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Brown v. Economy Premier Assurance Co.

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

April 2, 2018

JUDITH BROWN, Plaintiff,
v.
ECONOMY PREMIER ASSURANCE COMPANY, Defendant.

          ORDER

          Max O. Cogburn, United States District Judge

         THIS MATTER is before the Court on defendant's Motion for Judgment on the Pleadings. Having considered defendant's motion and reviewed the pleadings, the Court enters the following findings, conclusions, and Order.

         FINDINGS AND CONCLUSIONS

         I. Background

         This is an action for breach of a contract of fire insurance. Amended Complaint (#13) Exhibit A (“A.C. Ex. A”). The policy at issue provided coverage for accidental property loss for plaintiff's home located on Allison Watts Road in Franklin, North Carolina. Id. at ¶ 4. Plaintiff describes the premises as a permanently constructed home and a single wide mobile home adjacent to the permanent dwelling, served by one utility meter. Id. at ¶¶ 5-6.

         Between 2014 and 2016, the permanent home was undergoing repairs due to water damage in 2014. Plaintiff contends that she was at the permanent home almost every day during the period of repair, id. at ¶ 9, but that she moved a small portion of her daily personal clothing and cleaning supplies to the mobile home and sometimes slept overnight in the mobile home when repairs were being done on the permanently constructed home, id. at ¶12, and occasionally stayed overnight with a friend in an RV park. Id. at ¶13. The permanent home was destroyed by fire on October 11, 2016. Id. at 18. She contends that at the time of the fire, she was admitted to a local hospital. Id.

         Plaintiff has asserted a claim for breach of the contract of insurance in Count I of the Amended Complaint and in Count II a claim for unfair and deceptive trade practices in violation of Chapter 75 of the North Carolina General Statutes (“UDTPA”) based on denial of her claim and other actions she believes amount to aggravating factors.

         Defendant has Answered and moved for judgment on the pleadings as to both claims. In addition, defendant seeks an award of attorney's fees, contending that the UDTPA claim was maintained both frivolously and maliciously.

         II. Jurisdiction

         This matter was removed from the North Carolina General Court of Justice for Macon County, Superior Court Division, based on an assertion of diversity jurisdiction. It appearing that the parties are completely diverse and that the amount in controversy exceeds $75, 000.00, this Court has jurisdiction over this action. 28 U.S.C. § 1332.

         III. Defendant's Motion for Judgment on the Pleadings

         From the outset, defendant's Motion for Judgment on the Pleadings (#16) is out of the ordinary for this district. The motion itself is 33 pages and is followed by a Memorandum of Law that is 25 pages, totaling 58 pages of text. Such submission is unwieldy and runs afoul of the spirit (if not the letter) of Local Civil Rule 7.1(d), which limits supporting briefs to 25 pages, and does not anticipate that a party will segregate its facts supporting the motion from the argument as done here. Counsel for defendant is advised that the Court would prefer that a straight-forward request be made to exceed the page limitation as the submissions now before make it most difficult to review the motion and brief.

         Turning to the substance of the Motion for Judgment on the Pleadings, defendant contends that the Court should grant it judgment on plaintiff's breach of contract claim (Count I) as plaintiff's statements later made under oath are contradicted by earlier record statements she made to insurance investigators concerning where she lived at the time of the fire. In sum, defendant points to two 2016 recorded interviews with investigators where she stated she was not living in the permanent home at the time of the fire and contrasts those statements with her sworn testimony during her Examination Under Oath (“EUO”) in 2017 that she was living in the permanent home at the time of the fire. Defendant contends that such false statements void all coverage as a matter of North Carolina law, citing Smith v. State Farm Fire & Casualty Co., 109 N.C.App. 276, 278-80 (1993).

         As to Count II, defendant contends that it is also entitled to judgment as a matter of law on plaintiff's UDTPA claim. Defendant contends that none of the 11 reasons alleged in support of plaintiff's claim provides the required aggravating ...


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