Chavez v. Homesite Insurance

834 F. Supp. 2d 504, 2011 WL 2680712, 2011 U.S. Dist. LEXIS 73866
District Court, E.D. Louisiana·Decided July 8, 2011·No. Civil Action No. 10-3459·Published·Cited by 9 cases

Opinion

ORDER AND REASONS

SARAH S. VANCE, District Judge.

Before the Court is defendant Homesite Insurance Company’s motion for summary judgment.1 Because Homesite has established, as a matter of law, that plaintiffs Freddy Chavez and Ericka Zelaya-Chavez intentionally misrepresented material information related to their insurance claim, Homesite’s motion is GRANTED.

I. BACKGROUND

This case concerns an insurance dispute over damage allegedly caused by Hurricane Gustav to the Chavezes’ property in Marrero, Louisiana. The property was insured under a policy issued by Homesite. About three years before Hurricane Gustav, in 2005, the Chavezes collected on an insurance claim from Homesite for damages to the same property resulting from Hurricane Katrina, including damages to an outdoor storage shed.2 Homesite’s adjuster, Eagle Adjusting Services, estimated that repairing the damage to the shed would require removal and replacement of the shed’s roofing shingles and application of a sealer or primer and two coats of paint, at a total cost of $344.42.3 It is undisputed that Homesite paid the Chavezes for the damage and that the Chavezes made no repairs to the shed.4

After Hurricane Gustav hit in 2008, the Chavezes submitted a separate insurance claim for damages allegedly caused by Gustav to the dwelling and shed.5 A Homesite adjuster assessed the total damage to the property at $2,613.57, including $213.29 in roof damage to the shed.6 Homesite then informed the Chavezes that it would be unable to issue any payments for the loss, because the estimated damages were less than the Chavezes’ policy deductible of $2,880.00.7 In response, the Chavezes obtained estimates from the Small Business Administration (SBA) and National Wood Floors Inc. The SBA estimate states the total damages to the Chavezes’ property as $20,558.29, including $342.12 for the shed.8 The National Wood Floors estimate is not contained in the record, but the Chavezes represent that it states “that the cost to repair certain portions of the Chavez’s damage would be $7,500.00.”9 The Chavezes submitted those damage estimates to Homesite.10 When they received no response, the Chavezes retained counsel and obtained another estimate from David G. Dye & Associates. Dye estimates the total damages to the Chavezes’ property to be $15,433.33,11 with $252.25 of that amount resulting from roof damage to the shed.12 After receiving Dye’s estimate, the Chavezes again de[506]*506manded payment from Homesite.13

Homesite then retained an engineer, Timothy Moore, to inspect the property, specifically, to determine if any of the damages pre-dated the occurrence of Hurricane Gustav.14 Moore concluded that “[t]he damaged roof covering at the storage building pre-dated the occurrence of Hurricane Gustav.”15 Moore based his conclusions on photos taken by Eagle Adjusting Services of the Chavezes’ property in connection with their post-Katrina claim.16 After the issuance of Moore’s report, Homesite again refused payment on the Chavezes’ claim.17

On August 31, 2010, the Chavezes filed this action in the 24th Judicial District Court for Jefferson Parish against Home-site, alleging that they sustained damages from Homesite’s failure to fully compensate them for their losses.18 Homesite removed the case to this Court on October 13, 2010.19 Homesite now moves for summary judgment, asserting that it may deny coverage under the policy because the Chavezes misrepresented that the damage to the shed was caused by Hurricane Gustav.

II. STANDARD

Summary judgment is appropriate when “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). When assessing whether a dispute as to any material fact exists, the Court considers “all of the evidence in the record but refrains from making credibility determinations or weighing the evidence.” Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir.2008). All reasonable inferences are drawn in favor of the nonmoving party, but “unsupported allegations or affidavits setting forth ‘ultimate or conclusory facts and conclusions of law’ are insufficient to either support or defeat a motion for summary judgment.” Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir.1985) (quoting C. Wright, A. Miller & M. Kane, Federal Practice and Procedure: Civil 2d § 2738 (1983)).

If the dispositive issue is one on which the moving party will bear the burden of proof at trial, the moving party “must come forward with evidence which would ‘entitle it to a directed verdict if the evidence went uncontroverted at trial.’ ” Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263-64 (5th Cir.1991). The non-moving party can then defeat the motion by either countering with sufficient evidence of its own, or “showing that the moving party’s evidence is so sheer that it may not persuade the reasonable fact-finder to return a verdict in favor of the' moving party.” Id. at 1265.

If the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record is insufficient with respect to an essential element [507]*507of the nonmoving party’s claim. See Celotex, 477 U.S. at 325, 106 S.Ct. 2548. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. See id. at 324, 106 S.Ct. 2548. The nonmovant may not rest upon the pleadings, but must identify specific facts that establish a genuine issue for trial. Id. at 325, 106 S.Ct. 2548; see also Little, 37 F.3d at 1075 (“Rule 56 ‘mandates the entry of summary judgment, after adequate time for discover and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.’ ”) (citing Celotex, 477 U.S. at 332, 106 S.Ct. 2548).

III.

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Chavez v. Homesite Insurance, 834 F. Supp. 2d 504, 2011 WL 2680712, 2011 U.S. Dist. LEXIS 73866 (E.D. La. 2011).

834 F. Supp. 2d 504 (Chavez v. Homesite Insurance) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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