Green v. Allstate Insurance
Green v. Allstate Insurance
Opinion of the Court
MEMORANDUM OF DECISION
I. INTRODUCTION
Plaintiff Jeffrey Green (“Plaintiff’ or “Green”) is the owner of a triplex at 411 E 46th Place in Anchorage.
A six day jury trial was held in June 2013 to determine whether Plaintiffs loss was the result of an intentional or criminal act by Plaintiff.
Following trial, four issues remained to be decided by the Court: (1) the cost to repair or replace Plaintiffs residence; (2) the amount that Plaintiff is entitled to receive to repair or replace his residence; (3) the amount of additional living expenses Plaintiff is entitled to receive; and (4) the amount of lost rental income Plaintiff is entitled to receive.
The Court held a one day evidentiary hearing on January 3, 2014, at which the parties presented exhibits and witness testimony.
II. FINDINGS OF FACT
A. The Evidence
1. Witnesses
1. Seven witnesses testified at the hearing on January 3, 2014.
2. Plaintiff also called David Hermann, Mike Gallagher, Benjamin Oien, and Douglas Lipinski.
3. Defendant called Laurie Brummett and Richard Gerwin.
2. Exhibits
4. The Court admitted ten exhibits.
5. Defendant submitted Plaintiffs 2008 and 2009 tax returns;
B. Cost to Rebuild or Repair Plaintiffs Residence, Plaintiffs Lost Rental Income, and Plaintiffs Additional Living Expenses
6. The parties agree that asbestos was used in the construction of Plaintiffs residence and is therefore present in Plaintiffs home.
7. Craig Nelson of Taylored Restoration prepared an estimate for repair of Plaintiffs residence in October 2010.
8. Michael Gallagher, a general contractor
9. Rick Gerwin, an estimator and project manager at ServiceMaster of Alaska hired by Defendant, prepared an estimate to repair Plaintiffs residence in January 2014.
10. Ben Oien, a structural engineer hired by Plaintiff who inspected Plaintiffs residence on October 3, 2013, testified that the residence “had been severely water-damaged throughout ... the framing and the foundation”; that there was “six or eight inches” of standing water in the basement; that there is “black mold everywhere”; that the visible exterior studs are water-damaged; that “most of the roof structure” and “a bunch of the upper walls” were damaged beyond repair; that he would not certify the foundation of Plaintiffs residence for use; and that there is no portion of the existing structure that is useable for new construction.
11. Gerwin, a project manager at ServiceMaster of Alaska, testified for Defendant that during his inspection of Plaintiffs residence in December 2013 he observed “about six inches of ice” on the bottom, floor, a badly burned roof and “roof truss system,” and “apparent water damage.”
12. The Court finds that Plaintiffs residence must be demolished and rebuilt. Gerwin testified that he would need to seek the opinion of a structural engineer before he repaired Plaintiffs residence to determine whether apparent flooding in the lower level of Plaintiffs residence caused damage to the foundation. Oien, a structural engineer, testified that Plaintiffs residence could not be repaired. Defendant presented no testimony from a structural engineer. The evidence presented therefore supports a finding that Plaintiffs residence cannot be repaired and must be demolished and rebuilt.
13. Based on the evidence presented, the estimated cost of demolishing and rebuilding Plaintiffs residence is $595,500.00, including $483,615.00 for construction, plans, and permits; $73,855 (Action Envi
C. Coverage Limit Under Plaintiff’s Policy
1. Total Amount Available to Plaintiff Under Policy
14. Plaintiffs property was insured in 2010 by a Deluxe Homeowner’s insurance policy issued by Allstate.
15. The facial limit of Coverage A is adjusted by the Building Structure Reimbursement Endorsement to the policy, which raises the coverage by 20%; the facial limit for Coverage A is therefore $418,800.
16. The Coverage A limit is further adjusted by additional provisions within the policy, including the Debris Removal provision of the Additional Protection coverage, which provides up to an additional 5% of the property coverage shown on the declarations — $349,000—for additional demolition expenses.
17.The policy also provides up to 10% of the insurance shown on the Policy Declarations under Coverage A ... to comply with applicable laws regulating the construction, use, or repair of any property or requiring the tearing down of any property after a covered loss to-covered building structures and when repair or replacement results in increased cost due to the enforcement of these laws.73
The Building Codes provision in the Alaska Amendatory Endorsement to Plaintiffs Deluxe Homeowner’s Policy further states: “The amount of insurance provided by this coverage is a separate limit of liability, and is the maximum we will pay for any one loss. Coverage only applies'to that portion of the dwelling that was damaged due to a covered loss.”
18. The total amount available to Plaintiff under his policy for demolition, complying with applicable laws for asbestos reihediation, and rebuilding is $471,150.00.
2. Amount Remaining Following Allstate’s Payment to Wells Fargo
19. The parties agree that Wells Fargo is listed as Plaintiffs mortgagee under the policy and qualifies as the loss payee.
20. Wells Fargo submitted a claim as loss payee under the policy on August 2, 2012 for $332,998.43.
21. Plaintiffs policy states that if the insured does not repair or replace his or her residence, “payment will be made on an actual cash value basis,” deducting for depreciation.
22. The Court finds that Plaintiff is entitled to an additional $240,294.86 under his policy, plus prejudgment interest, to rebuild his residence. Pursuant to the Lender’s Loss Payable Endorsement in Plaintiffs policy
D. Plaintiff’s Additional Living Expenses
23. Plaintiffs policy covers payment for Additional-Living Expenses (“ALE”). Amendatory Endorsement AP 1233-1 amends the Additional Living Expense provision of Plaintiffs policy and states: “We will pay the reasonable increase in living expenses necessary to maintain your normal standard of living when a direct physical loss we cover under Coverage A ... makes your residence premises uninhabitable.”
24. Immediately after the fire occurred in October 2010, Plaintiff received temporary housing from the Red Cross for two to three days.
25. Plaintiff was incarcerated between January 23, 2011 and March 14, 2011; between May 29, 2012 and June 16, 2012; and between September 6, 2012 and June 6, 2013.
26. Plaintiff testified that he moved into the shed at his triplex on June 1, 2011 after Allstate denied his claim, and that he continued to split his time between the shed and the triplex unit that was not destroyed by fire until he went to jail again on May 29, 2012.
27. Plaintiff was ordered to remain in third party custody following his release from jail on Márch 14, 2011,
28. Plaintiff lived with his third party custodians after his release on bail on June 6, 2013.
29. Plaintiff testified that he would like to use ALE payments from Allstate to rent his own place,
30. Brummett testified that Plaintiffs policy requires the insured to produce receipts for any increased costs to maintain his or her standard of living after a loss, but conceded that “there is no provision in [Plaintiffs] policy that states” that an insured cannot receive ALE if the insured does not have receipts for ALE incurred.
31. Both Brummett’s testimony as well as Allstate’s payment of Plaintiffs rent through May 2011 support a finding that Allstate does not require its insureds to produce receipts in order to receive payment for ALE. Allstate’s payment of $1,850 per month to Green established that $1,850 was a “reasonable increase in living expenses necessary to maintain [Green’s] normal standard of living [after] a direct physical loss [covered] under Coverage A ... [rendered Green’s] residence premises uninhabitable.”
32. Plaintiff has not, however, presented evidence that he incurred or needed to incur any additional living expenses while incarcerated or living with third party custodians in order to store his belongings or provide shelter for dependents. To the contrary, Plaintiff argued at trial that he had lost all of his belongings in the fire at issue.
33. Plaintiff testified that he lived with a third party custodian who claimed that he resided at Plaintiffs residence, 411 East 46th Place, following his release on June 6, 2013.
34. The Court finds that Plaintiff is not entitled to any additional ALE because Plaintiff has either been incarcerated or on release to third party custodians at all times following the date when Allstate denied Plaintiffs claim:
35.One possible exception to this finding is the two time periods in 2011 and 2012 during which Plaintiff resided at his residence between June 1, 2011 and May 29, 2012, and between June 16, 2012 and September 6, 2012. Plaintiff testified that he moved between the shed at his triplex and the unit of his triplex that had not been destroyed by the fire during these time periods.
E. Plaintiffs Lost Rental Income
36. Plaintiff’s policy states: “We will pay your lost fair rental income from a covered loss under Coverage A ... less charges and expenses which do not continue, when a loss we cover under Coverage A ... makes the part of the residence premises you rent to others, or hold for rental, uninhabitable. We will pay for lost fair rental income for the shortest time required to repair or replace the part rented or held for rental.”
37. Plaintiff testified that he “had no trouble renting” the two rental units of his triplex, and that, they were rented “all through 2010.”
38. To support his claim that Unit C was rented in 2010, Plaintiff cites (inaccurately) testimony by Kevin Young, who testified that he had rented the unit for over a year and moved out in September 2010.
39. Plaintiff produced tax returns for 2008 and 2009 to support his position that he is entitled to $1,900 per month in lost rental income, less expenses.
40. In 2008, Plaintiff reported $10,300 " in rental income, $23,875 in expenses, and $11,425 in depreciation — a net loss of $25,000 related to the two rental units.
41. Plaintiff contends that the average amount of monthly “nonrecurring” rental expenses was $100 per month.
42. The Court finds that Plaintiff has not provided sufficient support to establish that his lost monthly “fair rental income” for Units B and C was $1,900 per month, or that his average monthly nonrecurring rental expenses was $100 per month.
43. In light of the circumstances surrounding Plaintiffs 2010 amended return, the Court declines to rely on Plaintiffs 2010 return in making its determination. Although Plaintiffs 2010 tax return is consistent with Plaintiffs testimony that he received $1,900 per month in rental income, Plaintiff concedes that he amended this tax return after the jury verdict in September “when the issue of the returns
44. The Court finds that the following “charges and expenses” listed on Plaintiffs 2008 and 2009 tax returns
45. In 2008, Plaintiffs rental income less $12,088 in “charges and expenses” that did not continue following the fire was negative $1,788 (a loss).
III. CONCLUSIONS OF LAW
Plaintiff seeks to recover: (1) the cost of replacing Plaintiffs residence, including demolition and asbestos abatement; (2) consequential damages caused by Plaintiffs breach of contract; (3) compensation for additional living expenses (ALE) from June 2011 through the present, future ALE, and prejudgment interest; and (4) lost fair rental income for Units B and C, less costs and expenses that did not-continue following the fire.
A. Cost to Rebuild Plaintiffs Residence
1. As discussed above, based on the testimony presented, the Court finds that Plaintiffs residence must be demolished and rebuilt. The total amount available to Plaintiff under his policy for demolition, complying with applicable laws for asbestos remediation, and rebuilding is $471,-150.00.
B. Consequential Damages
3. Plaintiff contends that he is entitled to $123,850.86 more than the policy limits as consequential damages that were proximately caused when Defendant breached its contract with Plaintiff by denying Plaintiffs claim.
4. Plaintiff also seeks $80,000 in consequential damages because he has “suffered hardship due to the deprivations he suffered over the last three years,” and claims that Defendant “has not presented evidence to rebut the allegation that their breach caused Plaintiff hardship.”
5. Plaintiff cites a Court of Appeals of Indiana case imwhich the court held that “reasonably foreseeable economic losses” arising from a good faith dispute between an insurer and its insured may be recovered as consequential damages under a fire policy.
6. The Alaska Supreme Court has not ruled on whether consequential damages may be awarded following good faith disputes between insurers and insureds.
7. The Court finds that Allstate denied Plaintiffs claim in good faith after it concluded that Plaintiff was responsible for the loss of his residence,
C. Additional Living Expenses
8. On the basis of Plaintiffs evidence, the Court concludes that Plaintiff is not entitled to $1,850 in monthly ALE for rent during the periods of time Plaintiff was incarcerated and during the times that Plaintiff was ordered to live with a third party custodian.
9. The Alaska Supreme Court has not ruled on whether additional living expenses provisions like the one in Plaintiffs policy require that the additional living expenses be incurred before an insured may receive money for ALE. Defendant cites a 2011 case in which the Fifth Circuit applying Louisiana law found that insureds were not entitled to ALE that had not been incurred.
insured because the insured failed to provide receipts for additional living expenses.
Í0. Although the ALE receipt provision in Plaintiffs policy is identical to the provision at issue in Hilley, the Court finds that the provision in Plaintiffs policy does not require an insured to produce receipts prior to receiving ALE. Reading the policy to require that additional living expenses be incurred prior to reimbursement would preclude those who suffer a total loss and are unable to pay for temporary living expenses from obtaining coverage for ALE. Such a reading would be contrary to the reasonable expectations of an insured when obtaining an insurance policy.
11. The Court nevertheless finds that Plaintiff is only entitled to ALE for periods of time when he could reasonably have incurred additional living expenses. Plaintiff does not contend that he incurred living expenses during the time he was incarcerated, or while he was required to live with a third party custodian as a condition of release.
12. Because Plaintiff has been incarcerated or on release to third party custodians since Allstate rejected his claim in May 2011 and has provided no support for a finding that he incurred or needed to incur any additional living expenses during those times, the Court finds that Plaintiff is not entitled to payment for any additional living expenses.
13. If Plaintiff can produce evidence to show that he was living with his third. party custodian or permitted to use an anide monitor during the two time periods in 2011 and 2012 that he lived at his triplex while'under court order to reside with a third party custodian, Plaintiff is entitled to $1,850 per month in additional living expenses — the amount established by Allstate to be a reasonable monthly additional living expense
D. Lost Rental Income
14. The Court finds that Plaintiff is entitled to the total rental' income less “charges and expenses” that did not continue following the fire based on the rental
15. Plaintiffs rental income for 2009 less “charges and expenses” that did not continue following the fire was $649, or $54 a month.
16. The Court awards Plaintiff $54 in monthly rental income for each of the months that Plaintiff has been displaced from his residence. Plaintiffs total award for lost rental income is $1,674,
E. Future Damages
.17. Plaintiff is entitled to $54 per month in lost rental income for each additional month required to rebuild Plaintiffs residence. Defendant shall pay Plaintiff $54 each month beginning June 1, 2014 until Plaintiffs residence is rebuilt.
18. If the period during which Plaintiff has been ordered to live with a third party custodian ends before Plaintiffs residence has been rebuilt, Plaintiff will be entitled to $1,850 per month in additional living expenses until he is able to return to his residence.
IV. CONCLUSION
For the foregoing reasons, the Court finds and concludes that Defendant Allstate Insurance Company is liable to Plaintiff Jeffrey R. Green in the amount of $241,968.86 for rebuilding Plaintiffs residence and for 31 months of lost rental income, plus prejudgment interest. Defendant shall pay $240,294.86 to Plaintiffs loss payee Wells Fargo pursuant to the policy upon entry of judgment so that demolition and rebuilding can begin immediately. Defendant shall pay Plaintiff the remaining award of $1,674 for lost rental income and all prejudgment interest. Plaintiff is also entitled to $54.per month in lost rental income beginning June 1, 2014 until Plaintiffs residence is rebuilt.
In light of this order, Plaintiffs outstanding motions at Docket 313 and Docket 328 are DENIED as moot.
.Dkt. 359 at 1.
. Id.
. Id.
. Id. at 1-2.
. Dkt. 26-2 at 1; Dkt. 359 at 3.
. Dkt. 26-2 at 2.
. Dkt. 1. Plaintiff's case was removed to federal court on October 19,2011. Id.
. Dkts. 174, 176, 177, 178, 182, 183.
. Dkt. 183.
. Dkt. 294.
. Id.
. See Dkts. 313, 325.
. Dkt. 341.
. Dkts. 357. 358. 359. 354. 360.
. In this memorandum of decision, the Court does not purport to recite all of the evidence submitted and arguments made by the Parties, but rather focuses on the evidence and arguments supporting the Court's findings and conclusions. See Fed.R.Civ.P. 52(a) advisory committee’s note (“[T]he judge need only make brief, definite, pertinent findings and conclusions upon the contested matters; there is no necessity for over-elaboration of detail or particularization of facts.”).
. See Dkt. 341 at 1.
- Id-
. Dkt. 349 at 7.
. Id. at 41-42.
. Id. at 54-55.
. Dkt. 341 at 2.
. Dkt. 349 at 149-50.
. Id. at 179.
. Id. at 180.
. See Dkts. 341 at 1-2; 343.
. Exhibit 118, admitted 1/3/13.
. Exhibit 121, admitted 1/3/13; see Dkt. 349 at 27.
. Exhibit 122, admitted 1/3/13; see Dkt. 349 at 61.
. Exhibit 125, admitted 1/3/13.
. Exhibit 128, admitted 1/3/13; see Dkt. 349 at 16-17. Hermann testified that he was asked to remove "a couple portions of the scope of the work from the first proposal” prior to creating the second proposal. Id. at 17.
. Exhibit 129, admitted 1/3/13. See Dkt. 349 at 14.
. Exhibit C, admitted 1/3/13.
. Exhibit H, admitted 1/3/13.
. Exhibit I, admitted 1/3/13.
. Exhibit L, admitted 1/3/13, at 38.
. Dkt. 359 at 3.
. Exhibit 129. See Dkt. 349 at 14. The first proposal included "Units A & B, common long entry hallway, the long garage and exterior debris piles.” Exhibit 129 at 1.
. Id..; Exhibit 128. The second proposal included "Units, A & B, and the cleaning up of exterior debris piles.” Id. at 1.
. Compare Exhibit 129 at 1 with Exhibit 128 at 1.
. Exhibit 118.
. Id. at 1.
. Dkt. 359 at 2.
. Id. at 3; Exhibit 122.
. The Court takes judicial notice of Mr. Gallagher's business license # 915385, available at http://commerce.alaska.gov/CBP/Main/ BLDetail.aspx?id=915385.
. Exhibit L, Admitted 1/3/13.
. Gallagher arrived at $73,855 for asbestos remediation using Action Environmental's $67,168 estimate for asbestos remediation plus a 10% “contractor markup.” Dkt. 359 at 10; see Exhibit 125, Admitted 1/3/13.
. Exhibit 125.
. Dkt. 349 at 29.
. Id. at 30.
. Id. at 35.
. Dkt. 349 at 38.
. See id. at 38-39.
. Exhibit L.
. Exhibit L at 2.
. Dkt. 359 at 5; see Exhibit L.
. See Exhibit L at 2-37.
. Dkt. 349 at 44, 49.
. Id. at 180-81.
. Id. at 181.
. Id. at 184.
. Id. at 181; Exhibit L at 38.
. Exhibit L at 2.
. Dkt. 349 at 186.
. Id. at 185.
. Id. at 187-88.
. .Id. at 190.
. The Court notes that Gerwin’s estimate for "General Demolition,” which included removal of all remaining contents, demolition of ceilings and walls down to the framing, and removal of the roof, was $29,400.00. Exhibit L at 2.
. See Exhibits 125, 118 at 2; Dkt. 359 at 10. Defendant provided an estimate from Service-Master to repair Plaintiff's residence, but provided no testimony or exhibits regarding the cost to replace Plaintiff's residence.
. Dkt. 359 at 1.
. Id. at 5.
. Id.; see also Dkt. 357 at 4.
. Dkt. 359 at 5-6.
. Dkt. 33-34 at 4. Defendant cites "Exhibit A, admitted on 9/11/13” and "Bates No. 100202” for the proposition that "treatment or removal and disposal of contaminants, toxins or pollutants as required "to complete repair or replacement of that part of the building structure damaged by a covered loss” falls within the policy limits. Dkt. 357 at 5. Defendant did not attach Exhibit A to its briefing or file it for the Court, but Bates No. 100202 appears at Docket 34-33. See Dkt. 34-33 at 11. The Building Codes provision appears in the Alaska Amendatory Endorsement to Plaintiff’s Deluxe Homeowners Policy, and therefore supersedes this portion of Plaintiff’s policy. See Dkt. 33-34 at 1, 4. It is thus unclear to the Court why Defendant contends- that costs incurred to abate asbestos in compliance with state law would fall within the policy limits. See Dkt. 357 at 5 n. 30.
.Dkt. 33-34 at 4.
. See A.S. § 18.31.200 ("A person may not be employed to abate an asbestos health hazard unless the person has been certified in a program approved by the Department of Labor and Workforce Development under (a) of this section.”); 8 AAC 61.600 ("A person performing, directly supervising, or monitoring asbestos abatement work must have a certificate issued under 8 AAC 61.720. The certificate must be in the person’s possession when performing work subject to AS 18.31.200. and must be shown to a representative of the department upon request.”).
. Dkt. 359 at 1.
. Id. at 6; Dkt. 315-2 at 1.
. Dkt. 359 at 6.
. Exhibit 122; Dkt. 315-1 at 3.
. Dkt. 315-1 at 3.
. Dkt. 34-33 at 10.
. Id.
. MSI is the public adjuster who was hired by Wells Fargo to present Wells Fargo’s claim to Allstate. Dkt. 349 at 159.
. Dkt. 354 at 6.
. Dkt. 357 at 5 n. 25.
. Dkt. 349 at 160.
. See Dkt. 34-33 at 24.
. Dkt. 354 at 6.
. This is consistent with the Court’s order at Docket 322. See Dkt. 322 at 6.
. Dkt. 34-34 at 2.
. Dkt. 33-34 at 9.
. Dkt. 359 at 3.
. Id. at 115-16.
. Id. at 116-17.
. Id. at 110-11.
. Id. at 3-4.
.. Id. at 111.
. Id. at 3-4.
. Id.
. Dkt. 359 at 4.
. Plaintiff testified that he returned to jail around May 28, 2012 for about two weeks. Dkt. 349 at 90-92. Plaintiff's Department of Corrections records indicate that Plaintiff was arrested on May 29, 2012 and released to third party custody on June 16, 2012. See Exhibit H.
. Dkt. 349 at 92.
.Dkt. 349 at 92.
. Id. at 93.
. Exhibit H.
. Exhibit H.
. Dkt. 359 at 4.
. Mat 94.
. Id.
. Id.
. Id. at 95.
. According to Plaintiffs Alaska Department of Corrections record admitted on January 3, 2014, Plaintiff was released on bail/ bond on June 6, 2013 for 137 days; no third party custody condition is indicated. The Court takes judicial notice that Plaintiff was released to third party custody on this date, however, and that Plaintiff was released to third party custody again on January 24, 2014 in Alaska v. Green, Case No. 3AN-1400282CR (Alaska Super.Ct. filed Jan. 10, 2014).
. Dkt. 349 at 166.
. Mat 167.
. Dkt. 34-34 at 2; see Zamarello v. Reges, 321 P.3d 387, 393 (Alaska 2014) ("The goal of contract interpretation is to give effect to the parties' reasonable expectations ... [which] must be gleaned not only from the contract language, but also from extrinsic evidence, including evidence of the parties’ conduct ....”) (quoting Miller v. Handle Constr. Co., 255 P.3d 984, 988-89 (Alaska 2011) (citations and internal quotation marks omitted)).
. Id. at 4.
. See Exhibit H, indicating Plaintiff was released to third party custody on March 14, 2011. Defendant continued to pay $1,850 per month through May 2011.
. See Dkt. 249 at 167.
. United Servs. Auto. Ass'n v. Neary, 307 P.3d 907, 910 (Alaska 2013) (noting that courts construe insurance policies "to honor the reasonable expectations of a layperson seeking coverage”).
. See, e.g., Dkt. 349 at 107 ("When — when the fire took place, like 1 explained earlier, I lost everything in the fire .... it hit me hard because I lost everything that I had worked for and everything that I had accumulated during my 50-some-odd years of life. I just lost everything.”).
. Dkt. 349 at 122-23; see Exhibit H.
. Dkt. 349 at 92.
. Id. at 93.
. Id.
. See Exhibit H; Exhibit G; Alaska v. Green, Case No. 3AN-11-00948CR (Alaska Super.Ct. filed Jan. 23, 2011); Alaska v. Green, Case No. 3AN-12-09256CR (filed Sept. 16, 2012); Alaska v. Green, Case No. 3AN-14-00282CR (Alaska Super.Ct. filed Jan. 10, 2014).
. See Alaska v. Green, Case No. 3AN-12-09256CR (filed Sept. 16, 2012) (Temporary Order for third party custody entered February 7, 2014); Alaska v. Green, Case No. 3AN-14-00282CR (Alaska Super. Ct. filed Jan. 10, 2014) (Temporary Order for third party custody entered February 7, 2014).
. See Dkt. 349 at 90-92. Although the unit Plaintiff inhabited was not destroyed by the fire, Plaintiff’s triplex had no working utilities. See Dkt. 349 at 100. Plaintiff heated his shed with propane. Id. at 84.
. See Exhibit H (indicating that Plaintiff was released to a third party custodian on March 14, 2011 for 443 days, and on June 16, 2012 for 83 days).
. Dkt. 349 at 121.
. June 1, 2011 to May 29, 2012 is twelve months; June 16, 2012 to September 16, 2012 is approximately 3 months, for a total of 15 months.
. As noted below, Plaintiff shall submit such evidence no later than June 18, 2014. If Plaintiff files such evidence, Defendant may respond no later than June 25, 2014. In the absence of a filing by Plaintiff, the Court's ruling shall stand.
. Dkt. 34-34 at 3.
. ' Dkt. 33-34 at 9.
. Dkt. 349 at 105-06.
. Id. at 105.
. Dkt. 359 at 6.
. Dkt. 358 at 7. Plaintiff cites Dkt. 348, Pg. 21-22, Pg. 25; Kevin Young's testimony actually appears in the transcript at Docket 347.
. See Exhibit C (admitted at the January 3, 2013 evidentiary hearing by Defendant).
. See Dkt. 358-1 (Schedule E of Plaintiffs 2010 Return). Plaintiff contends that he provided Defendant with this return in its entirety. Dkt. 358 at 7. Defendant did not admit this return at the January 3, 2013 hearing.
. Dkt. 349 at 102.
. Id. at 103-104.
. Dkt. 349 at 133; Exhibit E at 302139.
. Dkt. 349 at 132; Exhibit E at 302123.
. Dkt. 358-1.
. Dkt. 359 at 11.
. Dkt. 349 at 147-48.
. Id. at 148.
. Dkt. 358 at 7.
. The Court does not find Plaintiffs 2010 amended return to be a reliable source of information.
. See Dkt. 349 at 147-48; Exhibit C at 302123, 302139. Although Plaintiff did not testify that expenses for "commissions,” legal and other professional fees, and "telephone” no longer continued after the fire, Plaintiff offered no support for a finding that these expenses, as they relate to the rental units, continued after the fire. Expenses for mortgage interest and "other interest” Would have continued following the fire as expenses related to the triplex as a whole, and not to the rental of the units.
. See Exhibit C at 302139.
. See Exhibit C at 302123.
. See Dkt. 359 at 12-15.
. To the extent that any of the Court’s findings of fact are arguably conclusions of law, they are not restated in this section and are incorporated herein by reference.
. See supra Part II.C.l.
. Dkt. 359 at 6.
. See supra Part II.C.2.
. See Dkt. 34-33 at 24.
. See Dkt. 359 at 13 (Plaintiff states that Defendant "may issue payments to Wells Fargo and Plaintiff jointly on the principal portion of this award in order to protect the secured party's interest.”); Dkt. 354 at 6, Dkt. 349 at 160 (Defendant has agreed to reimburse Wells Fargo for additional monéy spent to repair or rebuild Plaintiff’s residence and recoverable depreciation through December 31, 2014).
. Plaintiff seeks a total of $595,500 to rebuild his residence under the terms of his policy and as consequential damages that were proximately caused by Defendant’s breach of contract with Plaintiff. See Dkt. 359 at 13 ("The increased cost of replacing the home is a consequential loss which is a direct and proximate result of Allstate’s breach of contract with the Plaintiff. Allstate is liable for this amount irrespective of any policy limits.”).
. Dkt. 359 at 17. Plaintiff also requests consequential damages for “the inconvenience and hardship caused by the Defendant’s willful breach of the insurance contract.” Id.
. See Rockford Mut. Ins. Co. v. Pirtle, 911 N.E.2d 60, 67-68 (Ind.Ct.App. 2009).
. Dkt. 354 at 7 (citing Burleson v. Illinois Farmers Ins. Co., 725 F.Supp. 1489, 1494-95 (S.D.Ind. 1989)).
. See Dkt. 57 at 7-8 (August 7, 2012 Order dismissing Plaintiff's claim for bad faith against Defendant).
. Rockford, 911 N.E.2d at 67.
. The Court also notes that Plaintiff's request for $80,000 in consequential damages for hardship and suffering resulting from Defendant’s denial of his claim would not be supported by the precedent Plaintiff cited; inconvenience and hardship are not "reasonably foreseeable economic ” damages. Rockford, 911 N.E.2d at 67-68 (emphasis added).
. See French v. Allstate Indem. Co., 637 F.3d 571, 583 (5th Cir. 2011) (affirming district court's finding that, because Plaintiffs had not introduced evidence of any additional living expenses actually incurred and continued to reside at their house, they were not entitled to payments under the ALE provision of insurance policy). Defendant also cites an unreported Northern District of California case, in which Allstate paid a $500 negotiated increase in monthly expenses for a year to insureds who opted to live with family members rather than in a hotel. See Cecena v. Allstate Ins. Co., No. 05-3178, 2007 WL 134245, at *6 (N.D.Cal. Jan. 16, 2007), which contradicts Allstate's position regarding documentation.
. Hilley v. Allstate, 562 So.2d 184, 191-92 (Ala. 1990).
. See United Servs. Auto. Ass’n v. Heavy, 307 P.3d 907, 910 (Alaska 2013) (noting that courts construe insurance policies "to honor the reasonable expectations of a layperson seeking coverage”).
. See Dkt. 349 at 167.
. For example, Plaintiff presented no testimony or evidence that he incurred costs to store belongings while he was in prison or while living with third party custodians.
. To the contrary, the record indicates that Plaintiffs possessions were lost in the fire, see Dkt. 349 at 107, and that Plaintiff has never been in need of a rental apartment because he was either incarcerated or under a 1‘24-hour sight and sound” third party custodian order of release since Allstate rejected his claim in May 2011, see Exhibit H; Alaska v. Green, Case No. 3AN-11-00948CR (Alaska Super.Ct. filed Jan. 23, 2011); Alaska v. Green, Case No. 3AN-12-09256CR (filed Sept. 16, 2012); Alaska v. Green, Case No. 3AN-14-00282CR (Alaska Super.Ct. filed Jan. 10, 2014).
. See supra Part II.C.
. During the time that Plaintiff lived at his triplex, the triplex had no working utilities, see Dkt. 349 at 100, and Plaintiff heated his shed with propane. Id. at 84. The Court construes Allstate's -initial award of ALE for the seven months following the fire as a concession by Defendant that Plaintiffs triplex was uninhabitable following the fire.
. June 1, 2011 to May 29, 2012 is twelve months; June 16, 2012 to September 16, 2012 is approximately 3 months, for a total of 15 months.
.See supra Part II.D.
. See supra Part II.E; Exhibit C at 302123. The Court notes that the average annual expenses that did not continue after the fire for 2008 and 2009 was $11,219.50 — approximately $935 per month. The average annual rental income for 2008 and 2009 was $10,-650 — approximately $887.50 per month. The Court also acknowledges, however, that Plaintiff testified that he charged $800 for one unit and $1,100 for the other unit, and that the units were rented continuously until the fire. See Dkt. 349 at 105.
. Plaintiff has been displaced from his home for 31 months as of May 2014.
Reference
- Full Case Name
- Jeffrey R. GREEN v. ALLSTATE INSURANCE COMPANY
- Status
- Published