The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
TAMEKIA PAIGE CIVIL ACTION
VERSUS NO. 19-190-RLB
STATE FARM FIRE AND
CASUALTY COMPANY CONSENT
ORDER
Before the Court is Defendant’s Motion for Summary Judgment filed into the record on
October 2, 2020. (R. Doc. 35). The deadline for filing an opposition has expired. LR 7(f).
Accordingly, the motion is unopposed.
I. Background
On or about November 16, 2018, Tamekia Paige (“Plaintiff”) initiated this action in state
court to obtain recovery from State Farm Fire and Casualty Company (“State Farm”) for alleged
losses incurred under her homeowner’s policy as a result of an alleged burglary of her home at
2016 Ellerslie Drive in Baton Rouge on November 17, 2017. (R. Doc. 1-4). Plaintiff seeks
contractual damages and statutory bad faith penalties. State Farm removed the action. (R. Doc.
1).
On September 30, 2020, the deadline to file dispositive motions, State Farm sought leave
to file a Motion for Summary Judgment exceeding the Local Rule’s page limits and to file
certain exhibits conventionally. (R. Docs. 25, 31). The Court granted the motions. (R. Docs. 32,
33, 34). State Farm’s Motion for Summary Judgment was filed into the record on October 2,
2020. (R. Doc. 35). Plaintiff has not filed an opposition as of the date of this Order.
Plaintiff also failed to comply with the Court’s order requiring her to submit a joint
proposed pretrial order by October 23, 2020. (R. Docs. 10, 11).1 The Court granted State Farm
leave to unilaterally file a proposed pretrial order and continued the pretrial conference until
resolution of the instant motion. (R. Docs. 37, 38, 39).
State Farm seeks summary judgment as a matter of law for three reasons: (1) Plaintiff did
not fulfil her duties of cooperation as a condition precedent to recovery prior to filing suit; (2)
Plaintiff cannot prove that she fulfilled her obligations under the contract; and (3) Plaintiff
cannot establish that a “named peril” caused the loss of her contents. (R. Doc. 35). As explained
below, the Court will grant judgment as a matter of law because there is no disputed material fact
with respect to whether Plaintiff breached the policy due to her failure to submit to examination
under oath (“EUO”) prior to filing suit, which prejudiced State Farm by precluding its ability to
properly and thoroughly investigate the claim prior to the filing of suit and incurring the
expenses of litigation.
II. Law and Analysis
A. Legal Standards for Summary Judgment
Summary judgment shall be granted when there are no genuine issues as to any material
facts and the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56. When
a motion for summary judgment is properly made and supported under Rule 56(c), the opposing
party may not rest on the mere allegations of their pleadings, but rather must come forward with
“specific facts showing that there is a genuine issue for trial.” Matsushita Electric Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Fed. R. Civ. P. 56(c)(1). The non-
1 Plaintiff and counsel have been problematic throughout this litigation. On October 23, 3019, Loreal Marquis
Jackson enrolled as counsel in place of Plaintiff’s former counsel. (R. Doc. 16). The Court set a telephone
conference for December 16, 2019. (R. Doc. 17). Plaintiff’s counsel failed to participate in the telephone conference,
and the Court issued a show cause order. (R. Doc. 18). Plaintiff’s counsel submitted a written explanation of her
failure to attend the conference. (R. Doc. 20).
movant’s evidence is to be believed for purposes of the motion and all justifiable inferences are
to be drawn in the non-movant’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). However, summary judgment must be entered against the plaintiff, if he or she fails to
make an evidentiary showing sufficient to establish the existence of an element essential to his or
her claim. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Without a showing sufficient
to establish the existence of an element essential to the plaintiff’s claim, there can be “no genuine
issue as to any material fact since a complete failure of proof concerning an essential element of
the nonmoving party’s case necessarily renders all facts immaterial.” Celotex Corp., 477 U.S. at
323.
A moving party must support an assertion that a fact cannot be genuinely disputed by
“citing to particular parts of materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations (including those made
for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed. R.
Civ. P. 56(c)(1)(A). Local Rule 56 details the requirements for statements of material facts. “A
motion for summary judgment shall be supported by a separate, short, concise statement of
material facts, each set forth in separately numbered paragraphs, as to which the moving party
contends there is no genuine issue of material fact to be tried.” LR 56(b)(1). “Facts contained in
a supporting or opposing statement of material facts, if supported by record citations as required
by this rule, shall be deemed admitted unless properly converted.” LR 56(f).
B. Undisputed Material Facts
The Court has reviewed State Farm’s Statement of Uncontested Material Facts (R. Doc.
35-2), and the accompanying citations to the record (R. Docs. 35-3, 35-4, 33-5, 33-6, 33-7, 33-8).
Among other evidence in support of summary judgment, State Farm has submitted a declaration
by Wibert Wilcox, a claim specialist with State Farm’s special investigative unit assigned to the
claim. (R. Doc. 35-4 at 4-23, “Wilcox Decl.”). As Plaintiff does not oppose the instant Motion
for Summary Judgment, and has not otherwise submitted an opposing statement of material
facts, the Court concludes that the facts contained in State Farm’s Statement of Uncontested
Facts are admitted for the purposes of determining whether summary judgment is appropriate.
See Fed. R. Civ. P. 56(e); LR 56(g). The undisputed material facts are as follows.
On November 17, 2017, Plaintiff was the named insured under State Farm Fire
and Casualty Company homeowners policy number 18-B1-A005-6 (the “Policy”) and the
insured location was 2016 Ellerslie Drive. (Wilcox Dec. ¶ 10; see R. Doc. 35-4 at 132-176). In
relevant part, the Policy contains the following provisions with respect to an insured’s duties
after incurring a loss:
SECTION I. CONDITIONS
***
2. Your Duties After Loss. After a loss to which this insurance may
apply, you shall see that the following duties are performed:
***
d. As often as we reasonable require:
(1) exhibit the damaged property;
(2) provide us with records and documents we request and
permit us to make copies; [and]
(3) submit to and subscribe, while not in the presence of
any other insured:
(a) statements; and
(b) examinations under oath [. . . .]
e. submit to us, within 60 days after the loss, your signed,
sworn proof of loss [. . . .]
***
6. Suit Against Us. No action shall be brought unless there has been
compliance with the policy provisions. The action must be started
within one year after the date of loss or damage.
(R. Doc. 35-4 at 153-154).
On November 25, 2017, Plaintiff contacted her State Farm agent and reported that her
house (2016 Ellerslie) had been burglarized on November 17, 2017. (Wilcox Dec. ¶ 11). State
Farm opened claim number 18-2162-N67 (the “November Claim”) in response. (Wilcox Dec. ¶
12). After several attempts, State Farm reached Plaintiff by telephone on December 1, 2017 and
discussed the basic facts of the claimed loss. (Wilcox Dec. ¶¶ 13-14).
On December 18, 2017, Plaintiff reported to State Farm that on December 3, 2017, her
house had been burglarized a second time. (Wilcox Dec. ¶ 21). Plaintiff filed a separate claim
and State Farm opened claim number 18-2398-Q92 (the “December Claim”) in response.
(Wilcox Dec. ¶ 21).
On December 18, 2017, Plaintiff also submitted, by email, a four-page handwritten
inventory of the items allegedly stolen from 2016 Ellerslie during the alleged November 17 and
December 3 burglaries. (Wilcox Dec. ¶ 24). Plaintiff supplemented the list on December 28,
2017 with one additional handwritten page. The complete five-page “Contents List” provided
information for 166 items. (Wilcox Dec. ¶ 24; see R. Doc. 35-7 at 1-5).2 Plaintiff has never
segregated what she alleges was stolen in the November 17 burglary from the December 3
burglary. (Wilcox Dec. ¶ 24). Furthermore, Plaintiff’s December 28, 2017 submission did not
include any receipts, invoices, or other documents to establish that (1) she owned the items on
the list; (2) the age of the items; or (3) their replacement cost value. (Wilcox Dec. ¶ 25).
2 The Contents List contains various duplicate items such as three laptops valued at $479.99 each, three weed-eaters
valued at $198.99 each, three generators ranging in value from $499.99 to $689.000, five DVD players valued at
$116.99 each, three 65 inch televisions valued at $1699.99 each, and three X Box Game Systems valued at $250.00
each. (R. Doc. 35-7 at 1-5). In addition, State Farm has provided evidence that Plaintiff sought recovery for some of
the items claimed with respect to the November and December burglary in previous insurance claims. In support of
her burglary claims, Plaintiff submitted a receipt for a set of car rims and tires she had submitted in support of her
claims that the same rims and tires were destroyed in the 2016 flood in the Baton Rouge area. (Wilcox Dec. ¶¶ 7-9,
33). Plaintiff also submitted in support of her burglary claims a receipt for a herringbone chain and bracelet that she
submitted for indemnity in a 2016 fire claim. (Wilcox Dec. ¶¶ 5, 6, 34). Plaintiff had reported that all of her personal
property was destroyed in the 2016 fire and flood. (Wilcox Dec. ¶¶ 5, 7).
On January 10, 2018, State Farm took Plaintiff’s recorded statement. (R. Doc. 35-4 at
177-196). Plaintiff stated that at the time of the burglary, she lived with her daughter, her
grandson, and her husband. Plaintiff further stated that 2016 Ellerslie was her home and
residence, and that all of her personal property was at 2016 Ellerslie, despite her admission that
she had been spending nights at her mother’s house because of an alleged injury.
On February 19, 2018, in connection with his investigation of Plaintiff’s November and
December Claims, Wilcox interviewed Plaintiff by telephone. (Wilcox Dec. ¶ 45; R. Doc. 35-8
at 179-180). During the interview, Plaintiff stated she moved in with her mother after the
November 17 burglary, but she refused to provide her mother’s address.
On April 3, 2018, State Farm sent Plaintiff a reservation of rights letter outlining the then
developing coverage questions. (Wilcox Dec. ¶ 37; see R. Doc. 35-8 at 67-68). On April 24,
2018, State Farm made its first request that Plaintiff submit to an EUO, again reserved its rights,
reminded Plaintiff of her duties, and requested Plaintiff to submit her sworn proof of loss and
documents to support her Contents List. (Wilcox Dec. ¶ 37; see R. Doc. 35-8 at 69-72).
Thereafter, over the next four months, State Farm (through counsel) wrote to Plaintiff
(through counsel) eleven separate times requesting that she submit to an EUO on May 31, June
1, June 5, June 6, June 15, July 10, July 11, July 17, July 25, August 29, and August 30, 2018.
(Wilcox Dec. ¶ 38; see R. Doc. 35-8 at 73-83). On August 10, 2018, State Farm (through
counsel) explained Plaintiff’s duties under the Policy and explained that her failure to cooperate
would materially prejudice State Farm’s investigation. (Wilcox Dec. ¶ 38; see R. Doc. 35-8 at
84-85). Ultimately, Plaintiff agreed to appear for an EUO on September 27, 2018. (Wilcox Dec.
¶ 39).
On September 27, 2018, State Farm (through counsel) appeared at Plaintiff’s counsel’s
office for the EUO, but Plaintiff’s counsel advised that he had just received receipts from
Plaintiff and refused to produce them. (R. Doc. 35-8 at 86-100). Plaintiff agreed to use her best
efforts to produce additional documents to her attorney by October 27, 2018, and the parties
rescheduled the EUO to take place on November 9, 2018. (R. Doc. 35-8 at 94-97).
On October 23, 2018, State Farm emailed Plaintiff’s counsel and provided a copy of the
proces verbal from the first attempted EUO to remind Plaintiff of her duties and her agreements,
again asking that she prepare and submit her sworn proof of loss. (Wilcox Dec. ¶ 40, R. Doc. 35-
8 at 101). On October 30, 2018, in lieu of producing actual receipts, Plaintiff produced what she
alleged was a spreadsheet that summarized the receipts she and her attorney possessed but had
not produced. (Wilcox Dec. ¶ 40).
In an effort to avoid postponing the EUO scheduled on November 9, 2018, State Farm
(through counsel) reminded Plaintiff (through counsel) of her promise (on the record) to provide
the receipts at least a week in advance. (Wilcox Dec. ¶ 41). State Farm asked for the receipts on
November 2, 2018, and again on November 5, 2018. (Wilcox Dec. ¶ 41; R. Doc. 35-8 at 105-
106). Still, Plaintiff failed to provide the receipts to State Farm or its attorney. (Wilcox Dec. ¶
41). As a result, State Farm could not proceed with the EUO, which had been set for November
9, 2018 at 10:00 am. Plaintiff (through counsel) provided some receipts (the “Receipt Bundle”)
by email on November 9, 2018 at 10:24 am. (Wilcox Dec. ¶¶ 41-42; R. Doc. 35-7; R. Doc. 35-8
at 1-20, 107-110). Plaintiff represented that additional receipts existed but these were never
produced. (Wilcox Dec. ¶ 41).
Plaintiff filed this action in State Court on or about November 16, 2018. (R. Doc. 1-4).
On November 28, 2018, State Farm, through counsel, asked Plaintiff to confirm that she
had submitted all receipts she intended to submit in support of her claim. (Wilcox Dec. ¶ 42; R.
Doc. 35-8 at 112). On December 5, 2018 and December 12, 2018, State Farm reiterated that
request and again requested Plaintiff’s EUO. (Wilcox Dec. ¶ 42; R. Doc. 35-8 at 112). The
parties scheduled the EUO to take place on February 13, 2019, but State Farm cancelled the
EUO when Plaintiff informed them that she would only stay for 90 minutes. (R. Doc. 35-8 at
114-116).
On March 5, 2019, State Farm once again proceeded to take the EUO. (R. Doc. 35-4 at
24-71). Plaintiff refused to provide basic information such as her cell phone number and contact
information for material witnesses. (R. Doc. 35-4 at 44-52). Plaintiff also stated that State Farm’s
counsel had a “vexed spirit” and that, therefore, she did not want to continue for the day: “If you
can’t change that spirit, we’re not going to talk anymore until you’re able to come back with a
humble spirit because God orders my steps.” (R. Doc. 35-4 at 53, 69). When Plaintiff issued a
series of profane personal attacks, State Farm’s counsel agreed to reschedule the EUO to occur at
a later date with a videographer. (R. Doc. 35-4 at 70-71). State Farm represents that it did not
have the opportunity to question Plaintiff about any substantive aspect of her claim. (R. Doc. 35-
1 at 47).
Following State Farm’s attempt to complete Plaintiff’s EUO on March 6, 2019, State
Farm, through counsel, made no fewer than twelve written requests that Plaintiff schedule a date
to complete her EUO. (Wilcox Dec. ¶ 43; R. Doc. 35-8 at 117-143).
On January 21, 2020, Wilcox drove from New Orleans to Baton Rouge to inspect 2016
Ellerslie. (Wilcox Dec. ¶ 44). Plaintiff (through counsel) had informed State Farm that the house
would be open and accessible for State Farm to inspect it, but Wilcox found the house boarded
up, locked, and utterly inaccessible. (Wilcox Dec. ¶ 44).
State Farm represents that Plaintiff’s counsel ultimately advised that Plaintiff would
appear for the EUO on October 1, 2020, after the deadline to file dispositive motions in this
deadline. (R. Doc. 35-1 at 47).
C. Analysis
There is no disputed material fact with respect to whether Plaintiff breached her duty of
cooperation with State Farm, which caused State Farm material prejudice.
Under Louisiana law, “[a]n insurance policy is a contract between the parties and should
be construed by using the general rules of interpretation of contracts set forth in the Louisiana
Civil Code.” Vanderbrook v. Unitrin Preferred Ins. Co. (In re Katrina Canal Breaches Litig.),
495 F.3d 191, 206 (5th Cir. 2007) (citing Cadwallader v. Allstate Ins. Co., 848 So. 2d 577, 580
(La. 2003)). The words of a contract must be given their generally prevailing meaning. La. C.C.
art. 2047; see also Cadwallader, 848 So. 2d at 580. “When the words of a contract are clear and
explicit and lead to no absurd consequences, no further interpretation may be made in search of
the parties’ intent.” La. C.C. art. 2046. If the policy wording at issue is clear and unambiguously
expresses the parties’ intent, the insurance contract must be enforced as written. Vanderbrook,
495 F.3d at 207.
“Cooperation clauses in insurance contracts ‘fulfill the reasonable purpose of enabling
the insurer to obtain relevant information concerning the loss while the information is fresh.’”
Hamilton v. State Farm Fire & Cas. Ins. Co., 477 Fed. App’x 162, 165 (5th Cir. 2012) (per
curiam) (quoting Holden v. Connex–Metalna Mgmt. Consulting, No. 98-3326, 2000 WL
1741839, at *2 (E.D. La. Nov. 22, 2000)). “[F]ailure of an insured to cooperate with the insurer .
. . [is] a material breach of the contract and a defense to a suit on the policy.” Honore v. AIG
Prop. Cas. Ins. Agency, Inc., No. 13-00667, 2014 WL 4986780, at *3 (M.D. La. Sept. 15, 2014)
(citing Lee v. United Fire & Casualty Co., 607 So. 2d 685, 688 (La. App. 4th Cir. 1992);
Mosadegh v. State Farm Fire & Cas. Co., No. 07-4427, 2008 WL 4544361, *3 (E.D. La. Oct. 8,
2008), affd, 330 Fed. App'x 65 (5th Cir. 2009). “An outright refusal to submit to an examination
is the easy case. Courts have also found a failure of cooperation, however, when the insured
refused to answer material questions during the examination.” Lee, 607 So. 2d at 688. “The
intransigent refusal of the plaintiff to comply with the cooperation clause . . . should
independently suffice to justify a dismissal [of the insured’s claims against the insurer].” Id.
Failure to cooperate by submitting to an EUO and producing requested documents prior to filing
suit subjects an action for insurance coverage to dismissal. See Kerr v. State Farm Fire and Cas.
Co., 934 F. Supp. 853 (M.D. La. 2012), affd, 511 F. App’x 306, 306-07 (5th Cir. 2013); see also
Honore, 2014 WL 4986780, at *3 (“[T]here is no question that Honore was bound by the terms
of the Policy to comply with Lexington’s ‘reasonabl[e]’ requests for (1) an ‘examination under
oath,’ and (2) additional ‘records and documents.’”) (citations omitted).
Having considered the undisputed material facts and arguments set forth by State Farm,
the Court concludes that Plaintiff breached her duties under the cooperation clause prior to filing
suit. Pursuant to the language of her policy, Plaintiff was required, before filing suit, to permit
inspection of the property, to provide State with requested records and documents, submit to
EOUs, and submit (within 60 days after the loss) a sworn proof of loss. Plaintiff did not comply
with these conditions. Plaintiff has not submitted a sworn proof of loss and other documents
despite repeated requests by State Farm. Plaintiff has not identified which items were allegedly
stolen with respect to the November Claim and the December Claim. Plaintiff has refused to
submit to an EUO, or otherwise prevented the competition of scheduled EUOs through her
egregious lack of cooperation. Even after Plaintiff initiated the instant lawsuit, she has failed to
meaningfully participate in an EUO. Plaintiff has raised no arguments in support of a finding that
she did not breach her duty to cooperate under the Policy prior to filing suit.
The record also supports a finding that State Farm was materially prejudiced by
Plaintiff’s failure to cooperate as a matter of law. “Courts have found that an insurer is materially
prejudiced when an insurer is ‘deprived . . . of the right to properly and thoroughly investigate
the claim’ resulting from a failure to cooperate on the part of the insured where the insurer has
shown a diligent effort to obtain the information requested.” Winbourne v. Wilshire Ins. Co., No.
18-01177, 2019 WL 1748541, at *4 (W.D. La. Apr. 18, 2019) (quoting Beasley v. GeoVera
Specialty Ins. Co., No. 13-395, 2015 WL 2372328, *3 (E.D. La. May 15, 2015)). An insurer is
materially prejudiced by the insured’s filing of suit before submitting for an EUO, which
deprives an insurer the opportunity to settle the claims and avoid the expense of litigation. Kerr,
934 F. Supp. 2d at 860-61; see Hamilton, 477 Fed. App’x at 166 (“The underlying purpose of a
cooperation clause is to allow the insurer to obtain the material information it needs from the
insured to adequately investigate a claim of loss prior to the commencement of litigation
proceedings.”); Honore, 2014 WL 4986780, at *3 (“Honore’s breach necessarily prejudiced
Lexington, because Lexington could not obtain information relevant to its investigation while it
was still fresh, and could not inspect Honore’s property in a timely fashion after receiving
information from an examination under oath”).
Here, Plaintiff’s failure to provide information requested by State Farm has materially,
demonstrably prejudiced State Farm’s investigation of the November Claim. In particular, State
Farm has been materially prejudiced by losing the ability to obtain relevant information to adjust
the claim prior to being subjected to the expense of litigation. Without the sought documentation,
sworn statement under oath, or complete EOU, State Farm has had nothing but Plaintiff’s
recorded statement, which conflicts with other evidence in the record, and duplicative and
unexplained receipts, some of which were subject to prior insurance claims are likely indicative
of potential fraud. Plaintiff has raised no arguments in support of a finding that State Farm was
not materially prejudiced by her failure to cooperate. There is no disputed material fact with
respect to whether Plaintiff breached her duty to cooperate under the Policy and whether State
Farm was materially prejudiced by that breach. Accordingly, Plaintiff’s coverage claim is subject
to dismissal.
Finally, Plaintiff’s statutory bad faith claim against State Farm also fails because she
cannot show that State Farm “acted in an arbitrary and capricious manner” while investigating
her claim. See Dickerson v. Lexington Ins. Co., 556 F.3d 290, 297 (5th Cir. 2009). The evidence
shows the opposite: State Farm promptly commenced an investigation into Plaintiff’s claim, and
afforded Plaintiff multiple opportunities to comply with its requests for an EUO and production
of documents, only to be stymied by Plaintiff’s decision to file suit rather than comply with the
express terms of the Policy. See Honore, 2014 WL 4986780, at *3-4. Plaintiff’s material breach
of the policy precludes recovery of bad faith claim penalties and attorney fees. Hamilton 477 Fed
App’x at 166.
III. CONCLUSION
For the reasons assigned,
IT IS ORDERED that Defendant’s Motion for Summary Judgment (R. Doc. 35) is
GRANTED, and Plaintiff’s claims are DISMISSED WITH PREJUDICE.
Signed in Baton Rouge, Louisiana, on December 8, 2020.
S
RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE