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Burton v. Nationwide Insurance Co.

November 6, 2007

ANGELA BURTON, PLAINTIFF,
v.
NATIONWIDE INSURANCE COMPANY, DEFENDANT.



The opinion of the court was delivered by: Curtis L. Collier Chief United States District Judge

Chief Judge Curtis L. Collier

MEMORANDUM

Before this Court is Defendant Nationwide Mutual Fire Insurance Company's*fn1 (Defendant) motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) (Court File No. 2). In ruling on this motion, the Court has also considered Plaintiff Angela Burton's (Plaintiff) Response (Court File No. 4), and Defendant's Reply and Amended Statement of Undisputed Facts (Court File Nos. 5, 6).

In accordance with the following analysis, this Court will GRANT in part and will DENY in part Defendant's motion to dismiss (Court File No. 2). The Court will GRANT Defendant's motion to dismiss Plaintiff's claim seeking recovery of losses pursuant to her homeowners insurance policy with Defendant (Court File No. 1, Attachment 1, p. 6, ¶ 8). The Court will DENY Defendant's motion to dismiss Plaintiff's claim pursuant to Tenn. Code Ann. § 56-7-105 (Court File No. 1, Attachment 1, p. 6, ¶ 9). The Court will DISMISS with prejudice Plaintiff's claim under her homeowners insurance policy and, no longer having jurisdiction pursuant to 28 U.S. § 1332(a)(1), will REMAND Plaintiff's case, consisting of her remaining Tenn. Code Ann. § 56-7-105 claim, to the Twelfth Judicial District of Tennessee, Circuit Court of Rhea County.

I. FACTS

A. Relevant Events

Plaintiff Angela Burton ("Plaintiff") is a citizen and resident of Spring City, Tennessee (Court File No. 1, Attachment 1, ¶ 1). Defendant Nationwide Mutual Fire Insurance Company ("Defendant") is an Ohio corporation, with its home office in Columbus, Ohio (Court File No. 1, ¶ 5). Plaintiff sought recovery of $81,385 in addition to the costs of debris removal in her insurance claim (Court File No. 2, Attachment 5), and seeks penalties under Tenn. Code Ann. § 56-7-105 (Court File No. 1, Attachment 1, p. 6, ¶ 9).

On September 13, 2005, Plaintiff was issued a homeowners policy from Defendant to insure her dwelling and personal property at 15499 Rhea Co. Hwy, Spring City, TN 37381 (Court File No. 1, Attachment 2). The coverage also included insurance for the loss of use of that property (id.).

Plaintiff's property was damaged by fire on September 13, 2005 (Court File No. 2, Attachment 5). On the same day, Defendant sent a letter to Plaintiff, asking for a sworn proof of loss (id., Attachment 4). Plaintiff filed a sworn proof of loss on November 8, 2005 (id., Attachment 5). On January 9, 2006, Defendant sent a letter to Plaintiff requesting more information and informing her she would receive Defendant's decision on her claim shortly (Court File No. 4, Attachment 3, p. 3). Defendant denied the claim on June 21, 2006, concluding Plaintiff intentionally caused the fire and failed to provide the necessary records requested during Defendant's investigation (Court File No. 4, Attachment 3, p. 5).

Plaintiff, by way of counsel, sent a letter to Defendant on August 10, 2006, instructing Defendant he would file a lawsuit within thirty days if her claim was not paid (Court File No. 2, Attachment 6). On September 7, 2006, Defendant replied to Plaintiff's counsel, briefly providing the reasons for the denial, and offering to meet with counsel to explain the complexities of the matter (Court File No. 4, Attachment 5, p. 3).

Plaintiff filed this action in the Twelfth Judicial District of Tennessee, Circuit Court of Rhea County, on February 15, 2007 (Court File No. 1, Attachment 2). Defendant was served on May 8, 2007 (Court File No. 1, Attachment 1, p. 3). Defendant removed the action to this Court on June 6, 2007 based upon diversity jurisdiction pursuant to 28 U.S.C. § 1332(a) (Court File No. 1, ¶¶ 4-7).

B. Relevant Provisions of the Homeowners Policy

Plaintiff's Homeowners Policy included the following provisions:

3. Your Duties After Loss. . .In case of loss, you must: . . .d) submit to us, within 60 days after we request, your ...


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