Opinion
CIVIL ACTION FILE NO. 1:18-cv-4329-TCB
04-28-2020
AFFINITY ROOFING, LLC, a/a/o Kriston K. Hall; and Kriston K. Hall, Plaintiffs, v. STATE FARM FIRE & CASUALTY COMPANY, Defendant.
David Louis Boohaker, McDonald Law Firm, P.C., Fort Worth, TX, for Plaintiffs. Mark Thomas Dietrichs, Alexander Andrei Mikhalevsky, Jessica M. Phillips, Swift, Currie, McGhee & Hiers, LLP, Atlanta, GA, for Defendant.
David Louis Boohaker, McDonald Law Firm, P.C., Fort Worth, TX, for Plaintiffs.
Mark Thomas Dietrichs, Alexander Andrei Mikhalevsky, Jessica M. Phillips, Swift, Currie, McGhee & Hiers, LLP, Atlanta, GA, for Defendant.
ORDER
Timothy C. Batten, Sr., United States District Judge
I. Background
This case comes before the Court on Defendant State Farm Fire & Casualty Company's motion [61] to dismiss and for summary judgment.
This case stems from an insurance dispute. Plaintiff Kriston Hall contends that his house at 2185 Brannen Road in Atlanta sustained wind and hail damage on April 5, 2017. At the time, the property was insured by a homeowners policy number issued by State Farm to Hall.
The policy provided that "Assignment of this policy shall not be valid unless we give our written consent." [61-8] at 28. It also provides, "No action shall be brought unless there has been compliance with the policy provisions and the action is started within one year after the date of loss or damage." Id. at 21. State Farm has not provided consent to any assignment.
On December 28, 2017, Hall retained Affinity Claims Consultants, LLC (a public adjusting company) to help settle the claim on his behalf. That day, Hall signed both a contract with Affinity Claims and an assignment of claim for damages in favor of Plaintiff Affinity Roofing, LLC. The assignment provided:
This Assignment of a claim for Damages (the "Assignment") is made and effective 12/28/17 BETWEEN Kriston Hall (The "Assignor"), the insured ... located at:
2185 Brannen Rd Atlanta, GA 30316. AND Affinity Roofing LLC (the "Assignee").... FOR VALUE RECEIVED, the Assignor hereby sells and transfers to the Assignee and its successors, assigns and personal representatives, any and all claims, demands, and cause or causes of action of any kind whatsoever which the undersigned has or may have against State Farm, arising from the following type of claim: Homeowner's claim # 112538J48....
[61-10].
On January 3, 2018, Affinity Claims reported the loss to State Farm. On January 4, Hall executed another assignment of benefits in favor of Affinity Roofing.
The January 4 assignment is identical to the December 28 one except in date and in the use of electronic (as opposed to wet) signatures.
On January 5, State Farm's claim specialist Bryan Van Camp spoke with Affinity Claims and scheduled an inspection of the property for January 12. After Affinity Claims twice requested that State Farm reschedule, the inspection was held on January 31. In the interim, Affinity Roofing proceeded with demolition work, which was completed on January 24.
At the inspection, Van Camp noted that the house was heavily gutted, including the removal of portions of the ceiling, walls, and floors. He prepared a repair estimate on behalf of State Farm totaling $8606.63 (including costs associated with a total roof replacement and interior repairs) and issued payment to Hall and Affinity Claims in the amount of $5656.85 (for the actual cash value of repairs outlined in the estimate minus a deduction for depreciation and the deductible).
Plaintiffs note that another adjuster, Alan Broome, wrote the covered damages to the property slightly higher: a replacement cash value of $12,223.56 and actual cash value of $11,543.83. They contend that State Farm owes, at a minimum, the difference between the lower and higher estimates.
Also at the inspection, Joshua Friedman (Affinity Claims’ owner) presented a repair estimate to State Farm of $115,418.69. On February 6, State Farm sent a partial denial letter to Hall and Affinity Claims, stating that it was unable to issue payment for damages above its repair estimate.
On February 15, 2018, Affinity Roofing filed its first lawsuit against State Farm in the State Court of Gwinnett County, based on the December 28 assignment. State Farm removed that lawsuit to this Court. See Civil Action File No. 1:18-cv-1111-TCB (N.D. Ga.). After the parties filed a stipulation of dismissal in that lawsuit, Affinity Roofing filed this action on September 14, 2018, based on the purported January 4 assignment. On November 19, the Court granted Affinity Roofing's motion to amend to add Hall individually as a named Plaintiff.
The amended complaint contains three counts: (1) breach of contract; (2) fraudulent misrepresentation; and (3) attorneys’ fees. State Farm has filed a combined motion [61] to dismiss and for summary judgment. Specifically, State Farm contends that Affinity Roofing's claims should be dismissed for lack of standing and that Hall's claims should be dismissed for failure to comply with the Suit Against Us provision.
State Farm also contends that it is entitled to summary judgment on Counts Two and Three to the extent the claims survive dismissal. Plaintiffs do not respond. Although the Court concludes infra that the claim are subject to dismissal, the Court agrees that, alternatively, State Farm would be entitled to summary judgment on these claims.
II. Legal Standard
A motion to dismiss for lack of subject-matter jurisdiction under Rule 12(b)(1) may either be "facial" or "factual." Morrison v. Amway Corp. , 323 F.3d 920, 924–45 n.5 (11th Cir. 2003). A facial attack is based on the allegations in the complaint alone, and a presumption of truth attaches to those allegations. Id. ; Stalley ex rel. U.S. v. Orlando Reg'l Healthcare Sys., Inc. , 524 F.3d 1229, 1232–33 (11th Cir. 2008). Factual attacks, on the other hand, challenge subject-matter jurisdiction in fact, and the plaintiff bears the burden of proving that jurisdiction exists. Brown v. Cranford Transp. Serv., Inc. , 244 F. Supp. 2d 1314, 1317 (N.D. Ga. 2002). To resolve a factual attack, the Court may consider extrinsic evidence, including affidavits and testimony, and the presumption of truthfulness traditionally afforded to a plaintiff's allegations does not attach. See U.S. Aviation Underwriters, Inc. v. United States , 562 F.3d 1297, 1299 (11th Cir. 2009) (noting, however, that the court does still take the facts in the light most favorable to the plaintiff). "Ultimately, the plaintiff bears the burden of establishing subject matter jurisdiction." Ishler v. Internal Revenue , 237 F. App'x 394, 395 (11th Cir. 2007) (internal citation omitted).
Summary judgment is appropriate when "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). There is a "genuine" dispute as to a material fact if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." FindWhat Inv'r Grp. v. FindWhat.com , 658 F.3d 1282, 1307 (11th Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). In making this determination, however, "a court may not weigh conflicting evidence or make credibility determinations of its own." Id. Instead, the court must "view all of the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor." Id.
"The moving party bears the initial burden of demonstrating the absence of a genuine dispute of material fact." Id. (citing Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). If the nonmoving party would have the burden of proof at trial, there are two ways for the moving party to satisfy this initial burden. United States v. Four Parcels of Real Prop. , 941 F.2d 1428, 1437–38 (11th Cir. 1991). The first is to produce "affirmative evidence demonstrating that the nonmoving party will be unable to prove its case at trial." Id. at 1438 (citing Celotex Corp. , 477 U.S. at 331, 106 S.Ct. 2548 ). The second is to show that "there is an absence of evidence to support the nonmoving party's case." Id. (quoting Celotex Corp. , 477 U.S. at 324, 106 S.Ct. 2548 ).
If the moving party satisfies its burden by either method, the burden shifts to the nonmoving party to show that a genuine issue remains for trial. Id. At this point, the nonmoving party must " ‘go beyond the pleadings,’ and by its own affidavits, or by ‘depositions, answers to interrogatories, and admissions on file,’ designate specific facts showing that there is a genuine issue for trial." Jeffery v. Sarasota White Sox, Inc. , 64 F.3d 590, 593–94 (11th Cir. 1995) (quoting Celotex Corp. , 477 U.S. at 324, 106 S.Ct. 2548 ).
III. Analysis
State Farm contends that Plaintiffs’ claims fail because Affinity Roofing is not a proper assignee and Hall did not comply with the terms of the insurance policy.
Initially, the Court must resolve whether the anti-assignment provision is valid. As the parties appear to concede, Georgia law is not entirely clear on the issue. Anti-assignment clauses can be overcome without the insurer's consent in some circumstances—specifically, when an assignment of benefits occurs post-loss. Santiago v. Safeway Ins. Co. , 196 Ga.App. 480, 396 S.E.2d 506, 508 (Ga. Ct. App. 1990).
However, the Court finds persuasive the reasoning of another court within this district holding that, even if an alleged assignment occurs post-loss, "the relevant distinction lies in whether benefits were actually due under the Policy at the time the alleged assignment was effectuated." See Affinity Roofing, LLC a/a/o Farzam Kadkhodaian v. Cincinnati Ins. Co. , No. 1:18-cv-1205-ELR, [45] at 10 (N.D. Ga. Jan. 9, 2020). Ultimately, Judge Ross determined that whether any coverage was due remained in dispute, distinguishing the situation from that in Santiago. Because there was a question as to whether benefits were due (and to whom), the court determined that the anti-assignment provision was valid and enforceable.
Here, despite Plaintiffs’ argument to the contrary, the evidence demonstrates that there is no certainty over coverage or damages (and there was none at the time of the assignment). Indeed, State Farm contends that it owes no further amount than it already has paid. Under these facts, the Court finds that the anti-assignment provision is valid and enforceable.
Plaintiffs argue that Broome's estimate and the various invoices (which State Farm contends are not admissible) demonstrate that at least some additional amount is owed. However, State Farm has not admitted that it owes any additional amount. Further, Georgia law treats a dispute over the scope of damages as a dispute over coverage. See Lam v. Allstate Indem. Co. , 327 Ga.App. 151, 755 S.E.2d 544, 546 (Ga. Ct. App. 2014).
Plaintiffs also argue that State Farm has waived any challenge to the assignment. Plaintiffs contend that State Farm was notified of the assignment in an attachment to a January 22, 2018 email. On February 13, Affinity Roofing filed suit; State Farm raised its objection to the assignment in its answer and defenses.
However, Affinity Claim Consultants (rather than Affinity Roofing) sent the email to State Farm, and the email does not mention an assignment. Rather, it refers to an attached notice of representation for Affinity Claim Consultants, the public adjuster.
Therefore, assuming the January 22 email constituted notice, what is relevant is whether State Farm waived the anti-assignment provision in the roughly three-week period between January 22 and February 13. Specifically, Plaintiffs contend that State Farm waived the anti-assignment clause by (1) its denial letter; (2) its failure to object to the assignment during the inspection of the property; and (3) its payment. The Court will examine each of these in turn.
Waiver of a policy condition requires an affirmative promise or other act waiving the relevant condition. Bowers v. Safeco Ins. Co. of Am. , 187 Ga.App. 229, 369 S.E.2d 547, 548 (Ga. Ct. App. 1988). The denial letter included reservation of rights language. Specifically, it stated that State Farm "does not intend, by this letter, to waive any policy defenses in addition to those stated above, and reserves its right to assert such additional policy defenses at any time." [61-12] at 5. By including this language, State Farm contends that it intended not to waive the anti-assignment provision, and the Court agrees. See, e.g., Shelter Am. Corp. v. Ga. Farm Bureau Mut. Ins. Co. , 209 Ga.App. 258, 433 S.E.2d 140, 142 (Ga. Ct. App. 1993) ("There is no showing in this record of any affirmative statement or other act by Georgia Farm Bureau that would lead Shelter America to believe that the insurer would waive the contractual limitation; in fact Georgia Farm Bureau explicitly stated on three occasions that no contractual provisions were waived.").
The cases upon which Plaintiffs rely are distinguishable, as both involved situations in which an insurer defended an insured, then sought to avoid coverage. See State Farm Mut. Auto. Ins. Co. v. Wright , 137 Ga.App. 819, 224 S.E.2d 796, 797–98 (Ga. Ct. App. 1976) ; Sargent v. Allstate Ins. Co. , 165 Ga.App. 863, 303 S.E.2d 43, 45 (Ga. Ct. App. 1983).
Further, State Farm sent the denial letter not to Affinity Roofing but to Hall's public adjuster, Affinity Claim Consultants. Not including Affinity Roofing as a recipient demonstrates that it did not recognize, consent to, or accept the assignment. Therefore, the denial letter did not constitute a waiver.
Nor did State Farm's failure to object during the investigation waive its rights. Investigating an insurance claim does not waive an insurer's rights or defenses. O.C.G.A. § 33-24-40. Therefore, State Farm's failure to object to assignment during the January 31 inspection (which was State Farm's first chance to inspect the loss) does not constitute a waiver.
Finally, the payment was not made to (or on behalf of) Affinity Roofing. Although Plaintiffs rely on a mitigation invoice from Affinity Roofing stating that Affinity Roofing is to be the exclusive payee, the Court agrees that State Farm's failure to include Affinity Roofing as a payee only further demonstrates State Farm's lack of consent because the payment contradicted the assignee's request.
The payment made in Sargent was made by the insurer on Sargent's behalf, and the insurer then sought to deny coverage to Sargent. And in the Affinity Roofing LLC a/a/o Donald Vicchrilli case [69-11], the payment included the assignee as a payee.
State Farm also argues that the invoice is not admissible. However, as demonstrated herein, considering the invoice does not change the outcome.
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Under these facts, the Court concludes that there has not been a waiver. The Court therefore concludes that the assignment was not valid and violated the anti-assignment clause. Affinity Roofing's claims against State Farm will be dismissed.
The contract also contained a "Suits Against Us" provision noting that an insured may not recover in a lawsuit against State Farm unless the insured complied with the terms of the policy. Having found that Hall's assignment violated the terms of the policy, Hall cannot recover against State Farm. His claims will be dismissed as well.
IV. Conclusion
For the foregoing reasons, State Farm's motion [61] to dismiss and for summary judgment is granted. Plaintiffs’ motion [66] for leave to file excess pages is granted, and their motion [70] for oral argument is denied. The Clerk is directed to close this case. IT IS SO ORDERED this 28th day of April, 2020.