Anderson v. Am. Family Ins. Co.

350 F. Supp. 3d 1295
CourtDistrict Court, M.D. Georgia
DecidedOctober 15, 2018
DocketCASE NO. 5:15-CV-475 (MTT)
StatusPublished
Cited by2 cases

This text of 350 F. Supp. 3d 1295 (Anderson v. Am. Family Ins. Co.) is published on Counsel Stack Legal Research, covering District Court, M.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Anderson v. Am. Family Ins. Co., 350 F. Supp. 3d 1295 (M.D. Ga. 2018).

Opinion

MARC T. TREADWELL, JUDGE

Defendant American Family Insurance Company (AFIC) moves for summary judgment on the claims of Plaintiff Garth Anderson. Doc. 56. The motion (Doc. 56) is GRANTED , and Anderson's claims are DISMISSED with prejudice . Accordingly, Anderson's motion to certify (Doc. 53) and the parties' Daubert motions (Docs. 54; 57) are MOOT .1

I. BACKGROUND

This is one of several putative class action cases filed in this Court by insureds, all represented by the same lawyers, who claim that their insurers have failed to pay for the diminished value their homes suffered as the result of a loss that is otherwise covered by their insurance policies. In this context, diminished value has a very specific meaning: the loss in value of a property notwithstanding full repairs due to an intangible stigma owing to the circumstances of the loss. See, e.g. , John Thurmond & Assocs., Inc. v. Kennedy , 284 Ga. 469, 471 n.2, 668 S.E.2d 666, 669 n.2 (2008). In State Farm Mutual Automobile Insurance Company v. Mabry , the Georgia Supreme Court held, in a class action brought by insureds against their automobile insurer, that automobile insurance policies cover diminished value absent an effective exclusion. 274 Ga. 498, 556 S.E.2d 114 (2001). In Royal Capital Development LLC v. Maryland Casualty Company , the Georgia Supreme Court held that the same obligation exists for real property insurers. 291 Ga. 262, 728 S.E.2d 234 (2012). Also, although not applicable here for reasons which will be explained, the Georgia Supreme *1297Court held in Mabry that when an insurer improperly denies that its policy covers diminished value, a court may order the insurer to assess the insured's loss for diminished value. 274 Ga. at 509-10, 556 S.E.2d at 123-24.

Georgia homeowners insurers responded in different ways to Royal Capital . For example, State Farm Fire and Casualty Company, the defendant in Thompson v. State Farm Fire and Casualty Company and Long v. State Farm Fire and Casualty Company , chose to ignore Royal Capital and flatly denied that its policies covered diminished value. See, e.g. , Thompson , No. 5:14-cv-32, Doc. 126 at 1; Long , No. 5:17-cv-28, Doc. 27 at 3. At the other extreme, First Liberty, the defendant in Brewton v. First Liberty Ins. Corp. , No. 5:14-cv-00436, 2017 WL 5616360 (M.D. Ga. 2017), quickly recognized that Mabry and Royal Capital say what they plainly say, acknowledged that its policies covered diminished value, and began assessing for diminished value.

The different paths taken by State Farm and First Liberty frame the issues in this case. In Thompson , the Court granted the plaintiff's motion to certify a class for "failure to assess" but not for "failure to pay" diminished value. The Court denied class action status for Thompson 's failure to pay class because of concerns over commonality and predominance. See Thompson v. State Farm Fire and Casualty Company , 2016 WL 951537, at *5-9 (M.D. Ga. 2016). The facts giving rise to those concerns are relevant here. It seemed evident that to recover damages for diminished value, it would be necessary for each member of the class to demonstrate that his or her home decreased in value as a result of stigma. State Farm argued that this necessarily individualized process precluded class certification for a failure to pay class. The plaintiffs responded in part by arguing that they intended to prove diminished value through innovative mass appraisal "contingent valuation" methodologies developed by their expert, Dr. John Kilpatrick. As the Court noted at the time, there "is an obvious flaw in this argument-it assumes that every member of the class suffered diminished value and thus that State Farm breached the policies of all class members." Id. at *7. Although the plaintiffs' lawyers argued in Thompson , as they have here, that they do not contend that diminished value exists in every loss, the Court noted the following in its order denying class certification for failure to pay in Thompson :

Although the Plaintiffs say this, the mass appraisal methodology employed by [Kilpatrick] necessarily concludes that every home in a particular loss scenario suffers diminished value, regardless of the circumstances of a particular loss. (Doc. 74 at 238:19-239:19). Simply put, [Kilpatrick] conducts a survey to determine what a potential buyer would pay-stated as a percentage of fair market value, e.g., 5%, 75%, 135%-for a house after a specific type of loss, e.g., a leaking pipe. (Doc. 52 at 16-18). He averages the responses to determine what the percentage of decrease (or, theoretically, increase) in value losses within that scenario will experience. Of course, every scenario he has run so far results in diminished value even though a substantial number of respondents said they would pay more than fair market value for a properly repaired house. (Doc. 74 at 91:8-92:5, 238:5-18).

Id. at *7 n.2.

Thus, Kilpatrick's "proof" that diminished value actually exists in a particular situation and that it exists because of stigma is based not on facts specific to the loss, but rather comes from scenarios that ask what one would, in percentage terms, pay for a house that had, for example, a leaky pipe. The following excerpts from Kilpatrick's testimony at the Daubert *1298hearing in Thompson illustrate how his survey methodology works:

Q. So is it, I take it, your opinion that every single time a homeowner has a leaky roof that's replaced, and there's an insurance claim filed on it, one would expect the home to lose between 29 percent and 34 percent of its value, based on your research?
A. Notwithstanding further testing to be done, further evaluations to be done after we've received and validated other lists of properties which have been subjected to that.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
350 F. Supp. 3d 1295, Counsel Stack Legal Research, https://law.counselstack.com/opinion/anderson-v-am-family-ins-co-gamd-2018.