United States District Court, W.D. Louisiana, Monroe Division
TERENCE WINBOURNE, ET AL.
WILSHIRE INSURANCE COMPANY
L. HAYES MAG. JUDGE
RULING ON MOTION FOR SUMMARY JUDGMENT
A. DOUGHTY UNITED STATES DISTRICT JUDGE.
here is Defendant Wilshire Insurance Company9;s
(“Wilshire”) Motion for Summary Judgment [Doc.
No. 20]. Plaintiffs Terence Winborne (“Winborne”) and
David Steve Carroll (“Carroll”) have not filed an
following reasons, the Court GRANTS Wilshire9;s Motion for
FACTUAL AND PROCEDURAL BACKGROUND
litigation arises out of a fire that occurred at 213 Newton
Street, St. Joseph, Louisiana, on July 19, 2017. Plaintiffs
Winborne and Carroll d/b/a The Daiquiri Shack filed suit
against Wilshire on August 10');">10');">10');">10');">10');">10');">10');">10, 2018');">8, in the Sixth Judicial
District Court for the Parish of Tensas, State of Louisiana.
On September 7, 2018');">8, the suit was removed to this Court.
seek contractual damages along with bad faith, interest,
penalties, and other alleged damages pursuant to a policy of
insurance issued by Wilshire covering property that was
destroyed by the fire. Wilshire, on the other hand, contends
it has no duty to pay Plaintiffs any amount under the policy
because Plaintiffs failed to cooperate in the investigation
of the claim. Moreover, Wilshire contends it has numerous
good faith bases for denial of the claim and is, therefore,
not liable for bad faith penalties and interest.
received notice of the loss on July 21, 2017, and retained
Brush Country Claims for damage assessment. In addition, SC
Fire Consulting ("S.C. Fire") was retained to
conduct a fire cause and origin investigation. S.C. Fire
conducted a scene inspection on July 24, 2017. [Doc. No.
20-9]. The fire investigator noted that vacancy at the time
of the loss was an issue. His report states that the building
was vacant and the contents on the interior were minimal and
"not sufficient for an operational business." [Doc.
No. 20-10');">10');">10');">10');">10');">10');">10');">10, 2');">p. 2');">2');">p. 2].
fire investigator also reported to Wilshire that the insured,
Winborne, informed him the building was owned by Winborne and
Carroll and used as a rental property. Winborne reported that
the property had been vacant since April 2017, over a month
before the policy was issued on May 15, 2017, and three
months prior to the loss, and the prior tenant still owed
rent. [Doc. No. 20-10');">10');">10');">10');">10');">10');">10');">10, p. 4');">p. 4].
25, 2017, SC Fire verbally reported to Wilshire that the fire
appeared to have been intentionally set. The investigator
noted that the fire had three separate and unconnected areas
of origin and appeared to be incendiary in origin, indicative
of arson. Samples of debris were taken, which later revealed
the presence of ignitable liquid accelerant. The fire
investigator9;s written report to Wilshire notes,
"The events bringing ignition and fuel together were a
person intentionally setting a fire in three separate
locations." [Doc. No. 20-10');">10');">10');">10');">10');">10');">10');">10, p. 5].
told the investigator that, on the day of the fire, he hired
Billy Boyte and Caleb Waller to work in the building. [Doc.
No. 20-10');">10');">10');">10');">10');">10');">10');">10, p.4]. Billy Boyte was arrested for arson on August
1, 2017. [Doc. No. 20-8');">8, 2');">p. 2');">2');">p. 2]. Caleb Waller and Winborne
were subsequently arrested and charged with conspiracy to
commit arson. [Doc. No. 20-2, p. 4');">p. 4].
addition to the above report from the fire investigator,
Brush Country Claims9; adjuster reported to Wilshire that
during his inspection on July 22, 2017, he noticed signs of
arson, and noted that the building appeared to be vacant, and
the vacancy exclusion may apply. [Doc. No. 20-9, p. 1].
representatives attempted to contact the insureds to obtain
statements numerous times, to no avail. Further investigation
revealed that Winborne was not listed on the deed for the
property. Wilshire then attempted to contact Winborne to
obtain documentation proving he was the owner of the
property, but Winborne failed to respond. [Doc. No. 20-6,
p.1] Subsequently, Wilshire requested that Winborne provide a
sworn statement in connection with the claim. [Doc. No.
20-12]. Winborne did not provide the requested information or
documentation, nor did he submit a sworn statement.
Winborne failed to respond to Wilshire9;s requests for
documentation and a recorded statement, Wilshire retained
Jeffrey Rapattoni, Esq., of Marshall Dennehey to conduct
“Examinations Under Oath.” Rapattoni requested
that the insureds appear for Examinations Under Oath via
letters that were sent to both Plaintiffs, Winborne and
Carroll, via regular mail and certified mail on January 24,
2018');">8; February 16, 2018');">8; March 16, 2018');">8; April 11, 2018');">8.
[Doc. No. 20-6] None of the mail was returned as
undeliverable. Neither insured responded to the requests for
Examinations Under Oath. Id.
learned that an attorney was retained to represent the
insureds and Winborne9;s Examination Under Oath was
scheduled through the attorney to take place on September 11,
2018');">8, a date mutually convenient and selected by all parties.
Id. The examination was cancelled by Winborne9;s
attorney and re-scheduled for November 26, 2018');">8. Id.
Winborne failed to appear on November 26, 2018');">8. Id.
In addition, the second named Plaintiff and insured, Carroll,
has never responded to Wilshire9;s requests. Id.
date, both Plaintiffs have failed to cooperate in
Wilshire9;s efforts to investigate this claim.
Wilshire9;s requests and Plaintiffs9; failure to
cooperate in the investigation span more than a year.
contends that it has been materially prejudiced by the
Plaintiffs9; failure to cooperate and that it has been
unable to investigate numerous issues related to the claim
1) whether one or both Plaintiffs have an insurable interest
in the property;
2) whether the property was vacant for 60 days prior to the
fire, excluding coverage;
3) whether the property was vacant at the time the
application was signed, excluding coverage;
4) whether Plaintiffs misrepresented material facts to
Wilshire regarding the property at the time of the