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Cento v. Allstate Property & Casualty Insurance Co.

United States District Court, E.D. Missouri, Eastern Division

September 16, 2014

ICTORIA CENTO, Plaintiff,
v.
ALLSTATE PROPERTY & CASUALTY INSURANCE COMPANY, Defendant.

MEMORANDUM AND ORDER

CHARLES A. SHAW, District Judge.

This diversity matter is before the Court on defendant Allstate Property and Casualty Insurance Company's ("Allstate") motion for summary judgment pursuant to Rule 56(a), Federal Rules of Civil Procedure. Plaintiff Victoria Cento ("plaintiff") opposes the motion and it is fully briefed and ready for disposition. For the following reasons, Allstate's motion for summary judgment will be granted in part and denied in part.

I. Background

This cause of action involves an insurance dispute. Allstate issued plaintiff a homeowners policy covering her residence in Imperial, Missouri. Sometime in December 2007, there was a leak in the ice maker of plaintiff's refrigerator that caused some water damage. Approximately forty-five days later, plaintiff made a claim on the homeowners policy. Plaintiff alleges in her Second Amended Complaint that defendant failed to adequately respond to her claim and, as a result, the company aggravated the loss to her cabinetry, flooring, vanities, basement ceiling, furniture, electronics and personal items. She also alleges Allstate failed to pay her for mold damage to her home. Plaintiff further alleges that she has made a written demand on her claim, which Allstate has denied without reason. Plaintiff brings claims against Allstate for breach of contract (Count I) and statutory vexatious refusal to pay in violation of ยงยง 375.296 and 375.420, Mo. Rev. Stat. (2000) (Count II), under Missouri law.[1]

Allstate answered the Second Amended Complaint and alleged as affirmative defenses that plaintiff failed to comply with her duties under the policy at issue, and that she failed to mitigate her damages. Allstate also filed a counterclaim for declaratory judgment seeking a judicial declaration of no coverage under the policy.

In the motion presently before the Court, defendant Allstate moves that the Court enter judgment in its favor as to plaintiff's claims against the company. Allstate argues that under the homeowners policy at issue, it elected to pay plaintiff for the water damage to her home as opposed to electing to repair and, therefore, under Missouri law, it cannot be held responsible for the repairs that were done to her home. Allstate also argues that it paid the policy limit for mold coverage, that plaintiff had no living expenses that were covered under the policy, and with respect to alleged damage to personal property, plaintiff did not meet her obligations under the policy.

II. Summary Judgment Standard

Pursuant to Federal Rule of Civil Procedure 56(c), a court may grant a motion for summary judgment if all of the information before the court shows "there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." See Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986).

The initial burden is placed on the moving party. City of Mt. Pleasant, Ia. v. Associated Elec. Co-op., Inc. , 838 F.2d 268, 273 (8th Cir. 1988) (the moving party has the burden of clearly establishing the non-existence of any genuine issue of fact that is material to a judgment in its favor). Once this burden is discharged, if the record shows that no genuine dispute exists, the burden then shifts to the non-moving party who must set forth affirmative evidence and specific facts showing there is a genuine dispute on a material factual issue. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249 (1986).

Once the burden shifts, the non-moving party may not rest on the allegations in its pleadings, but by affidavit and other evidence he or she must set forth specific facts showing that a genuine issue of material fact exists. Fed.R.Civ.P. 56(e); Herring v. Canada Life Assur. Co. , 207 F.3d 1026, 1029 (8th Cir. 2000). The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., v. Zenith Radio Corp. , 475 U.S. 574, 586 (1986). A dispute about a material fact is "genuine" only "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Herring , 207 F.3d at 1029 (quoting Anderson , 477 U.S. at 248). A party resisting summary judgment has the burden to designate the specific facts that create a triable question of fact. See Crossley v. Georgia-Pacific Corp. , 355 F.3d 1112, 1114 (8th Cir. 2004). "Self-serving, conclusory statements without support are not sufficient to defeat summary judgment." Armour and Co., Inc. v. Inver Grove Heights , 2 F.3d 276, 279 (8th Cir. 1993).

In passing on a motion for summary judgment, it is not the court's role to decide the merits. The court should not weigh evidence or attempt to determine the truth of a matter. Rather, the court must simply determine whether a genuine issue of material fact exists. Bassett v. City of Minneapolis , 211 F.3d 1097, 1107 (8th Cir. 2000).

With this standard in mind, the Court accepts the following facts as true for purposes of resolving the instant motion for summary judgment.

III. Facts

Allstate issued plaintiff a homeowners policy, Policy No. 000915913350 (hereinafter "Policy") insuring the real and personal property at 5577 Pierce View, Imperial, Missouri, with a relevant policy period of June 4, 2007 through June 4, 2008. The Policy provided coverage, among other things, of plaintiff's dwelling, her personal property, additional living expenses up to a period of 18 months, and mold coverage up to $5, 000.

Under the terms of the Policy, if a loss to property occurs that may be covered,

[Y]ou[2] must:

a) immediately give us or our agent notice. b) protect the property from further loss. Make any reasonable repairs necessary to protect it. Keep an accurate record of any repair expenses.
c) separate damaged from undamaged personal property. Give us a detailed list of the damaged, destroyed or stolen property, showing the quantity, cost, actual cash value and the amount of loss claimed.
....
e) produce receipts for any increased costs to maintain your standard of living while you reside elsewhere, ....
f) as often as we reasonably require:
1. Show us the damaged property.[3]
....

See Doc. 79, Ex. C at 16.

The Policy contained the following provision:

We have no duty to provide coverage under this section if you, an insured person, or a representative of either fail to comply with items a) through g) above, and this failure to comply is prejudicial to us.

Id. at 17.

Under the terms of the Policy, if a covered loss occurs, Allstate may elect to either repair, rebuild or replace the damaged property, or to pay for all or any of the damaged property under the following Policy provision:

4. Our Settlement Options

In the event of a covered loss, we have the option to:

a) repair, rebuild or replace all or any part of the damaged, destroyed or stolen property with property of the like kind and quality within a reasonable time; or
b) pay for all or any part of the damaged, destroyed or ...

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