United States District Court, M.D. Alabama, Southern Division
ROY BROOKS, JR. Plaintiff,
ALLSTATE INDEMNITY COMPANY, Defendant.
MEMORANDUM OPINION AND ORDER 
RUSS WALKER UNITED STATES MAGISTRATE JUDGE
matter is before the court on defendant's motion for
partial summary judgment on plaintiff's claim for
negligence, which is set out in count II of the original
complaint; bad faith, which is set out in count III of the
original complaint; and gross negligence and wantonness,
which is set out in count IV of the original complaint. Doc.
24. Plaintiff filed a response to the motion, Doc. 30,
conceding that counts II and IV were due to be resolved in
the defendant's favor, id. at 2. Defendant filed
a reply to the motion. Doc. 31. Upon its review of the motion
and the record, the court concludes that the motion is due to
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 his
home. Doc. 1-3 ¶¶ 6-7. The complaint alleges claims
against the defendant insurer, Allstate Indemnity Company,
Allstate Insurance Company, and Joseph Neighbors, an
insurance adjuster working for Allstate Insurance Company,
for breach of contract (count I); negligence (count II); bad
faith (count III); and gross negligence and wantonness (count
IV). Doc. 1-3 ¶¶ 16-39. Plaintiff and defendant
jointly consented to dismissal of defendants Allstate
Insurance Company and Joseph Neighbors, Doc. 15, and the
court dismissed those parties without prejudice, Doc. 18.
Defendant filed a motion for partial summary judgment and
brief supporting such motion for plaintiff's claims on
counts II, III, and IV. Doc. 24; Doc. 25.
brief supporting its motion for summary judgment contends
that plaintiff has failed to meet his burden of establishing
that he is entitled to a directed verdict on his breach of
contract claim, and of showing that defendant had no
legitimate or arguable reason for denying plaintiff's
insurance claim. Doc. 25 at 10-12. Specifically, defendant
contends that the record demonstrates that the fires which
are the subject of plaintiff's insurance claim were
caused by arson, that plaintiff made material
misrepresentations to defendant in the course of
defendant's investigation of the plaintiff's claim,
and that plaintiff failed to comply with the conditions
precedent to coverage in his policy with defendant.
Id. at 13-17. Defendant also argues that it
undertook a detailed and thorough investigation of
plaintiff's claim, including seeking the advice of
counsel, which evidences its good faith. Finally, Defendant
asserts that negligence and gross negligence and wantonness
claims are unrecognized causes of action in insurance claims
under Alabama law, and should be dismissed.
response, plaintiff concedes that counts II and IV, for
negligence and gross negligence and wantonness, are due to be
dismissed. Doc. 30 at 2. Plaintiff also clarifies that his
claim of bad faith is a “normal” failure-to-pay
claim and not an “abnormal”
failure-to-investigate claim. Id. Plaintiff argues
that defendant's motion for partial summary judgment
should fail because there is insufficient evidence to show
that plaintiff started the fires, because plaintiff made no
material misrepresentations, and because defendant has failed
to show that it was prejudiced by plaintiff's delay in
meeting the conditions precedent to coverage under his
agreement with defendant. Id. at 9-15.
MATERIAL FACTS 
Plaintiff's Policy and Insurance Coverage
issued a homeowner's insurance policy to plaintiff for
his residence in Brundidge, Alabama, with the effective dates
of Dec 26, 2014 to Dec. 26, 2015. Doc. 1-2 at 4. The policy
provided coverage for sudden and accidental direct physical
loss to Plaintiff's residence, including such losses
caused by fire. Id. at 14. The policy specifies
that, inter alia, “[insurer does not] cover
any loss or occurrence in which any insured person has
concealed or misrepresented any material fact or
circumstance, ” and that insurer may cancel the policy
for “material misrepresentation, fraud or concealment
of material fact in presenting a claim, or violation of any
of the policy terms.” Id.
policy also details plaintiff's duties after a loss in
order to be covered under the policy which include, but are
not limited to, giving prompt notice of any loss; protecting
the property from further loss; keeping an accurate record of
repair expenses; providing a detailed list of destroyed or
stolen property; providing all accounting records, bills,
invoices, and vouchers; submitting to examinations under oath
as often as the insurer reasonably requires; and producing a
signed, sworn proof of loss to the insurer within 60 days of
the loss. Id. at 22.
Details of Plaintiff's Insurance Claim
December 7, 2015, at approximately 2:08 p.m., the Brundidge
Fire Department was called to plaintiff's residence in
response to a fire. Doc. 26-1. The property was secured at the
time of their arrival and forced entry was required. Doc. 25
¶ 2; Doc. 30 at 3. After the fire was extinguished, a
thermal imaging camera was used to ensure that no hotspots or
remaining embers were active on the property. Doc. 25 ¶
2; Doc. 30 at 3. Plaintiff reported the fire to the defendant
that same evening. Doc. 26-5 at 7. On December 8, 2015, at
approximately 9:27 a.m., the Brundidge Fire Department was
called to the same address in response to a fire. Doc. 26-2.
On December 9, 2015, defendant retained Bert Peete, a
certified fire investigator, to investigate the fire on
plaintiff's property and to determine the cause and
origin of each incident. Doc. 25 ¶ 5; Doc. 30 at 4.
time of the fire, plaintiff primarily stayed with his
estranged wife in Troy, Alabama, while his daughter, Angela
Brooks, and her two children resided full time at his
property in Brundidge, which is the subject of the insurance
claim. See Doc. 25 ¶ 10; Doc. 30 at 4; Doc.
26-7 at 3-4; Doc. 26-6 at 4. Ms. Brooks stated that she was
the last person at the property before the fire. Doc. 25
¶ 12; Doc. 30 at 5. Only plaintiff, Ms. Brooks, and two
out-of-state relatives had keys to the property. Doc. 26-7 at
sworn proof of loss form submitted to defendant on August 15,
2016, plaintiff claimed $196, 056 as a result of the loss