United States District Court, N.D. Alabama, Northeastern Division
NATIONAL FIRE & MARINE INSURANCE COMPANY, Plaintiff/Count erclaim Defend ant,
CALVIN D. WELLS, JR., Defendant/Counterclaim Plaintiff
MEMORANDUM OPINION AND DISMISSAL ORDER
N. JOHNSON JR. UNITED STATES MAGISTRATE JUDGE
civil action proceeds before the court on
Plaintiff/Counterclaim Defendant National Fire & Martine
Insurance Company's (“National Fire”) Motion
for Summary Judgment (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).
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
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 .
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
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.
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.
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) .
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
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
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
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).
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), 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) .
National Fire served Requests for Admission on April 28,
2017. (Doc. 16) . The discovery consisted of the following
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
7. Admit that the 5B poultry houses are still in use as of
the date of service of this document upon Calvin Wells's
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 .
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.
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.
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.
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.
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.
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
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