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Cunningham v. Liberty Mutual Insurance Co.

United States District Court, M.D. Louisiana

January 16, 2019

ELIZABETH COLE CUNNINGHAM
v.
LIBERTY MUTUAL INSURANCE COMPANY

          RULING

          SHELLY D. DICK CHIEF JUDGE UNITED STATES DISTRICT COURT

         This matter is before the Court on the Motion for Partial Summary Judgment on Plaintiff's Structure Claims[1] and the Motion for Partial Summary Judgment on Plaintiff's Claims for Damages Caused by Third Parties[2] filed by Defendant, Liberty Mutual Insurance Company (“Defendant”). Plaintiff, Elizabeth Cole Cunningham, has filed an Opposition to each Motion, [3] to which Defendant has filed Replies.[4] For the following reasons, the Court finds that Defendant's Motions should be granted.

         I. PROCEDURAL BACKGROUND

         On August 8, 2015, a pipe burst in Plaintiff's home, causing “extensive”[5] damage. Plaintiff then filed a claim with Defendant, her homeowners' insurer. The instant litigation arises out of issues surrounding that claim; Plaintiff alleges that she is owed “supplemental expenses”[6] and payment for damages to her home caused by third party contractors. Defendant filed the instant Motions for Partial Summary Judgment on October 1, 2018.[7] On November 5, 2018, Plaintiff requested a ten-day extension for the filing of her Oppositions, stating that she and her counsel were “overwhelmed by the . . .volume and complexity” of the motions.[8] This Court granted that request, setting a new opposition deadline of November 15, 2018.[9] Plaintiff subsequently filed her Oppositions one day late, on November 16, 2018.[10] On that basis alone, the Court could strike Plaintiff's Oppositions and grant the pending Motions for Summary Judgment as unopposed under Local Rule 7(f). However, for the reasons discussed below, the Court finds that, even if Plaintiff's untimely Oppositions are considered, Defendant is entitled to summary judgment on these claims.

         II. LAW AND ANALYSIS

         A. Plaintiff's Structure Claims

         Defendant argues that it is entitled to summary judgment on Plaintiff's structure claims because she “puts forth no evidence whatsoever to establish a genuine issue of material fact as to the cause and extent of such damage, even though she had been granted additional time to respond.”[11] As Defendant notes, Plaintiff bears the burden of proving the amount of her loss. In her Opposition, Plaintiff reasserts her claim for “supplemental expenses”[12] and cites the language of the “insurance repair agreement” generated by Defendant, which states that the estimate of her damages is subject to change based on “plans, permitting, hidden damages . . .[and] code upgrades.”[13] That may indeed be Defendant's policy, but Plaintiff fails to produce evidence that any of the above circumstances actually apply to her case and call for the payment of a “supplement.” Her two-page Opposition is devoid of citations, exhibits, or any other evidence of her claim for loss. Plaintiff merely speculates that “inflation”[14] could justify an additional payment and laments that, whereas under ordinary claims management procedures, the Defendant “almost always pays”[15] requests for a supplemental payment, “the litigation process”[16] (which was initiated by Plaintiff) “destroys the direct discourse between the insured and insurer.”[17] None of the above is competent summary judgment evidence of Plaintiff's damages. As such, the Court finds that Defendant's Motion for Partial Summary Judgment on Plaintiff's Structure Claims[18] should be granted.

         B. Plaintiff's Claims for Damages Caused by Third Parties

         Plaintiff alleges that “some of her damages resulted from the acts or omissions of third parties retained by defendant.”[19] Defendant, in turn, argues that it is entitled to summary judgment on these third-party damages claims because Plaintiff “cannot come forward with evidence showing [that Defendant] was responsible for the actions of any of these entities.”[20] The doctrine of respondeat superior does not apply, Defendant argues, because there is no evidence that the third-party contractors were employees of Defendant. In her Opposition, Plaintiff concedes that “none of these contractors was an employee of [Defendant]”[21] and that “none would seem to qualify as a servant under Louisiana law and its doctrine of respondiat [sic] superior.”[22] Plaintiff nevertheless urges the Court to deny summary judgment because “Plaintiff should not be made to suffer for the poor judgment of the defendant whose hirelings have damaged her so.”[23] Unfortunate as Plaintiff's case may be, sympathy cannot take the place of competent summary judgment evidence that demonstrates a genuine issue of material fact. In the absence of any such evidence, the Court finds that Defendant's Motion for Partial Summary Judgment on Plaintiff's Claims for Damages Caused by Third Parties[24] should be granted.

         III. CONCLUSION

         For the reasons set forth above, Defendant's Motion for Partial Summary Judgment on Plaintiff's Structure Claims[25] and Motion for Partial Summary Judgment on Plaintiff's Claims for Damages Caused by Third Parties[26] are GRANTED.

         IT IS SO ORDERED.

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