Kalakowsky v. Allstate Property & Casualty Insurance Company

• Court: Superior Court of Maine
• Decided: September 1, 2017
• Docket: CUMcv-17-0198
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT

Cumberland, ss. STATEOFMAINE Civil Action Cumberland,ss, Cler.k's Offioo SEP O1 201 ADAM KALAKOWSKY et al. REc58VEo Plaintiffs

V. Docket No. PORSC-CV-17-0198

ALLSTATE PROPERTY & CASUALTY INSURANCE COMPANY

Defendant

ORDER AND JUDGMENT

This case is before the court in regard to the Motion for Summary Judgment

filed by Defendant Allstate Property & Casualty Insurance Company (Allstate).

Plaintiffs Adam and Erin Kalakowsky oppose the Motion. The court elects to

decide the Motion without oral argument. See M.R. Civ. P. 7(b)(7).

Background

The following facts are undisputed for purposes of the Motion, except as

noted:

Plaintiffs Adam and Erin Kalakowsky own and reside at a home at 22 Fox

Run Rd., Windham, Maine. Defendant Allstate is a foreign insurance company for

purposes of the Maine Insurance Code. See 24-A M.R.S. § 6(2).

During some or all of the period between February 28, 2014 and February 28,

2015, the Kalakowskys were the named insureds on a homeowners' insurance policy issued by Defendant Allstate covering the Fox Run Road property. The policy

contains three differently worded limitations provisions, all of which require any

action brought against Allstate to be commenced within two years of a specified

event--"within two years after the inception of the loss or damage," "within two

years of the date the cause of action accrues," "within twenty-four months next after

inception of the loss."

On May 17, 2014, while the policy was in effect, a severe rainstorm caused

damage to the Kalakowskys' home. At some point thereafter, the Kalakowskys

submitted a claim to Allstate for the cost of remediating damage. Whether the

claim was submitted orally, telephonically, online or in writing by mail is unclear

because the claim itself is not in the record.

Allstate asserts it received the claim June 27, 2014. At some later point, an

Allstate adjuster came to look at the Kalakowsky property in connection with the

claim. The Kalakowskys say Allstate initially refused to send anyone to inspect the

property and only later sent an adjuster; Allstate says the assigned adjuster, Richard

Bennett, visited the Kalakowsky property July 10, 2014.

On July 14, 2014, Mr. Bennett on behalf of Allstate sent the Kalakowskys a

letter indicating that, after review of the claim, "we were unable to provide coverage

for rot deterioration," citing specified portions of the policy. The Kalakowskys do

not dispute that they received the letter.

The Kalakowskys' complaint in this case was docketed May 12, 2017.

2 Standard ofReview

"The function of a summary judgment is to permit a court, prior to trial, to

determine whether there exists a triable issue of fact or whether the question[s]

before the court [are] solely... oflaw." Bouchard v. American Orthodontics, 661 A.2d

1143, 44 (Me. 1995).

Summary judgment is appropriate where there are no genuine issues of

material fact and the moving party is entitled to judgment as a matter oflaw. M.R.

Civ. P. 56(c); see also Levine v. R.B.K. Caly Corp., 2001 ME 77, ~ 4, 770 A.2d 653. A

"material fact" is one that can affect the outcome of the case, and a genuine issue

exists when there is sufficient evidence for a fact finder to choose between competing

versions of the fact. Lougee Conservancy v. Cit,y-Mortgage, Inc., 2012 ME 1OS, ~ 11, 48

A.sd 774.

Summary judgment is also appropriate if, looking at the record in the light

most favorable to the non-moving party and drawing all reasonable inferences in

that party's favor, no reasonable juror could find for the non-moving party. Id. ~ 14,

n. s (quoting Scott v. Harris, 550 U.S. 372, 377 (2007)). This is true "even when

concepts such as motive or intent are at issue ... if the non-moving party rests merely

upon conclusory allegations, improbable inferences, and unsupported speculation."

Dyer. v. Dep't. ofTransp., 2008 ME 106, ~ 14,951 A.2d 821 (quoting Vives v. Fajardo,

472 F.sd 19, 21 (1st Cir. 2007)); Bouchard, 661 A.2d at 1144-45 (quoting Anderson v.

Libert,y Lobby, Inc., 477 U.S. 242, 249-50 (1986)) ("If the evidence is merely colorable,

or is not significantly probative, summary judgment may be granted"). Accordingly,

3 a "judgment as a matter oflaw in a defendant's favor is proper when any jury verdict

for the plaintiff would be based on conjecture or speculation." Stanton v. Univ. ef

Maine System, 2001 ME 96, ~ 6, 773 A.2d 1045.

Analysis

Allstate's summary judgment motion 1s based on the contention that,

pursuant to the policy, the Kalakowskys were required to bring this action no later

than two years after-at the latest-the issuance of the July 14, 2014 letter denying

their claim. As the moving party, Allstate has the burden to establish that there are

no genuine issues of material fact, and that Allstate is entitled to judgment as a

matter oflaw. See M.R. Civ. P. 56.

Although shorter than the general six-year period oflimitations, the two-year

contractual limitations period contained in the Kalakowskys' homeowners policy

with Allstate is enforceable, because it complies with the statutory minimum

requirement for such policies issued by foreign insurers. See 24-A M.R.S. §§ 2433,

3002; see L & A United Grocers, Inc. v. Safeguard Insurance Co., 460 A.2d 587, 589-90

(Me. 1983).

The Kalakowskys do not contest Allstate's assertion that the two-year

limitations period contained in the policy is enforceable. Likewise, they do not deny

that they received the July 14, 2014 letter although they are not specific on when

they received it. However, their opposition to Allstate's motion contends that

Allstate has not, in fact, denied their claim, so that the two-year period has not yet

begun to run. They point to the fact that the July 14, 2014 letter refers to "rot

4 deterioration," whereas the claim they submitted was for "water damage." Hence,

they argue, Allstate has never acted on their claim.

The problem with that argument is that the July 14, 2014 letter plainly says

there is no coverage for the Kalakowskys' claim. The letter may not characterize the

claim accurately or in the way that the Kalakowskys defined it, but it clearly denies

coverage on the claim. There is nothing in the record indicating that there is or was

more than one claim at issue between the Kalakowskys and Allstate.

Also, the Kalakowskys' argument that Allstate has never acted on their claim

contradicts their own complaint in this case, which alleges, in three different places,

that Allstate denied their claim for a covered loss. See Complaint~~ 11, 23, 37. As

far as the record shows, the Kalakowskys have understood Allstate to have denied

their claim. There is nothing in the record indicating that they ever told Allstate

after the July 14, 2014 letter that Allstate had not acted on their claim.

No reasonable factfinder could find in the record before the court any dispute

of material fact sufficient to generate a triable issue of fact as to whether this action

was timely brought. Based on this action having been commenced well after the

expiration of two years from both the loss that triggered the claim and the denial of

coverage for the claim, Allstate is entitled to judgment as a matter of law, and is

awarded summary judgment.

IT rs HEREBY ORDERED:

I. Defendant's Motion for Summary Judgment is granted.

5 2. Judgment on the complaint is granted to Defendant against Plaintiffs.

Defendant is awarded its recoverable court costs as the prevailing party.

The Clerk is specifically directed to enter this Order on the civil docket by

notation incorporating it by reference pursuant to M.R. Civ. P. 79(a).

DatedSeptemberl,2017 ~ A. M. Horton, Justice

6 CLERK OF COURTS Cumberland County 205 Newbury Street, Ground Floor Portland , ME 04101

tr Pl-t--F: WILLIAM GALLITTO Ill, ESQ BERGEN & PARKINSON 144 MAIN STREET SACO, ME 04072

CLERK OF COURTS Cumberland County 205 Newbury Street, Ground Floor Portland , ME 04101

~ r D.ff :

MATTHEW THOMAS MEHALIC, ESQ NORMAN HANSON & DETROY LLC PO B0X4600 PORTLAND, ME 04112-4600