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Miller v. Great American Ins. Co.

United States District Court, E.D. Virginia, Norfolk Division

November 12, 2014

JOHN S. MILLER d/b/a CHESAPEAKE CORE SUPPLY, Plaintiff,
v.
GREAT AMERICAN INSURANCE CO., Defendant

November 10, 2014

For John S. Miller, doing business as Chesapeake Core Supply, Plaintiff: Douglas Eugene Kahle, Wolcott Rivers Gates P. C., Virginia Beach, VA; Glen Michael Robertson, Wolcott Rivers Gates, Virginia Beach, VA.

For Great American Insurance Company, Defendant: Daniel Maurice O'Connell, Kevin F. Buckley, PRO HAC VICE, Mound Cotton Wollan & Greengrass, New York, NY; Kenneth Reed Mayo, Reed Mayo Law Firm PC, Virginia Beach, VA.

Page 750

MEMORANDUM OPINION AND FINAL ORDER

REBECCA BEACH SMITH, CHIEF UNITED STATES DISTRICT JUDGE.

This matter comes before the court on the Motion for Summary Judgment and accompanying Memorandum in Support (" Motion for Summary Judgment" ), and the " Motion to Supplement the Record and Rule on Summary Judgment" (" Motion to Supplement" ), filed by the Defendant, Great American Insurance Company (" Great American" ), on March 18, 2013, and September 12, 2014, respectively. ECF Nos. 37, 38, and 56. The Plaintiff, John S. Miller, filed his Memorandum in Opposition to the Motion for Summary Judgment on March 29, 2013, ECF No. 42, and the Defendant filed its Reply on April 1, 2013. ECF No. 43.[1] The Plaintiff did not file a Response to the Defendant's Motion to Supplement, and the time to do so has expired. As such, the Motion for Summary Judgment and Motion to Supplement are now ripe for review. For the reasons set forth below, the Defendant's Motion for Summary Judgment and Motion to Supplement are GRANTED.

I. Factual and Procedural History

A. Factual History[2]

The Plaintiff operated a sole proprietorship trading as Chesapeake Core Supply (the " Business" ), which was located at 1751 West Road in Chesapeake, Virginia. Compl. ¶ ¶ 5, 7, ECF No. 1. Chesapeake Core Supply was in the business of buying and selling auto parts and scrap metals. Id. ¶ 6. The Plaintiff maintained an insurance policy (the " Policy" ) issued by Great American, which provided coverage for damage to the Business, consisting of a commercial office building and a warehouse, and to the Business personal property, such coverage having a liability limit of $484,000 for the building, and $106,101 for the Business personal property. Id. Ex. A. Loss of property through fire is a loss covered by the Policy. Id. ¶ 10. As part of the standard coverage provisions, the Policy included a " Concealment, Misrepresentation, or Fraud" provision under the " General Conditions" section. Id. Ex. A.[3]

On February 12, 2009, during the Policy period, the Business caught fire, physically damaging both the commercial office building and its contents, which included Business personal property. Id. ¶ 8. On April 1, 2009, the Plaintiff filed a sworn statement of Proof of Loss with Great American, in which he stated the total amount of loss as $157,026, which consisted of $121,146 in damages to the building structure and $35,880 in damages to the Business

Page 751

personal property. Id. Ex. B. The Plaintiff's Business personal property claim included damage to a Dyson vacuum cleaner, valued at $500, and damage to twenty-five (25) airbags, valued at a total of $4800. See Mem. Supp. Mot. Summ. J. Ex. 5. The Proof of Loss Form included the following statement: " Applicable in Virginia- it is a crime to knowingly provide false, incomplete or misleading information to an insurance company for the purpose of defrauding the company. Penalties include imprisonment, fines and denial of insurance benefits." Compl. Ex. B.[4]

Upon the request of Great American, on September 14, 2009, the Plaintiff was examined under oath regarding the losses he sustained from the fire. Mem. Supp. Mot. Summ. J. ¶ 13. During this first examination, the Plaintiff advised Great American of an increase in the amount of loss based on a new estimate for the repair of the building. Id. ¶ 16. The new loss amount was documented as $170,462. Id. The Plaintiff was again examined under oath on April 14, 2010, regarding the losses he suffered from the fire. Id. ¶ 18. At this point, the Plaintiff had not received any payment from Great American for the losses associated with the fire, despite his numerous efforts to collect payment. Id. ¶ 21.

B. Procedural History

On February 4, 2011, the Plaintiff filed a Complaint in this court alleging that Great American breached its insurance contract with the Plaintiff when it refused to pay him, in accordance with the Policy for the losses associated with the fire. The Complaint further alleged that the Plaintiff repeatedly requested payment under the Policy in advance of filing the Complaint. Compl. ¶ 21. The Plaintiff also sought the " award of attorney's fees and costs incurred as a result of Great American's bad faith, as provided in Virginia Code § 38.2-209." Id. ¶ 26.

Great American, in its Answer to the Complaint, filed on March 9, 2011, denied that the Plaintiff had sufficiently supported his claimed losses under the Policy, and asserted as ...


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