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Axis Insurance Co. v. Terry

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

January 30, 2019

AXIS INSURANCE COMPANY, Plaintiff,
v.
SHARANDA L. TERRY, Defendant.

          MEMORANDUM OPINION AND ORDER [1]

          JOHN H. ENGLAND, III UNITED STATES MAGISTRATE JUDGE

         Plaintiff AXIS Insurance Company (“AXIS” or “Plaintiff”) brings this action against Sharanda L. Terry (“Terry” or “Defendant”), seeking a declaratory judgment pursuant to 28 U.S.C. § 2201 that it is not required to pay a homeowners insurance claim brought by Terry. (Doc. 1). The parties have filed cross-motions for summary judgment, (docs. 158 & 172[2]), each of which is opposed by the other party, (docs. 174 & 177). However, Terry has moved to withdraw her motion for summary judgment, (docs. 175 & 178); those motions are GRANTED, and Terry's motion for summary judgment is TERMED. The parties have also filed a number of other motions, (docs. 179, 181, 182, 183, 186, 188, 189, 190 & 191). The court considers those motions first below. AXIS's motion is fully briefed, (docs. 172, 177 & 180), and ripe for review. For the reasons stated more fully below, AXIS's motion for summary judgment is DENIED.

         I. Non-Summary Judgment Motions

         A. Terry “Motion to Amend Motion to Oppose, Dispute and Response to Plaintiff Motion for Summary Judgment” (Doc. 176)

         In this motion, Terry simply attaches a copy of AXIS's statement of undisputed facts from its motion for summary judgment, breaking it down into numbered paragraphs so that she can dispute them. The motion does not seek relief, and the Clerk is DIRECTED to TERM it. The undersigned has considered this document as part of Terry's opposition to AXIS's motion for summary judgment.

         B. AXIS Motion to Supplement Evidentiary Submissions (Doc. 179)

         In response to Terry's motion to withdraw her motion for summary judgment, AXIS moves to supplement its summary judgment evidentiary submission to include the evidence and arguments it submitted in response to Terry's motion for summary judgment. (Doc. 179). Terry does not appear to oppose this motion. AXIS's motion is GRANTED, and its evidentiary submission in support of its motion for summary judgment is supplemented to include the evidence submitted in support of its response to Terry's motion for summary judgment, (doc. 177).

         C. Terry Motion to Respond to Plaintiffs Reply, (Doc. 181), Motion to Withdraw Motion to Respond to Plaintiffs Reply, (Doc. 182), and Motion to Withdraw Docs. 181 & 182, (Doc. 185)

         The undersigned construes Terry's motion to respond, (doc. 181), which was filed the day after AXIS's reply in support of its motion for summary judgment and addresses numerous arguments in AXIS's reply, as a motion for leave to submit a sur-reply. Terry has also submitted a motion to withdraw her motion to respond, in which she apologizes to the court for filing the motion and adds additional arguments. (Doc. 182). AXIS opposes both motions, on the basis that the scheduling order does not provide for sur-replies. (Doc. 184). Terry clarifies in a subsequent motion that she intends to withdraw docs. 181 and 182. (Doc. 185). This last motion is GRANTED, and the undersigned has considered neither the arguments contained in the sur-reply nor those contained in the motion to withdraw the sur-reply. To the extent the motion to withdraw the sur-reply, (doc. 182), seeks other relief, it is DENIED AS MOOT. The Clerk is DIRECTED to TERM docs. 181 and 182.

         D. Terry Motion to Substitute (Doc. 183)

         Next, Terry moves to substitute Exhibit O of her response to AXIS's motion for summary judgment with a new Exhibit O. (Doc. 183). Terry's original Exhibit O is a subpoena duces tecum directed to the City of Birmingham Fire and Rescue Service Department. (Doc. 177-6 at 4-5). Terry's intent is to submit recordings of 911 calls, along with a Call for Service Detail Report, which she says she picked up on June 4, 2018. (Doc. 183 at 1). AXIS opposes this on essentially the same basis as it opposes the motions discussed in Section I.C. - that there is no provision for Terry to use the motion to supplement her summary judgment response. (See doc. 184 at 2).

         The original Exhibit O subpoena duces tecum is dated April 30, 2018, and includes a compliance date of May 14, 2018. (See doc. 177-6 at 4). Discovery in this case ended on March 9, 2018. (See doc. 150). It is unclear why Terry waited until after the discovery deadline to attempt to subpoena these records, nor why her plan to conduct discovery outside the discovery period was never brought to the court's attention, nor why she waited more than three weeks after the subpoena's compliance deadline to retrieve these records. Terry's motion is DENIED.

         E. Terry Motion for Court Hearing (Doc. 186)

         Terry has moved for a hearing on AXIS's motion for summary judgment. (Doc. 186). Terry's request also contains numerous extraneous arguments. (See id.). The undersigned notes that AXIS has also requested oral argument on its motion, (see doc. 172 at 1), although it opposes Terry's motion to the extent that it includes additional arguments related to summary judgment, (doc. 187). Having reviewed the parties' submissions, the undersigned concludes oral argument is unnecessary. Therefore, Terry's motion, (doc. 186), is DENIED, as is AXIS's request for oral argument. The undersigned has not considered the summary-judgment-related arguments Terry includes in this motion.

         F. Terry Motions Related to Perjury and Unethical Behavior (Docs. 188, 189, 190 & 191)

         Each of these motions details what Terry contends is inappropriate behavior by parties associated with AXIS or by the City of Birmingham. The undersigned has reviewed these motions, and Terry's allegations of criminal and unethical conduct are without merit.[3] Further, to the extent Terry requests the court refer her allegations for criminal prosecution, this civil action is not the mechanism for Terry to alert the FBI or U.S. Attorney's office to what she believes to be criminal conduct, and the undersigned declines to be the conduit for such an alert. These motions, (docs. 188, 189, 190 & 191), are DENIED.

         These motions resolved, the undersigned now turns to AXIS's motion for summary judgment.

         II. Standard of Review

          “Disposition of a summary judgment motion in a declaratory judgment action is governed by the same basic principles that generally rule the grant or denial of such a motion.” Bingham, Ltd. v. United States, 724 F.2d 921, 924 (11th Cir. 1984). Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” “Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 447 U.S. 317, 322 (1986). The moving party bears the initial burden of proving the absence of a genuine issue of material fact. Id. at 323. The burden then shifts to the nonmoving party, who is required to “go beyond the pleadings” to establish that there is a “genuine issue for trial.” Id. at 324. (citation and internal quotation marks omitted). A dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         The Court must construe the evidence and all reasonable inferences arising from it in the light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); see also Anderson, 477 U.S. at 255 (all justifiable inferences must be drawn in the non-moving party's favor). Any factual disputes will be resolved in Plaintiff's favor when sufficient competent evidence supports Plaintiff's version of the disputed facts. See Pace v. Capobianco, 283 F.3d 1275, 1276-78 (11th Cir. 2002) (a court is not required to resolve disputes in the non-moving party's favor when that party's version of the events is supported by insufficient evidence). However, “mere conclusions and unsupported factual allegations are legally insufficient to defeat a summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per curiam) (citing Bald Mtn. Park, Ltd. v. Oliver, 836 F.2d 1560, 1563 (11th Cir. 1989)). Moreover, “[a] mere ‘scintilla' of evidence supporting the opposing party's position will not suffice; there must be enough of a showing that the jury could reasonably find for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252).

         ITT. Summary Judgment Facts[4]

         A. The Property and Policy

          On January 12, 2016, Terry purchased the property located at 6730 2nd Avenue South in Birmingham, Alabama (the “Property”). (See docs. 162-1 & 162-3).[5] Terry paid $8, 500.00 as the purchase price for the Property, plus other charges: a total of $10, 500.08. (See doc. 162-2).

         On January 14, 2016, Terry submitted an application to AXIS for homeowners insurance. (Doc. 162-1). AXIS issued Policy No. 007759 (the “Policy”) to Terry on the same date. (Docs. 162-4 & 162-5). The Policy provides coverage limits of $91, 000.00 for the dwelling, $1, 000.00 for structures detached from the dwelling, and $36, 400.00 for personal property. (Doc. 162-5 at 1).

         The Policy contains a state fraud provision applicable in Alabama:[6] “Any person who knowingly presents a false or fraudulent claim for payment of a loss or benefit or who knowingly presents false information in an application for insurance is guilty of a crime and may be subject to restitution[, ] fines[, ] or confinement in prison, or any combination thereof.” (Id. at 6). The Policy also sets out the following:

         AGREEMENT

We will provide the insurance described in this policy in return for the premium and compliance with all applicable provisions of this policy.
[. . .]
SECTION I - PROPERTY COVERAGES
A. Coverage A - Dwelling
1. We cover:
a. The dwelling on the “residence premises” shown in the Declarations, including structures attached to the dwelling; and b. Materials and supplies located on or next to the “residence premises” used to construct, alter or repair the dwelling or other structures on the “residence premises”.
[. . .]
C. Coverage C - Personal Property
1. Covered Property
We cover personal property owned or used by an “insured” while on the “residence premises”. After a loss and at your request, we will cover personal property owned by others while the property is on the part of the “residence premises” occupied by an “insured”.
[. . .]
SECTION I - EXCLUSIONS
We do not insure for loss caused directly or indirectly by any of the following. Such loss is excluded regardless of any other cause or event contributing concurrently or in any sequence to the loss. These exclusions apply whether or not the loss event results in widespread damage or affects a substantial area.
[. . .]
8. Intentional Loss
Intentional Loss means any loss arising out of any act an “insured” commits or conspires to commit with the intent to cause a loss. In the event of such loss, no “insured” is entitled to coverage, even “insureds” who did not commit or conspire to commit the act causing the loss.
SECTION I - ...

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