Summary of Court Procedure

Pursuant to Rule 56 of South Carolina Rules of Civil Procedure, Defendants Nationwide Mutual Fire Insurance Company (“Nationwide”) and Andrew Flanagan (“Flanagan”), submit this Memorandum in Support of their Motions for Summary Judgment and show it to the Court in support thereof:




CIVIL ACTION NO: 2009-CP37-768

James D. Fowler,






Nationwide Mut. Fire Ins. Co. and Andrew Flanagan,



Nationwide issued Plaintiff a homeowner’s policy of insurance. The policy period ran from March 16, 2008, through March 16, 2009. The policy provided, inter alia, coverage limits of liability for dwelling in the amount of $147,700.00, other structure coverage in the amount of $44,190.00 and personal property coverage in the amount of $109,910.00.

On or about January 17, 2009, Plaintiff’s residence was completely destroyed by a fire. At that time of the fire, Plaintiff was at home at the residence, sleeping in the neighboring gazebo. On or about January 18, 2009, Flanagan, a Nationwide claims agent, came to Plaintiff’s residence to inspect the fire damage. As a part of his investigation, Flanagan made certain requests to Plaintiff in accordance with applicable policy provisions as to investigation and adjustment of Plaintiff’s claim.

Nationwide hired Jerry Byers, a causation expert, to provide a cause and origin investigation of the fire. The Byers’ report revealed that the fire was incendiary and had two separate origins. His report also revealed other possible causes. The investigation found that there were pour patterns in two different areas inside the residence. The investigation revealed that the hotbed of fire was located near the left rear window of the living room and across the kitchen floor. The investigation report stated that an ignitable liquid was poured on the open flame. Byers also took samples from the residence for testing; however, the samples were returned with a negative reaction for ignitable liquids. Byers mentioned that laboratory assistants usually note in their reports that a negative reaction of the sample does not necessary mean that the substance was not there at a time. Byers also noted that in analyzing samples, several factors need to be considered like the duration of fire burning, the amount of accelerant and water poured into the fire.

Plaintiff hired Doug Ross as his expert to investigate the fire. Whereupon, Ross concluded that a buildup of radiant heat from the heater ignited the adjacent sheetrock. Fowler told him that he refueled his heater at 10:00 PM the night before the fire. However, Ross admitted that if the heater had been filled up at 6:00 PM the night before the fire, then the heater would not have been on all night and the radiant heat probably would not have caused the fire. Plaintiff confirmed that he filled the heater around 6:00 PM the night before the fire and as the heater would only work approximately thirteen hours, the heater would have been off at the time of the fire. Ross admitted that Byers was in better position that allowed him to come to the correct conclusion, as by the time Ross got there, the scene might have been contaminated or at least less accurate to analyze. So, it became evident that if the heater were not quite full, it would not cause the fire.

An investigation of Plaintiff’s finances indicated that Plaintiff was experiencing some financial problems. It was obvious that Plaintiff was not making any money, as he was not employed. Plaintiff had no electricity in the residence, due to a bill dispute with the power company. Additionally, the lien holders of the residence wanted Plaintiff to sell the house and Plaintiff was in the process of getting the house cleaned up and reappraised. Further, Plaintiff had two mortgages on his house and his checking account was overdrawn due to losses from the closing of his restaurant. Currently, Plaintiff has no bank accounts. The state government also assessed a tax lien against the restaurant. He continues to be billed by several credit card companies. Plaintiff had also taken out a loan that he spent on the start of his son’s business and on the new truck. Plaintiff spent the entire sum of money. The money that Plaintiff loaned out has not been paid back and his son’s business has not been very successful lately.

Flanagan informed a representative of Citi Financial that Nationwide would be paying the mortgages out of the available coverage and that there were two mortgages on the dwelling, which was more than the available coverage. Flanagan also informed the representative that Nationwide would be mailing them a sworn proof of loss to be filled. Flanagan further informed the Representative that Plaintiff’s claim was going to be denied under the intentional act’s exclusion of the insurance policy, and therefore, the mortgagee would be required to submit a separate proof of loss in order to present a claim for his interests.

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