United States District Court, W.D. North Carolina, Asheville Division
MEMORANDUM OF DECISION AND ORDER
Martine Reidinger United States District Judge
MATTER is before the Court on the Plaintiff's Motion for
Summary Judgment [Doc. 26] and the Defendant's Motion for
Summary Judgment [Doc. 30].
January 16, 2015, the Plaintiff Biltmore Avenue Condominium
Association, Inc. (“Biltmore”) initiated this
lawsuit by filing a Complaint against the Defendant Hanover
American Insurance Company (“Hanover”) in the
General Court of Justice, Superior Court Division, for
Buncombe County, North Carolina. [Doc. 1-1]. Hanover removed
the action to this Court on March 2, 2015, on the basis of
diversity jurisdiction. [Doc. 1].
Complaint, as amended, Biltmore alleged that Hanover breached
its contract of insurance with Biltmore by failing to pay
benefits arising from a July 28, 2011 fire loss. [Doc. 7].
Biltmore also asserted a claim for unfair and deceptive trade
practices, in violation of N.C. Gen. Stat. § 75-1.1,
et seq. (“Chapter 75”). [Id.].
moved to dismiss both of Biltmore's claims. On September
3, 2015, the Magistrate Judge issued a Memorandum and
Recommendation, recommending that Biltmore's breach of
contract be dismissed as barred by the statute of
limitations. [Doc. 14]. The Magistrate Judge recommended,
however, that Hanover's motion be denied as to
Biltmore's Chapter 75 claim. [Id.]. Hanover
objected to the Magistrate Judge's recommendation
regarding the Chapter 75 claim. [Doc. 15]. On February 2,
2016, this Court overruled Hanover's objection and
adopted the Memorandum and Recommendation. [Doc. 18].
parties now move for summary judgment as to Biltmore's
remaining claim under Chapter 75. [Docs. 26, 30]. The Court
held a hearing on these motions on January 24, 2017. Having
been fully briefed and argued, these motions are now ripe for
STANDARD OF REVIEW
judgment is proper “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). A fact is “material” if it “might
affect the outcome of the case.” News and Observer
Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d
570, 576 (4th Cir. 2010). A “genuine dispute”
exists “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
asserting that a fact cannot be genuinely disputed must
support its assertion with citations to the record or by
showing that the adverse party cannot produce admissible
evidence to support that fact. Fed.R.Civ.P. 56(c)(1).
“Regardless of whether he may ultimately be responsible
for proof and persuasion, the party seeking summary judgment
bears an initial burden of demonstrating the absence of a
genuine issue of material fact.” Bouchat v.
Baltimore Ravens Football Club, Inc., 346 F.3d 514, 522
(4th Cir. 2003). If this showing is made, the burden then
shifts to the non-moving party who must convince the court
that a triable issue exists. Id. Finally, in
considering a party's summary judgment motion, the Court
must view the pleadings and materials presented in the light
most favorable to the non-moving party, and must draw all
reasonable inferences in favor of the non-movant as well.
Adams v. Trustees of Univ. of N.C. -Wilmington, 640
F.3d 550, 556 (4th Cir. 2011).
following forecast of evidence is not in dispute. Biltmore
owns a medical office building located at 445 Biltmore
Avenue, Asheville, North Carolina (the
“Building”). Hanover issued Biltmore a commercial
property policy, Policy No. ZZR 8826745 00, covering the
Building for the policy period August 17, 2010 to August 17,
2011 (the “Policy”). The Policy contains numerous
forms describing the Policy's coverages, including (as is
relevant here), an Ordinance or Law Coverage Endorsement,
Form CP 04 05 04 02 (the “O&L Endorsement”),
and the Advantage-Choice Property Broadening Endorsement,
Form 411-0660 (12/09) (the “Broadening
C of the O&L Endorsement provides, in pertinent part, as
a. With respect to the building that has sustained covered
direct physical damage, we will pay ...