United States District Court, W.D. Kentucky, Paducah
MEMORANDUM OPINION & ORDER
B. Russell, Senior Judge.
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.
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.
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
1. There has been full compliance with all terms of this
2. The action is brought within 2 years after the date on
which the direct physical loss or damage occurred.
Id. at 3.
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).
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
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
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 ...