United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OF OPINION AND ORDER, [RESOLVING ECF NOS.
36, 38, AND 43 ]
Y. Pearson United States District Judge
Wells Fargo Bank, N.A., (“Wells Fargo”) brought
the present action against Allstate Insurance Company
(“Allstate”) on February 5, 2015 asserting claims
for breach of contract, declaratory judgment, specific
performance, and unjust enrichment. The parties submitted
cross-motions for summary judgment on the issue of whether
arson is an excluded loss under a homeowner's policy
which prohibits coverage for “vandalism and malicious
mischief” when a home has been vacant for 30 or more
consecutive days. The Court has been advised, having reviewed
the record, the parties' briefs, and the applicable law.
For the reasons set forth below, Wells Fargo's motion is
granted and Defendant's motion is denied.
stipulated facts are as follows:
1. The terms of Allstate Property and Casualty Insurance
Company Homeowners Policy No. 9 80 584930 09/20 (the
“Policy”), executed with Antoniano Delsignore for
a single-family home located at 7376 Yellow Creek Drive in
Poland, Ohio (the “Property”), govern the dispute
between the parties in the above-captioned action.
2. At all relevant times, Wells Fargo was the insured
mortgagee under the Policy.
3. Mr. Delsignore defaulted on his mortgage payments in 2013,
and by the end of the year, the Property was vacant.
4. On February 6, 2014, a fire caused by an unknown arsonist
(the “Arson”) damaged the Property.
5. The Policy was in effect at the time of the Arson.
6. Wells Fargo filed an insurance claim under the Policy for
the damage caused by the Arson.
7. Allstate denied Wells Fargo's claim based upon the
exclusion in the Policy which precludes coverage for losses
caused by vandalism and/or malicious mischief when the
Property has been vacant or unoccupied for 30 or more
consecutive days prior to the loss.
8. Wells Fargo and Allstate disagree over the applicability
of the exclusion described in Paragraph 7 (above) to the
Fargo filed the within lawsuit against Allstate in February
2015. There is no Ohio legal precedent deciding whether
“malicious mischief” or “vandalism”
exclusions in homeowners' insurance policies include
losses that occur as a result of arson. The Court certified
the question to the Supreme Court of Ohio, and the high court
accepted the certification on September 30, 2015. On May 18,
2016, the Supreme Court of Ohio issued an order that the
certification was improvidently allowed and declined to
answer the question presented. Wells Fargo Bank, N.A. v.
Allstate Ins. Co., 146 Ohio St.3d 232 (2016) (ECF No.
30). Thereafter, both parties submitted cross-motions for
summary judgment regarding the issue of whether arson falls
within an exclusion for “vandalism or malicious
mischief” under the Policy.
Standard of Review
judgment is appropriately granted when the pleadings, the
discovery and disclosure materials on file, and any
affidavits show “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); see also
Johnson v. Karnes, 398 F.3d 868, 873 (6th Cir. 2005).
The moving party is not required to file affidavits or other
similar materials negating a claim on which its opponent
bears the burden of proof, so long as the movant relies upon
the absence of the essential element in the pleadings,
depositions, answers to interrogatories, and admissions on
file. Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). The moving party must “show that the non-moving
party has failed to establish an essential element of his
case upon which he would bear the ultimate burden of proof at
trial.” Guarino v. Brookfield Twp. Trustees.,
980 F.2d 399, 403 (6th Cir. 1992).
the movant makes a properly supported motion, the burden
shifts to the non-moving party to demonstrate the existence
of genuine dispute. An opposing party may not simply rely on
its pleadings. Rather, it must “produce evidence that
results in a conflict of material fact to be resolved by a
jury.” Cox v. Ky. Dep't. of Transp., 53
F.3d 146, 150 (6th Cir. 1995). The non-moving party must, to
defeat the motion, “show that there is doubt as to the
material facts and that the record, taken as a whole, does
not lead to a judgment for the movant.”
Guarino, 980 F.2d at 403. In reviewing a motion for
summary judgment, the court must view the evidence in the
light most favorable to the non-moving party when deciding
whether a genuine issue of material fact exists.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587-88 (1986); Adickes v. S.H. Kress &
Co., 398 U.S. 144 (1970).
United States Supreme Court, in deciding Anderson v.
Liberty Lobby, Inc.,477 U.S. 242 (1986), stated that in
order for a motion for summary judgment to be granted, there
must be no genuine issue of material fact. Id. at
248. The existence of some mere factual dispute between
the parties will not defeat an otherwise properly supported
motion for summary judgment. Scott v. Harris, 550
U.S. 372, 380 (2007). A fact is “material” only
if its resolution will affect the outcome of the lawsuit. In
determining whether a factual issue is “genuine,
” the court must decide whether the evidence is such
that reasonable jurors could find that the non-moving party
is entitled to a verdict. Id. Summary judgment
“will not lie . . . if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Id. To withstand summary judgment, the
non-movant must show sufficient evidence to create a genuine
issue of material fact. Klepper v. First Am. Bank,916 F.2d 337, 342 (6th Cir. 1990). The existence of a mere
scintilla of evidence in support of the non-moving
party's position ordinarily will not be sufficient to
defeat a motion for summary judgment. Id. This
standard of review does not differ when reviewing