JOHN H. ENGLAND, III, 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
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
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
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
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
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
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.
These motions resolved, the undersigned now turns to AXIS's motion for summary judgment.
"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).
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).
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:
(Doc. 162-5 at 20, 22, 27-28, 30).
On January 28, 2016, at approximately 12:45 a.m., the Birmingham Police Department ("BPD") responded to a fire at the Property. (Doc. 166-8 at 1). Upon arrival, the BPD officers radioed Birmingham Fire and Rescue Service ("BFRS"), which dispatched several engines to the scene. (Id.). At approximately 12:48 a.m., BFRS arrived. (Doc. 168-3 at 8).
Terry was was not at the Property when either BFRS or BPD arrived, but she had been there the previous day and night (January 27, 2016) with her boyfriend, Phillip Taylor, her twin brother Sherard, and several laborers. (Doc. 165-1 at 65-67 (260:19-267:9)). After Phillip, Sherard, and the laborers left, sometime between 6:00 p.m. and 8:00 p.m., Terry stayed behind at the Property to "[do] little finishing touches on stuff . . . just doing odds and end. . . ." (Id. at 67 (267:10-268-6)). Terry then left the property, but there are conflicting accounts of when she left, including inconsistent statements by Terry herself:
In any event, after Terry left the Property, she went to her sister's house to bathe, but instead sat in the car "Facebooking." (Id. at 67 (267:7-18); doc. 163-1 at 23 (90:19-91:13)). Terry then went to a nearby Chevron to buy gas, which took ten or fifteen minutes. (Doc. 165-1 at 68-69 (272:5-9, 276:2-17)). After buying gas, Terry drove to an apartment to visit a friend, but she did not go inside because she did not see the friend's vehicle outside. (Id. at 68-70 (272:9-279:9)). Terry then went back to her sister's house and parked for around ten minutes because she was "doing something on [her] phone." (Id. at 70 (280:8-22); doc. 163-2 at 1 (102:11-19)). Afterwards, Terry planned to "pop up on" Taylor (i.e., show up unannounced). (Doc. 165-1 at 70-71 (280:2-281:15)). No one saw Terry between 10:35 p.m. and 12:55 a.m. (Doc. 165-1 at 86 (341:14-19)).
At approximately 12:55 a.m., as she was stopped at a light prior to turning onto the interstate, Terry received a phone call from her neighbor, Frank McCoy, informing her about the fire.
In January 2016, Captain Moseley was a BFRS lieutenant in investigations. (Doc. 168-1 at 1 (4:10-23)). Captain Moseley arrived on the scene of the fire several minutes after the initial firemen.
Captain Moseley began by performing a 360-degree inspection of the exterior of the house. (Id. (14:16-20)). At the back of the house, Captain Moseley spotted a block sitting in front of an open window, which he found suspicious. (Id. at 4-5 (15:7-11, 20:3-5)). Captain Moseley testified when he entered the house through the back door, he saw a gun in the middle of the kitchen floor
Captain Moseley determined the fire was a set fire; he had observed no other possible causes (e.g., electrical or other ignition sources). (Id. at 8-9 (32:19-33:11)). He found points of origin in the front left bedroom and in the living room. (Id. at 9 (33:14-16); doc. 168-12). Captain Moseley testified the walls were intact and not burned up inside the home.
When Captain Moseley exited the house, the battalion chief informed him Terry had arrived. (Id. at 12 (45:5-7)). Captain Moseley walked down the street and spoke with Terry. (Id.). He testified Terry was not frantic or upset. (Id. (48:12-20)). He introduced himself as a fire investigator and asked how long Terry had been gone, whether she was having a dispute with anyone, and who was last at the house. (Id. (45:10-16)). Terry responded that she had been at the house about an hour before the fire.
In response to Captain Moseley's question about whether she was "having problems with anybody," Terry told Captain Moseley that a man named Jamie Moore ("Moore") was "potentially the one that set the fire." (Doc. 168-1 at 13 (52:15-22)). Captain Moseley had not at that point told Terry that the fire was arson or a set fire, although he testified he did not know whom Terry had spoken with while he was inside the house. (Id. at 14 (53:3-11)). Terry stopped talking to Captain Moseley after he asked her what reason Moore would have to set the fire, and that was the end of the interview. (Id. (54:1-11)).
Captain Moseley had three interviews with Terry: the interview at the scene described above, a phone interview, and an interview with Detective Canino. (Id. (56:2-6)). Captain Moseley found Terry less than forthcoming, and that "everything continuously changed" with Terry's story. (Id. (58:16-19)). During the phone interview, Terry stated Taylor had "got into some kind of fight or confrontation" with Moore at some point. (Id. (56:15-18)). Terry then "[went] all off into this story of how she didn't like Jamie Moore's girlfriend . . . she would just go off on tangents of everything that had nothing to do with what I was asking." (Id. at 15 (57:3-10)).
Detective Canino was assigned to investigate the arson on February 1, 2016. (Doc. 169-1 at 3 (9:9-11)). On February 15, 2016, Detective Canino and Captain Moseley interviewed Terry. (Id. at 21 (81:9-11)). Detective Canino read Terry her Miranda rights, and, after Terry signed a document indicating she had been Mirandized, the interview began.
According to Detective Canino, "once we started discussing Jamie Moore, [Terry] put a lot of time and effort into the possibility of it being Jamie Moore, which was odd to [him] because at one time she wasn't even wanting to give the information on her boyfriend." (Id. at 23 (90:22-91:5)). At the time of the interview, Detective Canino "[h]ad already got what we call our contacts on the street, people calling in saying that Jamie Moore had broken in the house after drugs. Never heard if he was successful or not in finding what he was looking for, but had set the house on fire, took a whole bunch of property out of it." (Doc. 169-1 at 6 (25:16-22)).
In her first EUO, Terry described her belief that Moore was responsible for the arson and burglary in greater detail. She stated Moore had claimed he had committed the arson and that "everybody" had told her Moore had "been bragging about it on social media the next day." (Doc. 163-1 at 19-20 (76:22-77:23); doc. 163-2 at 23 (191:18-192:6)). She testified she had heard Taylor's nephew and Moore had been in an argument, and afterwards Moore had "put on Facebook an eye for an eye." (Doc. 163-1 at 20 (78:2-21)). A "girl from down the street" named Ree Ree told Terry that Moore had burned down the house and that the argument had been related to Iesha Mayhand, Moore's girlfriend. (Id. at 22-23 (88:7-89:14); doc. 163-2 at 4-5 (109:22-114:11)). Moore was murdered on January 29, 2016. (Doc. 169-9 at 2). Iesha Mayhand was also murdered shortly afterwards. (Doc. 169-1 at 20 (78:16-23)).
Detective Canino stated Terry had cooperated in the investigation "in the sense she'll call you back when you ask her to," but has not provided information that has helped develop a suspect. (Id. at 25 (98:10-17)). Detective Canino stated "[t]here's no information [Terry] has that would be useful." (Id. (97:23-98:1)). However, Detective Canino testified Terry has never mentioned Moore's Facebook postings. (Id. at 26 (101:1-16)). And although usually victims "go out of their way to try and help out," Detective Canino testified he "never got the participation that's typically accompanied by a true victim." (Id. at 28 (109:21-23)).
According to Detective Canino, the arson investigation remains open. (Doc. 169-1 at 28 (110:1-3)). Terry is still a person of interest, but not a suspect. (Id. (109:5-12)). Detective Canino testified that he thinks Terry "has knowledge of who started the fire," and although Terry has identified Moore as the arsonist, "there's no physical evidence to prove he set that fire." (Id. at 16 (63:21-23)). According to Detective Canino, although "[a] lot of the information on the street was Jamie [Moore] was responsible . . . there's no evidence to show he did it. There's no evidence to show he didn't do it." (Id. at 21 (84:3-6)). Similarly, Detective Canino "can't say Phillip [Taylor] didn't set that fire . . . I can't say that Ms. Terry didn't [set] that fire." (Id. at 22 (87:6-10)). Detective Canino cited this lawsuit as a reason why the arson case has "gone a different direction"; rather than worry about "who burned the house, who damaged the property," Terry is now "worried about, I'm assuming, getting paid from the insurance company." (Id. (87:11-88:1)).
An addendum to the police report reads: "In the course of the investigation, allegations were made that the vic was at the residence at the time the fire (arson) started. No physical evidence was discovered that the vic had any knowledge of or played part [sic] in the offense. It is believed the fire was set by as [sic] retaliation towards the boyfriend of the vic of which has also been cooperative with the investigation. Ms. Terry has met with the Det. on numerous occasions w/o incident." (Doc. 169-10 at 2). The addendum was not prepared at Terry's request; instead, Detective Canino testified it reflects "where [BPD was] in the investigation" and had been requested by Detective Canino's lieutenant "on who [Terry] was, where we were with the investigation, why has there not been an arrest made." (Doc. 169-1 at 27-28 (108:8-109:4)).
Investigating the claim for AXIS, McDonald obtained a statement from Terry indicating she is self-employed and does monograms, with no other income. (Doc. 162-10 at 2). Terry stated her income varies, and she made $2,700.00 the month prior to the fire. (Id.). McDonald's third report states Terry "filed between $30-40,000.00 as a guess." (Id.). In Terry's first EUO, she stated her income from the previous year was "still kind of sketchy to me because I probably worked like one or two days a week"; Terry stated a friend was giving her money and she was "doing some shirts," making approximately $2,500.00 in the month of January. (Doc. 163-1 at 9-10 (36:18-37:14)). When AXIS's counsel clarified he was asking how much she made for the entire year, Terry stated, "Let's stick with [$25,000.00] because I really can't guess." (Id. at 10 (37:15-38:1)).
Responding to Jeff Starnes ("Starnes") of G4S, another investigator working on behalf of AXIS, Terry indicated she is self-employed and has a business called Exquisite Monograms & Clothing. (Doc. 162-12 at 4). Terry initially indicated she was unemployed and had not been working because her embroidery machine is inoperable. (Id.).
At Terry's deposition, she could not estimate her gross yearly income but stated she reported that income on her taxes. (Doc. 165-2 at 8 (30:18-31:9)). Regarding her previous testimony she had earned between $25,000.00 and $45,000.00 in 2015, Terry stated: "I kept saying I don't know, but he wanted a number, so I just — everything was to the best of my knowledge. I threw a number out there." (Id. (31:10-21)). Terry also stated between approximately between 2006 and —, she had had large sums of money confiscated four times by various agencies, including the DEA, totaling "a little over $200,000"; all but $10,000.00 of this money had been returned. (Id. at 13-15 (52:23-66:1)). Terry stated that her "money burned along with the house," referring to "way more than $10,000" that had been concealed in a storage space behind a wall, hanging from a bag on a nail. (Id. at 23-27 (90:10-107:10)).
According to her tax returns, Terry's gross income for — was $15,164.00, for — was $17.783.00, and for 2015 was $18,842.00. (See docs. 163-14, 163-15, 163-16 & 163-17).
Terry submitted a "Statement as to Full Cost of Repair or Replacement." (Doc. 164-9). In the statement, Terry claims $127,400.00 — the full value of the policy — as the amount of her loss. (Id.). This breaks down into $91,000.00 for the replacement cost of the property and the remainder in personal property. (Id.; doc. 165-1 at 98 (391:19-392:23)).
On February 7, 2016, Terry submitted an inventory of the contents of the house. (Doc. 163-12). Terry reported various electronics missing or destroyed, including five TVs ranging in size from 47 to 60 inches, video game systems, a stereo, and several iPads. (Doc. 163-2 at 8-12 (132:4-145:4)). Terry testified she had replaced the TVs after a previous burglary. (Id. at 15 (159:14-18)). Terry also included clothing and jewelry in the inventory. (See doc. 163-12). Terry testified she has receipts for most of the items on the inventory — "[b]asically my contents" — which she had provided to the adjuster. (Doc. 163-2 at 16 (162:13-16, 163:3-13)).
Terry testified she did not go inside her house until the next morning after the fire; instead, she had stepped just through the threshold, "probably a foot" into the house. (Doc. 165-1 at 78 (309:4-9, 311:7-18)). Terry stated that from the threshold of the house, she could get a clear view of the whole house; specifically, she could see into a bedroom and did not see a TV on the stand. (Doc. 163-2 at 7 (126:15-18, 127:16-21)). Terry reported stolen electronics and jewelry to the police prior to entering the house. (Doc. 164-21 at 8-9). Terry also testified that Captain Moseley asked her if a TV had been "back there," which led her to believe that everything had been taken until the next day when she realized most of it had been burned.
In its first report, McDonald stated "[t]he home is a total loss." (Doc. 162-7 at 1). However, by its third report, McDonald no longer considered the home a total loss. (Doc. 162-10 at 2). Instead, it found Terry was in the process of remodeling the home and had not done very much work to repair it yet. (Id.). McDonald noted Terry had indicated she was buying another home for about $30,000.00 and stated no replacement cost would be owed under the policy if Terry did so. (Id.).
AXIS argues it is entitled to summary judgment on two grounds. First, it says the undisputed facts show that no coverage exists under the policy due to arson. (Doc. 172 at 37-42). Second, it contends Terry has breached the policy by failing to cooperate in the investigation. (Id. at 42-45). Each ground is discussed separately below.
Under Alabama law, arson is a defense to denial of coverage by an insurance company. Great Southwest Fire Ins. Co. v. Stone, 402 So.2d 899, 900 (Ala.1981). To make out a prima facie case of arson, an insurance company must show three elements: (1) "arson by someone"; (2) "motive by the [insured]"; and (3) "unexplained surrounding circumstantial evidence implicating the [insured]." Id. AXIS contends it has met this standard.
The first problem for AXIS is that the defense of arson is a means to get to the jury, not a method of bypassing it. In Hillery v. Allstate Indemnity Co., 705 F.Supp.2d 1343 (S.D. Ala. 2010), the court set out the effect of making out a prima facie case of arson under Alabama law:
Hillery, 705 F. Supp. 2d at 1361. Although Hillery is a breach of contract action, AXIS provides neither argument nor reason to conclude the arson defense should apply differently in a declaratory judgment action. Instead, it simply assumes showing a prima facie case entitles it to summary judgment. None of the case law AXIS cites supports this application of the arson defense. See Bush v. Alabama Farm Bureau Mut. Cas. Ins. Co., 576 So.2d 175, 179 (Ala. 1991) (discussing evidence to support jury's verdict for insurer on arson defense); Great Southwest Fire Ins. Co. v. Stone, 402 So.2d 899, 902 (Ala. 1981) (reversing directed verdict for insured on defense of arson; defense should have been submitted to the jury).
Even if AXIS were correct that it could in theory achieve victory simply by showing no factual dispute as to its prima facie case of arson, it cannot do so in this case because factual disputes abound as to the second and third elements. AXIS alleges the facts show Terry's motive for arson was money. (Doc. 172 at 38-40). It points to the difference between the purchase price for the house and the amount of the insurance claim — approximately $80,500.00 — as well as Terry's "strange explanation of how she can afford to pay for things." (Id. at 38). It follows this with the conclusion that Terry's story "indicates hoarding of unreported income, if the story is to be believed, which is doubtful[, and i]f the story is not believed, then she is lying to achieve her goal — getting the insurance money." (Id.). The remainder of its argument tracks this: Terry's income does not support the purchases she allegedly made, and her explanation that a large sum of confiscated money was returned to her by the police is part of an "incredible" argument, (id. at 38-39); the money Terry claims she had "is evidence of her hoarding money that was not reported on her tax returns, (id. at 39); Terry "deals in cash, has a relatively insignificant balance on her credit card, rarely uses her bank account and leaves absolutely no paper trail to determine how much income she has, what her expenditures are and other financial information," (id.); and Terry wanted to purchase a new house after the fire, rather than repair the current house, (id. at 39-40).
What AXIS does not acknowledge here is that the court may not discount Terry's explanations just because they seem unlikely. "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment. . . ." Anderson, 477 U.S. at 255. AXIS explicitly invites the court to make a credibility determination as to whether Terry actually had the money and property she testified she had — whether Terry's story is "unbelievable," (doc. 172 at 45), "incredible," (id. at 38), or "not believable," (doc. 180 at 7). The court may not do that. Further, whether Terry reported the income on her tax returns goes to the weight a factfinder might place on her testimony, not whether it should be discounted entirely.
AXIS's argument for unexplained circumstances implicating Terry is similarly flawed. AXIS highlights Terry's multiple accounts of when she left the house, which it says shows Terry is "trying to hide something or mislead . . . she is changing her testimony for a reason." (Doc. 172 at 40). That reason, according to AXIS's theory, is that Terry is attempting to make herself less of a suspect by "placing herself as far away from the scene as possible physically and temporally." (Id.). The court may not infer that at summary judgment. Here, Terry argues her initial assessments of the time she left are a product of the "duress, confusion[, and] stress" she felt after the fire and caused her to "ma[k]e an honest mistake regarding her time frame," which she has since resolved by referring to the timestamp of the "selfie" she took in her car before she left the house. (Doc. 177 at 3). A jury could find this explanation, which Terry gave under oath at her deposition, (see doc. 165-1 at 68 (270:13-272:2)), sufficient such that it need not infer Terry's evolving testimony was intended to mislead.
AXIS admits Terry has an alternate explanation for the fire:
(Doc. 172 at 41-42). AXIS's attempts to cast doubt on the believability of this story require the court to make inferences unfavorable to Terry (Terry has implicated Jamie Moore to disguise the true nature of the fire), weigh the evidence (Terry's account makes her involvement in the arson more likely), and speculate (Terry could have decided to scapegoat Jamie Moore after his death), none of which is permissible at summary judgment. AXIS also ignores the addendum to the police report; although it does not absolve Terry, at a minimum it creates a question of fact about the viability of Terry's alternative explanation.
AXIS is not entitled to summary judgment on its arson theory.
AXIS's second argument is that Terry has breached her duty to "[c]ooperate with us in the investigation of a claim," consistent with the Policy. (Doc. 162-5 at 28). Therefore, it claims, no coverage exists for Terry's claim. (Doc. 172 at 44).
Under Alabama law, an insurer may decline to cover a claim when the insured fails to comply with a policy condition requiring the insured to cooperate in the insurer's investigation of the claim. Williams v. Alabama Farm Bureau Mut. Cas. Ins. Co., 416 So.2d 744, 746 (Ala. 1982). "Where an insurer attempts to avoid coverage obligations based upon a defense that its insured breached a `cooperation clause,' the insurer has the burden not only to show that the insured's failure or refusal to cooperate was `material and substantial,' but also that the insurer suffered prejudice as a result."
In conclusory terms, AXIS states Terry has failed to cooperate by: (1) refusing to identify witnesses; (2) failing to give a full, fair, and complete disclosure of the facts; (3) giving a changing timeline for her actions on the night of the fire; (4) failed to disclose facts related to her income and expenses; (5) failed to truthfully and accurately identify the personal property she lost, including by misrepresenting the amount and value of that property; and (6) "developed a strange and bizarre story or alibi" related to Jamie Moore, which she has "persisted in telling." (Doc. 172 at 42-43). AXIS does not contend Terry has failed to provide documentation it needs to adjudicate the claim, give a statement under oath, or furnish proof of her loss. Any of these might be appropriate for resolution at summary judgment, because each would be an unambiguous roadblock to a full investigation by AXIS.
As to Terry's failure to provide AXIS with the names of witnesses, AXIS's statement of undisputed facts indicates Terry has "refused to identify witnesses to AXIS Insurance Company's attorney," (doc. 172 at 32), and "refused to identify [a] third-party" who paid laborers at her house, (id. at 25). To support the first portion of this, AXIS cites the extreme end of Terry's first EUO, after Terry had informed AXIS's counsel that Ree Ree knew about Moore's threats because Taylor and Ree Ree's husband were "associates":
(Doc. 163-2 at 24 (196:2-21)). Immediately following this, AXIS's counsel concludes the EUO. (Id. at 24-25 (196:22-197:6)). While it is true Terry does not provide the husband's name, AXIS does not attempt to show prejudice from this (i.e., that it was unable to track down the husband because Terry insufficiently identified him). Nor does it offer anything to support the materiality of the husband's name, given that AXIS could presumably obtain testimony from Ree Ree (whose identity it does not contend Terry concealed) regarding the same facts. AXIS's counsel's decision to end the interview without following up on this matter suggests the missing name was neither material nor prejudicial to it. Terry did refuse to name the third party who helped her pay laborers at her house on the basis the third party "wish[es] not to be involved," (see doc. 164-1 at 7-8 (28:1-17)), but AXIS also offers no argument why failing to identify this third party was material or prejudicial. Therefore, it has not met its burden to demonstrate Terry's alleged failure to cooperate permits it to deny coverage.
AXIS's final salvo is that Terry has breached the concealment and fraud provision of the contract. As noted above, this provision states AXIS will not provide coverage to an insured who has "[i]ntentionally concealed or misrepresented any material fact or circumstance . . . [e]ngaged in fraudulent conduct . . . or [m]ade false statements." (Doc. 162-5 at 35-36). An Alabama statute overlays onto this provision the requirement that "[n]o misrepresentation in any proof of loss under any insurance policy shall defeat or void the policy unless such misrepresentation is made
Even accepting AXIS's framing that Terry has breached this provision by concealing facts from its investigators and the police, (see doc. 172 at 43-44), the only arguments AXIS marshals to support Terry's intent to deceive rest on assumptions that her testimony is false or inconsistent with other evidence. Again, the court may not weigh the evidence to reach that conclusion, as AXIS requests. Accordingly, AXIS is not entitled to summary judgment on this theory either.
For the reasons stated above, AXIS's motions for summary judgment, (docs. 160 & 172), are
AXIS also occasionally points to Terry's allegedly bad behavior in this case to support she has not cooperated with it. (See, e.g., doc. 172 at 43-44). Terry's discovery obligations in this case are governed by the Federal Rules of Civil Procedure, not the Policy. Terry has already been sanctioned for her failure to produce documents to AXIS. (See doc. 173). AXIS's backdoor request the court grant it summary judgment for discovery violations is not well taken.
