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Sperling v. CSAA Fire & Casualty Insurance Co.

United States District Court, N.D. Oklahoma

July 26, 2017

KAREN SUE SPERLING, an individual, Plaintiff,
v.
CSAA FIRE & CASUALTY INSURANCE COMPANY, Defendant.

          OPINION AND ORDER

          JOHN E. DOWDELL, UNITED STATES DISTRICT JUDGE

         Before the Court is the defendant's Motion for Summary Judgment (Doc. 42). Plaintiff, Karen Sue Sperling, filed multiple documents in response. After she made several separate and redundant filings, and after giving her multiple extensions, the Court accepted her latest (and most complete) brief (Doc. 50) and all exhibits (Doc. 50-1, 50-2, 50-3, 51-1, 51-2) that she had submitted in response. (See Doc. 52).

          I. Background

          Defendant, CSAA Fire & Casualty Insurance Company (AAA), insured plaintiff s Broken Arrow rental property under a Policy that provided the following coverages: $240, 369 for the dwelling (coverage A); $24, 037 for other structures (coverage B); $12, 018 for personal property (coverage C); $48, 074 for fair rental value (coverage D); $300, 000 for personal liability each occurrence (coverage E); and $1, 000 medical payments to others (coverage F). (Doc. 42-1 at 3). Plaintiff alleges that, on or about November 10, 2014, the insured property sustained damage from vandalism, including stolen wiring, damaged property, graffiti, and other losses. (Doc. 2-2 at 2).

         On December 22, 2014, plaintiff contacted AAA to report the loss, and AAA opened a claim for her. (Doc. 42-2 at 11). In January, upon investigation, AAA concluded that the property had been vacant for more than 60 days, in which there would not be coverage under the Policy, which excluded coverage for losses caused by vandalism "if the dwelling has been vacant for more than 60 consecutive days immediately before the loss." (Doc. 42-3; see also Doc. 42-1 at 22-23 of 65). AAA also noted that the Policy excluded coverage for "neglect." (Doc. 42-1 at 30 of 65). AAA thus informed plaintiff, by voicemail and letter, that the damage was not covered by the Policy. (Doc. 42-3). The agent's letter explained the basis for the decision and stated, "[i]f you believe that any of the information we relied upon in reaching our decision is inaccurate, if you have any additional information you would like us to consider as part of this claim, or if you have any further questions or comments, I'm eager to help. Please do not hesitate to contact me at the number below." (Doc. 42-3 at 3).

         Plaintiff subsequently secured counsel, who contacted AAA about the November 2014 claim in June of 2015 and provided utility bills in an attempt to establish that the home was occupied. (See Doc. 42 at 6, ¶¶ 11-12; Doc. 42-4 at 2-4). AAA reopened the claim and concluded that damage to the rental property would cost $47, 622.36 to repair. (Doc. 42-5). Considering depreciation in the amount of $8, 697.21 and the policy's $500 deductible, AAA initially paid plaintiff an amount of $38, 425.15 based on the actual cash value of the property at the time of the loss. (Doc. 42-6). AAA also paid plaintiff $2, 499 to replace a riding lawn mower (Doc. 42-10) and $13, 200 for the fair rental value of her property, for a total rental reimbursement for 12 months. (Doc. 42-6, 42-11).

         Plaintiff admitted in her deposition that she used part of the insurance payments to cover her day-to-day living expenses. (Doc. 42-7 at Dep. p. 74:1-7). She has also not disputed that she did not complete repairs until shortly before her second deposition in this case. After AAA was afforded an opportunity to inspect the property, AAA then tendered the depreciation hold back of $8, 697.21, in accordance with the Policy. As a result, AAA has paid $47, 122.36 on the property damage claim (under Coverage A), plus $2, 499 for the lawn mower (under Coverage C), plus $13, 200 for a year's rental value (under Coverage D).

          II. Standards and Plaintiffs Pro Se Status

         Summary judgment is appropriate "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 Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). "[S]ummary judgment will not lie if the dispute about a material fact is 'genuine, ' that is, if the evidence is such that a reasonable jury could return a verdict for a nonmoving party." Anderson, 477 U.S. at 248. The courts thus determine "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." Id. at 251-52. The non-movant's evidence is taken as true, and all justifiable and reasonable inferences are to be drawn in the non-movant's favor. Id. at 255. The court may not weigh the evidence and may not credit the evidence of the party seeking summary judgment, while ignoring the evidence offered by the non-movant. Tolan v. Cotton, 134 S.Ct. 1861, 1866-68 (2014) (per curiam).

         The case was initially filed by plaintiffs counsel. Her counsel subsequently withdrew, and plaintiff entered pro se, after the Court provided her ample time to enter an appearance through new counsel. A pro se plaintiff is not entitled to "directions from the district court or from Defendants to assist [the plaintiff] in responding to a motion for summary judgment under Fed.R.Civ.P. 56." McDaniels v. McKinna, 96 F.App'x 575, 578 (10th Cir. 2004). Thus, while the courts "construe pleadings filed by a pro se litigant liberally, [they] do not serve as the pro se litigant's advocate, " and "pro se litigants are expected to follow the Federal Rules of Civil Procedure, as all litigants must." Id.; see also Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994) (pro se plaintiffs are required to comply with the "fundamental requirements of the Federal Rules of Civil and Appellate Procedure" and substantive law, and the liberal construction to be afforded does not transform "vague and conclusory arguments" into valid claims for relief).

         Despite ample opportunities and time to respond, the plaintiff has not provided coherent arguments or citations to the record which dispute AAA's arguments, evidence, or statement of undisputed facts. For example, many of plaintiff s responses consist solely of unsupported denials: "This is not true, " "Plaintiff is not aware, " "Plaintiff does not recall, " "Why would Defendants say that about me, " and "Unavailable time to answer." (Doc. 50 at 7-8). Contrary to her suggestions that she did not have sufficient time, she filed multiple briefs, each time asking for more time, and the Court gave her multiple extensions. (See Doc. 43, 45, 46, 47, 48, 49, 50, 52).

         Plaintiff has not supported any of her contentions with citations to evidence, as is required under Rule 56. "A party asserting that a fact... is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record ... or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute." Fed.R.Civ.P. 56(c)(1)(A)-(B). While plaintiff has filed 160 exhibits, she has not provided any citations or coherent argument as to which exhibits present disputed factual issues. As AAA points out, numerous of plaintiff s exhibits, including many documents that predate the plaintiff s November 2014 vandalism claim, appear to have nothing to do with this case. While the Court has examined plaintiffs exhibits, it is not required to search her 160 exhibits in an attempt make the plaintiffs arguments for her. See Mitchell v. City of Moore, 218 F.3d 1190, 1199 (10th Cir. 2000) ("The district court was not obligated to comb the record in order to make [the plaintiffs] arguments for him."); Cross v. Home Depot, 390 F.3d 1283, 1290 (10th Cir. 2004) ("[plaintiff] argues that. . . evidence of these eight promotions was in the record on summary judgment and the court should have considered it. But on a motion for summary judgment, 'it is the responding party's burden to ensure that the factual dispute is portrayed with particularity, without. . . depending on the trial court to conduct its own search of the record.'") (quoting Dowries v. Beach, 587 F.2d 469, 472 (10th Cir.1978)).

          III. Discussion

         A. Breach of ...


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