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Upton v. Liberty Mutual Group, Inc.

Supreme Court of West Virginia

April 21, 2017

Stephen Upton, Plaintiff Below, Petitioner
v.
Liberty Mutual Group, Inc., Defendant Below, Respondent

         Mason County 10-C-73

          MEMORANDUM DECISION

         Petitioner Stephen Upton, pro se, appeals two orders of the Circuit Court of Mason County. In the first order, entered on March 11, 2016, the circuit court awarded partial summary judgment to Respondent Liberty Mutual Group, Inc., by deciding that (1) no rational jury could find for petitioner on his claims for bad faith, fraud, and professional negligence; and (2) the maximum amount that petitioner could recover on his breach of contract claim was $6, 197.59, plus interest. In the second order, entered on April 27, 2016, the circuit court dismissed petitioner's action with prejudice after respondent tendered a check to petitioner for $6, 197.59, plus applicable interest, in the total amount of $9, 088.21. Respondent, by counsel William M. Harter and Jared M. Tully, filed a response in support of the circuit court's orders. Petitioner filed a reply.

         The Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

         According to petitioner, on the morning of August 24, 2009, he returned home after working the night shift and discovered that someone had broken into his house by damaging the exterior doors.[1] Petitioner also discovered water on his kitchen floor from a "[m]inute" crack in a pipe fitting under his sink. Petitioner reported both problems to respondent, his homeowners' insurance carrier.

         Petitioner's homeowners' policy required a $5, 000 per occurrence deductible. When requested to do so by respondent, petitioner refused to file one claim for the damage to his exterior doors and a separate claim for the water damage to his kitchen because he discovered both problems at the same time. Nevertheless, respondent subsequently treated the damaged doors and the water damage as separate occurrences on the ground that there was no evidence that whoever damaged the exterior doors then went inside and caused the "[m]inute" crack under petitioner's kitchen sink.

         The parties each hired a separate contractor to appraise the damage to petitioner's home. Petitioner's contractor, Robert Blankenship of Alternative Building Concepts, found that it would cost $1, 585.90 to fix petitioner's exterior doors and $18, 385.60 to make repairs to his kitchen. Respondent's contractor, Raintree Construction Co., LLC, found it would cost $1, 921.72 to fix petitioner's exterior doors and $15, 523.69 to make repairs to his kitchen. Neither contractor was willing to do repair work involving petitioner's granite countertops, but Mr. Blankenship opined that such additional work would cost $3, 662.06. Given that the damage to the exterior doors came to an amount less the $5, 000 per occurrence deductible, respondent paid nothing for that damage. Respondent ultimately paid a total of $11, 175.07 for the water damage after applying the $5, 000 deductible to that occurrence.

         On July 12, 2010, petitioner filed a civil action against respondent in the Circuit Court of Mason County asserting causes of action for breach of contract, bad faith, fraud, and professional negligence. Petitioner alleged that respondent attempted to coerce him into filing a separate claim for the water damage so that it could reduce the amount it owed him by applying his deductible twice.

         Respondent removed the action to federal court. The action was later remanded to the circuit court. Discovery did not commence until 2013, and the circuit court did not enter a scheduling order until July 30, 2014. In the scheduling order, the circuit court set the deadline for the completion of discovery as April 30, 2015. Respondent took Mr. Blankenship's deposition on March 12, 2013, and took petitioner's deposition on August 8, 2014.

         The scheduling order also directed the parties to file pretrial memoranda. In respondent's pretrial memorandum, filed on July 13, 2015, it "reserve[d] the right to elicit . . . the expert testimony of [Mr.] Blankenship to the extent permitted by the West Virginia Rules of Evidence." In petitioner's pretrial memorandum, also filed on July 13, 2015, petitioner listed Mr. Blankenship as a fact witness and stated that he intended to use Mr. Blankenship's deposition testimony and his own deposition testimony at trial. Petitioner also filed various motions to compel respondent to comply with his discovery requests. Respondent responded by filing a motion to bifurcate petitioner's cause of action for breach of contract from his claims for bad faith, fraud, and professional negligence.

         Following the close of discovery, respondent filed a motion for partial summary judgment on June 8, 2015, arguing that there was no genuine issue of material fact and that (1) no rational jury could find for petitioner on his claims for bad faith, fraud, and professional negligence; and (2) the maximum amount that petitioner could recover on his breach of contract claim was $3, 796.43, plus interest. Petitioner filed a response on June 17, 2015. On June 29, 2015, respondent filed a reply to petitioner's response. Petitioner filed a response to the reply on July 13, 2015.

         The circuit court held a hearing on the parties' various motions on July 13, 2015. The circuit court declined to consider petitioner's motions, finding that he failed to properly notice them. While petitioner objected to that finding, the circuit court further found that the parties still needed to engage in mediation. Consequently, the circuit court continued the trial date set forth in the scheduling order and ordered that mediation be commenced.

         After mediation proved unsuccessful, the circuit court held a hearing on February 29, 2016. The circuit court found that the case was not progressing. The circuit court determined that the parties' disputes over petitioner's discovery requests related to his seeking of information for his causes of action alleging bad faith, fraud, and professional negligence. The circuit court further found that respondent waited to file its motion for partial summary judgment until the close of discovery pursuant to the scheduling order. Notwithstanding the fact that a number of petitioner's pending motions would result in discovery reopening, the circuit court found that the motion for partial summary judgment was ripe for decision given that the parties "properly briefed" the issues raised therein. Accordingly, the circuit court concluded that the best way for it to move the case forward was to rule on respondent's motion for partial summary judgment and, if necessary, its motion to bifurcate the causes of action alleging the mishandling of petitioner's insurance claim from his breach of contract claim.

         By order entered on March 11, 2016, the circuit court awarded respondent partial summary judgment. The circuit court first found that no rational jury could find for petitioner on his causes of action alleging the mishandling of his insurance claim. Petitioner based those claims on his allegation that respondent improperly asked him to file a separate claim for the water damage in his kitchen and then, after his refusal to file an additional claim, nevertheless treated the water damage as a separate occurrence from the damage to his exterior doors so that it could apply his deductible twice. The circuit court found that there was no evidence that whoever damaged the exterior doors then went inside and caused the water damage. First, at his deposition, petitioner testified that the water damage was caused by a "[m]inute" crack under his kitchen sink. Second, at the deposition of petitioner's contractor, Mr. Blankenship testified that one would expect to see more extensive damage when a pipe or a pipe fitting is damaged by vandalism. Given no genuine issue of material fact existed that vandalism was the cause of only the damage to the exterior doors, the circuit court concluded that respondent properly treated the water damage as a separate occurrence, to which another deductible applied. Therefore, the circuit court awarded respondent summary judgment on petitioner's claims for bad faith, fraud, and professional negligence.

         With regard to petitioner's breach of contract claim, the circuit court found that, because the cost of fixing petitioner's exterior doors was below his $5, 000 deductible, respondent owed petitioner nothing for that occurrence. However, construing the evidence in the light most favorable to petitioner, the circuit court used the higher cost estimate produced by Mr. Blankenship, rather than the estimate given by respondent's contractor, regarding the repair of the water damage in petitioner's kitchen. Mr. Blankenship's estimate included a $325 fee to inspect for mold and the $3, 662.06 for the additional work involving petitioner's granite countertops that had to be performed by a different contractor, who specialized in that field. The circuit court found that Mr. Blankenship's total estimate for the kitchen work was $22, 372.66. From this amount, the circuit court subtracted ...


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