United States District Court, E.D. Michigan, Southern Division
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT [#25] AND DENYING PLAINTIFFS' MOTION FOR PARTIAL
SUMMARY JUDGMENT [#24].
GERSHWIN A. DRAIN JUDGE.
before the Court is Plaintiffs Hana Durasevic and Doka
Durasevic's complaint against their insurance company,
Grange Insurance Company of Michigan. Plaintiffs bring the
present action alleging that Defendant is liable for
insurance coverage for damage to their home. Plaintiffs filed
a Motion for Partial Summary Judgment asserting
Defendant's liability to provide them coverage. Defendant
filed a Motion for Summary Judgment asserting that this Court
should dismiss the entire action. For the reasons stated
below, this Court will grant Defendant's Motion for
Summary Judgment and deny Plaintiffs' Motion for Partial
action arises from a dispute about insurance coverage for
fire damage to Plaintiffs' home. On September 29, 2015,
Plaintiffs submitted a claim to Defendant for fire damage to
their house. Dkt. No. 25, pg. 4 (Pg. ID 310). Defendant
issued $619, 029.98 to Plaintiffs to cover expenses from the
fire damage, paying money for coverage identified as
Dwelling, Contents, Additional Living Expenses, Dwelling
Expenses, and Contents Expenses. Dkt. No. 25-2, pg. 2 (Pg. ID
341). Defendant paid for Plaintiffs' temporary housing
after the September 29, 2015 fire. Dkt. No. 25, pg. 8 (Pg. ID
April 29, 2016, a second fire occurred at Plaintiffs'
original home, where the first fire occurred. Dkt. No. 25-2,
pg. 2 (Pg. ID 341). At the time of the second fire,
Plaintiffs still lived in temporary housing. Dkt. No. 25, pg.
8 (Pg. ID 314). Defendant paid $30, 548.14 for the April 29th
fire, paying money for coverage identified as Additional
Living Expenses and Dwelling Expenses. Id. Defendant
retained Kevin G. Pike, a senior fire investigator, to
investigate the origin of the second fire. Dkt. No. 25-3, pg.
2 (Pg. ID 344). Mr. Pike concluded that someone started the
fire intentionally. Id. at pg. 21 (Pg. ID 363). Mr.
Pike's investigation also found that there was no forced
entry into the home. Dkt. No. 5-2, pg. 9 (Pg. ID 95).
Defendant conducted an investigation and found that Niko
Durasevic, Plaintiffs' son, was at the residence just a
few hours before the fire. Id. Therefore, Defendant
concluded that it was more likely than not that Niko
Durasevic intentionally started the April 29, 2016
fire. Id. As a part of Defendant's
investigation, Defendant made repeated requests to Plaintiffs
to produce financial records, phone records, and Facebook
archives. Dkt. No. 5-2, pg. 8 Pg. ID 94). Plaintiff failed to
produce the requested documentation and information so
Defendant could properly investigate the claim. Id.
Defendant also attempted to conduct examinations under oath
(“EUOs”) with Plaintiffs and their family members
living with them as part of its investigation. Id.
Insured persons Niko and Samantha Durasevic failed to submit
to EUOs. Id. Insured persons Doka, Hana, and Viktor
Durasevic submitted to EUOs, but failed to sign their EUO
February 24, 2017, Defendant wrote Plaintiffs a letter
stating why Plaintiffs' policy did not provide total
coverage for their claim resulting from the April 29 fire.
Dkt No. 5-2. The letter stated the following reasons for
denying coverage: 1) Plaintiffs were vacant from the house
for 60 days immediately preceding the fire; 2) some of the
insured persons under the policy failed to provide sworn
testimony at an EUO; 3) Plaintiffs failed to respond to
repeated requests for documentation supporting the claim; 4)
the evidence demonstrated that it was more likely than not
that Niko Durasevic started the fire; and 5) Plaintiffs
concealed Niko's involvement with the fire. Id.
at pgs. 7-9 (Pg. ID 93-95).
15, 2017, Plaintiffs filed the present action in the Macomb
County Circuit Court. Dkt. No. 1-4. On June 26, 2017,
Defendant removed the action to this Court. Dkt. No. 1.
Plaintiffs then filed their Motion for Partial Summary
Judgment on April 26, 2018. Dkt. No. 24. In their Motion,
Plaintiffs request that this Court strike several of
Defendant's affirmative defenses and hold Defendant
liable for coverage of the April 29, 2016 fire. Id.
Defendant responded to the Motion on May 17, 2018. Dkt. No.
29. Plaintiffs replied on May 25, 2018. Dkt. No. 31. On April
26, 2018, Defendant filed its Motion for Summary Judgment.
Dkt. No. 25. Defendant asserts that this Court should dismiss
the entire action because Plaintiffs failed to comply with
its policy conditions. Id. Plaintiffs responded to
the Motion on May 17, 2018. Dkt. No. 28. Defendant replied on
May 31, 2018. Dkt. No. 33.
Rule of Civil Procedure 56(c) governs summary judgment. The
Rule states, “summary judgment shall be granted if
‘there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter
of law.'” Cehrs v. Ne. Ohio Alzheimer's
Research Ctr., 155 F.3d 775, 779 (6th Cir. 1998).
“All factual inferences ‘must be viewed in the
light most favorable to the party opposing the
motion.'” Id. (quoting Matsushita
Elec. Indus., Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986)). There is a genuine issue of material fact
“if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id.
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986)). Ultimately, the court evaluates
“whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is
so one-sided that one party must prevail as a matter of
law.” Anderson, 477 U.S. at 251-52.
Defendant's Motion for Summary Judgment
and Defendant's Motions contain overlapping issues. This
Court will address Defendant's Motion for Summary
Judgment first. The Court will then apply its conclusions to
Plaintiffs' Motion for Partial Summary Judgment to the
extent they are applicable.
asserts three reasons why this Court should grant summary
judgment in its favor. First, Plaintiffs' insurance
policy excludes coverage for damage resulting from
intentionally set fires if the dwelling was vacant for the 60
days immediately preceding the fire. Dkt. No. 25, pg. 2 (Pg.
ID 308). Second, Plaintiffs' policy requires insured
persons to provide sworn testimony at an EUO; Niko and
Samantha Durasevic are insured persons who failed to submit
to EUOs. Id. Third, Plaintiffs' policy requires
insured persons to cooperate with its investigation and
produce documents, and Plaintiffs failed to produce requested
Defendant argues that it is entitled to summary judgment
because Plaintiffs' insurance policy excludes coverage
for loss or damage resulting from intentionally set fires if
the dwelling was vacant for the sixty days immediately
preceding the fire. Dkt. No. 25, pg. 2 (Pg. ID 308).
Plaintiff contends that their home was not vacant because the
definition of vacant means that a dwelling is lacking both
animate and inanimate objects. Dkt. No. 24, pg. 4 (Pg. ID
183). Plaintiffs' home was not empty of inanimate objects
at the time of the second fire. Id. Alternatively,
Plaintiff argues that Defendant is estopped from asserting
the vacancy exclusion because Defendant was paying Plaintiffs
to live elsewhere and knew that Plaintiffs were not living at
their home at the time of the fire. Dkt. No. 28, pg. 2 (Pg.
insurance policy with Defendant states the following:
B ..... [W]e do not insure for loss . . . caused directly or
indirectly by any of the following:
Exclusion B.4. is removed and replaced with the following:
4. Vandalism or malicious mischief, including intentionally
set fires, if the dwelling has been vacant for more than 60
consecutive days immediately preceding the loss. A building