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Whiteman v. State Farm Fire & Casualty Co.

United States District Court, W.D. Oklahoma

March 30, 2018

RUTH WHITEMAN, Plaintiff,
v.
STATE FARM FIRE AND CASUALTY COMPANY, Defendant.

          ORDER

          TIMOTHY D. DeGIUSTI UNITED STATES DISTRICT JUDGE.

         Plaintiff Ruth Whiteman was insured under a homeowners insurance policy issued by Defendant State Farm Fire and Casualty Company. She contends Defendant, among other things, breached the implied covenant of good faith and fair dealing by failing to perform an adequate investigation of her claim of earthquake damage to her home. Before the Court is Defendant's Motion for Partial Summary Judgment [Doc. No. 32]. Defendant's motion seeks judgment as a matter of law only as to Plaintiff's claims for bad faith and punitive damages. Plaintiff has filed her response in opposition [Doc. No. 45] and Defendant has replied [Doc. No. 48]. The matter is fully briefed and at issue.

         UNDISPUTED MATERIAL FACTS

         There is no genuine dispute as to the following facts except where noted. Plaintiff was insured under a homeowner's insurance policy, Policy No. 36-CT- 1420-0 (the “Policy”), which was issued by Defendant. Section I of the Policy (“Losses Insured”) initially provided coverage for “accidental direct physical loss” to the property, which included, but was not limited to, fire, lightning, windstorms, and hail. Under the heading, “Losses Not Insured, ” the Policy stated Defendant would not provide coverage for damage caused by, inter alia, “settling, cracking, shrinking, bulging, or expansion of pavements, patios, foundation, walls, floors, roofs or ceiling, ” and “earth movement, ” which the Policy defined as “the sinking, rising, shifting, expanding or contracting of earth, all whether combined with water or not ….” The Policy interpreted “earth movement” to include events such as “earthquake[s] [and] erosion or movement resulting from improper compaction, site selection or any other external forces.” Other losses not covered by the Policy included defects in construction and/or design, and weather conditions. In 2010, Plaintiff added an Earthquake Endorsement to the Policy, which amended Section I to read, in part:

SECTION I - LOSSES NOT INSURED references to earthquake and volcanic explosion are deleted. Such insurance as is afforded by Section I of the policy is extended to insure for accidental direct physical loss caused by earthquake or volcanic explosion.

         On September 11, 2015, Plaintiff contacted Defendant stating that her property had suffered damage from an earthquake that happened on September 10, 2015. Plaintiff stated she was at home when the earthquake occurred and she felt and heard the floor “pop.” Defendant's representative Scott Bagwell, checked with the U.S. Geological Survey (USGS) and confirmed an earthquake had occurred that day ten to fifteen miles from Plaintiff's home that registered 2.9 on the Richter Scale. Bagwell also interviewed Plaintiff, who reported she had sustained cracks throughout her home. Notes taken by another representative, Matt McLemore, stated that he performed the following acts on September 15, 2015:

• Called and spoke with [Plaintiff] this afternoon.
• Confirmed the estimated DOL [date of loss] and location.
• Completed EQ [Earthquake] Q &A (will place in the file and send to engineer).
• Explained covered versus non-covered damage and use of engineer.
• Explained the 2% EQ deductible ($94, 900 x 2% = $1, 898 deductible)
• Advised RoR [Reservation of Rights] letter will be sent out within the next couple of days and what it means.
• Advised engineer will contact her directly to schedule appointment and then let me know; if available, I will come out at the same time. If not, we ...

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