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Cox v. Erie Insurance Exchange

United States District Court, W.D. Tennessee, Eastern Division

December 4, 2019

FLINT COX, Plaintiff,
v.
ERIE INSURANCE EXCHANGE, Defendant.

          ORDER GRANTING DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT

          J. DANIEL BREEN, UNITED STATES DISTRICT JUDGE

         INTRODUCTION

         This action was initiated on October 6, 2018, by the Plaintiff, Flint Cox, against the Defendant, Erie Insurance Exchange (“Erie”), alleging breach of contract, statutory bad faith, and violation of the Tennessee Consumer Protection Act, Tennessee Code Annotated § 47-18-101, et seq. (the “TCPA”), in connection with the Defendant's refusal to pay for a loss to Cox's property. (Docket Entry (“D.E.”) 1.) Pending before the Court is Erie's motion for partial summary judgment (D.E. 28), to which the Plaintiff has responded (D.E. 33) and the Defendant has replied (D.E. 34).[1]

         UNDISPUTED FACTS

         The following facts are undisputed unless otherwise noted. Prior to March 7, 2017, Plaintiff purchased an insurance policy from Erie covering his residence located at 74 Southwind Drive in Jackson, Tennessee, (the “Property”). On August 25, 2017, he made a claim under the policy, arising from damage allegedly caused by a hail storm that occurred five months earlier on March 9, 2017. Erie asserts that it dispatched an adjuster to the Property to inspect the damage on September 5, 2017, and determined based on the inspection that the roof did not suffer significant damage as a result of hail. Subtracting Plaintiff's $1, 000 deductible from its estimate of the cost of repairs, Erie issued to its insured a check in the amount of $122.39 on or about September 11, 2017.

         Sometime thereafter, Defendant hired Donan Engineering Co., Inc. in Louisville, Kentucky, (“Donan”) to perform an inspection of Cox's roof. The stated purpose of the study was to “determine whether the roof's shingles [were] damaged as a result of hail and the cause of damage to the low-slope roof.” (D.E. 30-4 at PageID 177.)

         On January 5, 2018, Forensic Engineer Steven Pace, P.E., issued a report (“Donan Report I”). (D.E. 30-4.) He noted that the roof was covered with luxury shingles and an ethylene propylene diene monomer (“EPDM”) membrane. He related that he was advised during his investigation by individuals present on Cox's behalf, including a representative of Affordable Construction in Jackson, Tennessee, that the house was impacted by hail, that granules were missing from the shingle tabs in areas where there was a void beneath the tabs, and that no fractured shingle tabs had been found. He was also told that patches had been placed on the EPDM membrane along tears from tree limb impacts.

         Donan Report I concluded as follows:

Controlled laboratory testing has found that hail smaller than 11/4 inches in diameter lacks sufficient mass to cause a loss in functionality or integrity to dimensional-style, fiberglass-mat asphalt shingles. Luxury-style shingles are typically constructed equal to or better than dimensional-style shingles.
Controlled laboratory testing has found that hail smaller than 2 inches in diameter lacks sufficient mass to cause a loss in functionality or integrity to EPDM roof membranes.
Hail up to 3/4 inch in diameter impacted this house on March 9, 2017, and was of insufficient size to damage the shingles.
The roof's shingles and EPDM membrane are not damaged as a result of hail.
The spots of granule loss on the roof's shingles are the result of balding and are not the result of a hail event.
The tears along the wrinkles are the result of age related deterioration and are not the ...

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