LAWRENCE E. KAHN, District Judge.
In this diversity action, plaintiff Jack T. Pollicino asserts that defendants Allstate Indemnity Company, Allstate Vehicle and Property Insurance Company, and Allstate Insurance Company (collectively "Allstate" or "Defendants") wrongfully denied his insurance claim after a fire left his home a total loss. Dkt. No. 18 ("Amended Complaint"). Defendants disclaimed coverage because Plaintiff allegedly violated two policy provisions that required him to reside at the property and provide notice of any changes in occupancy.
Plaintiff asserts three causes of action: breach of contract, waiver and estoppel, and declaratory judgment. Am. Compl. ¶¶ 38-57. After proceeding through discovery, both parties moved for summary judgment. Dkt. Nos. 32 ("Plaintiff's Summary Judgment Motion" or "Plaintiff's SJ Motion"); 32-19 ("Plaintiff's SJ Memorandum"); 32-18 ("Plaintiff's Statement of Material Facts" or "Plaintiff's SMF"); 41-1 ("Plaintiff's Response to Defendants' SMF" and "Plaintiff's Response to Defendants' Additional SMF"); 35 ("Defendants' SJ Motion"); 35-24 ("Defendants' SJ Memorandum"); 35-23 ("Defendants' SMF"); and 38-1 ("Defendants' Response to Plaintiff's SMF" and "Defendants' Additional SMF"). Defendants opposed Plaintiff's Summary Judgement Motion, Dkt. No. 38 ("Defendants' Opposition"), and Plaintiff filed a single brief both replying to Defendant's Opposition and opposing Defendants' Motion for Summary Judgment, Dkt. No. 41 ("Plaintiff's Reply and Opposition"). Defendants filed a reply to Plaintiff's Opposition. Dkt. No. 42 ("Defendants' Reply").
For the reasons that follow, both summary judgment motions are granted in part and denied in part.
In 2010, Plaintiff purchased a home on Chestnut Street in North Syracuse, New York (the "Chestnut property") and insured it through Allstate. Pl.'s SMF ¶¶ 2-3; Defs.' SMF ¶ 1. On April 24, 2017, a fire rendered the Chestnut property a total loss. Pl.'s SMF ¶ 8; Defs.' Resp. to Pl.'s SMF ¶ 8. Two related events preceded the fire and are at the heart of this dispute. First, Plaintiff allowed family members to—depending on whom you ask—stay temporarily, or move indefinitely, into his home. Second, Plaintiff himself began to—again, depending on whom you ask—stay temporarily, or live indefinitely, at his girlfriend's house.
One year before the fire, in April 2016, Plaintiff made an arrangement with his ex-wife, Nancy Marshall, who had recently suffered a stroke and relied on the care of their daughter, Lauren Pollicino. The arrangement allowed Ms. Marshall, Ms. Pollicino, and Ms. Pollicino's three children to "stay[] at the house on a temporary basis," Pl.'s SMF ¶ 9, or "live[] there indefinitely," Defs.' Resp. to Pl.'s SMF ¶ 9. Both parties agree, however, that Plaintiff gave up his bedroom at this point. Defs.' SMF ¶ 6; Pl.'s Resp. to Defs.' SMF ¶ 6. They also agree that Ms. Marshall, Ms. Pollicino, and Ms. Pollicino's three children brought all of their belongings with them to the home and had no other residence. Defs.' SMF ¶ 17; Pl.'s Resp. to Defs.' SMF ¶ 17. But the parties do not agree whether Ms. Marshall and Ms. Pollicino paid rent. Defendants assert that Ms. Pollicino paid "at least $250 from each biweekly paycheck" "for the right to live at" the home. Defs.'s SMF ¶ 7. Plaintiff argues these payments were not rent, stating that "[n]either plaintiff's ex-wife nor his daughter paid for the right to live at [the Chestnut property]." Pl.'s Resp. to Defs.' SMF ¶ 7.
Plaintiff also has health problems, and had surgery for "serious spinal issues" in 2014, 2015, and 2017. Pl.'s SMF ¶ 7; Defs.' Resp. to Pl.'s SMF ¶ 7. Plaintiff stayed with his girlfriend, Susanne Pelrose, so she could care for him before and after his 2014 and 2015 surgeries, and then returned to the Chestnut property after he recovered. Pl.'s SMF ¶¶ 15-16, 18; Defs.' Resp. to Pl.'s SMF ¶¶ 15-16, 18. Ms. Pelrose lives on Douglas Avenue in Liverpool, New York (the "Douglas property"), Pl.'s SMF ¶¶ 13-14; Defs.' Resp. to Pl.'s SMF ¶¶ 13-14, which is about three and a half miles from the Chestnut property. Pl.'s Mem. at 3.
There is a dispute as to whether Plaintiff had surgery scheduled in 2016. Defendants assert that it was never scheduled, Defs.' SMF ¶ 21, while Plaintiff states that "his surgery was supposed to be to occur [sic] in the fall but it was not scheduled," Pl.'s Resp. to Defs.' SMJ ¶ 21. This disagreement matters because while both parties agree that Plaintiff began spending more nights at the Douglas property in fall of 2016, Plaintiff suggests this was merely in anticipation of another surgery, while Defendants insist it was because five other people had moved into the Chestnut property and Plaintiff had given up his room. Pl.'s SMF ¶ 19; Defs.' Resp. to Pl.'s SMF ¶¶ 18-19.
Plaintiff claims that between July 2016 and February 2017—when Plaintiff eventually had his third surgery and was subsequently bedridden at the Douglas property—Plaintiff was "at his [Chestnut] home 5-7 days a week." Pl.'s SMF ¶ 21. Plaintiff states that he helped take care of his grandchildren, paid all taxes and bills associated with the home, and kept all of his clothing at the Chestnut property. Pl.'s SMF ¶¶ 22-24. Defendants dispute this, characterizing him as being "physically present only intermittently." Defs.' Resp. to Pl.'s SMF ¶ 21. Defendants assert that Plaintiff "spent most of his nights at 111 Douglas Avenue, ate most of his meals there, showered there, dressed there, did laundry there, and when he could work, he did so from 111 Douglas Avenue." Defs.' SMF ¶ 15. Defendants also state that Ms. Pollicino paid the cable bill at the Chestnut property and that, while Plaintiff kept some clothes at the Chestnut property, he moved his motorcycle, a bed, other clothes, and toiletries to the Douglas property. Defs.' SMF ¶ 13. Plaintiff changed his mailing address to the Douglas property in 2014 and received all personal mail there. Defs.' SMF ¶ 8, 11. Plaintiff owns a company and operated it out of the Douglas property "for at least a year prior to the fire." Defs.' SMF ¶ 9.
The parties agree that "the cause of the fire was dead leaves ignited by a grill used by the father of Ms. Pollicino's children," that the grill belonged to Plaintiff, and that Plaintiff was "100% disabled/bedridden due to his surgeries." Defs.' SMF ¶¶ 25-27; Pl.'s Resp. to Defs.' SMJ ¶¶ 25-27.
Plaintiff's home has been insured through Allstate since 2010. Pl.'s SMF ¶ 3; Defs.' SMF ¶ 1. There is no dispute that Plaintiff's premiums were current or that the fire was a covered hazard. Pl.'s SMF ¶ 28; Defs.' Resp. to Pl.'s SMF ¶ 28. Instead, Defendants denied coverage for two reasons. First, they denied coverage because Plaintiff did not "reside" at the Chestnut property:
Dkt. 35-9 ("Denial Letter") at 2. Second, Defendants disclaimed coverage because Plaintiff failed to notify Defendants of a change in occupancy:
Denial Letter at 3.
Summary judgment is appropriate when "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). A fact is material if it "might affect the outcome of the suit under the governing law."
In assessing a motion for summary judgment, a court views the evidence "in the light most favorable to the non-moving party and draw[s] all reasonable inferences in its favor."
This dispute is about the two policy provisions cited in the Denial Letter: the requirement that Plaintiff reside in the insured dwelling (the "residency requirement") and the requirement that Plaintiff provide notice of any change in occupancy (the "notice requirement"). Plaintiff argues that in denying his claim, Defendants breached their insurance contract because both provisions are unenforceable, and that even if they are enforceable, Plaintiff did not violate them.
Defendants denied Plaintiff's claim because Plaintiff "did not reside at the Chestnut property at the time of the loss." Denial Letter at 2. The Court finds that the residency requirement is unenforceable because it irreconcilably conflicts with another provision in Plaintiff's insurance policy.
In a section titled "Definitions Used in This Policy," Plaintiff's policy states as follows:
Dkt. 35-6 ("Policy") at 10-11.
However, fifteen pages later, another policy provision stands in stark contrast:
Policy at 25 (the "vacancy clause"). Plaintiff argues that the vacancy clause contradicts the residency requirement. Pl.'s SJ Mem. at 13-15. The Court agrees.
"Courts must determine the rights and obligations of parties under an insurance contract based on the policy's specific language."
The Court's analysis of these two provisions is not complex. The residency requirement mandates that Plaintiff reside at the insured dwelling. The vacancy clause allows Plaintiff to leave the premises vacant or unoccupied—that is, to not reside at the insured dwelling.
Nor is the Court's analysis original. In
Defendants directly address this conflict only in passing, arguing that the vacancy clause is irrelevant because the Chestnut property was not vacant. Defs.' Reply to Pl.'s Opp. at 3. But while the property was not vacant, the vacancy clause clearly gave Plaintiff permission to not reside at the Chestnut property. And Allstate's first ground for denial focuses only on Plaintiff: "because you did not reside at the Chestnut Property at the time of the loss, having moved out months before the loss, the Chestnut Property is not covered." Denial Letter at 2. Thus, when it comes to Plaintiff's residence—the only person whose residence matters for the residency requirement—the two provisions conflict: the residency requirement mandates that Plaintiff reside at the Chestnut property; the vacancy clause grants him permission to reside elsewhere.
Because the residency requirement is unenforceable due to the conflicting vacancy clause, the Court grants Plaintiff summary judgment on the issue of whether Defendants may disclaim coverage based on the residency requirement. Thus, the Court does not address Plaintiff's additional arguments that the residency requirement violates Insurance Law § 3404 and that Plaintiff still resided at the Chestnut property at the time of the fire.
Defendants also denied Plaintiff's claim because he "failed to inform Allstate that he no longer occupied the residence premises, breaching the policy conditions" requiring him to "inform Allstate of any change in title, use or occupancy of the residence premises." Denial Letter at 3. Defendants base this on the notice requirement in Plaintiff's policy, which states:
Policy at 11 (emphasis in original).
Plaintiff raises several objections to the enforceability and application of the notice requirement. While the Court finds that the requirement could be enforceable in some circumstances, it also finds there is a genuine issue of material fact as to whether it is enforceable in this instance.
Plaintiff argues that the notice requirement is facially unenforceable because it conflicts with the vacancy clause, violates the New York Standard Fire Policy, and is immaterial. The Court disagrees.
Unlike the residency requirement, the notice requirement is reconcilable with the vacancy clause. As Defendants argue, the policy should be interpreted so that Plaintiff is allowed to leave the home vacant, but must notify Defendants if he does so. Defs.' SJ Mem. at 20; Defs.' Opp. at 12.
"It is well settled that a contract must be read as a whole to give effect and meaning to every term."
This is not, as Plaintiff argues (and as was the case with the residency requirement), "a conflict between several of the policy provisions [that] creates a latent ambiguity that must be resolved in favor of the Plaintiff." Pl.'s SJ Mem. at 14-15 (quoting
It is unfortunate that this policy required Plaintiff to realize that exercising the privilege granted by the vacancy clause would void his coverage unless he read the vacancy clause in conjunction with the notice requirement located fourteen pages earlier.
Plaintiff argues in passing that the notice requirement violates New York Insurance Law § 3404 because § 3404 "does not allow this provision as it reduces coverage" and "§ 3404 expressly bars insurance compan[ies] from creating additional hurdles to cover[age] for fire losses beyond those provided in the Standard Fire Policy." Pl.'s SJ Mem. at 20.
Insurance law § 3404 requires a policy to have "terms and provisions no less favorable to the insured than those contained in the standard fire policy." N.Y. Ins. Law § 3404. Defendants argue that under § 3404, insurers are permitted to exclude coverage when the insured conceals or misrepresents material information. Defs.' SJ Mem. at 19-20. Indeed, the Standard Fire Policy, as quoted by Plaintiff, states that "[t]his entire policy shall be void if, whether before or after a loss, the insured has willfully concealed or misrepresented any material fact or circumstance concerning this insurance . . . ." Pl.'s SJ Mem. at 8-9 (quoting N.Y. Ins. Law § 3404). Thus, as long as the misrepresentation is material, § 3404 permits Defendants to disclaim coverage.
The Court agrees with Defendants that failure to provide notice of a change in occupancy can be a material misrepresentation. But in this case, there is a factual dispute about whether Plaintiff made such a material misrepresentation.
A misrepresentation is a false "statement as to past or present fact, made to the insurer by . . . the applicant for insurance or the prospective insured, at or before the making of the insurance contract as an inducement to the making thereof." N.Y. Ins. Law § 3105(a). "A misrepresentation is `material' if `knowledge by the insurer of the facts misrepresented would have led to a refusal by the insurer to make such contract.'"
Defendants claim that the failure to provide notice was material because, had they been notified, Defendants "would not have issued the homeowner's insurance policy, which cannot be used if the insured property is not the insured's primary residence." Defs.' SJ Mem. at 18-19;
Other courts agree.
A New York court also upheld Allstate's denial of a claim based on a violation of a notice requirement in
Thus, the failure of an insured to provide notice of a change in occupancy, as required by an insurance contract, can constitute a material misrepresentation.
Having determined that misrepresenting occupancy is material under Plaintiff's contract, the next question is whether Plaintiff actually misrepresented occupancy. Here, the Court finds there is a factual dispute as to whether Plaintiff made such a misrepresentation.
Defendants assert that Plaintiff materially misrepresented the Chestnut property's occupants when he renewed his policy in 2016. They argue:
Defs.' SJ Mem. at 18-19. To establish that this misrepresentation occured, Defendants reference to Plaintiff's 2016 renewal form, which clearly lists Plaintiff as the only occupant. Dkt. No. 35-8 ("2016 Policy Renewal") at 1. The form has a section titled "adult occupants" under which Plaintiff is the only individual listed, and the section immediately below that states "children in household: none."
Defendants also argue that the Court "should credit the testimony of Allstate agent Anthony Falso and his employee Heather Hibbert that the plaintiff was asked who lived at the property in November 2016, and indicated that he was the only occupant." Defs.' Opp. to Pl.'s SJ at 10;
Unlike Ms. Hibbert's testimony, Mr. Falso's testimony aligns with Defendants claims:
Falso Dep. at 82-83. But there is an obvious problem here. Mr. Falso is testifying about what Ms. Hibbert would have asked Plaintiff, not what she did ask. Mr. Falso stated that it was Ms. Hibbert, not he, who worked with Plaintiff on the renewal.
Further, Plaintiff disputes that he was asked about occupancy. Pl.'s Reply and Opp. at 10;
There may be room to argue that Plaintiff should have spoken up when Ms. Hibbert allegedly asked Plaintiff if he wanted to make any changes to the policy. And it is unclear if anything should be made of the lack of Plaintiff's signature. But critical to Defendants' Summary Judgment Motion is their claim that Plaintiff was asked directly about occupancy during his 2016 renewal. The only support for that fact comes from Mr. Falso, who was admittedly not part of the renewal conversation. And the testimony of another employee who was part of the renewal conversation does not support Defendants' claim.
Thus, this is an issue of disputed material fact. This is unlike
Plaintiff makes several attempts to establish that he is entitled to summary judgment because he complied with the notice requirement. While none are persuasive, the arguments do potentially raise additional issues of disputed fact.
Plaintiff argues that Defendants had notice of the change in occupancy because, prior to the fire, Ms. Marshall took out a renter's insurance policy for the Chestnut property through Allstate. Pl.'s SJ Mem. at 20; Pl.'s SMF ¶ 31. Defendants counter that the renter's insurance policy was in a different portfolio, and "there would have been no way to cross-reference the addresses between them. Only someone with the address memorized would have noticed they were for the same property." Defs.' Resp. to Pl.'s SMF ¶ 24. Mr. Falso's testimony backs this assertion. Falso Dep. at 85-86 ("They're two separate portfolios . . . unless you have this address memorized in the back of your head, you wouldn't know the two connected.").
Plaintiff also notes that he listed the Douglas property as his mailing address on insurance forms,
The Court finds that Defendants did not have notice of the change in occupancy based on the renter's insurance or the change in mailing address. In
To the extent that the mailing address and renter's insurance suggest that Plaintiff did not intentionally mislead Defendants about occupancy, they are no defense.
Next, Plaintiff asserts that because there were several people living in the Chestnut property at the time of loss, it was "indisputably occupied." Therefore, Plaintiff argues, he was not required to provide notice because the property never changed from occupied to unoccupied. Pl.'s SJ Mem. at 19. Defendants counter that a change in the list of occupants constitutes "any change in . . . occupancy" as contemplated by the notice requirement, Defs.' SJ Mem. at 20-21 (quoting Policy at 11) (emphasis in Defs.' SJ Mem.), meaning that Plaintiff was required to give notice that he moved out and others moved in.
The Court agrees with Defendants a change in the list of occupants constitutes "any change in occupancy." It is true that ambiguous policy provisions should be construed in favor of the insured and that "for the insurer to prevail, it must demonstrate not only that its interpretation is reasonable but that it is the only fair interpretation."
Finally, Plaintiff argues that there was not any change in occupancy (and thus no requirement to provide notice) because Plaintiff occupied the Chestnut property up until the fire. The Court finds that whether Plaintiff continued to occupy the Chestnut property is an issue of disputed fact. But as discussed, the policy also requires notice if other people become occupants, and there no factual dispute that Ms. Marshall, Ms. Pollicino, and Ms. Pollicino's children became occupants. Thus, if Defendants disclaimed coverage because Plaintiff failed to provide notice that other people became occupants, it does not matter whether Plaintiff himself remained an occupant. However, there is an outstanding question as to whether Defendants disclaimed coverage on the ground that other people because occupants or based the disclaimer solely on Plaintiff ceasing to be an occupant.
Courts have interpreted occupancy broadly for the purposes of insurance contracts. In
The parties dispute the extent and characterization of Plaintiff's presence at the Chestnut property. Defendants state that Ms. Pollicino told the investigator that Plaintiff "no longer lived there and had moved out in April 2016," Defs.' SMF ¶ 23; Defs.' Additional SMF ¶ 25, and that "plaintiff admitted to the adjuster that he had been living in Liverpool, and not at the [Chestnut property]," Defs.' SMF ¶ 24. Timothy Brown, a senior claim service analyst for Allstate who investigated Plaintiff's claim, testified as follows:
Brown Dep. at 16, 25. Plaintiff disputes this: "Defendants have failed or refuse to produce any statements of [P]laintiff and [he] has not offered any admissions. The testimony cited is not accurate. Mr. Pollicino told Allstate `I didn't move out. I was just staying over on a temporary basis somewhere else.'" Pl.'s Resp. to Defs.' SMF ¶ 24 (quoting Brown Depo. at 23). Plaintiff also disputes the accuracy of Ms. Pollicino's alleged statement, though he does not specify what he believes she said. Pl.'s Resp. to Defs. SMF ¶ 23; Pl.'s Resp. to Defs.' Additional SMF ¶ 25. Mr. Brown did not recall if anyone else was present during this interview, and he did not take notes. Brown Dep. at 26-27.
Plaintiff argues that "to the extent he was spending nights at his girlfriend's home, [he] was only doing so on a temporary basis." Pl.'s SMF ¶ 42. Defendants counter that Plaintiff had been spending all of his nights at the Douglas property: "Ms. Pollicino testified that plaintiff stopped spending any nights at the [Chestnut] property in July 2016." Defs.' Resp. to Pl.'s SMF ¶ 42. (Citing Dkt. No. 32-8 ("Lauren Pollicino Deposition") at 9); Notably, this contradicts Ms. Marshall's affidavit:
Dkt. No. 32-6 ("Marshall Affidavit") at 2.
Based on this contradictory testimony and broad definition of occupancy, there is a disputed issue of fact as to whether Plaintiff occupied the Chestnut property in the months leading up to the fire. There is no question, however, that Plaintiff's family occupied the Chestnut property. As stated above, if Defendants denied coverage because Plaintiff did not provide notice that other people moved in, the question of whether Plaintiff still occupied the Chestnut residence would be irrelevant, and the only remaining question would be whether Plaintiff materially misrepresented the change in occupancy.
But the denial letter does not disclaim coverage because Plaintiff failed to provide notice that other people moved in. The denial letter states:
Denial Letter at 3. Mismatched pronouns aside, it is clear that in disclaiming coverage under the notice requirement, Defendants rely only on Plaintiff's failure to provide notice that he no longer occupied the premises.
Neither party has explicitly addressed this issue, but it appears that Defendants have attempted to broaden their justifications for disclaimer since the time of the Denial Letter. In their Summary Judgement Memorandum, for instance, Defendants claim that the fact that Plaintiff did not inform Allstate that others were living at the Chestnut property during his 2016 policy renewal was a material misrepresentation. Defs.' SJ Mem. at 18.
"New York's substantive law . . . precludes asserting additional reasons for having terminated or repudiated a contract only if a party either relied on the reasons for nonperformance originally given, or could have cured its performance had the true grounds for repudiation been asserted earlier."
Plaintiff also asserts a cause of action in waiver and estoppel. Am. Compl. ¶¶ 45-50. Plaintiff claims that Defendants "did not seek and did not consider any information relating to residency in its insurance application" and "knew the facts and circumstances surrounding the Insured Premises."
Waiver is a "voluntary and intentional relinquishment of a known right."
In opposition to Defendants' Summary Judgment Motion, Plaintiff argues that "[i]t is undisputed that defendants knew that plaintiff's ex-wife had moved in with their daughter and grandchildren." Pl.'s Reply and Opp. at 12. But Plaintiff cites no evidence for this assertion.
While Plaintiff does not explain his argument, the Court presumes that the basis for these claims is his previous assertion that Defendants had notice because of Ms. Marshall's renter's insurance and Plaintiff's mailing address. But the Court has already determined that there is no factual support for the claim that the renter's insurance and mailing address provided notice. Thus, no reasonable jury could find that Defendants effected a "voluntary and intentional relinquishment" of their right to disclaim coverage for lack of notice.
In the third cause of action in the Amended Complaint, Plaintiff "seeks a judicial declaration by the Court: (i) that coverage for the loss at the Premises referenced herein is provided under the Policy; (ii) that Plaintiff's loss at the Insured Premises are not excluded from coverage; and, (iii) that Allstate's actions during the claim investigation were unlawful." Am. Compl. at 6. Defendants argue that the cause of action for declaratory judgment should be dismissed because it is not an independent cause of action. Defs.' SJ Mem. at 24. Plaintiff does not respond to this argument or make any substantive argument in support of this cause of action.
"Even in diversity actions . . . federal law controls the justiciability of declaratory judgment actions."
In their answer to the Amended Complaint, Defendants raise eight affirmative defenses. Dkt. No. 21 ("Answer to Amended Complaint") ¶¶ 49-56. Plaintiff makes a very brief argument that Defendants' first through fifth affirmative defenses should be dismissed. Pl.'s SJ Mem. at 21.
"Where a plaintiff uses a summary judgment motion . . . to challenge the legal sufficiency of an affirmative defense—on which the defendant bears the burden of proof at trial—a plaintiff may satisfy its Rule 56 burden by showing that there is an absence of evidence to support [an essential element of] the [non-moving party's] case."
Plaintiff claims that Defendants' first and second affirmative defenses—assumption of risk and contributory conduct by Plaintiff—have "no application to an insurance claim."
Plaintiff asserts that Defendants' third affirmative defense—failure to mitigate damages—has no basis in the record. Pl.'s SJ Mem. at 21; Answer to Am. Compl. ¶¶ 61. Defendants contest this, arguing that the record reveals that Plaintiff made no effort to salvage "a substantial amount of apparently undamaged furniture and other personal effects." Defs.' Opp. to Pl.'s SJ at 18. Plaintiff does not rebut this evidence, and thus the court declines to dismiss Defendants' third affirmative defense.
Plaintiff claims that the fourth affirmative defense—that defendants acted reasonably, in good faith, and without malice—is "no defense to plaintiff's breach of contract or declaratory judgment causes of action." Pl.'s SJ Mem. at 21; Answer to Am. Compl. ¶ 62. However, in ruling on Plaintiff's motion to amend his complaint, the Honorable Andrew T. Baxter, U.S. Magistrate Judge, held that "plaintiff's motion to amend by adding a fifth cause of action for the violation of the implied covenant of good faith and fair dealing is denied, because it is duplicative of his already asserted breach of contract claim." Dkt. No. 17 ("February 2018 Decision and Order") at 7. Thus, the Court declines to dismiss the fourth affirmative defense because, as Defendants argue, that dismissal "would be inequitable . . . because that defense is an express response to the allegations made in the Complaint." Defs.' Opp. at 19.
Plaintiff makes no direct argument that Defendants' sixth and seventh affirmative defenses—that "Plaintiff failed to fulfill the terms, conditions and prerequisites of the insurance contract" and that "[t]he damages sought were not covered by the insurance contract"—should be dismissed. Answer to Am. Compl. ¶¶ 54-55; Defs.' Opp. to Pl.'s SJ at 19. These defenses relate to outstanding issues unresolved on summary judgment, and thus the Court declines to dismiss Defendants' sixth and seventh affirmative defenses.
Plaintiff also does not address Defendants' fifth or eighth affirmative defenses—that "Plaintiff failed to provide timely notice" and that the "loss, the act, and the damages fall within several exclusions of the policy and the bases of the denial were placed in a letter to the insured on June 20, 2017 . . . ." Am. Compl. ¶¶ 65-66.
Accordingly, it is hereby:
