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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-10448
Non-Argument Calendar
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D.C. Docket No. 1:16-cv-03744-CC
THOMAS HUTCHINSON,
Plaintiff-Appellant,
versus
ALLSTATE INSURANCE COMPANY,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(July 10, 2018)
Before TJOFLAT, BRANCH, and ANDERSON, Circuit Judges.
PER CURIAM:
Appellant Thomas Hutchinson sued Allstate Insurance Company in state
court to recover damages caused by a fire to his property. Hutchinson claimed that
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Allstate breached the terms of his insurance contract and acted in bad faith by
denying his claim. Allstate removed the action to federal court and moved for
summary judgement. Allstate argued in part that it properly denied Hutchinson’s
claim because Hutchinson refused to submit to an examination under oath
(“EUO”) as required by his insurance contract. The district court granted summary
judgment in favor of Allstate. Hutchinson appeals. After careful review, we affirm
the district court’s grant of summary judgment in favor of Allstate.
I. STANDARD
“We review a district court’s order granting summary judgment de novo.”
Zaben v. Air Prods. & Chems., Inc.,
129 F.3d 1453, 1455 (11th Cir. 1997) (per
curiam). “We view the record, and all reasonable inferences therefrom, in the light
most favorable to the nonmoving party.”
Id. Summary judgment is appropriate “if
the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
II. BACKGROUND
Hutchinson previously owned a dwelling at 1261 East Main Street in
Hogansville, Georgia. On September 2, 2014, a fire destroyed the dwelling, which
was insured with Allstate. Hutchinson submitted a claim to Allstate pursuant to his
insurance contract. The contract gave Allstate the right to request that Hutchinson
submit to an examination under oath in the event of any loss to his property.
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During its investigation of Hutchinson’s claim, Allstate developed doubts
regarding whether Hutchinson had resided at 1261 East Main Street prior to the
fire.1 Allstate requested that Hutchinson submit to an examination under oath
pursuant to the terms of the insurance contract.
Hutchinson appeared for the EUO on March 13, 2015. Before answering any
questions, he expressed concern about a letter that he had received from Allstate in
which Allstate indicated that he had not responded to communications from
Allstate regarding scheduling the EUO. Hutchinson told Allstate’s attorney,
Marvin Dikeman, that the statements in the letter were not true and asked Allstate
to recant the statements. Dikeman told Hutchinson that Allstate would not recant
the statements in the letter. Hutchinson responded, “We can’t move forward until
this letter is corrected. I don’t have a problem answering any questions you ask.”
Dikeman warned Hutchinson, “[I]f you do not respond to the questions that
are put to you here today, Allstate will treat that failure to respond as a material
breach of the contract. . . . And . . . refusal to respond could result—probably will
result in the denial of this claim for that reason standing alone.” Hutchinson stated
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Allstate claims that the property appeared to be completely abandoned prior to the fire.
Hutchinson testified that he “d[id] live at 1261 East Main Street” along with maintaining a
second residence at a different address. For purposes of this appeal, we resolve this factual
dispute in favor of Hutchinson, assuming that he resided at 1261 East Main Street prior to the
fire.
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that he would answer Allstate’s questions but insisted that Allstate recant the
disputed statements in the letter first. Dikeman then asked Hutchinson Allstate’s
questions regarding his residence; Hutchinson sat in silence, giving no responses.
Allstate denied Hutchinson’s claim on March 24, 2015.
On June 30, 2016, over a year after Allstate denied Hutchinson’s claim,
Hutchinson’s newly retained counsel sent a demand letter to Allstate, threatening
to sue Allstate if it did not pay Hutchinson’s claim within sixty days. The letter
also indicated that Hutchinson was willing to sit for another EUO. Dikeman
responded to the demand letter on behalf of Allstate. He stated that Allstate would
appear for a second EUO with Hutchinson “expressly subject to a full and
complete reservation of all rights and defenses by Allstate.” That EUO never
occurred, and Hutchinson sued Allstate when it did not comply with his demand.
III. DISCUSSION
It is undisputed that Hutchinson’s insurance contract with Allstate required
him to submit to an EUO at Allstate’s request in relation to any claimed loss. This
kind of “contractual provision is commonly used in insurance policies and has
been upheld by many courts.” Pervis v. State Farm Fire & Cas. Co.,
901 F.2d 944,
947 (11th Cir. 1990). It is also undisputed that Hutchinson, although he appeared
for an EUO, refused to answer Allstate’s questions regarding his claim. Allstate’s
attorney, Dikeman, warned Hutchinson that failing to answer Allstate’s questions
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would likely result in the denial of his claim. Nevertheless, Hutchinson sat in
silence in response to Dikeman’s questions at the examination. We conclude that
this constitutes a breach of his insurance contract under Georgia law. See Halcome
v. Cincinnati Ins. Co.,
254 Ga. 742, 744,
334 S.E.2d 155, 157 (1985) (holding that
the plaintiffs breached their insurance contract, which contained a provision
requiring them to submit to an examination under oath, by refusing to provide
information relating to their income, even though they responded to other
questions under oath). Because Hutchinson failed to comply with his obligation
under the insurance contract, Allstate was within its rights to deny his claim.
Hutchinson does not argue that he was excused from complying with his
obligation to submit to an EUO for any reason. Nor does he deny that a refusal to
submit to an EUO constitutes a breach of the insurance contract. Rather,
Hutchinson contends that his offer to submit to an EUO over a year after Allstate
denied his claim creates an issue of fact regarding his compliance with the
contract. We disagree. Hutchinson’s belated offer did not cure his prior breach or
reinstate Allstate’s obligation to pay his claim. See Pervis,
901 F.2d at 948 (“State
Farm had no obligation to repeat its request for an examination after appellant
breached the contract, and appellant’s offer to be examined, as expressed on
appeal, comes too late to be considered.”). Thus, we conclude that the district court
properly granted summary judgment in favor of Allstate.
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AFFIRMED.
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