United States District Court, M.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER 
RUSS WALKER UNITED STATES MAGISTRATE JUDGE
matter is before the court on defendant's motion for
summary judgment on plaintiffs' claim for breach of
contract, which is set out in count I of the original
complaint, and its claim for bad faith, which is set out in
count III of the original complaint. Doc. 38. Plaintiffs
filed a response to the motion conceding that the bad faith
claim should be resolved in the defendant's favor. Doc.
40 at 2-3. Defendant filed a reply to the motion. Doc. 41.
Upon review of the motion and the record, the court concludes
that the motion for summary judgment is due to be granted.
movant is entitled to summary judgment if it “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). For summary judgment purposes, an issue
of fact is “material” if, under the substantive
law governing the claim, its presence or absence might affect
the outcome of the suit. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). If the movant fails to
satisfy its initial burden, the motion for summary judgment
will be denied. Kernel Records Oy v. Mosley, 694
F.3d 1294, 1300 (11th Cir. 2012), cert. denied, 133
S.Ct. 1810 (2013). If the movant adequately supports its
motion, the burden shifts to the opposing party to establish
- “by producing affidavits or other relevant and
admissible evidence beyond the pleadings” - specific
facts raising a genuine issue for trial. Josendis v. Wall
to Wall Residence Repairs, Inc., 662 F.3d 1292, 1315
(11th Cir. 2011); Dietz v. Smithkline Beecham Corp.,
598 F.3d 812, 815 (11th Cir. 2010); Fed.R.Civ.P. 56(c)(1)(A).
“All affidavits [and declarations] must be based on
personal knowledge and must set forth facts that would be
admissible under the Federal Rules of Evidence[.]”
Josendis, 662 F.3d at 1315; Fed.R.Civ.P. 56(c)(4).
The court views the evidence and all reasonable factual
inferences in the light most favorable to the nonmovant.
Miller's Ale House, Inc. v. Boynton Carolina Ale
House, LLC, 702 F.3d at 1315; Fed.R.Civ.P. 56(c)(4).
However, “the nonmoving party ‘must do more than
show that there is some metaphysical doubt as to the material
facts, ” and “[i]f the evidence is merely
colorable, or is not significantly probative, summary
judgment may be granted.” Graham v. State Farm Mut.
Ins. Co., 193 F.3d 1274, 1282 (11th Cir. 1999) (internal
citations omitted). “Conclusory, uncorroborated
allegations by a plaintiff in an affidavit or deposition will
not create an issue of fact for trial sufficient to defeat a
well supported summary judgment motion.” Solliday
v. Fed. Officers, 413 Fed.Appx. 206, 207 (11th Cir.
2011) (citing Earley v. Champion Int'l Corp.,
907 F.2d 1077, 1081 (11th Cir. 1990)); see also Holifield
v. Reno, 115 F.3d 1555, 1564 n.6 (11th Cir. 1997) (per
curiam) (conclusory allegations based on subjective beliefs
are likewise insufficient to create a genuine dispute of
material fact). “Where the record taken as a whole
could not lead a rational trier of fact to find for the
nonmoving party, there is no ‘genuine [dispute] for
trial.'” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986).
commenced this action based upon an insurance contract on
their residential property. Doc. 1 at 2. The complaint
alleges claims against the defendant, the insurer, for breach
of contract (count I), intentional infliction of emotional
distress or “outrage” (count II), bad faith
(count III), negligence (count IV), recklessness and
wantonness (count V), and gross negligence (count VI). Doc. 1
at 4-7. Defendant filed a motion to dismiss counts II, IV, V,
and VI. Doc. 6 at 2. Plaintiffs stipulated to dismissal of
counts IV, V, and VI and requested leave to amend their count
II claim for intentional infliction of emotional distress.
Doc. 10. The court granted leave to amend, Doc. 13, and
plaintiffs filed an amended claim for intentional infliction
of emotional distress, Doc. 15. Defendant then filed a motion
to dismiss count II. Doc. 19. This court dismissed counts IV
(negligence), V (recklessness and wantonness), and VI (gross
negligence) with prejudice in accordance with plaintiffs'
stipulation to dismissal of those counts, and granted
defendant's motion to dismiss count II, leaving only
plaintiffs' count I (breach of contract) and count III
(bad faith) claims before the court. Doc. 23. Defendant's
motion for summary judgment followed. Doc. 38.
motion for summary judgment contends that plaintiffs'
failure to submit a sworn proof of loss - a required
condition precedent to receiving coverage under the insurance
policy - constitutes a breach of contract which precludes
their claims, and also that defendant fully performed its
obligations under the contract. Doc. 38 at 16. In addition,
defendant contends that it did not act in bad faith because
it had more than one lawful basis to deny further payment on
plaintiffs' claim, and because it did not intentionally
fail to determine the existence of a lawful basis for denial.
Id. at 21-27.
their response to defendant's motion for summary
judgment, plaintiffs concede that defendant is due summary
judgment on the bad faith claim, and that the facts set forth
in defendant's motion are not in dispute. Doc. 40 at 2-3.
Furthermore, plaintiffs concede that there is no dispute of
fact as to whether they failed to submit a sworn proof of
loss as a condition precedent to their insurance contract.
See Id. at 4-5. Instead, plaintiffs argue that
defendant's timely payments on their claim, despite
repeated demands for a sworn proof of loss and
plaintiffs' failure to produce one, present a dispute of
fact as to whether defendant waived the proof of loss
condition by virtue of its conduct. Id. at 3-5.
considering defendant's motion for summary judgment, the
court views the facts in the light most favorable to the
non-moving parties, the plaintiffs. Welch v. Celotex
Corp., 951 F.2d 1235, 1237 (11th Cir. 1992).
Plaintiffs' Policy and Insurance Coverage
issued a homeowner's insurance policy to plaintiffs for
their residence in Montgomery, Alabama with the effective
dates of August 4, 2014 to August 4, 2015. Doc. 38-2 ¶
2; Doc. 38-2 at 8-9; Doc. 38-3 at 7-8. The policy provides
coverage for accidental direct physical loss to the
Plaintiffs' dwelling from all perils, with certain
enumerated exceptions. Doc. 38-8 at 39-41. The policy also
provides replacement cost coverage for damage to both the
dwelling and personal property, and additional living
expenses if the residence becomes uninhabitable. Id.
at 43, 53. According to the policy's loss settlement
provisions, payment for the dwelling is for “the actual
cash value of the damage not to exceed the applicable limit
of liability, until actual repair or replacement is
completed.” Id. at 52.
policy also contains provisions which outline the duties
required of the plaintiffs, the insured, as conditions of
payment: to notify the insurer of loss; to protect the
property from further damage; to make reasonable and
necessary repairs to protect the property and keep accurate
record of repair costs; to prepare an inventory of damaged
property including quantities, descriptions, actual cash
value and amount of losses (attaching evidence to
substantiate the loss figures); to exhibit the damaged
property and provide the insurance company with records and
documents it requests; and to submit, within 60 days after
the insurer requests, a signed, sworn proof of loss.
Id. at 42-43. The policy also specifies that the
insurer “will pay [insured] within 60 days after
[insurer] receive[s] [insured's] proof of loss, ”
that “[n]o action shall be brought unless there has
been compliance with the policy provisions, ” and that