Sixth Circuit Court Of Appeals Affirms Summary Judgment Obtained By Michael F. Schmidt On A Claim For Property Damage Insurance Coverage

Louis V. Telerico and Terri Roeder v Nationwide Mutual Fire Insurance Company, Sixth Circuit Court of Appeals, Docket Number 12—2209, appeal by plaintiffs/appellants, Louis Telerico and Terri Roeder, from summary judgment we obtained on the basis that the policy excluded damages caused by or resulting from any structural defect, and in addition, that the plaintiffs had failed to timely file a proof of loss. The Sixth Circuit Court of Appeals affirmed summary judgment in a nine page opinion on the basis that the plaintiffs had failed to timely file a proof of loss and had failed to comply with the common-law “mailbox rule” to raise a rebuttal presumption that the proof of loss had been received by Nationwide, based on admissions made by plaintiffs at their depositions, which the court held could not be contradicted by an affidavit filed in response to the defendant’s motion for summary judgment. The court further held that the plaintiffs could not claim substantial compliance with the proof of loss requirement due to their failure to timely submit a sworn proof of loss.