                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 09a0398n.06

                                           No. 08-5438

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                     FILED
R. C. LATHAM,                                            )
                                                                                 Jun 02, 2009
                                                                            LEONARD GREEN, Clerk
                                                         )
       Plaintiff-Appellant,                              )
                                                         )
v.                                                       )    ON APPEAL FROM THE UNITED
                                                         )    STATES DISTRICT COURT FOR
ALLSTATE INSURANCE CO., CRAIG CASEY, and                 )    THE WESTERN DISTRICT OF
CASEY INSURANCE AGENCY,                                  )    TENNESSEE
                                                         )
       Defendants-Appellees.                             )
                                                         )




       Before: MARTIN and KETHLEDGE, Circuit Judges; WATSON, District Judge.*

       KETHLEDGE, Circuit Judge. R. C. Latham (“Latham”) appeals the grant of summary

judgment in favor of Defendants in his suit to recover insurance proceeds after a fire destroyed his

home. We affirm.

                                                 I.

       Latham’s home burned down on December 18, 2005. At the time, the home and personal

property inside were covered by an Allstate homeowner’s insurance policy that Latham had bought

from Craig Casey and Casey Insurance Agency (collectively, “Casey”). After the fire, Latham filed




       *
        The Honorable Michael H. Watson, United States District Judge for the Southern District
of Ohio, sitting by designation.
No. 08-5438
Latham v. Allstate

a claim with Allstate, seeking to recover insurance proceeds. Allstate denied the claim on August

10, 2006, suspecting that Latham had set the fire.

       Latham sued Allstate and Casey (“Defendants”) in the Crockett County, Tennessee Chancery

Court. He alleged that Allstate had breached its contract with him, and that Casey negligently failed

to explain some of the policy’s coverage limits. Defendants removed the case to federal court, and

filed separate motions for summary judgment. Allstate alleged that Latham had set the fire, and

relied on its policy language exempting coverage in such circumstances. Casey argued that, at

deposition, Latham admitted he could not remember whether Casey had discussed the policy limits

at issue, and thus could not prove his claim against Casey.

       Latham failed to answer the motions, and the court issued a Show Cause Order threatening

to grant them and dismiss the case if Latham did not respond. Two weeks later, Latham filed a

response. It consisted of a single substantive paragraph, containing unsworn and unsupported

allegations that Latham did not set the fire. The court considered Latham’s response, but found that

no genuine issue of material fact existed, and granted summary judgment to Defendants.

       Latham then filed a “Motion to Set Aside, Alter, or Amend” the summary-judgment order,

attaching three affidavits: one from Steve Wall of Wall Heating and Air, asserting that the cause of

the fire is unknown; one from Latham’s expert, Stuart Bayne, stating that his report did not mean to

imply that Latham set the fire; and one from Latham’s step-son, William Griffin, stating that he was

with Latham on the day of the fire and that Griffin himself did not set it. Conspicuously absent was

any affidavit from Latham stating that he himself did not set the fire. The court declined to consider

the affidavits, and denied the motion.

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No. 08-5438
Latham v. Allstate

       This appeal followed.

                                                  II.

       “This Court reviews a district court’s grant of summary judgment de novo.” Moses v.

Providence Hosp. & Med. Ctrs., Inc., 561 F.3d 573, 578 (6th Cir. 2009). “Summary judgment is

appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together

with the affidavits, if any, ‘show that there is no genuine issue as to any material fact and that the

movant is entitled to a judgment as a matter of law.’” Id., citing Fed. R. Civ. P. 56(c). To survive

such a motion, the non-moving party must show more than some metaphysical doubt as to the

material facts. Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 538 F.3d 469, 472 (6th

Cir. 2008).

       Allstate’s motion rested primarily on two pieces of evidence. First, Latham’s own expert

witness opined that someone diverted the home’s gas lines into its HVAC duct units, causing an

explosion that, in turn, caused the fire. Second, Allstate’s debris analysis showed no trace of the

$60,446.50 in personal property that Latham claimed he lost in the fire. During the pendency of

Allstate’s motion, Latham offered no evidence at all—other than naked allegations—to refute

Allstate’s arguments. Moreover, under Tennessee law, a fraudulent insurance claim is a breach of

the insurance contract that bars recovery both as to the insured structure and the personal property

within. See Home Ins. Co. v. Connelly, 56 S.W. 828, 829 (Tenn. 1899); Trice v. Commercial Union

Assurance Co., 334 F.2d 673, 676 (6th Cir. 1964); cf. APPLEMAN          ON INSURANCE     § 3595(“The

general rule seems to be that fraud, attempted fraud, or false swearing as to any part of the property

included in a proof of loss prevents recovery for any portion thereof”).

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No. 08-5438
Latham v. Allstate

       Latham failed to dispute Allstate’s evidence that he had submitted a fraudulent claim. He

also did not address Casey’s argument that the negligence claim was devoid of proof. The district

court, therefore, correctly held that Latham had not shown the existence of genuine issues of material

fact with respect to his claims. Latham argues on appeal that he need not have offered evidence to

defeat Defendants’ motions, because “the Complaint within itself” offered proof enough to defeat

summary judgment. But he is mistaken. See Kendall v. Hoover Co., 751 F.2d 171, 173 (6th Cir.

1984) (“the conclusory allegations of a complaint cannot be relied upon to withstand a motion for

summary judgment”).       Moreover, Latham’s motion to “Set Aside, Alter, or Amend” the

order—purportedly filed pursuant to Federal Rules of Civil Procedure 59 and 60—did not provide

the district court any basis to vacate its summary-judgment order. Latham’s motion sought to

present “arguments which could, and should, have been made before judgment issued[.]” Sault Ste.

Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998). And even

considering the affidavits attached to Latham’s motion, the undisputed record before the district

court remained that the fire was intentionally set; that no trace of the items for which Latham sought

reimbursement was found in the fire debris; and that Latham himself never submitted an affidavit

contesting Allstate’s conclusion that he was the person who set the fire.

       The district court did not err, therefore, in refusing to grant Latham’s motion, and in entering

judgment in favor of Defendants.

       We affirm the judgment of the district court.




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