United States District Court, D. South Carolina, Florence Division
Kenneth D. Dippel, Plaintiff,
South Carolina Farm Bureau Mutual Insurance Company, Defendant.
BRYAN HARWELL CHIEF UNITED STATES DISTRICT JUDGE
matter is before the Court for consideration of Plaintiff
Kenneth D. Dippel's (“Dippel”) and Defendant
South Carolina Farm Bureau Mutual Insurance Company's
(“SC Farm Bureau”) objections to the Report and
Recommendation (“R & R”) of the Magistrate
Judge. ECF Nos. 214, 217, 219, 220, 221, 222. The
Magistrate Judge recommends granting in part and denying in
part S.C. Farm Bureau's motion for summary judgment. R
& R at 20.
Magistrate Judge makes only a recommendation to the Court.
The Magistrate Judge's recommendation has no presumptive
weight, and the responsibility to make a final determination
remains with the Court. Mathews v. Weber, 423 U.S.
261, 270-71 (1976). The Court must conduct a de novo
review of those portions of the R & R to which specific
objections are made, and it may accept, reject, or modify, in
whole or in part, the recommendation of the Magistrate Judge
or recommit the matter with instructions. 28 U.S.C. §
636(b)(1); Fed.R.Civ.P. 72(b).
Court must engage in a de novo review of every
portion of the Magistrate Judge's R & R to which
objections have been filed. Id. However, the Court
need not conduct a de novo review when a party makes
only “general and conclusory objections that do not
direct the [C]ourt to a specific error in the [M]agistrate
[Judge]'s proposed findings and recommendations.”
Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982).
In the absence of specific objections to the R & R, the
Court reviews only for clear error, Diamond v. Colonial
Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir.
2005), and the Court need not give any explanation for
adopting the Magistrate Judge's recommendation. Camby
v. Davis, 718 F.2d 198, 199-200 (4th Cir. 1983).
document filed pro se is ‘to be liberally
construed.'” Erickson v. Pardus, 551 U.S.
89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S.
97, 106 (1976)). Courts are not, however, required to
“conjure up questions never squarely presented to
them” or seek out arguments for a party. Beaudett
v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
The Court will address each specific objection to the R &
R in turn, but the Court need not - and will not - address
any arguments that fail to point the Court to alleged
specific errors the Magistrate Judge made in the R & R.
See Orpiano, 687 F.2d at 47.
18, 2016, Dippel - then represented by counsel - filed suit
against S.C. Farm Bureau. ECF No. 1. Dippel generally alleges
S.C. Farm Bureau issued a flood insurance policy on his home
located in Loris, South Carolina, and incorrectly failed to
pay benefits due under the policy after a torrential rainfall
in late September to early October, 2015 resulted in a flood
event at Dippel's residence. Id. Dippel's
complaint brought causes of action for breach of contract and
bad faith failure to pay insurance benefits. Id.
August 13, 2018, SC Farm Bureau filed a motion for summary
judgment. ECF Nos. 104; 105. S.C. Farm Bureau argues Dippel is
not entitled to payment beyond the amount it already
attempted to tender to him and S.C. Farm Bureau is thus
entitled to summary judgment on Dippel's remaining cause
of action. ECF No. 104-1. Dippel responded, ECF Nos. 112;
118; 177; 187, and S.C. Farm Bureau replied, ECF Nos. 114;
Magistrate Judge recommends the Court grant in part and deny
in part S.C. Farm Bureau's motion for summary judgment.
R&R. Specifically, the Magistrate Judge suggests the
Court grant S.C. Farm Bureau's motion for summary
judgment as to structural damage to Dippel's home because
this damage falls within the earth movement exclusion to
coverage under the flood insurance policy and does not
qualify for the exception to said exclusion. R & R at
13-20. The Magistrate Judge recommends, however, that Dippel
brought claims which would not be excluded from coverage
under the earth movement exclusion (“non-structural
claims”). Id. at 20. These claims include
coverage for “moisture damage, mold, damage to
[Dippel's] ductwork and HVAC unit, damage to
[Dippel's] drainage lines, termite issues, debris
removal, and power washing of the exterior of [Dippel's]
property.” Id. at 20. The Magistrate Judge
notes S.C. Farm Bureau failed to move for summary judgment on
these non-structural claims, and failed to respond to
Dippel's assertion he was bringing these claims.
Id. Accordingly, the Magistrate Judge suggests S.C.
Farm Bureau's motion for summary judgment is due to be
denied as to these non-structural claims. Id.
filed objections to the R & R, ECF No. 217,
which S.C. Farm Bureau responded, ECF Nos. 225. Dippel raises
five objections to the R & R. ECF No. 217. Dippel first
avers the flood insurance policy is ambiguous. Id.
at 4. Dippel next objects the earth movement exclusion to
coverage under the flood insurance policy does not apply
because the flooding here came from the collapse of, or an
overflow of, the creek near his house. Id. at 5-7.
Dippel argues the Magistrate Judge erred by stating the
insurance adjuster visited Dippel's property October 10,
2015 rather than October 11, 2015. Id. at 7. Dippel
advances the Magistrate Judge erred by striking the Forensic
Analysis and Engineering Report. Id. Finally, Dippel
claims it is error for the Magistrate Judge not to have ruled
on Dippel's motion for summary judgment. Id.
Dippel's objections is without merit. Dippel first claims
the flood insurance policy here is ambiguous, and the cases
cited by the Magistrate Judge do not apply because none of
them address the ambiguity in the policy. Id. at 4.
Dippel specifically argues the policy is ambiguous because it
provides coverage for damages from flooding but contains
arises when there is “[d]oubtfulness or uncertainty of
meaning or intention[.]” Ambiguity,
Black's Law Dictionary (11th ed. 2019). Having
reviewed the policy at issue, the Court finds no such
ambiguity in the policy. The policy contains a general
statement providing coverage for damages from flooding. ECF
No. 104-4 at 4 (“We will pay you for direct
physical loss by or from flood to your insured property
. . . .”). The policy also contains several exclusions,
id. at 25-27, including the one Dippel claims
renders the policy ambiguous, which states: “[w]e do
not insure for loss to property caused directly by earth
movement even if the earth movement is caused by
flood[, ]” id. at 26. Said exclusion,
however, has a clear meaning, and is neither ambiguous, nor
does it render the policy ambiguous. For that reason, the
Court will overrule Dippel's first objection.
next objection is that the earth movement exception does not
apply here. ECF No. 217 at 5-7. Dippel contends the flooding
at issue here either came from the overflow of a nearby
creek, such that it falls within the definition of a flood
and outside the earth movement exclusion, or from the
collapse of the banks of that creek, such that it falls
within the exception to the earth movement exclusion.
Id. Both arguments fail.
noted above, the flood insurance policy at issue here
provides coverage for “direct physical loss by or
from flood to your insured property” if the
premiums are paid, the insured complies with all terms of the
policy, and the insured provides accurate information and
statements to the insurance company. ECF No. 104-4 at 4. A
flood is defined as:
1) A general and temporary condition of partial or complete
innundation of two or more acres of normally dry land area or
of two or more properties (one ...