Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Dippel v. South Carolina Farm Bureau Mutual Insurance Co.

United States District Court, D. South Carolina, Florence Division

August 26, 2019

Kenneth D. Dippel, Plaintiff,
v.
South Carolina Farm Bureau Mutual Insurance Company, Defendant.

          ORDER

          R. BRYAN HARWELL CHIEF UNITED STATES DISTRICT JUDGE

         This 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[1] to the Report and Recommendation (“R & R”) of the Magistrate Judge.[2] 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.

         Standard of Review

         The 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).

         The 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).

         “A 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.

         Discussion[3]

         On May 18, 2016, Dippel - then represented by counsel[4] - 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.[5] Id.

         On August 13, 2018, SC Farm Bureau filed a motion for summary judgment. ECF Nos. 104; 105.[6] 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; 124; 184.

         The 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.

         Dippel filed objections to the R & R, ECF No. 217, [7] to 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.

         Each of 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 exclusions. Id.

         Ambiguity 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.

         Dippel's 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.

         As 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.