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Green v. Liberty Insurance Corp.

United States District Court, E.D. Michigan, Southern Division

November 16, 2016

ROBERT GREEN, et al., Plaintiffs,



         Insured Plaintiffs Robert and Verge Green, a married couple, along with their adult son Plaintiff Desmond Green, allege that Defendant Liberty Insurance Corporation breached their homeowners' insurance contract by wrongly denying their claim resulting from the alleged theft of personal property from their home. (Dkt. # 1.) Before the court are the parties' cross-motions for summary judgment. (Dkt. ## 25, 26.) Plaintiffs have declined to file a brief in reply to Defendant's Response to Plaintiffs' Motion for Summary Judgment. (Dkt. # 27.) Otherwise, the motions have been fully briefed and a hearing was held November 9, 2016. For the reasons that follow, the court will deny Plaintiffs' motion and grant Defendant's motion.

         I. BACKGROUND

         The following facts are not genuinely disputed unless otherwise noted.[1] On January 29, 2015, Robert Green reported an alleged home theft at a house he owned at 608 East Ellen Street in Fenton, Michigan. (Dkt. # 25-3.) Robert told the responding police officer:

• He had returned home to find the locks had been changed and a lockbox left attached to the door with instructions to contact the local property company “Five Brothers” for the combination to the lockbox, which contained a key. (Id. at Pg. ID 666.)
• He was behind on his mortgage and the bank had hired Five Brothers to winterize the house, mistakenly believing it to be unoccupied. (Id.)
• Upon opening the door, he discovered that the house had been ransacked and several valuable items stolen, including three guitars, eleven video game consoles, a keyboard, and a “sequencer, ” worth approximately $10, 000 in total. (Id.)

         The officer contacted Becky Thomas at Five Brothers, who stated that U.S. Bank had hired Five Brothers to secure and winterize the house. (Id.)[2] Five Brothers then hired Diverse Properties to complete the securing and winterizing, who in turn hired A&E Lawn Care. (Id.) A&E Lawn Care is wholly owned and run by Richard Angelo Vasquez. (Id.) The owner of Diverse Property told the officer that she had never had an issue with Vasquez and sent the officer a written statement that Vasquez had emailed to Diverse Property. The statement read:

My name is Angelo Vasquez, I am the owner of A&E Lawn Care. l received work order #46812 on January 14th, 2014 to be performed at 608 Ellen Dr. in Fenton, Michigan.. [sic] An employee of mine, Alonzo Olivarez and l arrived at the home at 1:33pm. Upon arrival we noticed that the driveway had been plowed, therefore we suspect [sic] the home may be occupied. We proceeded to approach the property to verify occupancy. We did not get an answer at the door and we were unable to look inside the home through the windows. At this time we inspected the exterior of the property and we were still unable to verify occupancy. l proceeded to break the lock on the front door because it was the only door we could gain access through. Once we entered the home we determine that there was a possibility that the home was indeed occupied. At this time Al called the office and spoke with Tom to make sure we had the correct address and to verify if the home was supposed to be occupied or not. Tom checked the address and described the home to confirm we were at the correct address. Address was correct and the home matched the description. l informed Tom that the home had personals and appeared occupied. He then instructed me to proceed with the work order.
Alonzo and l entered the home and proceeded to complete a lock change, installed a lock box, completed a winterization and took photos of the entire interior and exterior of the home. We were the only ones inside the home and we did not remove any personals. We took photos of all personals that were in plain view, however we did open some kitchen cabinets to confirm signs of occupancy and to place the old lock in the kitchen drawer as instructed.
. . .
Lastly, we were told that some personals were missing from the home. I have been in business for 14 years, I work for 2 other property preservation companies and I can assure you that I know the risks of removing personals without a work order. This home appeared occupied, that is why we did not make any attempt to even disturb anything in the home while photographing it, besides what needed to be touched. I don't know if this is a tactic by the homeowner to make an unlawful claim or because he is upset that we entered the home.
I assure you that neither one of us took anything from that home. We take full responsibility for the spilled water from the water meter and the blue dye on the bathroom carpet and wall but we did not touch nor remove any personals from the home. I am also attaching a time line, indicating the timely manner in which the work order was completed.

(Id.) Five Brothers also told officers that they had done business with Vasquez for ten years and had received no complaints. The police were unable to reach Alonzo Olivarez. (Id.) Ultimately, the police closed the case for lack of “necessary information needed to track down the reported stolen items.” (Id. at 671.)

         A few days after the incident, Robert filed his insurance claim with Defendant, seeking about $100, 000. (Dkt. # 28-2, Pg. ID 1156.) With his claim, Robert provided a list of allegedly stolen items, including seven guitars, two keyboards, a saxophone, a diamond ring, and a snowblower, among other items, that were not reported to the police. (Dkt. # 28-5.) In addition, Robert sought reimbursement for over 1, 000 video game discs or cartridges, allegedly worth $38, 855 in total. (Id.) Robert's claim stated that he or Desmond owned most of these items for ten years or more.[3]

         Defendant assigned Derek Maki of to investigate Robert's claim. (Dkt. # 28-4, Pg. ID 1201.) Maki spoke to each Plaintiff, the police officers, representatives of Five Brothers, and several of the Green's neighbors. (Id. at Pg. ID 1211-13.) Maki asked Robert if the list was accurate, and he stated that it was. (Id.) Maki also reviewed the police report and photographs taken by Vasquez during the winterization. (Id. at Pg. ID 1215-16.) Maki testified that, based on his investigation, he concluded that Robert had “made material misrepresentations about what was stolen from his house and, therefore, violated the policy provisions.” (Id. at Pg. ID 1215.) In particular, Maki concluded that Robert “inflated” the claim by including items that were not actually stolen or that he never actually owned. (Id. at Pg. ID 1215, 1238-43.)[4]

         Maki then called Robert to explain that the claim was denied and that he would receive a denial letter. (Id. at Pg. ID 1302.) Maki sent Robert the letter on August 26, ...

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