United States District Court, N.D. Alabama, Northeastern Division
MEMORANDUM OPINION AND ORDER
K. KALLON, UNITED STATES DISTRICT JUDGE
Singh brings this action against State Farm Fire & Casualty
Co., alleging claims for breach of contract for a loss he
sustained to his house as a result of a storm. See
generally doc. 1-1. The court has for consideration
State Farm's motion for partial summary judgment related
to the mold damage, doc. 13, which is fully briefed, docs.
13; 15; 16, and ripe for review. For the reasons stated more
fully below, in particular endorsement FE-3413 which is
referenced in the Declarations Page and Renewal Certificate
of Singh's policy and which excludes coverage for mold
damage, the motion is due to be granted.
STANDARD OF REVIEW
Fed.R.Civ.P. 56(a), summary judgment is proper “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.” To support a summary judgment motion,
the parties must cite to “particular parts of materials
in the record, including depositions, documents,
electronically stored information, affidavits or
declarations, stipulations, admissions, interrogatory
answers, or other materials.” Fed.R.Civ.P. 56(c).
Moreover, “Rule 56(c) mandates the entry of summary
judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to
establish the existence of an element essential to that
party's case, and on which that party will bear the
burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). The moving party
bears the initial burden of proving the absence of a genuine
issue of material fact. Id. at 323. The burden then
shifts to the nonmoving party, who is required to “go
beyond the pleadings” to establish that there is a
“genuine issue for trial.” Id. at 324
(citation and internal quotation marks omitted). A dispute
about a material fact is genuine “if the evidence is
such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).
court must construe the evidence and all reasonable
inferences arising from it in the light most favorable to the
non-moving party. Adickes v. S. H. Kress & Co., 398
U.S. 144, 157 (1970); see also Anderson, 477 U.S. at
255 (all justifiable inferences must be drawn in the
non-moving party's favor). Any factual disputes will be
resolved in the non-moving party's favor when sufficient
competent evidence supports the non-moving party's
version of the disputed facts. See Pace v.
Capobianco, 283 F.3d 1275, 1276 (11th Cir. 2002) (a
court is not required to resolve disputes in the non-moving
party's favor when that party's version of events is
supported by insufficient evidence). However, “mere
conclusions and unsupported factual allegations are legally
insufficient to defeat a summary judgment motion.”
Ellis v. England, 432 F.3d 1321, 1326 (11th Cir.
2005) (per curiam) (citing Bald Mountain Park, Ltd. v.
Oliver, 863 F.2d 1560, 1563 (11th Cir. 1989)).
Furthermore, “[a] mere ‘scintilla' of
evidence supporting the opposing party's position will
not suffice; there must be enough of a showing that the jury
could reasonably find for that party.” Walker v.
Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing
Anderson, 477 U.S. at 252).
2015, Singh became a named insured under a State Farm
homeowner's policy. Docs. 15 at 2; 15-1 at 2; 15-6 at 3.
The “sample” copy of the policy Singh received
later contained no endorsements or references. Docs. 15 at 2;
15-1 at 2-3; 15-2. Singh alleges that he first saw the
“Certified Policy Record” and accompanying
endorsements when State Farm attached them as exhibits to its
motion for partial summary judgment. See docs. 15-1
at 3; 15-6.
2015, a storm damaged the roof of Singh's home, causing,
among other things, significant water leakage and mold damage
to the home's foundation. Docs. 15 at 6-7; 15-1; 15-4 at
2; 15-5. After Singh reported his losses to State Farm, he
received a “partial” replacement estimate cost of
$25, 912.92 from State Farm, which excluded coverage for the
mold damage. Docs. 15 at 7; 15-4 at 2. Although Singh
disagreed with the “partial loss” assessments,
State Farm purportedly refused to discuss the matter with
him. See doc. 15-1 at 4-5. As a result, Singh hired
Terrell Technical Services, which subsequently reported that
“[t]he fungal growth, water staining, and/or water
damage on finishing and/or construction materials within the
interior, attic, and crawlspace of the home appear to be the
result of direct water intrusion that occurred following the
fallen tree limbs that damaged the southwest portion of the
roofing system.” Doc. 15-5 at 7; see also doc.
15-1 at 5. Based upon the extent of the fungal contamination,
certified indoor environmental consultants and hygienists
recommended that Singh undertake remediation efforts. Docs.
15 at 8; 15-5 at 8.
these findings, State Farm “averred [that] any
resultant mold from the covered loss was not covered under
the policy, ” based on policy endorsement FE-3413 (the
“Endorsement”) which lists “fungus”
under “Losses Not Insured.” Docs. 13 at 3-5; 15
at 8; 15-6 at 16. Accordingly, Singh filed this lawsuit
alleging that State Farm “improperly construed, has
refused to pay, improperly paid or paid less than
required” certain coverages Singh should have received
pursuant to his policy. Docs. 1-1; 13 at 3-5; 15 at 9; 15-1
complaint pleads one count for breach of contract against
State Farm for “refusing to pay, improperly [paying],
or [paying] less than required, ” for losses he
incurred following a “catastrophic loss” from
storm damage that he alleges is covered by his insurance
policy. Doc. 1-1 at 6. State Farm seeks summary judgment
solely as to Singh's claim related to the denial of the
damage for mold. See generally doc. 13.
Particularly, State Farm contends that the policy
“specifically excludes mold from coverage, regardless
of how and why such mold damage occurred.” Doc. 13 at
rules of contract law govern an insurance contract.”
Safeway Ins. Co. of Alabama v. Herrera, 912 So.2d
1140, 1143 (Ala. 2005). To prevail, Singh must show
“(1) the existence of a valid contract binding the
parties in the action, (2) his own performance under the
contract, (3) the defendant's nonperformance, and (4)
damages.” Jones v. Alfa Mut. Ins. Co., 875
So.2d 1189, 1195 (Ala. 2003) (citations and quotations
omitted). The parties do not dispute the existence of a valid
and enforceable contract as of the date of the loss. At issue
here is Singh's contention that the Endorsement - which
he admits excludes coverage for the mold damage at issue,
see doc. 15 at 9 (“[t]hus, the purported
endorsement moves mold and fungus damage from a provision
that provides coverage if mold arises from a covered loss to
a provision that provides no coverage regardless of
cause”) - is not part of his policy because he never
received a copy of it or the Certified Policy Record.
Id. at 9, 11; see also doc. 15-1 at 3.
Based on the record, the court finds that the Endorsement was
indeed part of Singh's policy.
admits that he received “coverage declaration sheets
showing [his] coverage and premium amounts.” Doc. 15-1
at 3. Based on this contention, the court assumes Singh is
referring to the Declarations Page found at doc. 15-6 at 3 or
the Renewal Certificate found at 15-6 at 7, which contain the
annual premium amount. Significantly, both the Declarations Page
and the Renewal Certificate list the Endorsement in the
policy's Loss Settlement Provision section. Doc. 15-6 at
3 and 7. Moreover, the Declarations Page states that
“[y]our policy consists of this page, any endorsements
and the policy form.” Id. at 3.
Alabama law, “[a]lthough [Singh] claim[s] not to have
received [the Endorsement], [he] had some duty to investigate
the contents of those forms because the declarations page
indicated that the forms were part of the policy.”
Am. Bankers Ins. Co. of Fla. v. Tellis, 192 So.3d
386, 390 (Ala. 2015), reh'g denied (Sept. 18,
2015). Therefore, even if Singh did not receive the Certified
Policy Record, doc. 15-6, or a copy of the Endorsement at
issue, absent a showing that the text of the Endorsement
State Farm is relying on is different from the one referenced
in the coverage declarations sheets, Singh is bound by the
terms of the Endorsement in light of his failure to
investigate the contents of the Endorsement referenced in his
policy.See Alfa Life Ins. Corp. v.
Colza, 159 So.3d 1240, 1251 (Ala. 2014) (acknowledging
“plaintiff's general duty . . . to read the
documents received in connection with a particular
transaction, along with a duty to inquire and
investigate” and that “it is almost never
reasonable for an individual to ignore the contents of