R.C. Latham v. Allstate Insurance Co.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0398n.06
No. 08-5438
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
R. C. LATHAM, )
Jun 02, 2009
LEONARD GREEN, Clerk
)
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
ALLSTATE INSURANCE CO., CRAIG CASEY, and ) THE WESTERN DISTRICT OF
CASEY INSURANCE AGENCY, ) TENNESSEE
)
Defendants-Appellees. )
)
Before: MARTIN and KETHLEDGE, Circuit Judges; WATSON, District Judge.*
KETHLEDGE, Circuit Judge. R. C. Latham (“Latham”) appeals the grant of summary
judgment in favor of Defendants in his suit to recover insurance proceeds after a fire destroyed his
home. We affirm.
I.
Latham’s home burned down on December 18, 2005. At the time, the home and personal
property inside were covered by an Allstate homeowner’s insurance policy that Latham had bought
from Craig Casey and Casey Insurance Agency (collectively, “Casey”). After the fire, Latham filed
*
The Honorable Michael H. Watson, United States District Judge for the Southern District
of Ohio, sitting by designation.
No. 08-5438
Latham v. Allstate
a claim with Allstate, seeking to recover insurance proceeds. Allstate denied the claim on August
10, 2006, suspecting that Latham had set the fire.
Latham sued Allstate and Casey (“Defendants”) in the Crockett County, Tennessee Chancery
Court. He alleged that Allstate had breached its contract with him, and that Casey negligently failed
to explain some of the policy’s coverage limits. Defendants removed the case to federal court, and
filed separate motions for summary judgment. Allstate alleged that Latham had set the fire, and
relied on its policy language exempting coverage in such circumstances. Casey argued that, at
deposition, Latham admitted he could not remember whether Casey had discussed the policy limits
at issue, and thus could not prove his claim against Casey.
Latham failed to answer the motions, and the court issued a Show Cause Order threatening
to grant them and dismiss the case if Latham did not respond. Two weeks later, Latham filed a
response. It consisted of a single substantive paragraph, containing unsworn and unsupported
allegations that Latham did not set the fire. The court considered Latham’s response, but found that
no genuine issue of material fact existed, and granted summary judgment to Defendants.
Latham then filed a “Motion to Set Aside, Alter, or Amend” the summary-judgment order,
attaching three affidavits: one from Steve Wall of Wall Heating and Air, asserting that the cause of
the fire is unknown; one from Latham’s expert, Stuart Bayne, stating that his report did not mean to
imply that Latham set the fire; and one from Latham’s step-son, William Griffin, stating that he was
with Latham on the day of the fire and that Griffin himself did not set it. Conspicuously absent was
any affidavit from Latham stating that he himself did not set the fire. The court declined to consider
the affidavits, and denied the motion.
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No. 08-5438
Latham v. Allstate
This appeal followed.
II.
“This Court reviews a district court’s grant of summary judgment de novo.” Moses v.
Providence Hosp. & Med. Ctrs., Inc., 561 F.3d 573, 578 (6th Cir. 2009). “Summary judgment is
appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, ‘show that there is no genuine issue as to any material fact and that the
movant is entitled to a judgment as a matter of law.’” Id., citing Fed. R. Civ. P. 56(c). To survive
such a motion, the non-moving party must show more than some metaphysical doubt as to the
material facts. Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 538 F.3d 469, 472 (6th
Cir. 2008).
Allstate’s motion rested primarily on two pieces of evidence. First, Latham’s own expert
witness opined that someone diverted the home’s gas lines into its HVAC duct units, causing an
explosion that, in turn, caused the fire. Second, Allstate’s debris analysis showed no trace of the
$60,446.50 in personal property that Latham claimed he lost in the fire. During the pendency of
Allstate’s motion, Latham offered no evidence at all—other than naked allegations—to refute
Allstate’s arguments. Moreover, under Tennessee law, a fraudulent insurance claim is a breach of
the insurance contract that bars recovery both as to the insured structure and the personal property
within. See Home Ins. Co. v. Connelly, 56 S.W. 828, 829 (Tenn. 1899); Trice v. Commercial Union
Assurance Co., 334 F.2d 673, 676 (6th Cir. 1964); cf. APPLEMAN ON INSURANCE § 3595(“The
general rule seems to be that fraud, attempted fraud, or false swearing as to any part of the property
included in a proof of loss prevents recovery for any portion thereof”).
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No. 08-5438
Latham v. Allstate
Latham failed to dispute Allstate’s evidence that he had submitted a fraudulent claim. He
also did not address Casey’s argument that the negligence claim was devoid of proof. The district
court, therefore, correctly held that Latham had not shown the existence of genuine issues of material
fact with respect to his claims. Latham argues on appeal that he need not have offered evidence to
defeat Defendants’ motions, because “the Complaint within itself” offered proof enough to defeat
summary judgment. But he is mistaken. See Kendall v. Hoover Co., 751 F.2d 171, 173 (6th Cir.
1984) (“the conclusory allegations of a complaint cannot be relied upon to withstand a motion for
summary judgment”). Moreover, Latham’s motion to “Set Aside, Alter, or Amend” the
order—purportedly filed pursuant to Federal Rules of Civil Procedure 59 and 60—did not provide
the district court any basis to vacate its summary-judgment order. Latham’s motion sought to
present “arguments which could, and should, have been made before judgment issued[.]” Sault Ste.
Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998). And even
considering the affidavits attached to Latham’s motion, the undisputed record before the district
court remained that the fire was intentionally set; that no trace of the items for which Latham sought
reimbursement was found in the fire debris; and that Latham himself never submitted an affidavit
contesting Allstate’s conclusion that he was the person who set the fire.
The district court did not err, therefore, in refusing to grant Latham’s motion, and in entering
judgment in favor of Defendants.
We affirm the judgment of the district court.
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