United States District Court, S.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
CALLIE V. S. GRANADE, District Judge.
This matter is before the court on Defendant's motion for partial summary judgment (Doc. 55), Plaintiff's objection to Defendant's evidence (Doc. 58), Plaintiff's opposition to summary judgment (Doc. 59), Plaintiff's supplemental opposition (Doc. 50), and Defendant's reply (Doc. 61). For the reasons explained below, the court finds that Defendant's motion should be granted.
This case involves an insurance claim for fire damage to the Plaintiff's residence, located at 5560 Thomas Drive, Theodore, Alabama. The property was insured by Defendant, Auto-Owners Insurance Company ("Auto-Owners"). (Doc. 55-2). The policy of insurance provides fire coverage but excludes "action by or at the direction of any insured committed with the intent to cause a loss." (Doc. 55-2, p. 19). The policy also included a concealment or fraud clause stating the following: This entire policy is void if, whether before, during or after a loss, any insured has:
a. Intentionally concealed or misrepresented any material fact or circumstance;
b. Engaged in fraudulent conduct; or
c. Made false statements;
relating to this insurance.
(Doc. 55-2, p. 49).
Plaintiff's residence was reported to be on fire on February 25, 2010 at 0203 hours. (Doc. 55-3, p. 2). The Plaintiff, Janet Champion, and Mitchell Ferrell were reportedly asleep at the residence when the fire began and were awakened by a smoke detector and escaped through a window. (Doc. 55-3, p. 3). Firefighters forced entry through the front door. (Doc. 55-3, p. 3). The fire originated in the front den and appeared to be contained to the sofa bed. (Doc. 55-3, p. 4).
Later that same morning at 0712 hours, a second fire was reported at the residence. (Doc. 55-3, p. 5). The residence was unoccupied at the time and the front door had been nailed closed from the inside and the rear door was locked. (Doc. 55-3, p. 5). The fire was determined to be incendiary and resulted from open flame application to combustible in the middle bathroom between the commode and the lavatory. (Doc. 55-3, pp. 5, 15). The official incident report indicates that the second fire occurred between 6:30 and 7:12. (Doc. 55-4, p. 152).
At 1021 on the day of the fire, John Michael Wilson called the fire department and said he had information about the fire. (Doc. 55-3, p. 30). Mr. Wilson reported that approximately two months prior, Ferrell said he "ought to just burn the son of a bitch." (Doc. 55-3, p. 30). Wilson reported that Ferrell said he wanted to burn the house because they were going through bad times. (Doc. 55-3, p. 42; Ex. C). About two to three weeks before the fire Ferrell came by with the Plaintiff to talk to Wilson about storing some furniture and to see if Wilson had any old furniture he could put in the house because he was going to burn it down, but Plaintiff stayed in the truck and was not part of the conversation. (Doc. 55-3, p. 43; Ex. C). Wilson reported that Ferrell came by to see him on the morning of the fire between 0630 and 0700 about renting a trailer and Ferrell stated that he had just set the house on fire again because the first fire did not do enough damage. (Doc. 55-3, pp. 30, 43, Ex. C). About 15-20 minutes later, Wilson heard the fire truck sirens. (Doc. 55-3, p. 30). Wilson recorded a later conversation with Ferrell in which Ferrell talked about starting the fires. (Doc. 55-3, pp. 44-45; Ex. C). Wilson reports that Plaintiff and Ferrell came back again to talk to him about whether he had a trailer to rent. (Doc. 55-3, p. 45; Ex. C). During that visit the Plaintiff said "let me tell you how it went down" and Ferrell stopped her saying they may have the truck bugged. (Doc. 55-3, p. 45; Ex. C). Another night the Plaintiff and Ferrell came back to see Wilson again about renting a trailer and Wilson told him if he would burn his own house, what would he do to his trailer. In response, the Plaintiff and Ferrell laughed. (Doc. 55-3, p. 45, Ex. C).
On February 25, 2010, claim representative Diana Gough met with Plaintiff and took her recorded statement. (Doc. 55-4, pp. 75-78). In the statement, Plaintiff reported that after escaping the fire, they went to the Red Roof Inn and "slept for a hour... couple of hours... till day light, and they wouldn't let me bring my dog in and he was hollerin." (Doc. 55-4, p. 77). After that she said they left and went to Plaintiff's daughter's house and Ferrell went to sleep on the sofa while Plaintiff and her daughter watched the news. They saw the fire on the news and headed back to the Thomas Drive house. (Doc. 55-4, p. 77).
The Thomas Drive property is adjacent to the Bellingrath RV Park. The Red Roof Inn is about a nine or ten minute drive from both the Thomas Drive house and Plaintiff's daughter's house. (Doc. 55-9).
Richard Ferrell was also interviewed on February 25, 2010, but by the Assistant Fire Marshal. (Doc. 55-4, pp. 158-159). Ferrell stated that he nailed a 2x2 board across the front door after the first fire, before they went to the Red Roof Inn. Ferrell said he went out the back door and locked it prior to leaving. Ferrell said that at the Red Roof Inn they had to keep their dog in the car and he barked loudly. After a short time, around daylight, they left and drove to Plaintiff's daughter's house. Ferrell said he fell asleep on the couch and when Plaintiff saw the report of the second fire on the news, they returned to the Thomas Drive house. (Doc. 55-4, p. 159).
On March 5, 2010, claims representative Diana Gough reported to the Auto-Owners home office that a fire inspector had called and advised that arson was suspected and that the Plaintiff's boyfriend had ...