.Civ.P. 56(c)(4).

         II. Findings of Fact

         The plaintiff purchased the property from the City of Milwaukee for $3, 750 on March 13, 2013 as an in rem foreclosure, and he renovated the property through his own work or various exchanges for work. Dkt. No. 1, ¶¶1-6; Dkt. No. 58 at ¶5. On December 18, 2013, the plaintiff contacted the defendant by telephone to obtain a homeowners insurance policy. Dkt. No. 58 at ¶21. He spoke with State Farm Agent Pamela Hoeffluer who took the information over the telephone and instructed the plaintiff to take pictures of the front and back of the property and bring them to their scheduled appointment the next day. Id. Hoeffluer provided the plaintiff with an insurance quote which included $136, 000 for the replacement cost of the property. Id. The defendant issued the plaintiff a residential fire and casualty insurance policy on December 23, 2013, which provided coverage for $136, 000, a dwelling extension for $13, 600, and personal property coverage for $102, 000. Id.; Dkt. No. 1 at ¶8; Dkt. No. 46-1.

         On January 6, 2014, a fire severely damaged the property and the plaintiff sought the limits of the policy. Dkt. No. 1, ¶ 9.

         The City of Milwaukee issued an emergency raze order on the property because it was so severely damaged that it had partially collapsed and was unsafe. Dkt. No. 44 at ¶¶7-9. On February 11, 2014, the City granted the defendant a short window to stabilize and thaw the property. Id. The defendant paid a contractor to cover the property with tarps, board up windows, secure doorways and stabilize the property. Id. at ¶¶ 8-10. On February 13, 2014, the defendant notified the plaintiff of the plan to thaw the building, but the defendant was notified that the plaintiff had retained counsel. Id. at ¶¶11, 12. Defendant's claim file indicates that the defendant's agent left a detailed message with the plaintiff's attorney, Michael Krill, on February 13, 2014. Dkt. No. 56-2 at 42. The defendant warmed the property on February 15 and 16, inspected and extensively documented the damage, and determined there was no salvageable property. Id.

         On February 17, 2014, the plaintiff's public adjuster, Dean Rossey, contacted the defendant and demanded that it pay to heat the property again, which the defendant refused to do; the defendant did avise that the plaintiff was free to enter and inspect the property. Id. at ¶¶ 13-15. The property was razed in May and June of 2014. Dkt. No. 46-10. The defendant issued the plaintiff a reservation of rights letter on April 28, 2014. Dkt. No. 44-3. At some point during the investigation, the defendant classified the plaintiff's claim using National Insurance Crime Bureau indicators and assigned the plaintiff's claim to the Special Investigative Unit. Dkt. No. 46-2 at 9-12; Dkt. No. 56-2 at 10.

         The defendant's investigation lasted one year-from the notice of the fire until January 6, 2015. Dkt. No. 60 at 2. The defendant took the plaintiff's recorded statement on February 24, 2014 and Examination Under Oath (“EUO”) on August 21, 2014. Dkt. No. 1 at ¶ 19; Dkt. No. 44-1 and 44-5. In addition, the defendant requested from the plaintiff (1) any photographs of the property prior to the fire; (2) an inventory of damaged or stolen personal property, including bills, receipts or other documentation; (3) closing documents from the plaintiff's purchase of the house; (4) receipts or other documentation for work completed on the house after purchase; (5) the plaintiff's phone records for January 2014; and (6) contact information for individuals the plaintiff indicated had information relevant to his claim. Dkt. No. 44-2. Despite the defendant's numerous inquiries, the plaintiff continually missed deadlines to provide requested documentation and repeatedly requested that his EUO be rescheduled. Dkt. No. 45 at ¶¶ 3-19. The plaintiff avers that he lost all of his personal property, possessions, records, receipts, photographs, tools and other personal property in the fire; it took him a long time to recreate all of the documents and information he lost to satisfy the defendant's investigation. Dkt. No. 58 at ¶24.

         The plaintiff submitted additional documents and responses to the defendant on December 2, 2014. Dkt. No. 45-16. Twenty days later, the defendant sent a letter to the plaintiff advising that it would extend the statute of limitations to February 9, 2015, id. at ΒΆΒΆ 21-22. On January 6, 2015, the defendant sent the plaintiff a letter denying his claim, reiterating the policy suit deadline of ...

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