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Biltmore Avenue Condominium Association, Inc. v. Hanover American Insurance Co.

United States District Court, W.D. North Carolina, Asheville Division

March 8, 2017

BILTMORE AVENUE CONDOMINIMUM ASSOCIATION, INC., Plaintiff,
v.
HANOVER AMERICAN INSURANCE COMPANY, Defendant.

          MEMORANDUM OF DECISION AND ORDER

          Martine Reidinger United States District Judge

         THIS 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].

         I. PROCEDURAL BACKGROUND

         On 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].

         In its 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.].

         Hanover 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].

         Both 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 disposition.

         II. STANDARD OF REVIEW

         Summary 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 (1986).

         A party 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).

         III. FACTUAL BACKGROUND

         The 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 Endorsement”).

         Coverage C of the O&L Endorsement provides, in pertinent part, as follows:

a. With respect to the building that has sustained covered direct physical damage, we will pay ...

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