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National Fire & Marine Insurance Co v. Wells

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

March 13, 2018

NATIONAL FIRE & MARINE INSURANCE COMPANY, Plaintiff/Count erclaim Defend ant,
v.
CALVIN D. WELLS, JR., Defendant/Counterclaim Plaintiff

          MEMORANDUM OPINION AND DISMISSAL ORDER

          HERMAN N. JOHNSON JR. UNITED STATES MAGISTRATE JUDGE

         This civil action proceeds before the court on Plaintiff/Counterclaim Defendant National Fire & Martine Insurance Company's (“National Fire”) Motion for Summary Judgment[1] (Docs. 18, 19, and 21) and National Fire's Motion to Strike Defendant/Counterclaim Plaintiff's Untimely Responses to Requests for Admission & Untimely Filed Supplemental Response with Affidavits. (Doc. 36). In lockstep with his prosecution of this case, Defendant/Counterclaim Plaintiff Calvin D. Wells, Jr., (“ Wells ”) tendered an untimely and brief argument and a request for an extension of time to respond more fully to the summary judgment motion, followed by even more sparse filings that the undersigned w i l l d i s c u s s . (Doc. 26).

         Based upon the following discussion, the court GRANTS National Fire's Motion to Strike, DENIES Wells's request for more time to respond to National Fire's Motion for Summary Judgment, GRANTS National Fire's request for the court to strike Wells's untimely response to National Fire's Motion for Summary Judgment (Doc. 29), and GRANTS National Fire's Motion for Summary Judgment.

         Background

          The undersigned sets forth the following facts for the summary judgment determination, drawn from the evidence taken in the light most favorable to W e l l s .[2]

         Defendant/Counterclaim Plaintiff Calvin D. Wells, Jr. d/b/a Wells Poultry F a r m (“ W e lls ”) owns and operates eleven (11) poultry houses in Cullman County, Alabama. Wells purchased the houses from his father, C.D. Wells, in 2007. On or about July 6, 2014, Wells purchased a Commercial Lines Policy of Insurance (“Policy”) from Plaintiff/Counterclaim Defendant National Fire & Marine Insurance Company (“National Fire”). Defendant timely paid premiums on the Policy, and the Policy remained in effect until July 6, 2015.

         On or about March 3, 2015, Wells filed a claim with National Fire alleging that ice and snow from a February 25, 2015, snowstorm damaged his poultry houses. Wells stated that the storm's effects caused the buildings to lean, which purportedly constituted a covered casualty loss under his Policy with National Fire. Upon receiving W e l ls ' s claim, National Fire retained Rimkus Consulting Group, Inc. (“Rimkus”) to inspect Wells's poultry houses.

         On March 12, 2015, engineer Kyle E. Parker, P.E. performed the inspection on Wells's property. During his inspection, Parker also interviewed Wells, reviewed County Property Appraiser records, reviewed applicable portions of the 1999 Accepted Practices for Post-Frame Building Construction, reviewed historical weather data from the National Weather Service and Weather Underground at their respective websites, and reviewed aerial photographs of the poultry houses dated March 5, 1997.

         On March 26, 2015, Parker issued his findings in a report for National Fire. (Do c. 21-4) . His report concluded that: (1) the poultry houses leaned up to approximately 1.75 inches in 4 feet; (2) there existed no evidence that the leaning condition of the chicken houses occurred recently; (3) he did not determine the degree that the weight of snow and ice accumulation on February 26, 2015, exacerbated the pre-existing leaning condition of the chicken houses; (4) no evidence indicated that wind forces on February 26, 2015, caused or contributed to the leaning condition of the chicken houses; (5) the lack of a foundation and inadequate anchoring of the post s in t o the ground contributed to the lean; and (6) there existed prior, wind-related lifting of purlins from the roof trusses along the eaves of the poultry houses. (Doc. 21-4 at 14). The Policy specifically excludes damage caused by or resulting from “earth shifting including soil conditions which cause settlings, cracking or other disarrangement of foundations or other parts of reality.” (Doc. 21-6 at 3). The Policy also excluded damage caused by or resulting from wear and tear, deterioration, decay or hidden orlatent defect or any quality in property that causes it to damage or destroy itself. (Id.) Utilizing Mr. Parker's report, along with its own investigative findings, National Fire denied Wells's claim on May 1, 2015. (Doc. 1-2) .

         As additional bases for the denial, National Fire determined that the poultry houses were constructed as of March 5, 1997, as verified by a satellite photo from the U.S. Geological Survey. National Fire informed Wells that its policy excludes loss or damage caused by, or resulting from, the weight of snow, ice, or sleet for buildings whose ag e exceeds fifteen (15) years.

         After Wells requested a review of the decision, National Fire reopened the investigation on July 15, 2015. On July 22, 2015, Parker revisited Wells's property to inspect the poultry houses. Parker utilized the same resources when inspecting the propert y, and he reached t he same conclusions.

         Pursuant to the Policy's terms and conditions, National Fire conducted an examination under oath of Wells on October 14, 2015. During the examination, Wells clarified that his claim only involved five of the poultry houses (“5B houses”) and provided documentation of the deed to the houses, the property taxes he filed on the houses, and anestim ate from Addison Ag ri Builders regarding the replacement costs of the houses. National Fire requested in the notice scheduling the examination provision of any documents regarding the original construction of the poultry houses, as well as any repairs, remodeling, additions, or changes to any of the poultry houses, yet Wells failed to provide any documentation. In addition, Wells contested Parker's analysis re g a rd in g the installation of the posts.

         Procedural History

         On March 18, 2016, National Fire filed a complaint for declaratory judgment a g a in s t Wells, requesting that the court find no coverage exists for Wells's claims u n d e r the insurance policy. (Doc. 1). On April 14, 2016, Wells filed an Answer and a Counterclaim, alleging that National Fire wrongfully denied his claims, and th us, breached the insurance contract. (Doc. 5). After the parties convened a Rule 26(f) Planning Meeting, they released a report to the court on May 31, 2016. (Doc. 11).

         The court issued a Rule 16 Scheduling Order on June 8, 2016. (Doc. 12). The scheduling order contained crucial deadlines that the parties stipulated, including:

• Unless modified by stipulation of the parties, disclosure of expert witnesses-including a complete report under Fed.R.Civ.P. 26(a)(2)(B) from any expert-are due: (1) from plaintiff by Feb ru ar y 28, 2017, and made available for deposition by April 14, 2017; (2) from defendant by December 15, 2016, and made available for deposition by January 30, 2017.
• Unless modified by court order for good cause shown, all discovery must be commenced in time to be completed by May 31, 2017.
• All potentially dispositive motions must be filed by Jun e 30, 2017.
• Unless modified by stipulation of the parties, responses to Requests for Production and Requests for Admission are due 30 days after service.
• Unless modified by court order for good cause shown, supplementation of disclosures and discovery under F ed .R .Civ .P. 26(e) are due within 30 days of party having obtained knowledge of the discoverable information, but not later than 30 days prior to close of discovery.

(emphasis added). Furthermore, the parties agreed to exchange initial disclosures, as required by Federal Rule of Civil Procedure 26(a)(1)[3], by June 30, 2016, and in its efforts to prosecute its claims and defenses, National Fire served Requests for Production of Documents on October 31, 2016. (Doc. 14) .

         Importantly, National Fire served Requests for Admission on April 28, 2017. (Doc. 16) . The discovery consisted of the following requests:

1. Admit that damage, if any, to any of the 5B poultry houses was not caused by direct physical loss or damage occurring during the National Fire & Marine Insurance Company policy period of July 6, 2014 through July 6, 2015.
2. Admit that to the extent there is any damage to any of the 5B poultry houses, said damage is a result of wear and tear, deterioration, settling, cracking, shrinking, lack of a proper found at ion or inad equat e anchoring.
3. Admit that all of the 5B poultry houses were built prior to March 5, 1997.
4. Admit that Calvin Wells has no evidence any of the 5B poultry houses were built after March 5, 1997.
5. Admit that there was snow in the area of the 5B poultry houses on February 25, 2015.
6. Admit that Calvin Wells has no evidence to rebut the fact that all of the 5B poultry houses were in existence and referenced in the property appraisal performed by Ray Brannum on November 3, 2000, referenced in the Initial Disclosures served by National Fire & Marine Insurance Company in this case.
7. Admit that the 5B poultry houses are still in use as of the date of service of this document upon Calvin Wells's attorney.

(Id.).

         On June 30, 2017, National Fire filed its Motion for Summary Judgment. In its motion, National Fire stated that Wells had not (1) filed initial disclosures, (2) produced responses to its Requests for Production, (3) disclosed expert witnesses, and (4) objected and/or responded to the Requests for Admission. On August 4, 2017, National Fire filed a reply, arguing the court should grant its summary judgment motion because Wells failed to file a response .

         On August 7, 2017, Wells filed an untimely response to National Fire's summary judgment motion, stating that Wells's counsel had only “in the last days” received the motion, and, counsel did not see the motion on his computer. (Doc. 26). In addition to a “ request ” to more fully respond to t he motion, Wells submitted: (1) the transcript and additional exhibits from the examination under oath that National Fire took of Wells (National Fire already submitted most of the material as “Exhibit A” to its summary judgment motion); and (2) a depreciation detail listing of CD Wells's 2003 tax return. In his response, Wells further alleges that aerial photographs and his testimony reveal that the poultry houses were rebuilt in approximately 2002, as the depreciation detail allegedly portrays an update and equipment expenses for 2003. Wells also argues that he i n s t a l l e d cement around the posts in his poultry houses.

         On August 9, 2017, National Fire filed a reply in opposition to Wells's response. (Doc. 29). In its reply, National Fire argues that Wells failed to altogether provide any initial disclosures. In addition, Wells never provided C.D. Wells's 2003 depreciation record during his examination under oath, in initial disclosures, or in responses to the Requests for Production.

         Furthermore, National Fire highlights that Wells failed to meet all discovery deadlines set forth in the parties' Rule 16 Scheduling Order. At the time National Fire filed this reply, Wells had provided no expert report, no written discovery, no requests for depositions, no responses to National Fire's Requests for Production, and no responses t o National Fire's R equest s fo r Admission s. National Fire concluded that the court should deny Wells's “request” for an extension of time to respond to the summary judgment motion.

         On October 2, 2017, Wells filed responses to National Fire's April 28, 2017, Requests for Admission. (Doc. 30). In his responses, Wells stated a general objection to the Requests for Admission on the grounds that the requests were “vague, ambiguous, overly broad, unduly burdensome or oppressive” and that they were not sufficient ly descriptive so as to allow Wells the opportunity to lo d g e a meaningful response.

         Furthermore, Wells included this additional paragraph in his response:

1-7. Wells objects to these requests in that they are not sufficiently descriptive so as to allow Wells to make a meaningful response. Without waiving said objection, Wells denies paragraphs 1 through 7, that is all of the Request for Admissions. Wells has testified and states that the poultry houses were rebuilt after 1997 and even logic would state that the houses did not deteriorate at the same time and lean in the same direction.

         On October 20, 2017, Wells filed a supplemental response to National Fire's motion for summary judgment. (Doc. 31). The response consisted of an affidavit from Barry Willingham, the Revenue Commissioner for Cullman County, and an affidavit from Faye Cobbs, a purported IRS Enrolled Agent who also served as C.D. Wells's tax p re p a re r. (Docs. 32-1 and 32-2) .

         On November 1, 2017, National Fire filed a Motion to Strike Wells's untimely responses to the Requests for Admission and his untimely filed supplemental response w i t h a f f id a v it s . (Doc. 36). On November 2, 2017, the court issued a briefing schedule for National Fire's Motion to Strike, ordering Wells to file a response within fourteen days and ...


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