United States District Court, N.D. Alabama, Southern Division
DAVID PROCTOR UNITED STATES DISTRICT JUDGE.
case is before the court on the Motion for Summary Judgment
filed by Nationwide Mutual Fire Insurance Company
(“Nationwide”). (Doc. # 56). The Motion is fully
briefed, and the parties have filed evidentiary submissions.
(Docs. # 57, 60, 62). After careful review, the court
concludes that the Motion is due to be granted in part and
denied in part.
Relevant Undisputed Facts
Antonio King submitted an insurance claim to Nationwide
Mutual Fire Insurance Company after a fire loss to his home
located at 2801 6th Court North in Bessemer,
Alabama. (Doc. # 1; Doc. # 57-2 at 70). King purchased the
home for approximately $45, 000.00in 1990 and took out a
mortgage on the property at the time. (Doc. # 57-2 at 11-12).
The home was titled in both King's and his mother's
name. (Doc. # 57-2 at 11).
has been employed by the City of Bessemer for over twenty
four (24) years. (Doc. # 57-2 at 7-8). He has never been
sued, filed for bankruptcy, or been foreclosed upon. (Doc. #
57-2 at 7-9, 79-80). King's take home pay was
approximately $1, 200.00 per month, and his monthly expenses
exceeded $1, 200.00 (Doc. # 57-2 at 7-10; Doc. # 57-9 at
17-20). King's monthly mortgage payment was approximately
$380 per month. (Doc. # 57-6 at 3). King was three months
behind on his mortgage payments at the time of the fire.
(Doc. # 57-2 at 66). He was also two to three months behind
on a payment he made on his daughter's car. (Doc. # 57-6
at 11). However, King's regular pattern was to catch up
on his bills when he received his income tax refund. (Doc. #
57-9 at 25). King received a tax refund of approximately
$7.000.00 at the end of January or the first of February
2016. (Doc. # 57-9 at 25-26).
was the only person who lived at 280116th Court
North. (Doc. # 57-6 at 6-7). For the eight years prior to the
fire, however, King had been the primary caretaker for his
aging mother, Mary King, who was 88 years at the time of the
fire. (Doc. # 57-6 at 6-7). She has since passed away.
(Id.). As his mother's caretaker, King spent
most nights at his mother's house during that time and
prepared prepare her food. However, King went to his home
every day after work. (Doc. # 57-6 at 6-7). He kept food and
personal belongings at his mother's house. (Doc. # 57-6
at 6, 14).
January 19, 2016, King went home after work to watch
television. (Doc. # 57-6 at 4; Doc. # 57-4 at 16). King had
electric heaters on in the house because it was very cold,
and his gas had been shut off for a number of years. (Doc. #
57-4 at 17-19). He explained that the electric heaters were
less expensive than gas. (Doc. # 57-4 at 17-19).
case involves a fire that occurred in the early morning hours
of January 20, 2016. (Doc. # 57-2 at 7, 17). On January 19,
King left his house to help his mother with dinner. (Doc. #
57-6 at 4-5; Doc. # 57-4 at 16). At the time of the fire, he
was at his mother's house where he had fallen asleep.
(Doc. # 57-2 at 18-19; Doc. # 57-4 at 13-16; Doc. # 57-6 at
4-5). No. one was inside his home when the fire occurred.
(Doc. # 57-4 at 13). King was the last person inside the home
prior to the fire and had locked the doors when he left.
(Doc. # 57-4 at 13-14). He lived alone and no one else had
keys to the house. (Id.).
was not aware of any electrical problems with his house.
(Doc. # 57-4 at 17). He denied having any flammable liquid in
his living room or under the house at the time of the fire
(Doc. # 57-4 at 19).
was alerted to the fire by several phone calls from
neighbors. (Doc. # 57-2 at 18; Doc. # 57-4 at 13). When King
arrived at his home after learning of the fire, he was crying
and upset. (Doc. # 60-11 at 45).
Bessemer Fire Department responded to the fire. (Doc. #
57-3). According to their Fire Incident Report, the fire
department received the alarm at 2:47 a.m. and arrived at
2:53 a.m. (Doc. # 57-3 at 1). When the firefighters arrived,
the front and back doors to the home were locked, which
required forcible entry. (Doc. # 57-3 at 6). The fire was
controlled by 5:13 a.m. (Doc. # 57-3 at 1).
DiChiara, a fire investigator for the City of Bessemer,
attended the fire scene on January 20, 2016. (Doc. # 60-11 at
4-5, 16-17). DiChiara investigated to find out how the fire
started. (Doc. # 60-11 at 50). He determined that the burning
was most intense on the floor near the right-front side of
the house, near the front door. (Doc. # 60-11 at 38-40). The
fire burned through the floor in that area and through the
front door. (Doc. # 60-11 at 38-40).
examined the house looking for “pour patterns.”
(Doc. # 60-11 at 49-50). Pour patterns are a result of
someone pouring an accelerant on a place where a fire occurs.
(Id.). But, DiChiara found no evidence of an
accelerant. (Id.). DiChiara also looked carefully to
explain the hole in the floor near the front door to explain
“why it burned so bad right [there].” (Doc. #
60-11 at 39-40). He believed the heat source was below the
floor because “it's not going to burn through that
floor, unless it's a heat source from underneath the
floor.” (Doc. # 60-11 at 39-40). “[F]ire burns
up. Fire doesn't burn down.” (Doc. # 60-11 at 38).
Bessemer Fire Department's preliminary investigation
indicated that the fire was caused by an electrical wiring
malfunction originating under the floor near the right side
of the front door. (Doc. # 57-3 at 3). However, the cause of
ignition was marked as “under investigation” and
factors contributing to ignition were described as
“undetermined.” (Doc. # 57-3 at 4).
received notice of the fire on the day it occurred and
immediately began its own investigation. (Doc. # 57-2 at
21-22). As part of its investigation, Nationwide conducted
physical inspections of the property, received two recorded
statements from King, and examined him under oath. It also
conducted forensic lab testing and an examination of the
premises by its own origin and cause investigator. (Docs. #
57-4 - 57-9).
recorded interviews of King took place on January 21, 2016
and February 2, 2016. (Docs. # 57-4 and 57-6). During the
January 21 interview, King reported that the house was locked
when he left and no one else had keys. (Doc. # 57-4 at
13-14). During the February 2 interview, King was asked about
a trace of gasoline purportedly found, but he could not
explain it. (Doc. # 57- 6 at 20-22). He denied storing any
gasoline inside his home (Doc. # 57-6 at 29), and again
confirmed that the house was locked when he left and no one
else had keys. (Doc. # 57-6 at 3, 16-18, 20-22, 29).
receives notice of a fire claim, Nationwide sends a claims
adjuster to examine the property. (Doc. # 60-4 at 37-38). If
the claims examiner cannot determine the cause and origin of
the fire, he will assign a cause and origin expert to conduct
an examination. (Doc. # 60-4 at 38). Nationwide estimates
that it retains a cause and origin expert on “99.9
percent [of fires].” (Doc. # 60-4 at 41).
cause and origin investigator, Michael Pate, obtained two
samples from the wood floor in King's house. (Doc. # 57-5
at 2). One sample was of charred wood flooring from near the
front door; the other was charred wood from the center of the
living room. (Id.). The Laboratory Report from AK
Analytical Forensic and Scientific Investigations reported
that the charred wood flooring from near the front door did
not reveal the presence of an identifiable ignitable liquid,
but the charred wood from the center of the living room
contained components identifiable as evaporated gasoline.
informed DiChiara that a trace of accelerant had been found
near the center of the living room. (Doc. # 60-11 at 51).
DiChiara asked how the accelerant got from there to the
origin of the fire near the front door. (Doc. # 60-11 at
51-52). After discussion, DiChiara told Pate that he would
not change his report on the cause of the fire. (Doc. # 60-11
February 9, 2016 report notes that DiChiara believes the fire
originated in the crawlspace under the living room floor.
(Doc. # 57-7 at 3). The report notes that the fire burned
from the living room through the front wall to the exterior
and that the entry door fell onto the living room floor.
(Doc. # 57-7 at 4). It further notes a large hole that burned
through the floor in the right front corner of the living
room. (Doc. # 57-7 at 5). Pate's report states that
“[t]he damage and the burnings are consistent with that
caused by high heat release rate fuel that, according to 
King, should not be there.” (Doc. # 57-7 at 5).
Immediately following this sentence, the report states that
“[a] debris sample consisting of burned wood was
collected from this area and submitted for laboratory
analysis. The sample tested negative for ignitable liquid
residue.” (Doc. # 57-7 at 5).
report further states that patterns in the center of the
living room are “consistent with the burning of an
ignitable liquid” and that debris from this area
“tested positive for evaporated gasoline.” (Doc.
# 57-7 at 5). Pate eliminated a space heater found in the
living room as the cause of the fire. (Doc. # 57-7 at 5).
Based on his findings that the fire originated in the living
room and that a sample from the middle of the room, rather
than where the fire burned the strongest, tested positive for
evaporated gasoline, he concluded that “the fire is
incendiary in nature and was caused by the willful
introduction of gasoline on the living room floor.”
(Doc. # 57-7 at 6). Pate did not do any independent analysis
to determine the quantity or the amount of the alleged
evaporated gasoline. (Doc. # 60-3 at 72). Pate merely
observed the space heaters found in the living room and
determined, without any further testing, that the space
heaters were not the source of the fire. (Doc. # 60-3 at
does not recall how many cause and origin examinations he had
performed the week before the one at King's house (Doc. #
60-3 at 59-60), but estimates that the number is three. (Doc.
# 60-3 at 60). Pate acknowledged his boots had
“probably not” been decontaminated between
investigations. (Doc. # 60-3 at 60). He further admitted it
is possible his boots had been exposed to gasoline prior to
examining King's house (Doc. # 60-3 at 61), but believes
that even if his boots had been exposed to gasoline at
another location, the gas would have evaporated before he
arrived at King's house. (Doc. # 60-3 at 60).
made advance payments to King related to the contents of the
house and for his living expenses. (Doc. # 60-4 at 56-57). On
February 19, 2016, Nationwide issued a reservation of rights
letter to King. (Doc. # 57-8). The reservation of rights
letter stated in relevant part:
information we received for your claim has created a few
coverage questions regarding your Homeowner's policy.
These questions specifically surround:
• Whether the loss was accidental or caused by the
insured or at the direction of an insured;
• The occupancy of the home & the period of time in
which it has been unoccupied;
• Whether all interested parties were disclosed to us.
These questions will be investigated as we ...