Homeowners accused of failing to protect hail-damaged home from further damage

By Heather Isringhausen Gvillo | Mar 13, 2015

An insurance carrier accused of failing to fully fund repairs to a Belleville couple’s hail-damaged home accuses the homeowners of contributing to the alleged damages by intentionally failing to protect the home from further damage.

Plaintiffs Robert and JoAnne McCarty filed the Sept. 5 lawsuit against Armed Forces Insurance, John Beale, Inc. and Walter Patterson.

According to their complaint, they claim their home in the 600 block of East C Street in Belleville was damaged by hail in early January 2014. They claim the “custom aluminum sunburst adorning the back second story dormer of their home, the roof of their home and the siding of their home” was damaged.

The couple claims they notified their insurance carrier of 33 years and filed a loss report. Armed Forces Insurance sent a “loss acknowledgment” and two-page “property proof of loss form” that they allegedly completed and returned to the company on Feb. 11, 2013, the suit states. Then Patterson, an insurance adjuster, and an employee of the John Beale roofing company visited the home to confirm the hail damage.

On Feb. 19, 2013, an Armed Forces Insurance representative emailed a copy of a claim check to the McCartys, the complaint states. The plaintiffs said they specifically told the company they could only be contacted by phone or mail and not electronically. Then the actual check in the amount of $7,139 arrived in the couple’s mailbox two days later.

The plaintiffs claim they contracted John Beale to perform the roofing repairs at the suggestion of the insurance company. However, the costs of roofing materials alone allegedly totaled $13,598, and the estimate did not include the cost of labor or siding that needed to be replaced in order to match the existing structure.

The McCartys allege that John Beale employees assured them they would work with Armed Forces Insurance to get the remaining costs paid.

However, they allege Armed Forces Insurance denied requests for any additional payments, meaning the repairs were never made.

The McCartys accuse the defendants of consumer fraud and breach of contract.

John Beale, Inc., filed a motion to dismiss on Jan. 28, claiming the plaintiffs improperly named John Beile, Inc. – a non-existent corporation.

Armed Forces Insurance also filed a motion to dismiss through attorney Robert Cockerham of Cockerham & Associates in St. Louis on Oct. 9. It argues that the plaintiffs’ alleged damages are not covered under their policy and their complaint is time-barred.

According to their policy, an action must be started within one year of the loss, which the plaintiffs’ failed to do, the insurer states. The damages occurred on April 28, 2012, but the plaintiffs did not file their claim until September 5, 2014 – more than 28 months later.

The defendant adds that any way the court looks at the situation, the plaintiffs still waited longer than a year to take action.

“Moreover, lest plaintiffs claim that they were lulled into a false sense of security which caused them to delay filing suit, AFI never wavered from its position of denying plaintiffs’ claim and never expressed any desire to negotiate its position,” the motion states. “In fact, the denial letter clearly stated that AFI anticipated that no further action would be taken on this matter.”

Furthermore, Armed Forces Insurance argues that the plaintiff’s policy bars their claims because this court “lacks jurisdiction to hear this claim and the claim is barred against AFI as plaintiffs’ claims are precluded by their breach of contract action.”

“When a purported tort boils down to an insurer’s failure to pay, the remedies provided for breach of contract cover the claim and are sufficient,” the motion states.

Defendant Wallace Patterson, who inspected the McCarty’s home on Feb. 6, 2013, answered the complaint on Nov. 5, denying the allegations and arguing the plaintiffs claim is time-barred. Patterson added that the alleged damage was the result of their own conduct for leaving their home in “disrepair and exposed to the elements.”

The McCartys responded to the defendants’ answers, denying their responses.

The McCartys also filed a motion to bifurcate the proceedings on Feb. 9, seeking to bifurcate Counts I, III and V from the rest of their complaint. They ask the court to separate the counts so the allegations claiming violations of the Consumer Fraud Act may be tried separately.

Circuit Judge Vincent Lopinot scheduled a motion hearing addressing the plaintiffs’ request for March 16 at 9 a.m.

The McCartys seek more than $375,000 in damages.

Grey Chatham Jr. of Chatham & Baricevic in Belleville represents the plaintiffs. They requests a jury trial.

Craig A. Smith of Craig Smith Law in St. Louis represents John Beal.

James H. Hinshaw and Jessica Whelan of Bingham Greenbaum Doll LLP in Indianapolis and Leslie Dean Henke Jr. of SmithAmundsen LLC in St. Louis represent Patterson. He requests a jury trial.

St. Clair County Circuit Court case number 14-L-620

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