Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Nationwide Mutual Insurance Co. v. Jones

United States District Court, W.D. Virginia, Roanoke Division

February 25, 2018

NATIONWIDE MUTUAL INSURANCE COMPANY, Plaintiff,
v.
STARK JONES, DGW ENTERPRISES, LLC, and FEEDING AMERICA SOUTHWEST VIRGINIA, Defendants.

          REPORT AND RECOMMENDATION [1]

          Robert S. Ballou United States Magistrate Judge.

         Plaintiff Nationwide Mutual Insurance Company (“Nationwide”) brought this action as a complaint for declaratory judgment, and this matter is currently before me on defendant Feeding America Southwest Virginia's (“Feeding America”) motion for summary judgment.[2] Dkt. No. 11. Feeding America also filed a crossclaim against defendant DGW Enterprises, LLC (“DGW”).[3] Dkt. No. 13.

         Background

         This case involves adverse claims to a policy of insurance, Nationwide Mutual Insurance Company Premier Businessowners Policy ACP BPFM 3017322312 (“Nationwide Policy”). Compl. ¶ 1. DGW is the named insured under the Nationwide Policy, and the insured property is located at 2328 Melrose Avenue, NW, in Roanoke, Virginia (“Melrose Property”). Compl. ¶ 2, 8, 12. On May 3, 2017, a fire occurred at the Melrose Property and, following an investigation, Nationwide determined that the value of the claim owed by Nationwide was $141, 870.14, plus the $24, 562.80 it paid for the initial remediation work performed by Servicemaster of Roanoke. Compl. ¶¶ 8, 1214.

         Feeding America notified Nationwide that at the time of the fire the Melrose Property was under contract for sale from DGW to Feeding America, and that DGW and Feeding America had entered into a written Assignment of Insurance Claim transferring all right, title, and interest in the claim from DGW to Feeding America.[4] Compl. ¶ 15. Defendant Stark Jones, as the authorized representative of DGW, advised Nationwide that the Assignment of Insurance Claim was illegal, and told Nationwide to pay the insurance proceeds to either himself or DGW. Nationwide has not paid the amount owed under its insurance policy because of the competing claims and asks the court to decide which defendant is entitled to the insurance proceeds for the May 3, 2017 fire. Additionally, Nationwide asks the court to determine that the value of the claim is $141, 870.14, plus the $24, 562.80 it paid for the initial remediation work.

         In its motion for summary judgment, Feeding America asks the court to find that it is entitled to the insurance proceeds for the May 3, 2017 fire, pursuant to the Addendum to Contract and the Assignment of Insurance Claim that Feeding America entered into with DGW. Feeding America argues that “DGW's assertion [that the assignment is illegal] is specious” and that the assignment of the right to receive the proceeds of the insurance claim is valid and fully enforceable. Feeding America's Mem. in Supp. of Mot. for Summ. J. at 4, Dkt. No. 12. In support, Feeding America has submitted copies of the contracts at issue, along with affidavits.

         On February 3, 2017, Feeding America entered into an Option Agreement giving it the option to purchase the Melrose Property for a specified price. See Option Agreement, Ex. 1 to Decl. of Pamela Irvine, Dkt. No. 12-1; Feeding America's Mem. in Supp. of Mot. for Summ. J. at 2, Dkt. No. 12. Feeding America then notified DGW by letter dated April 18, 2017, that it was exercising the option to purchase the Melrose Property. See April 18, 2017 Letter, Ex. 1 to Decl. of John F. Shoulders, Jr., Dkt. No. 12-2. The property was damaged by fire on May 3, 2017; however, on May 8, 2017, instead of exercising its right to terminate the purchase agreement, Feeding America entered into an Addendum to Contract with DGW, in which Feeding America agreed to purchase the Melrose Property for the agreed purchase price and DGW agreed to assign its rights to payment of the insurance claim filed with Nationwide. Feeding America's Mem. in Supp. of Mot. for Summ. J. at 2, Dkt. No. 12; Addendum to Contract, Ex. 2. to Decl. of John F. Shoulders, Jr. At the closing on the purchase of the property on May 11, 2017, DGW executed an Assignment of Insurance Claim[5], providing that DGW:

“does hereby GRANT, TRANSFER, and ASSIGN unto [Feeding America] all of [DGW's] right, title, and interest in and to, and right to receive payments and proceeds under, the Claim [and DGW] further hereby directs [Nationwide] to pay directly to [Feeding America], all of the proceeds to which [DGW] may be entitled under the Policy on account of the claim.

See Assignment of Claim at 1-2, Ex. 2 to Decl. of Pamela Irvine, Dkt. No. 12-1. Also at closing, Feeding America paid the agreed upon purchase price, and took title to the Melrose Property. See Settlement Statement, Ex. 2 to the Decl. of Roger Kronau, Dkt. No. 12-3; Deed, Ex. 3 to the Decl. of Roger Kronau, Dkt. No. 12-3.

         Standard of Review

         Rule 56 of the Federal Rules of Civil Procedure permits a party to move for summary judgment. “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (finding summary judgment appropriate “after adequate time for discovery 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”).

         Discussion

         I. Assignment

         DGW's post-loss assignment to Feeding America of its rights to the proceeds of the insurance claim at issue constituted a valid and enforceable contract. The Supreme Court of Virginia has explained, “[a]fter the risk has terminated by fire, the interest of the [in]sured becomes a chose in action, which he has a right to assign . . . without asking permission of the [insurance] company.”[6]Aetna Ins. Co. v. Aston, 96 S.E. 772, 774 (Va. 1918) (citations omitted); see also Op. Va. Att'y Gen., No. 10-066, 2010 WL 3800034 (Sept. 24, 2010) (noting that assignments of post-loss benefits are usually found valid, even when the insurance policy contains a non-assignment clause because ‚Äúpost-loss assignments of the benefits due under the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.