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Miller v. Seneca Specialty Insurance Company, Inc.

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

July 29, 2019

DAVID MILLER D/B/A WORLD FAMOUS LIBBY'S PLAINTIFFS
v.
SENECA SPECIALTY INSURANCE COMPANY, INC. A/K/A SENECA INSURANCE COMPANY, INC. DEFENDANT

          MEMORANDUM OPINION & ORDER

          Thomas B. Russell, Senior Judge.

         This matter is before the Court upon a motion by Defendant, Seneca Specialty Insurance Company, Inc., for summary judgment. (DN 14). Plaintiff, David Miller D/B/A World Famous Libby's, has chosen not to respond and the time to do so has passed. This matter is ripe for adjudication, and for the following reasons, Defendant's motion for summary judgment (DN 14) is GRANTED in part and DENIED in part.

         BACKGROUND

         This action arises out of a fire that destroyed Plaintiff's commercial building, and all of the personal property located within the building, on October 10, 2013. (DN 1 at 2). Plaintiff's business, “World Famous Libby's, ” was insured through a policy with the Defendant. Id. The insurance policy was effective from July 1, 2013 through January 1, 2014. Id. Plaintiff argues that he submitted a professionally prepared valuation report as a proof of loss to Defendant on November 14, 2013. Id. Plaintiff alleges that Defendant has failed to pay under the terms of the insurance policy and that Defendant has refused to negotiate with Plaintiff under the terms of the contract. Id. at 3.

         Defendant claims it has paid the policy limit of $1, 100, 000.00 for the loss of the building in two separate payments. (DN 14-1 at 2). Defendant has not paid for damage caused to personal property caused by the fire. Id. Defendant argues that Plaintiff has failed to provide documentation or other information to support the inventory of items he claims were damaged in the fire. Id. The insurance policy contains the following provision:

No one may bring a legal action against us under this policy unless:
1. There has been full compliance with all terms of this policy; and
2. The action is brought within 2 years after the date on which the direct physical loss or damage occurred.

Id. at 3.

         Plaintiff originally filed this action in the Commonwealth of Kentucky, Todd Circuit Court. (DN 14-6). Plaintiff's original attorney withdrew on January 18, 2017, and the court ordered that Plaintiff had sixty days to obtain new counsel. (DN 14-7). On April 19, 2017, the state court dismissed the action without prejudice. (DN 14-8).

         Plaintiff filed the action that is now before this Court on April 9, 2018. Defendant filed its motion for summary judgment on March 25, 2019. (DN 14). On July 2, 2019, the Court granted Plaintiff an additional twenty-one days to file a response to the motion for summary judgment. (DN 16). Even with the additional twenty-one days, Plaintiff has failed to respond to Defendant's motion. In his Complaint, Plaintiff alleges counts for (1) breach of contract, (2) contractual breach of the implied covenant of good faith and fair dealing, (3) violation of KRS 367.170, and (4) punitive damages. (DN 1 at 3-4). The Court will address each count below.

         STANDARD

         Summary judgment is appropriate when the record, viewed in the light most favorable to the nonmoving party, reveals “that there is no genuine dispute as to any material fact and the movant is entitled to judgement as a matter of law.” Fed.R.Civ.P. 56(a). A genuine dispute of material fact exists where “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The Court “may not make credibility determinations nor weigh the evidence when determining whether an issue of fact remains for trial.” Laster v. City of Kalamazoo, 746 F.3d 714, 726 (6th Cir. 2014) (citing Logan v. Denny's, Inc., 259 F.3d 558, 556 (6th Cir. 2001); Ahlers v. Schebil, 188 F.3d 365, 369 (6th Cir. 1999)). “The ultimate question is ‘whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'” Back v. Nestle USA, Inc., 694 F.3d 571, 575 (6th Cir. 2012) (quoting Anderson, 477 U.S. at 251-52).

         As the party moving for summary judgment, Defendant must shoulder the burden of showing the absence of a genuine dispute of material fact, as to at least one essential element of each of Plaintiff's claims. Fed.R.Civ.P. 56(c); see Laster, 746 F.3d at 726 (citing Celotex Corp. v. Catrett,477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). If Defendant satisfies its burden of production, Plaintiff “must-by deposition, answers to interrogatories, affidavits, and admissions on ...


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