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Nationwide Affinity Insurance Company of America v. Deimund

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

June 28, 2018

NATIONWIDE AFFINITY INSURANCE COMPANY OF AMERICA, Plaintiff,
v.
JAMES DEIMUND and MARY DEIMUND, Defendants.

          MEMORANDUM AND ORDER

          ABBIE CRITES-LEONI UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Plaintiff Nationwide Affinity Insurance Company of America's (“Nationwide”) Motion for Partial Summary Judgment. (Doc. 39.) The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1). For the following reasons, the Court will deny Nationwide's Motion.

         Background [1]

         On December 29, 2016, Nationwide filed a Complaint for Declaratory Judgment, seeking a determination of its rights and obligations under a policy of insurance that was issued to Defendants James and Mary Deimund (“Deimunds”), policy number HOA 0019933591-8 (“Policy”). (Doc. 1.) On or about January 19, 2016, the Deimunds' house and personal property located at 11394 Billings Road, Ste. Genevieve, Missouri 63670-7131 sustained damages as a result of a fire.

         At the time of the fire, Mary Deimund was reportedly at work several miles from the home, and James Deimund was a few blocks away at a friend's home. The Deimunds' adult son, Sheldon Deimund, was home when the fire started. There is no evidence or allegation that anyone else was at the home when the fire started. The Deimunds claim the fire was accidental and started near or around the fire place. Neither the canine team nor the laboratory testing of samples from the scene revealed any evidence of an accelerant. No. public agency investigated the fire.

         The Deimunds submitted a claim to Nationwide for insurance proceeds under the Policy. On December 28, 2016, Nationwide filed the instant Complaint for Declaratory Judgment, in which it alleges that the Deimunds are barred from recovery under the Policy due to the application of two Policy provisions. Nationwide first alleges that an exclusion precluding coverage for intentional loss applies because Nationwide's investigation of the claim has led to a reasonable belief that the Deimunds, or someone at their direction, started the fire. This provision provides as follows, in relevant part:

         SECTION I-EXCLUSIONS

         A. We do not insure for loss caused directly or indirectly by any of the following…

         8. Intentional Loss

a. 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.

(Doc. 1-1 at 13, 41.)

         Nationwide next argues that there is no coverage under the Policy because the Deimunds breached the “concealment or fraud” condition, in that they concealed and/or misrepresented material facts with respect to the cause of the claimed loss. The relevant provision provides as follows:

         Q. Concealment or Fraud

         We provide coverage to no “insured” under this policy if, whether before or after a ...


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