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Nationwide Mutual Fire Insurance Co. v. King

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

January 14, 2019

NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Plaintiff,
v.
ANTONIO KING, Defendant.

          MEMORANDUM OPINION

          R. DAVID PROCTOR UNITED STATES DISTRICT JUDGE.

         This 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.

         I. Relevant Undisputed Facts[1]

         Defendant 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, 000.00[2]in 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).

         King 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).[3]

         King 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).

         On 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).

         This 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.).

         King 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).

         King 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).

         The 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).

         Steven 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).

         DiChiara 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).

         The 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).

         Nationwide 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).

         The 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).

         When it 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).

         Nationwide's 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. (Id.).

         Pate 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 at 51-52).

         Pate's 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).

         Pate's 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 80-81).

         Pate 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).

         Nationwide made advance payments to King related to the contents of the house and for his living expenses.[4] (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:

         The 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 ...

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