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Sanderson v. First Liberty Insurance Corp.

United States District Court, N.D. New York

November 7, 2017


          EDMUND G. SANDERSON Plaintiff, Pro Se



          DAVID N. HURD United States District Judge.


         This is an insurance coverage dispute between pro se plaintiff Edmund G. Sanderson ("Sanderson" or "plaintiff") and defendant First Liberty Insurance Corporation ("First Liberty" or "defendant"), his homeowner's insurance carrier, over water and mold damage. Although plaintiff initially sought coverage for the loss from defendant in accordance with his policy, relations between the parties eventually broke down.

         On January 6, 2016, Sanderson attempted to initiate suit in state court-he filed a Summons with Notice in Supreme Court, Clinton County, under index number 2016-00000023. Plaintiff's Summons with Notice named "Liberty Mutual Insurance" as the defendant in the action, but plaintiff did not serve this summons on defendant.

         On May 4, 2016, Sanderson filed an Amended Summons with Notice in Supreme Court under the same index number. This time, plaintiff's Amended Summons with Notice named "First Liberty Insurance Corporation" as the defendant in the action. And this time, plaintiff effected service on defendant through the New York State Department of Financial Services in accordance with New York Insurance Law § 1212.

         On June 6, 2016, First Liberty removed the action to the U.S. District Court for the Northern District of New York and thereafter moved to dismiss the action under Federal Rule of Civil Procedure ("Rule") 12(b)(4) and (6).[1] Plaintiff opposed and cross-moved under Rules 4 and 15 seeking leave to amend or correct his Amended Summons with Notice to relate back to the date of his original filing of the Summons with Notice.

         In a Memorandum-Decision & Order dated April 19, 2017, First Liberty's motion to dismiss was denied, Sanderson's motion for an extension of time to perfect service was granted, and his complaint was deemed to be the operative pleading in this action. The April 19 MDO further directed defendant to answer or otherwise respond to plaintiff's complaint.

         On May 9, 2017, First Liberty responded to Sanderson's complaint by moving for partial dismissal under Rule 12(b)(6). Although it conceded that plaintiff had stated at least a plausible claim for breach of the insurance contract, defendant sought to eliminate plaintiff's various extra-contractual theories of relief and his requests for special damages.

         On June 2, 2017, Sanderson reacted to First Liberty's partial dismissal motion by filing an amended complaint. Three days later, plaintiff followed up by filing a single-paragraph opposition memorandum requesting that defendant's Rule 12(b)(6) motion be denied as moot in light of his newly filed amended pleading.

         Thereafter, First Liberty replied with a request that the merits of its partial dismissal motion be considered in light of the revised allegations set forth in Sanderson's amended complaint.[2] According to defendant, "the Amended Complaint does not correct most of the defects and improprieties in the original Complaint." The motion will be considered fully briefed on the basis of these submissions and decided without oral argument.


         Sanderson purchased homeowner's insurance policy number H36-228-085080-70 from First Liberty to cover his home in Plattsburgh, New York. The policy's effective period ran between January 25, 2013 and January 25, 2014.

         On January 7, 2014, Sanderson discovered some water and mold damage. As plaintiff explains, "[w]ater escaped from the dwelling plumbing system through a burst 3/4 inch domestic cold water pipe located in the ceiling space above the first floor bathroom." Plaintiff timely sought coverage for the loss from First Liberty in accordance with the policy and was assigned claim number 028787581.

         On January 16, 2014, Sanderson hired a public adjuster to assist him in settling his loss claim. At some point, however, plaintiff "suspend[ed]" the adjuster's services and elected to "self-represent." Elsewhere in the amended complaint it appears that plaintiff became concerned about communications between defendant and the adjuster he had hired.

         In addition, Sanderson alleges that Christopher Collyer ("Collyer"), First Liberty's own claims representative, repeatedly made gross errors in his calculations and measurements of plaintiff's dwelling that amounted to fraud. Eventually, plaintiff provided to defendant a self-prepared "dwelling estimate, contents estimate, other expenses estimate and ordinance or law estimate." On January 6, 2016, First Liberty sent to Sanderson a letter explaining that his loss estimate was substantially larger than defendant's own ...

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