R. BRYAN HARWELL, Chief District Judge.
This matter is before the Court for consideration of Plaintiff Kenneth D. Dippel's ("Dippel") and Defendant South Carolina Farm Bureau Mutual Insurance Company's ("SC Farm Bureau") objections
The Magistrate Judge makes only a recommendation to the Court. The Magistrate Judge's recommendation has no presumptive weight, and the responsibility to make a final determination remains with the Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court must conduct a de novo review of those portions of the R & R to which specific objections are made, and it may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge or recommit the matter with instructions. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
The Court must engage in a de novo review of every portion of the Magistrate Judge's R & R to which objections have been filed. Id. However, the Court need not conduct a de novo review when a party makes only "general and conclusory objections that do not direct the [C]ourt to a specific error in the [M]agistrate [Judge]'s proposed findings and recommendations." Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence of specific objections to the R & R, the Court reviews only for clear error, Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005), and the Court need not give any explanation for adopting the Magistrate Judge's recommendation. Camby v. Davis, 718 F.2d 198, 199-200 (4th Cir. 1983).
"A document filed pro se is `to be liberally construed.'" Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Courts are not, however, required to "conjure up questions never squarely presented to them" or seek out arguments for a party. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). The Court will address each specific objection to the R & R in turn, but the Court need not — and will not — address any arguments that fail to point the Court to alleged specific errors the Magistrate Judge made in the R & R. See Orpiano, 687 F.2d at 47.
On May 18, 2016, Dippel — then represented by counsel
On August 13, 2018, SC Farm Bureau filed a motion for summary judgment. ECF Nos. 104; 105.
The Magistrate Judge recommends the Court grant in part and deny in part SC Farm Bureau's motion for summary judgment. R&R. Specifically, the Magistrate Judge suggests the Court grant SC Farm Bureau's motion for summary judgment as to structural damage to Dippel's home because this damage falls within the earth movement exclusion to coverage under the flood insurance policy and does not qualify for the exception to said exclusion. R & R at 13-20. The Magistrate Judge recommends, however, that Dippel brought claims which would not be excluded from coverage under the earth movement exclusion ("non-structural claims"). Id. at 20. These claims include coverage for "moisture damage, mold, damage to [Dippel's] ductwork and HVAC unit, damage to [Dippel's] drainage lines, termite issues, debris removal, and power washing of the exterior of [Dippel's] property." Id. at 20. The Magistrate Judge notes SC Farm Bureau failed to move for summary judgment on these non-structural claims, and failed to respond to Dippel's assertion he was bringing these claims. Id. Accordingly, the Magistrate Judge suggests SC Farm Bureau's motion for summary judgment is due to be denied as to these non-structural claims. Id.
Dippel filed objections to the R & R, ECF No. 217,
Each of Dippel's objections is without merit. Dippel first claims the flood insurance policy here is ambiguous, and the cases cited by the Magistrate Judge do not apply because none of them address the ambiguity in the policy. Id. at 4. Dippel specifically argues the policy is ambiguous because it provides coverage for damages from flooding but contains exclusions. Id.
Ambiguity arises when there is "[d]oubtfulness or uncertainty of meaning or intention[.]" Ambiguity, Black's Law Dictionary (11th ed. 2019). Having reviewed the policy at issue, the Court finds no such ambiguity in the policy. The policy contains a general statement providing coverage for damages from flooding. ECF No. 104-4 at 4 ("We will pay you for direct physical loss by or from flood to your insured property . . . ."). The policy also contains several exclusions, id. at 25-27, including the one Dippel claims renders the policy ambiguous, which states: "[w]e do not insure for loss to property caused directly by earth movement even if the earth movement is caused by flood[,]" id. at 26. Said exclusion, however, has a clear meaning, and is neither ambiguous, nor does it render the policy ambiguous. For that reason, the Court will overrule Dippel's first objection.
Dippel's next objection is that the earth movement exception does not apply here. ECF No. 217 at 5-7. Dippel contends the flooding at issue here either came from the overflow of a nearby creek, such that it falls within the definition of a flood and outside the earth movement exclusion, or from the collapse of the banks of that creek, such that it falls within the exception to the earth movement exclusion. Id. Both arguments fail.
As noted above, the flood insurance policy at issue here provides coverage for "direct physical loss by or from flood to your insured property" if the premiums are paid, the insured complies with all terms of the policy, and the insured provides accurate information and statements to the insurance company. ECF No. 104-4 at 4. A flood is defined as:
Id. at 5.
The earth policy exclusion from this coverage states:
Id. at 26. There is also an exception to the exclusion:
Id.
The evidence Dippel cites as showing overflow is not evidence of the type overflow needed for insurance coverage to apply. Dippel points to the insurance adjuster's statement that "`[t]he cause of the loss is flooding from water overflow or rising water[.]'" ECF No. 217 at 6 (citing ECF No. 133-3 at 32). As a preliminary matter, that statement is contained within a section of the adjuster's report dedicated to subrogation, and is not classified as an overall conclusion. ECF No. 133-3 at 32. Further, the statement does not indicate where the purported "overflow" may have originated. Id. Dippel also points to three photographs as indicating the overflow from the creek caused his flooding. ECF No. 217 at 6-7 (citing ECF Nos. 177-1 at 29; 133-3 at 34, 57).
To the extent Dippel argues the creek bed collapsed causing flooding on his property, that argument is likewise without merit. For the land subsidence definition of flooding to apply such that the flooding would be covered, "the insured has the burden of proof to show that the collapse or subsidence of land along the shore of a natural body of water was the result of erosion or undermining caused by waves or currents of water exceeding anticipated cyclical levels at the time of the alleged damage." Chesapeake Ship Propeller Co. v. Stickney, 820 F.Supp. 995, 999 (E.D.Va. 1993). As the Magistrate Judge notes, Dippel has "failed to point to any admissible evidence that collapse or subsidence of land along the creek bed of the unnamed creek caused flood waters to reach his home." ECF No. 214 at 19. Further, Dippel's property is not located on the shore of the creek, but some 75 yards away from the creek, with a house and a street between the creek and Dippel's house. ECF Nos. 104-2 at 53; 104-3 at 17; 105-7. Accordingly, assuming without deciding there was land subsidence on Dippel's property from the overflow of the creek, the provision for coverage of land subsidence along the shore of a body of water would not apply. See Armstrong v. Fidelity Nat'l Prop. & Cas. Ins. Co., 2014 WL 791377, at *2 (S.D. Tex. 2014) (finding no flood insurance coverage for subsidence of land along the shore of a body of water when there were three streets and a number of structures between the water at issue and the subject property); see also id. (indicating that while land need not necessarily abut the body of water for coverage to apply, there should be no other structures of the same kind between the subject property and the water).
Dippel next argues the Magistrate Judge erred in stating the insurance adjuster visited Dippel's property October 10, 2015 rather than October 11, 2015, when Dippel contends the adjuster visited. ECF No. 217 at 7. The Court agrees with Dippel: the Magistrate Judge stated the adjuster visited Dippel's residence on October 10, 2015. R & R at 4 (citing ECF Nos. 104-3 at 16-17; 104-6). October 10, 2015 was the date indicated by the adjuster in his deposition, ECF No. 104-3 at 16-17, and on the adjuster's report, ECF No. 104-6 at 6. However, the photographs taken by the adjuster are dated October 11, 2015. Id. at 22-30. Accordingly, it is unclear whether the adjuster visited Dippel's residence October 10, 2015, or October 11, 2015. Even assuming the adjuster visited October 11, 2015, Dippel fails to point to any way that would change the Magistrate Judge's analysis, and the Court finds a difference in the date of the adjuster's visit would not raise a genuine issue of material fact sufficient to deny summary judgment to SC Farm Bureau on Dippel's structural claims. Accordingly, the Court will deny Dippel's third objection to the report.
Dippel next advances the Magistrate Judge erred by striking the Forensic Analysis and Engineering Report ("FAER"). ECF No. 217 at 7. The Magistrate Judge did not recommend striking the FAER in the instant R & R. See R & R. Rather, the Magistrate Judge struck the FAER in the July 26, 2019 nondispositive Order, ECF No. 213, to which Dippel has filed separate objections and which the Court addresses in a separate Order. Supra note 7. For that reason, the Court will overrule Dippel's instant objection to the Magistrate Judge striking the FAER.
Finally, Dippel claims it is error for the Magistrate Judge not to have ruled on Dippel's motion for summary judgment. ECF No. 217 at 7. Dippel further asserts the Magistrate Judge never intends to rule on Dippel's motion for summary judgment. Id. Dippel provides no support for these claims, and the Court can find no error in the Magistrate Judge having not yet issued an R & R on Dippel's motion for summary judgment. For that reason, the Court will overrule Dippel's final objection to the R & R.
SC Farm Bureau also filed objections to the R & R. ECF Nos. 219; 220; 221; 222,
As a preliminary matter, the Court finds no inconsistency between the Magistrate Judge's review of the facts underlying this case and his recommendation regarding Dippel's non-structural claims. Thus, the Court will overrule SC Farm Bureau's first objection to the R & R.
The Magistrate Judge noted SC Farm Bureau failed to move for summary judgment as to the non-structural damages, and failed to respond to Dippel's statement he was bringing such claims. ECF No. 214 at 20. For that reason, the Magistrate Judge recommended SC Farm Bureau be denied summary judgment on Dippel's non-structural claims. Having reviewed S.C. Farm Bureau's motion for summary judgment and its replies, ECF Nos. 104; 105; 114; 124; 184, the Court agrees with the Magistrate Judge: SC Farm Bureau failed to address Dippel's non-structural claims. Accordingly, the Court will deny summary judgment to SC Farm Bureau on the non-structural claims. See Fed. R. Civ. P. 56(a) ("A party may move for summary judgment, identifying each claim or defense — or the part of each claim or defense — on which summary judgment is sought."). To the extent SC Farm Bureau seeks to argue in its objections to the R & R it is entitled to summary judgment on Dippel's non-structural claims, it failed to address these claims at the summary judgment stage, and its motion for summary judgment is due to be denied as to these claims. See generally Fed. R. Civ. P. 56 (providing the procedures which must be followed on a motion for summary judgment). For those reasons, the Court will overrule SC Farm Bureau's remaining objections to the R & R.
Further, having reviewed the R & R, the record, and the law, the Court will overrule Dippel's and SC Farm Bureau's objections and adopt the R & R.
For the foregoing reasons, the Court
In November, 2018, this Court issued an Order denying a then-pending motion by SC Farm Bureau to waive mediation, but extending the deadline to mediate the case until thirty days after the disposition of SC Farm Bureau's motion for summary judgment. ECF No. 136 at 8. In accordance with that Order, the Court now
Dippel is correct: the Magistrate Judge did not consider the opinion of Mr. Davis. The Magistrate Judge was, however, correct not to consider Davis's opinion. Davis's opinion was rendered more than eight months after disclosure of Dippel's experts was due, and some four months after discovery closed in this matter, see ECF No. 43 at 1 (indicating Dippel had to disclose experts by March 6, 2018, and discovery closed in this case June 5, 2018); ECF No. 62 (April 5, 2018 Order indicating deadlines were stayed for thirty days). Further, Dippel never disclosed Davis as an expert in this matter. See ECF No. 32 (listing Dippel's experts) Accordingly, Davis's opinion is not properly before the Court. Fed. R. Civ. P. 37(c)(1) ("If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion . . . unless the failure was substantially justified or is harmless."). There has been no showing here that Dippel's failure to timely disclose Davis was either substantially justified or harmless.
In his motion for a hearing, Dippel requests a hearing on: 1) continuing discovery issues; 2) the fact that he did not know about the Scheduling Order in this case because he is pro se; and 3) the parties never having had a conference as required under Fed. R. Civ. P. 26(f). ECF No. 234 at 3-4. A hearing is unwarranted here. As a preliminary matter, discovery in this case closed more than a year ago, on July 5, 2018. ECF Nos. 43; 62. Thus, to the extent Dippel claims a hearing is needed to decide discovery issues, his motion for such a hearing is untimely. Second, when the Court issued the operative Scheduling Order in this case, ECF No. 43, Dippel was represented by counsel, and thus received notice of the Scheduling Order through the Court's electronic filing system. When the Court later issued an Order, ECF No. 62, which inter alia extended the discovery deadline in this case to July 5, 2018, the Clerk of Court sent that order to Dippel, who was then proceeding pro se, via U.S. Mail. Accordingly, Dippel's argument he did not know of the Scheduling Order in this case is without merit. Finally, the Court assumes Dippel is referring to the requirement under Fed. R. Civ. P. 26(f) for the parties to confer when he argues "the parties were never scheduled for an evidentiary hearing conference pursuant to FRCP 26." ECF No. 234 at 4. This argument is unavailing. On August 9, 2016, the parties submitted a joint report under Fed. R. Civ. P. 26(f) indicating they had conferred as required under said Rule; the report was signed by counsel for SC Farm Bureau and then-counsel for Dippel. ECF No. 18. For the above reasons, the Court DENIES Dippel's motion for a hearing.
