Opinion
21-CV-06156 (AMD) (LB)
2024-02-21
William PAGER and Jenna Pager, Plaintiff, v. CHUBB GROUP OF INSURANCE COMPANIES and Greater Northern Insurance Company, Defendants.
William Pager, Joseph Medic, Law Offices of William Pager, Brooklyn, NY, for Plaintiff. Paul Christopher Ferland, Vincent Passarelli, Cozen O'Connor, New York, NY, for Defendant Greater Northern Insurance Company.
William Pager, Joseph Medic, Law Offices of William Pager, Brooklyn, NY, for Plaintiff.
Paul Christopher Ferland, Vincent Passarelli, Cozen O'Connor, New York, NY, for Defendant Greater Northern Insurance Company.
MEMORANDUM DECISION AND ORDER
ANN M. DONNELLY, United States District Judge:
The plaintiffs, William and Jenna Pager, brought this action against Chubb Group of Insurance Companies and Greater Northern Insurance Company ("GNIC"). The defendants-insurers denied coverage for the plaintiffs' dock and gangway, which mysteriously vanished from their property. The plaintiffs claim they complied with their insurance policy's requirements and that the defendants breached the insurance contract by denying the claim.
Although the plaintiffs are proceeding pro se, William Pager is a practicing lawyer and represents both plaintiffs. (ECF No. 33-10 at 8-9.) Accordingly, the Court does not accord the plaintiffs the "special solicitude" afforded to pro se litigants who are not lawyers. See Tracy v. Freshwater, 623 F.3d 90, 102 (2d Cir. 2010) ("[A] lawyer representing himself ordinarily receives no such solicitude at all."). His wife, Jenna Pager, who is also known as Jenna Aronksy and Evgenya Aronsky, manages his law firm. (ECF No. 33-8 at 6-7.)
Chubb Group of Insurance Companies is not a legal entity—it is a phrase that describes separately incorporated insurance companies under common ownership, of which GNIC is one. See Farahani v. Chubb Grp. of Ins. Cos., No. 06-89-ML, 2006 WL 2405138, at *1 n.1 (D.R.I. Aug. 18, 2006); (ECF No. 1 ¶ 6 n.1.)
Before the Court is GNIC's motion for summary judgment. For the reasons explained below, the motion is granted.
BACKGROUND
I. Factual Background
a. The Insurance Policy
The plaintiffs had an insurance agreement (the "Policy") with GNIC, with a policy period of April 22, 2021 through April 22, 2022. (ECF No. 33-3 at 2.) The Policy covered, among other things, the
plaintiff's property located at 2564 National Drive in Brooklyn, New York. (Id. at 4.) The Policy's provisions detail the insured's duties after a loss. As relevant here, the Policy includes the following terms:
Examination under oath. We have the right to examine separately under oath as often as we may reasonably require you, family members and any other members of your household and have them subscribe the same. We may also ask you to give us a signed description of the circumstances surrounding the loss and your interest in it, and to produce all records and documents we request and permit us to make copies.
Proof of loss. You must submit to us, within 60 days after we request, your signed, sworn proof of loss which documents, to the best of your knowledge and belief:
• the time and cause of loss;
• interest of the insured and all others in the property involved and all liens on the property;
• other insurance which may cover the loss;
• changes in title or occupancy of the property during the term of the policy;
• specifications of any damaged buildings and estimates for their repair;
• receipts for additional living expenses incurred and records supporting any fair rental value loss; and
• evidence or affidavit supporting a claim under the Credit Cards, Bank Cards, Fund Transfer Cards, Forgery and Counterfeit Money Coverage, stating the amount and cause of loss.
(ECF No. 33-3 at 104.)
b. The Disappearance of the Dock and Initial Insurance Claim
On April 29, 2021, the plaintiffs discovered that their gangway and floating dock, which they had seen earlier that week, had inexplicably disappeared. (See ECF No. 33-5 at 1.) The property was equipped with security cameras, but unfortunately the cameras that were trained on the dock were not functioning on April 29, although they were working two days before the loss. (Def. 56.1 ¶ 21, ECF No. 33-1.)
At that time, there was "ongoing" construction at the plaintiff's property. (Def. 56.1 ¶ 14, ECF No. 33-1.)
Citations to a paragraph in the defendant's Rule 56.1 statement also include the plaintiffs' response. In some portions of the Rule 56.1 statement, the response appears to come before the paragraph at issue; in other portions, it appears below.
Six days later, on May 5, 2021, the plaintiffs reported the loss to GNIC. (Id. ¶ 22.) Shortly thereafter, GNIC sent the plaintiffs a "Reservation of Rights" letter, acknowledging the claim for the loss of the dock and gangway and notifying the plaintiffs that GNIC had begun its investigation into the loss. (Id. ¶ 23.)
On June 24, 2021, GNIC sent a letter with a proof of loss form via certified mail to the plaintiffs' home address, directing the plaintiffs to complete and return the proof of loss form and to submit to examinations under oath. (Id. ¶ 26.) The return receipt reflects that the letter was delivered to the plaintiffs' address on June 30, 2021. (See ECF No. 33-6 at 11.) Although the plaintiffs did not sign the receipt, the postal worker did, which signified that the letter had been delivered. (Id.) The plaintiffs claim that they never received the letter. (Def. 56.1 ¶ 26.)
After multiple postponements, the plaintiffs eventually participated in separate examinations
under oath; during those examinations, GNIC showed each plaintiff the demand letter from June 24, 2021. (Def. 56.1 ¶¶ 31, 37; ECF No. 33-9 at 31-33.) GNIC explained that the plaintiffs could have "cure[d] their prior defaults" if they had submitted the sworn proof of loss by the "extended or enlarged" deadlines. (ECF No. 33-9 at 31-33.) Although GNIC advised the plaintiffs that they could not process the claim without the proof of loss form, the plaintiffs never provided a signed and sworn proof of loss. (Def. 56.1 ¶ 42.)
In a May 9, 2022 letter to the plaintiffs, GNIC denied their claim because they did not establish a covered loss, complete a sworn proof of loss form, or produce the documents that GNIC requested. (Id. ¶¶ 40-41; see ECF No. 33-12.)
II. Procedural History
The plaintiffs brought this lawsuit on September 7, 2021 in the Kings County Supreme Court—about eight months before GNIC completed its investigation into the loss and denied the insurance claim in May 2022. (ECF No. 1; see ECF No. 33-12.) Even though the claim had not yet been denied, the plaintiffs alleged that the defendants breached the insurance contract because they refused to reimburse them for the loss, unreasonably denied the insurance claim, and acted in bad faith. (ECF No. 1.) GNIC removed the case to federal court based on diversity jurisdiction. (ECF No. 1-3.)
The Policy also included a provision entitled "Legal action against us," which reads: "You agree not to bring legal action against us unless you have first complied with all conditions of this policy." (ECF No. 33-3 at 105.)
GNIC moved for summary judgment, on July 17, 2023, arguing that it is entitled to judgment as a matter of law because it did not breach the insurance agreement. (ECF No. 33-19.) GNIC says that the plaintiffs did not comply with the Policy condition requiring a signed and sworn proof of loss and did not establish they suffered a covered loss in the first instance. (Id.) GNIC also maintains that it had a reasonable basis to deny the insurance claim. It argues that the plaintiff's bad faith claim is duplicative of the claim for breach of contract. (Id.) Finally, GNIC argues that the New York General Business Law § 349 claim, to the extent the plaintiffs are making one, fails as a matter of law because GNIC did not engage in a deceptive business practice. (Id.)
LEGAL STANDARD
Summary judgment is appropriate if the parties' submissions—including pleadings, deposition transcripts, affidavits and other documents in the record—show 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; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The movant has the burden of showing that there are no genuine disputes of material fact. Coyle v. United States, 954 F.3d 146, 148 (2d Cir. 2020). A fact is "material" if it "might affect the outcome of the suit under the governing law," and a factual dispute is "genuine" only if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Roe v. City of Waterbury, 542 F.3d 31, 35 (2d Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).
Once the moving party has met its burden, the party opposing summary judgment must identify specific facts and affirmative evidence that contradict those
offered by the moving party to demonstrate that there is a genuine issue for trial. Ethelberth v. Choice Sec. Co., 91 F. Supp. 3d 339, 349 (E.D.N.Y. 2015) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). The "mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant]." Liberty Lobby, 477 U.S. at 252, 106 S.Ct. 2505. Moreover, the nonmoving party must do more than point to "some metaphysical doubt as to the material facts." Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). He must instead identify the "specific facts" that demonstrate a genuine issue for trial, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), and "offer some hard evidence showing that its version of events is not wholly fanciful," D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998). If the nonmoving party's "evidence is merely colorable, or is not significantly probative," summary judgment is appropriate. Liberty Lobby, 477 U.S. at 249-50, 106 S.Ct. 2505 (citation omitted).
"Insurance policies are, in essence, creatures of contract, and, accordingly, subject to principles of contract interpretation." Thor Equities, LLC v. Factory Mut. Ins. Co., 531 F. Supp. 3d 802, 807 (S.D.N.Y. 2021) (internal quotation marks and citation omitted). "Under New York law, contracts are 'construed in accord with the parties' intent,' and 'the best evidence of what the parties to a written agreement intend is what they say in their writing'...." Riseboro Cmty. P'ship Inc. v. SunAmerica Hous. Fund 682, 482 F. Supp. 3d 31, 36 (E.D.N.Y. 2020) (quoting Greenfield v. Philles Records, Inc., 98 N.Y.2d 562, 569, 750 N.Y.S.2d 565, 780 N.E.2d 166 (2002)). A court must give effect to the intent of the parties as expressed in the clear language of the insurance contract and interpret the contract "according to common speech and consistent with the reasonable expectation of the average insured." Thor Equities, 531 F. Supp. 3d at 807 (cleaned up).
Although the parties do not address choice of law in this diversity case, they assume that New York law controls. Accordingly, the Court applies New York law. See Krumme v. WestPoint Stevens Inc., 238 F.3d 133, 138 (2d Cir. 2000) (where the parties' briefs assume that New York law controls, "such implied consent ... is sufficient to establish choice of law"); Thor Equities, 531 F. Supp. 3d at 806.
DISCUSSION
The plaintiffs did not comply with the Policy's unambiguous requirement that they submit a sworn proof of loss, which is an absolute bar to recovery. This alone is reason to grant summary judgment. In addition, their bad faith claim is duplicative and must be dismissed. Finally, to the extent that the plaintiffs mean to bring a claim under New York General Business Law § 349, it is dismissed.
I. Proof of Loss Requirement in the Policy
It is undisputed that the Policy was in full force and effect when the dock and gangway disappeared and that the parties were bound by the provisions of the Policy at all relevant times. (Def. 56.1 ¶ 11.)
The Policy is explicit that the party claiming a loss must file a proof of loss. It states:
Proof of loss. You must submit to us, within 60 days after we request, your signed, sworn proof of loss which documents, to the best of your knowledge and belief:
• the time and cause of loss;
• interest of the insured and all others in the property involved and all liens on the property;
• other insurance which may cover the loss;
• changes in title or occupancy of the property during the term of the policy;
• specifications of any damaged buildings and estimated for their repair;
• receipts for additional living expenses incurred and records supporting any fair rental value loss; and
• evidence or affidavit supporting a claim under the Credit Cards, Bank Cards, Fund Transfer Cards, Forgery and Counterfeit Money Coverage, stating the amount and cause of loss.
(ECF No. 33-3 at 104.)
The plaintiffs do not deny that the policy required them to submit a signed and sworn proof of loss, and they concede that they never submitted one. (Def. 56.1 ¶ 42.) Rather, they claim that they fulfilled the proof of loss requirement by complying with a different requirement—that they be examined under oath. (ECF No. 33-3 at 104 ("We may also ask you to give us a signed description of the circumstances surrounding a loss and your interest in it.").) The plaintiffs say that their agreement to be examined the under oath fulfills the "conditions precedent to the lawsuit" because "[t]here is absolutely no indication in the policy that an examination' under oath" or "a signed description of the circumstances" are "different from a 'signed, sworn proof of loss', or that these are two different and separate requirements[] within the policy." (ECF No. 35 at 8, 11-12.) The plain language of the Policy unequivocally refutes this claim.
A review of the Policy demonstrates that the examination under oath provision and the proof of loss provision are "different and separate requirements." (Id. at 8.) Aside from the clear language of the policy, the provisions are separated in the Policy document; each has its own heading, in bold font. (See ECF No. 33-3 at 104); see also, e.g., Probuilders Specialty Ins. Co. v. Double M. Const., 116 F. Supp. 3d 1173, 1179 (D. Nev. 2015) (applying Nevada law and finding policy exclusions were "conspicuous and unambiguous" where the "policy detail[ed] the nature and limitation of each exclusion under separate undercapitalized subheadings that [were] not buried in fine print"). Any conceivable doubt the plaintiffs could have harbored about these requirements was cleared up at their examinations under oath, when GNIC showed each plaintiff the letter that directed them to submit proof of loss statements. (ECF No. 33-8 at 51-56; ECF No. 33-9 at 31-34; ECF No. 33-10 at 59-60.) At no time, however, did the plaintiffs—one of whom is a lawyer—fulfill their contractual obligation to submit a sworn proof of loss statement.
The plaintiffs do not dispute that during their examinations under oath and while the investigation was still ongoing, GNIC showed them the demand letter. And in Jenna Pager's deposition, GNIC's attorney explained that GNIC had "extended or enlarged" the plaintiffs' deadlines to comply before the examinations under oath, and that the plaintiffs could have submitted the proof of loss and "cure[d] their prior defaults." (ECF No. 33-9 at 31-34.)
There is, moreover, nothing unusual or unique about requiring an insured to submit a signed and sworn proof of loss. On the contrary, the proof of loss requirement is a routine provision in insurance contracts.
See, e.g., Jacobson v. Metro. Prop. & Cas. Ins. Co., No. 09-CV-0158, 2010 WL 5391530, at *3 (N.D.N.Y. Dec. 21, 2010) ("[E]very circuit to address the requirements of recovery under [a standard flood insurance policy] has held that an insured's claim cannot be paid unless he has timely submitted a complete proof of loss which is signed and sworn to."), aff'd, 672 F.3d 171 (2d Cir. 2012); Duane Reade, Inc. v. St. Paul Fire & Marine Ins. Co., 261 F. Supp. 2d 293, 295 (S.D.N.Y. 2003) ("[B]ecause of the importance to virtually every insurance dispute of a formal proof of loss, substitutes therefor will not lightly be entertained under New York law...."); Harris v. Allstate Ins. Co., 83 F. Supp. 2d 423, 429 (S.D.N.Y. 2000) ("The Court of Appeals of New York has interpreted [New York Insurance Law] as requiring strict compliance by an insured with an insurer's request for proofs of loss...."). The plaintiffs' participation in examinations under oath thus does not fulfill the separate and additional requirement to provide a signed and sworn proof of loss.
The plaintiffs also argue that GNIC "cannot show" that it mailed the proof of loss form to the plaintiffs or that the plaintiffs received it, and that the "record raises triable questions of fact as to whether a proof of loss form was actually submitted or mailed to plaintiff." (ECF No. 35 at 9-11.) This, too, is meritless. "[P]roof of an office procedure followed in the regular course of business which establishes that a notice was properly addressed and mailed gives rise to a rebuttable presumption that the notice was actually received by the person to whom it was addressed." Tarnarider v. 21st Century Ins. & Fin. Servs., Inc., No. 18-CV-1882, 2018 WL 3339524, at *2 (E.D.N.Y. July 6, 2018). A party cannot rebut the presumption merely by claiming that he did not receive the mailing, as the plaintiffs do here. "There must be—in addition to denial of receipt—some proof that the regular office practice was not followed or was carelessly executed so the presumption that notice was mailed becomes unreasonable." Id.
GNIC sent the letter demanding a sworn proof of loss to the plaintiffs' address by certified mail, and a postal worker recorded that the letter was received on June 30, 2021. (See ECF No. 33-6 at 11.) The attorney who drafted and sent the letter affirmed in an affidavit that he followed his regular office procedures and mailed the request for the Proof of Loss statement, blank Proof of Loss forms for the statement, as well as the certified mail label. (See ECF 36-1 ¶¶ 6, 9, 11); see also Leon v. Murphy, 988 F.2d 303, 309 (2d Cir. 1993) (explaining New York law requires that to establish proper issuance of notice by mail, "personal knowledge [of mailing procedures] is required only to establish regular office procedure, not the particular mailing"). Of course, the plaintiffs were aware from the examinations under oath that they needed to complete and submit the sworn proof of loss forms.
In short, the plaintiffs did not comply with the Policy's unequivocal proof of loss requirement, a material fact about which there is no dispute. (See ECF 33-3 at 104). The evidence establishes that GNIC sent the forms to the plaintiffs by certified mail, that the forms were received, that GNIC repeatedly advised the plaintiffs of the requirement, and that the plaintiffs never submitted the sworn proof of loss forms. Accordingly, summary judgment in favor of GNIC is appropriate. II. Implied Covenant of Good Faith
In view of this disposition, the Court does not address GNIC's alternative argument— that the plaintiffs did not establish that they suffered a covered loss in the first instance. (See ECF No. 33-19 at 17-19.)
The plaintiff's claim for breach of the implied covenant of good faith and fair dealing is also dismissed, as it is redundant. "A claim for breach of the implied covenant 'will be dismissed as redundant where the conduct allegedly violating the implied covenant is also the predicate for breach of covenant of an express provision of the underlying contract.'" ICD Holdings S.A. v. Frankel, 976 F. Supp. 234, 243-44 (S.D.N.Y. 1997); see also County of Orange v. Travelers Indem. Co., No. 13-CV-06790, 2014 WL 1998240, at *2 (S.D.N.Y. May 14, 2014) ("A claim for the breach of the implied covenant of good faith and fair dealing must also be dismissed where it 'seek[s] to recover damages that are intrinsically tied to the damages allegedly resulting from the breach of contract.'"). Here, the plaintiffs make the same allegations in the breach of the implied covenant of good faith claim and the contract claim. (See ECF No. 1 ¶¶ 26-29); see also Geler v. Nat'l Westminster Bank USA, 770 F. Supp. 210 (S.D.N.Y. 1991) (no recovery for the breach of duty of good faith when the allegations were based on same conduct as other allegations which "presupposed" a breach of the terms of the contract); County of Orange, 2014 WL 1998240, at *2.
III. New York General Business Law
GNIC is also entitled to summary judgment on the New York General Business Law ("GBL") § 349 claim, to the extent that the plaintiffs make one. A plaintiff claiming a violation of GBL § 349 must prove (1) that the defendant's acts were "consumer oriented," (2) that the acts or practices were "misleading in a material way," and (3) that the plaintiff "suffered an injury as a result." M.V.B. Collision Inc. v. State Farm Mut. Auto. Ins. Co., No. 19-CV-1883, 2020 WL 1866719 (E.D.N.Y. Jan. 7, 2020), report and recommendation adopted, No. 19-CV-1883, 2020 WL 830829 (E.D.N.Y. Feb. 20, 2020); see also Gold v. Shapiro, Dicaro & Barak, LLC, 18-CV-6787, 2019 WL 4752093 (E.D.N.Y. Sept. 30, 2019). The plaintiffs make no such showing. They have alleged generally that the defendants acted "knowingly and as part of a general business practice" when it denied their insurance claim, but their response to the defendant's motion does not cite anything in the record to support this claim. (ECF No. 1 ¶ 32; ECF No. 35 at 17-18.) Such generalized assertions are insufficient. See Ross v. Cavalry Portfolio Services, LLC, 23-CV-1113, 2023 WL 7031932 at *10 (E.D.N.Y. Oct. 26, 2023) (dismissing a GBL § 349 claim because the plaintiff did not allege any facts to suggest the defendant's conduct was false or misleading "other than conclusory statements"). GNIC is therefore also entitled to summary judgment on this claim.
The plaintiffs did not make a GBL § 349 claim in their complaint, but the Court addresses the argument because GNIC raises it.
In their response, the plaintiffs argue that the defendants also violated New York Insurance Law § 3420, which requires timely notification to a policyholder of a denial of coverage. (ECF No. 35 at 19.) As GNIC notes, this provision applies only to "liability insurance, not property insurance." See Sunrise One, LLC v. Harleysville Ins. Co. of N.Y., 293 F. Supp. 3d 317, 333 (E.D.N.Y. 2018).
CONCLUSION
For these reasons, GNIC's motion for summary judgment is granted.
SO ORDERED.