United States District Court, D. Kansas
MEMORANDUM & ORDER
JOHN W. LUNGSTRUM, District Judge.
Plaintiffs filed this breach of contract action against defendants alleging that plaintiffs had property insurance coverage on the date a fire damaged plaintiffs' property and that defendants, in breach of the insurance contract, refused to cover the loss caused by the fire. Defendants contend that the policy expired at the end of its term-prior to the date of the loss- due to plaintiffs' nonpayment of the renewal premium such that no coverage existed at the time of the loss.
This matter is presently before the court on the parties' cross-motions for summary judgment. Plaintiffs move for summary judgment on the grounds that defendants undisputedly failed to comply with policy provisions requiring notice of cancellation such that the policy remained in effect on the date of the loss. Defendants, in turn, move for summary judgment on the grounds that they had no duty to comply with policy provisions regarding notice of cancellation because the policy was not cancelled but had lapsed when plaintiffs elected not to renew the policy by failing to pay the renewal premium. Plaintiffs have also filed a motion to strike certain witnesses and exhibits and that motion is also ripe at this time. As will be explained, plaintiffs' motion for summary judgment is denied; defendants' motion for summary judgment is granted; and plaintiffs' motion to strike is denied as moot.
"Summary judgment is appropriate if the pleadings, depositions, other discovery materials, and affidavits demonstrate the absence of a genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Water Pik, Inc. v. Med-Systems, Inc., 726 F.3d 1136, 1143 (10th Cir. 2013) (quotation omitted); see Fed.R.Civ.P. 56(a). A factual issue is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Water Pik, Inc., 726 F.3d at 1143 (quotation omitted). "The nonmoving party is entitled to all reasonable inferences from the record; but if the nonmovant bears the burden of persuasion on a claim at trial, summary judgment may be warranted if the movant points out a lack of evidence to support an essential element of that claim and the nonmovant cannot identify specific facts that would create a genuine issue." Id. at 1143-44.
The fact that the parties here have filed cross-motions for summary judgment does not change the legal standard. Each party has the burden of establishing the lack of a genuine issue of material fact and entitlement to judgment as a matter of law. Atlantic Richfield Co. v. Farm Cr. Bank, 226 F.3d 1138, 1148 (10th Cir. 2000). "[C]ross-motions for summary judgment are to be treated separately; the denial of one does not require the grant of another." Ultra Clean Holdings, Inc. v. TFG-California, L.P., 534 Fed.Appx. 776, 780 (10th Cir. Aug. 21, 2013) (quoting Buell Cabinet Co. v. Sudduth, 608 F.2d 431, 433 (10th Cir. 1979)). "And when the parties file cross-motions for summary judgment, the court is entitled to assume that no evidence needs to be considered other than that filed by the parties, but summary judgment is nevertheless inappropriate if disputes remain as to material facts." Id. (quoting Atlantic Richfield, 226 F.3d at 1148).
The following facts are uncontroverted, have been stipulated by the parties, or are related in the light most favorable to the nonmoving party. Plaintiffs John and Nicki Traul live on and operate a small farm in Bourbon County, Kansas. At all times relevant to this lawsuit, plaintiffs have obtained various insurances policies (farm property protection plus dwelling, personal property, barn, livestock and equipment) through a local agent for defendants Nationwide Agribusiness Insurance Company and Nationwide Mutual Insurance Company (collectively "Nationwide"). Plaintiffs applied for and obtained their initial Farm Property or Farm Package insurance policy with Nationwide for the policy period of August 19, 2010 through August 19, 2011. During this policy period, plaintiffs made timely premium payments through December 2010, when plaintiffs paid off the balance of the premium amount.
On August 5, 2011, plaintiffs received from their local agent a copy of a Farm Property or Farm Package renewal policy with Nationwide. The policy reflected an effective date of August 19, 2011 through August 19, 2012 and a total premium amount of $2930.00. According to Nationwide, it sent to plaintiffs an "Account Bill" for the policy renewal on August 1, 2011 reflecting a monthly premium of $249.16 due on August 19, 2011. Plaintiffs contend that they never received the August 1, 2011 billing statement or any other billing statement from Nationwide regarding the renewal policy. Nationwide contends that it mailed to plaintiffs on August 23, 2011 a "Notice Regarding Non-Payment of Premium." Plaintiffs contend that they never received the August 23, 2011 notice. The notice states, in pertinent part, as follows:
We appreciate you placing your insurance with us and would like to continue providing coverage. However, we have not yet received your premium payment for the following policy on your account and this policy will expire as of the date shown:
* * * *
12:01 A.M. Std Time on 08-19-11
We would be happy to reinstate your policy with no lapse in coverage, if we receive payment on or before 09-05-11.
The notice reflected a minimum due amount of $249.16. It is uncontroverted that plaintiffs never made ...