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Owens v. Nationwide Prop. & Cas. Ins. Co.

United States District Court, N.D. Alabama, Western Division

August 26, 2014

GEORGE OWENS, et al., Plaintiffs;
v.
NATIONWIDE PROP. & CAS. INS. CO., Defendant.

MEMORANDUM OF OPINION

L. SCOTT COOGLER, District Judge.

Before the Court is Defendant Nationwide Property and Casualty Insurance Company's ("Nationwide") motion for summary judgment. (Doc. 90.) Also pending is a motion to strike evidence submitted in support of the Plaintiffs' reply to Nationwide's motion for summary judgment. (Doc. 95). For the reasons stated below, the motion for summary judgment is due to be granted in part and denied in part, and the motion to strike is due to be denied as moot.

I. Background[1]

On April 27, 2011, a tornado struck Tuscaloosa, Alabama, damaging the home of Plaintiffs George and Laura Owens ("the Plaintiffs"). At that time, the Plaintiffs insured their home with Nationwide. After the storm, they filed a claim with Nationwide, and Nationwide assigned J. Drew Mayfield ("Mayfield") to adjust the claim.

Mayfield first went to evaluate the damage to the Plaintiffs' home on May 3, 2011. At some point, Mayfield asked the Plaintiffs whether they had hired a contractor, and they informed him that they were unable to get one. According to the Plaintiffs, Mayfield specifically recommended GBS Roofing & Restoration ("GBS") to them.

Mayfield worked with GBS before on a prior trip in April 2011, adjusting tornado damage claims in Sanford, North Carolina. In addition, Mayfield had worked with Brian Smith, the son of the owner of GBS, George Smith ("Smith"). Mayfield recommended GBS for several packouts in North Carolina, but had no experience with GBS's work on anything beyond packouts. "Packouts" are a type of job where contents of a damaged home are removed to prevent further damage to those contents. Brian Smith was not with GBS in Alabama.

During Mayfield's first meeting with the Plaintiffs it began to rain on their home's exposed roof. Mayfield called GBS to come immediately and help tarp the roof. Smith, along with a GBS employee came to the residence to assist in placing a tarp over the roof. At this first meeting, Smith offered the Plaintiffs GBS's services to repair their home and gave them a contract to look over. Smith told the Plaintiffs that GBS was a "Nationwide Blue Ribbon Preferred Contractor." Mayfield did not directly affirm this statement, but according to the Plaintiffs, Mayfield was present when the statement was made and did not deny it. GBS was not, in reality, a Nationwide Blue Ribbon Preferred Contractor.

At some point during this meeting, Mayfield left the Plaintiffs' home and returned with Bridget Chiaramonte ("Chiaramonte"). Chiaramonte was a GBS employee, but the Owens believed that she was a Nationwide employee because she arrived with Mayfield and was dressed similarly to him in a blue shirt and khakis. Chiaramonte comforted the Plaintiffs, directed Mayfield's attention to various parts of the house that needed fixing, and wrote her number on the back of one of Smith's GBS business cards, directing the Plaintiffs to call her if they needed anything. The Plaintiffs did later call her number, under the belief that she was a Nationwide employee, but did not speak to Chiaramonte again.[2]

After this meeting, Smith returned almost daily to the Plaintiffs' home in an effort to convince them to hire GBS to perform the repair work on their home. The Plaintiffs had the GBS contract in their possession for two weeks before they decided to hire GBS. The Plaintiffs also performed limited research on GBS over the internet and made further attempts to hire a local contractor. At some point before signing the contract, they met with Mayfield a second time, and he again recommended GBS's services and informed the Plaintiffs that he was friends with someone at GBS. On May 16, the Owens signed the contract with GBS. On June 16, 2011, the Plaintiffs wrote GBS a check for $30, 000, a 50 percent deposit for the planned work. Prior to GBS beginning the repair work, GBS was hired to perform packout and tree removal work on the Plaintiffs' home, and Nationwide prepared a check jointly made out to GBS and the Plaintiffs to pay for this service. GBS began performing repair work on the Plaintiffs' home around July 4, 2011. Plaintiffs subsequently began to have serious doubts about GBS's performance and met with Mayfield who, once again, urged the Plaintiffs to give GBS more time to perform the work. On July 20, 2011, the Plaintiffs fired GBS.

The Plaintiffs demanded the return of the money they had paid Smith. While GBS made multiple offers to return part of the funds, no refund was ever made.

The Plaintiffs then hired Ray Blackwood ("Blackwood"), another contractor, to repair their home. It is disputed as to whether Blackwood completely repaired the Plaintiffs' home. The Plaintiffs contend that they did not have the money to pay Blackwood to return the home to its pre-tornado condition. The Plaintiffs paid Blackwood $60, 000 to perform his work and also paid additional money out of pocket for other repairs to their home. The Plaintiffs have no complaints concerning Blackwood's work, but say they simply did not have the money to pay him to fully repair their home, but only to have him return it to a livable condition.

Under the insurance contract, Nationwide paid Plaintiffs a total of $167, 665.50; specifically paying $123, 481.23 under Plaintiffs dwelling coverage, $4, 018.32 under coverage for other structures, and $26, 900.13 for Additional Living Expenses. Nationwide's liability under Plaintiffs dwelling coverage was limited to $138, 400. Under the insurance contract, Nationwide was obligated to pay the cost to repair or replace Plaintiffs' home without deduction for depreciation, up to the applicable limit of liability.

The Plaintiffs ultimately filed this action against Nationwide, seeking compensatory damages for their economic loss, emotional distress, mental anguish, and punitive damages.

II. Standard of Review

Summary judgment is appropriate "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). A fact is "material" if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). There is a "genuine dispute" as to a material fact "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. The trial judge should not weigh the evidence but must simply determine where there are any genuine issues that should be resolved at trial. Id. at 249.

In considering a motion for summary judgment, trial courts must give deference to the non-moving party by "considering all of the evidence and the inferences it may yield in the light most favorable to the nonmoving party." McGee v. Sentinel Offender Services, LLC, 719 F.3d 1236, 1242 (11th Cir. 2013) (citing Ellis v. England, 432 F.3d 1321, 1325 (11th Cir. 2005)). In making a motion for summary judgment, "the moving party has the burden of either negating an essential element of the nonmoving party's case or showing that there is no evidence to prove a fact necessary to the nonmoving party's case." Id. Although the trial courts must use caution when granting motions for summary judgment, "[s]ummary judgment procedure is properly ...


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