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Dunker v. Shelter Mutual Insurance Co.

United States District Court, N.D. Illinois, Western Division

May 28, 2014

John F. Dunker, Plaintiff,
v.
Shelter Mutual Insurance Company, Defendant.

ORDER

PHILIP G. REINHARD, District Judge.

For the reasons stated below, defendant's motion [95] for summary judgment is granted. Judgment is granted in favor of defendant and against plaintiff. This case is terminated.

STATEMENT-OPINION

Plaintiff, John F. Dunker, individually and as trustee of the JSMD Number Three 3 Trust, brought this action against defendant, Shelter Mutual Insurance Company, in state court asserting state law claims of breach of contract (Count I) and violation of Section 155 of the Illinois Insurance Code for vexatious and unreasonable denial of further benefits for damage to real and personal property (Count II). Defendant removed to this court based on diversity of citizenship jurisdiction. 28 U.S.C. ยง 1332(a)(1). Plaintiff is a citizen of Illinois, defendant is a Missouri corporation with its principal place of business in Missouri, and the amount in controversy exceeds $75, 000. Defendant moves [95] for summary judgment.

Defendant insured plaintiff's residence. Plaintiff claimed a loss for water damage due to leakage from a detached washing machine discharge hose. Defendant paid $27, 467.16 on this claim. Plaintiff claims he is entitled to $690, 098.31.

Summary judgment is only appropriate if the evidence submitted reveals no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. O'Leary v. Accretive Health, Inc. , 657 F.3d 625, 630 (7th Cir. 2011). On summary judgment the court does not weigh the evidence or determine the credibility of witnesses and all evidentiary conflicts are resolved in favor of the non-movant and all reasonable inferences are drawn in the non-movant's favor. Id . Summary judgment is often called "the put up or shut up' moment in litigation, by which we mean that the non-moving party is required to marshal and present the court with the evidence she contends will prove her case. And, by evidence, we mean evidence on which a reasonable jury could rely." Goodman v. Nat'l Security Agency, Inc. , 621 F.3d 651, 654 (7th Cir. 2010). (citations omitted). Summary judgment may only be defeated by pointing to admissible evidence in the summary judgment record that creates a genuine issue of material fact. United States v. 5445 Suffield Terrace, Skokie, Illinois , 607 F.3d 504, 510 (7th Cir. 2010). It is not the court's job to sift through the record and make plaintiff's case for him. Id.

The crux of defendant's motion for summary judgment is that plaintiff has not performed his obligations under the insurance policy, particularly relating to substantiating his losses, showing he made necessary and reasonable temporary repairs to protect the property and providing records of the costs of those repairs, and showing the damaged property to defendant's representative prior to its replacement or repair. Plaintiff's brief does not address defendant's arguments on these points but instead discusses only his position that the water damage was more extensive than defendant asserts. Likewise, plaintiff's LR56.1(b)(3)(B) statement of additional facts only addresses the question of how much water leaked and how that leakage caused water and air moisture damage throughout the house. The statement does not address, or reference evidence, substantiating any loss, establishing plaintiff showed damaged property to defendant's representative prior to its replacement or repair, any repairs performed, or costs of any repairs. So, the evidence as to these matters presented for consideration for summary judgment purposes is that set forth in defendant's LR56.1(a)(3) statement of facts and in plaintiff's responses to those facts, with any conflict in the evidence submitted resolved in plaintiff's favor.

Plaintiff's insurance policy contained the following provisions:

"1. What To Do In Case Of Loss

If a covered loss occurs, the insured must take all of the following actions if applicable to that loss:

*****

(b) Protect the property from further damage. Make necessary and reasonable temporary repairs to protect the property, and keep records of the cost of those repairs.

(c) Send to us, within 60 days after its receipt by you, a proof of loss signed and sworn to ...


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