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Muscutt v. Allstate Property & Casualty Insurance Co.

United States District Court, W.D. Kentucky, Louisville

September 9, 2014

DAVE MUSCUTT, Plaintiff,


CHARLES R. SIMPSON, III, Senior District Judge.

This matter is before the Court on Defendant Allstate Property & Casualty Insurance Co.'s ("Allstate") Motion for Summary Judgment (DN 39) and Plaintiff Dave Muscutt's Motion to Amend Response of Plaintiff to Motion for Summary Judgment (DN 46).[1] For the following reasons, the Court will grant Plaintiff's motion to amend his response and also grant Allstate's motion for summary judgment.


In 2007, Plaintiff Dave Muscutt purchased a residence at 4704 Silverado Place in Louisville, Kentucky. (Muscutt Dep., DN 36, at 9-10). The foundation of that residence rests near the water table, making it highly susceptible to water damage from ground water intrusions. (Muscutt Aff., DN 46-3, ¶ 5). To prevent such water damage, the residence was equipped with a sump pump, which removes water around the basement and foundation by pushing it through a line that leaves the house. (Muscutt Dep., DN 36, at 17-19, 85).

During the night, on March 8, 2011, the area surrounding Plaintiff's residence experienced what both parties characterize as a typical spring rain. (Muscutt Dep., DN 36, at 67). The next morning, on March 9, Plaintiff awoke to find approximately eighteen inches of standing water in his basement. (Muscutt Aff., DN 46-3, ¶ 10). The sump pump was completely submerged and was not operating. (Muscutt Dep., DN 36, at 70).

Plaintiff hired Davis & Davis Plumbing, Inc. ("Davis & Davis") to investigate the water intrusion and remedy the problem. (Muscutt Dep., DN 36, at 75-77). Davis & Davis first found that the circuit breaker for the sump pump had tripped, shutting off its power source. (Davis & Davis Invoice, DN 36-6, at 1). When electricity was restored, however, the sump pump still did not respond. (Davis & Davis Invoice, DN 36-6, at 1). Davis & Davis and Plaintiff's plumbing expert, Brian Beyer, determined that the sump pump's check valve had seized, which then precipitated the failure of the sump pump system. (Davis & Davis Invoice, DN 36-6, at 1); (Davis Dep., DN 37, at 11-12); (Beyer Aff., DN 46-4, ¶ 10).

A check valve is a feature of the sump pump plumbing system. (Davis Dep., DN 37, at 12); (Beyer Aff., DN 46-4, ¶ 5). When functioning properly, a check valve prevents water from reentering the sump pump and sump pump well once it has been expelled through the outside line. (Davis Dep., DN 37, at 12); (Beyer Aff., DN 46-4, ¶ 12). But, if the check valve becomes seized, it can impede the flow of water from the sump pump, causing the pump to overwork and eventually malfunction. (Davis Dep., DN 37, at 11-12); (Beyer Aff., DN 46-4, ¶ 10). The necessary repairs to Plaintiff's plumbing system required replacement of the check valve and the overworked sump pump. (Davis Dep., DN 37, at 11-12); (Davis & Davis Invoice, DN 36-6, at 1).

At the time of the water intrusion, Plaintiff held insurance under Allstate's Homeowners Policy. (Muscutt Dep., DN 36, at 30-33); (Form APC220, DN 36-1). On the same day that Plaintiff discovered the water in his basement, March 9, 2011, he contacted Allstate to file an insurance claim for the damage to his house and personal property. (Muscutt Dep., DN 36, at 84). On March 11, 2011, Allstate conducted a field inspection of Plaintiff's residence. (Muscutt Dep., DN 36, at 93-97). During that field inspection, Robert Garwood, an Allstate representative, informed Plaintiff that the Homeowners Policy did not cover the water damage. (Muscutt Dep., DN 36, at 93-97). Garwood confirmed Allstate's denial of Plaintiff's claim in a March 11 letter, also providing the specific exclusions relied upon by the insurer. (Muscutt Dep., DN 36, at 93-97, 101-02); (Garwood Letter, DN 36-7, at 1).

Plaintiff then filed this lawsuit in Jefferson County Circuit Court. (Compl., DN 1-2). First, Plaintiff alleges that Allstate refused to cover his property losses in violation of the parties' insurance contract. Second, he alleges that Allstate's denial of coverage constituted bad faith under both the common law and the Kentucky Unfair Claims Settlement Practices Act ("KUCSPA"), KRS 304.12-230.

On April 5, 2012, Allstate removed the case to this Court, basing subject matter jurisdiction solely on diversity of citizenship. (Pet. for Removal, DN 1). On May 11, 2012, the Court bifurcated and held in abeyance Plaintiff's extra-contractual claims until resolution of the underlying coverage issue. (Order, May 11, 2012, DN 7). Allstate now calls upon this Court to grant summary judgment in its favor on all of Plaintiff's claims.


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). The party seeking summary judgment bears the initial burden of explaining the basis of its motion and demonstrating that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). That burden may be satisfied only by "citing to particular parts of materials in the record" or "showing that the materials cited do not establish the... presence of a genuine dispute." Fed.R.Civ.P. 56(c)(1). Should the movant meet its burden, the nonmoving party may not simply rest on its prior pleadings; it must produce further evidence showing a genuine issue for trial. Celotex, 477 U.S. at 324.

When considering a motion for summary judgment, the Court must view the facts and draw reasonable inferences in the light most favorable to the nonmoving party. Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). Even so, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, ...

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