                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 20a0071n.06

                                            No. 19-3317


                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT                                    FILED
                                                                                   Jan 31, 2020
 AMERICAN LAND INVESTMENT LTD.,                           )                    DEBORAH S. HUNT, Clerk
                                                          )
         Plaintiff-Appellant,                             )
                                                          )
                                                                  ON APPEAL FROM THE
 v.                                                       )
                                                                  UNITED STATES DISTRICT
                                                          )
                                                                  COURT FOR THE
 ALLSTATE INSURANCE COMPANY, et al.,                      )
                                                                  SOUTHERN DISTRICT OF
                                                          )
                                                                  OHIO
         Defendants-Appellees.                            )
                                                          )



BEFORE:        ROGERS, STRANCH, and THAPAR, Circuit Judges.

       ROGERS, Circuit Judge. American Land Investment (ALI) filed two insurance claims

with Allstate Insurance Company (Allstate) for damage at its commercial properties in 2015.

Allstate’s extended investigation into the claims resulted in a substantial delay in payment to ALI.

This led ALI to file suit against Allstate, alleging that Allstate breached the insurance contract and

lacked good faith in handling ALI’s claims under Ohio state law. In the midst of this suit, Allstate

denied ALI’s claims based in part on Allstate’s determination that Duaine Liette, the sole member

of ALI, concealed or misrepresented material facts relating to ALI’s claims in breach of the

insurance policy.      Allstate accordingly moved for summary judgment based on this

misrepresentation. Because Mr. Liette’s misrepresentation contractually relieved Allstate of any

potential obligation to pay for the claim, the district court properly granted summary judgment.

       ALI owned four commercial properties in Sidney, Ohio that were insured under a policy

issued by Allstate. Three of ALI’s property units (221, 223, and 225 South Walnut Ave.) were
No. 19-3317, Am. Land Investment Ltd. v. Allstate Ins. Co., et al.


interconnected buildings and the fourth (227 South Walnut Ave.) was a separate building. On

October 25, 2015, units 223, 225, and 227 South Walnut were vandalized. ALI promptly reported

the loss to Allstate. ALI informed Allstate that vandals spray-painted the complex’s roof and

caused other damage. Allstate investigated the matter and paid part of the claim to ALI.

       221 South Walnut was reportedly subsequently vandalized on November 19, 2015, and

ALI filed another insurance claim with Allstate. ALI reported that vandals forcibly entered the

building and cut interior loadbearing columns with a saw. These alleged vandals did not destroy

any other property inside the building, such as cars and campers, that was being stored there, and

did not steal anything—curiously, they only cut the columns with a saw. Allstate investigated this

matter for a significant period of time.

       Before Allstate reached a final decision on the claims, ALI filed suit in state court on

October 20, 2016. ALI alleged that Allstate breached the insurance contract by failing to pay the

amount due under the policy for both claims, alleged Allstate lacked good faith in its handling of

both claims, and sought declaratory judgment as to how Allstate should disburse payments.

Allstate removed the suit to federal court based on diversity jurisdiction.

       On August 25, 2017, based on Allstate’s continued investigation, it denied the remainder

of ALI’s first claim for the spray-painting loss and ALI’s second claim for the saw-cutting loss.

Regarding the spray-painting loss, Allstate determined that: (1) “the same or similar condition

existed on the roof from a prior act of vandalism that remained unrepaired,” (2) Mr. Liette

concealed or misrepresented material facts and circumstances relating to ALI’s claim, and (3) ALI

“neglected to use all reasonable means to save and preserve the property from further damage at

or after the time of loss.” Regarding the saw-cutting loss, Allstate determined that: (1) the cutting

of the columns occurred several weeks prior to the reported loss date of November 19, 2015, and



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No. 19-3317, Am. Land Investment Ltd. v. Allstate Ins. Co., et al.


was done by Mr. Liette, or someone acting at his request, and therefore the claimed damages were

not covered under the insurance policy’s dishonest or criminal act exclusion; (2) the claimed

vandalism did not occur as reported and was not a sudden and accidental loss, so it was not covered

under the policy; (3) Mr. Liette concealed or misrepresented material facts and circumstances

relating to ALI’s claim; and (4) ALI “neglected to use all reasonable means to save and preserve

the property from further damage at or after the time of loss.” Allstate determined that Mr. Liette’s

concealments and misrepresentations voided the insurance policy pursuant to the policy’s

“Concealment, Misrepresentation or Fraud” provision. The “Concealment, Misrepresentation or

Fraud” provision stated:

       This Coverage Part is void in case of fraud by you as it related to this Coverage Part
       at any time. It is also void if you or any other insured, at any time, intentionally
       conceal or misrepresent a material fact concerning:
           1. This Coverage Part;
           2. The Covered Property;
           3. Your interest in the Covered Property; or
           4. A claim under this Coverage Part.

       Allstate moved for summary judgment. In its summary judgment motion, Allstate argued

that it did not breach the insurance contract or act in bad faith, as ALI’s actions voided the

insurance policy. Allstate asserted that ALI concealed or misrepresented material facts regarding

(1) Mr. Liette’s knowledge that a residential tenant, Mary Layman, was living at the commercial

property at the time of the reported losses; (2) ALI’s past insurance claims; and (3) Mr. Liette’s

knowledge of the conditions of the properties prior to the reported losses. The district court agreed.

The court determined that Mr. Liette misrepresented facts regarding all of these matters and found

that these misrepresentations were all material to Allstate’s investigation. Accordingly, the district

court concluded that Allstate was justified in denying ALI’s claims based on the “Concealment,




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No. 19-3317, Am. Land Investment Ltd. v. Allstate Ins. Co., et al.


Misrepresentation or Fraud” provision in Allstate’s insurance policy and therefore granted

summary judgment in favor of Allstate on ALI’s breach of contract claim.1

         Mr. Liette made a material misrepresentation regarding ALI’s past insurance claims and

this alone is sufficient to uphold judgement against ALI, as Allstate need only establish that Mr.

Liette misrepresented one material issue during its investigation to void the contract. Mr. Liette

testified during his examination under oath as part of Allstate’s investigation of ALI’s claims that

ALI’s properties were previously vandalized in September 2010. The buildings were spray-

painted, and the brickwork and paint were scratched. Mr. Liette filed a claim with his insurance

provider at the time, Nationwide, and stated that he received over $100,000 for estimated repair

costs. Mr. Liette stated that he did all the repair work himself, using a power washer to attempt to

wash off the paint, and kept the remainder of the insurance money for himself. In July 2011, ALI

reported another spray-painting incident involving damage to the roof to Nationwide. According

to Mr. Liette, Nationwide paid ALI around $50,000 or more for this claim. Mr. Liette testified

that he originally contracted with Thomas Beaver to work on the roof, but Mr. Beaver “left [sic]

everything go to pieces.” Mr. Liette asserted that Mr. Beaver “didn’t do his job right, and it rained

and ruined my materials inside my building. It rained inside and ruined drywall and different

material items.” Mr. Liette recalled that his insurance at the time did not cover such damage so he

sought coverage from Mr. Beaver’s insurance company, United Ohio Insurance. According to Mr.

Liette, the suit involving United Ohio Insurance was unsuccessful because United Ohio Insurance

would not cover damage resulting from faulty workmanship. Ultimately, Mr. Liette stated that he

did the work himself to “put [a] whole new roof on.”




1
  The district court also granted summary judgment in favor of Allstate on ALI’s claim that Allstate lacked good faith
in handling ALI’s claims under Ohio state law. ALI has not appealed this ruling.

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No. 19-3317, Am. Land Investment Ltd. v. Allstate Ins. Co., et al.


       Allstate obtained records regarding this matter as part of its investigation into ALI’s 2015

claims. Allstate discovered that United Ohio Insurance had actually been the one to file suit against

Mr. Liette and ALI for making a fraudulent insurance claim.            According to United Ohio

Insurance’s complaint, ALI and Mr. Liette did not make any repairs to the roof following the 2010

vandalism incident until Mr. Liette contracted with Mr. Beaver in May 2011. The complaint

alleged that following Mr. Beaver’s commencement of work on the roof, ALI, acting through Mr.

Liette, submitted a claim to United Ohio Insurance on June 17, 2011, for losses incurred from

water damage originating from the roof. However, Mr. Liette withdrew the claim just days later,

on June 20, 2011—the same day that Mr. Beaver applied for, and was granted, insurance coverage

from United Ohio Insurance. Subsequently, Mr. Liette added ALI to Mr. Beaver’s insurance

policy, and on July 11, 2011, ALI submitted a claim to United Ohio Insurance for losses incurred

from water and wind damage that reportedly occurred that same day. United Ohio Insurance’s

investigation of the claim showed that the claimed water damage existed for years prior to July 11,

2011. Further, Mr. Beaver testified during his examination under oath regarding that claim that

he believed Mr. Liette intended to get Mr. Beaver’s insurer to pay for pre-existing and long-

standing issues, such as mold and leaks. Mr. Beaver testified that on the day the July 2011

insurance claim was made, Mr. Liette told him “we got to keep our stories straight you know. We

got to be on the same page. You can’t say one thing and me say another.” United Ohio Insurance’s

suit against ALI and Mr. Liette resulted in a default judgment entered against ALI and Mr. Liette

on March 19, 2012. In entering default judgment, the court found that ALI and Mr. Liette

“intentionally misrepresented material facts” related to the insurance claim and concluded that ALI

and Mr. Liette submitted a fraudulent claim.




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No. 19-3317, Am. Land Investment Ltd. v. Allstate Ins. Co., et al.


       Allstate asserted that the circumstances regarding ALI’s 2011 insurance claim and the

court’s determination that ALI and Mr. Liette fraudulently submitted this claim were relevant to

its investigation of the 2015 claims.

       The district court did not err in concluding there was no genuine issue of material fact that

ALI, through Mr. Liette, made a material misrepresentation calculated to mislead Allstate’s

investigation. Therefore, the district court did not err in granting summary judgment in favor of

Allstate on ALI’s breach of contract claim. Concealment, misrepresentation, and fraud clauses,

such as the one in ALI’s insurance policy with Allstate, are enforceable under Ohio law. Hague

v. Allstate Prop. & Cas. Ins. Co., No. 3:13 CV 2677, 2014 WL 5465841, at *7 (N.D. Ohio Oct.

28, 2014). To void a contract, the misrepresentation must be material. McCurdy v. Hanover Fire

& Cas. Ins. Co., 964 F. Supp. 2d 863, 869–70 (N.D. Ohio 2013).

       Mr. Liette’s misrepresentation regarding ALI’s 2011 insurance claim and subsequent

lawsuit by United Ohio Insurance was material as a matter of law. The records that Allstate

obtained regarding ALI’s 2011 insurance claim to United Ohio Insurance demonstrate that Mr.

Liette concealed and misrepresented the underlying facts regarding this claim and subsequent

lawsuit. During Mr. Liette’s first examination under oath, he asserted that his suit with United

Ohio Insurance was unsuccessful because the insurance company would not cover damage

resulting from faulty workmanship. Mr. Liette never disclosed that in reality United Ohio

Insurance had sued him and ALI for making a fraudulent insurance claim. The court in United

Ohio Insurance’s suit entered a default judgment, finding that ALI and Mr. Liette “intentionally

misrepresented material facts” related to the insurance claim and submitted a fraudulent claim.

While ALI argues that Mr. Liette’s supposed lack of recollection regarding “the specifics about

the prior claims does not rise to the level of trying to deceive Allstate,” Mr. Liette’s alleged lack



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No. 19-3317, Am. Land Investment Ltd. v. Allstate Ins. Co., et al.


of knowledge about the earlier proceeding is not believable. Mr. Liette is the sole member of ALI

and was specifically named in the suit. Further, Mr. Liette admitted during his second examination

under oath as part of Allstate’s investigation that he had either sat for an examination under oath

or a deposition in United Ohio Insurance’s suit. His statements that he believed he had been the

one to file suit against United Ohio Insurance and had no knowledge of United Ohio Insurance’s

allegations against him in that suit are not believable. This is one of the rare instances in which

testimony should be rejected without a trial at the summary judgment stage because no reasonable

person would believe it. See Hanson v. Madison Cty. Det. Ctr., 736 F. App’x 521, 537 (6th Cir.

2018) (citing Seshadri v. Kasraian, 130 F.3d 798, 802 (7th Cir. 1997)). Accordingly, the evidence

establishes that Mr. Liette concealed and misrepresented the true nature of the 2011 claim and

United Ohio Insurance’s lawsuit.

       This misrepresentation was material. “A misrepresentation will be considered material if

a reasonable insurance company, in determining its course of action, would attach importance to

the fact misrepresented.” Rose v. State Farm Fire & Cas. Co., 766 F.3d 532, 537 (6th Cir. 2014)

(citation omitted). Ohio courts have further elaborated that “false answers are material if they

might have affected the attitude and action of [the] insurer, and they are equally material if they

may be said to have been calculated either to discourage, mislead, or deflect the company’s

investigation in any area that might seem to the company, at that time, a relevant or productive

area to investigate.” Nationwide Mut. Ins. Co. v. Skeens, No. 07-CA-29, 2008-Ohio-1875, 2008

WL 1759101, at *2, ¶ 10 (Ohio Ct. App. Apr. 18, 2008) (citation omitted). A reasonable insurance

company would certainly take a great interest in the fact that an insured individual was previously

sued for making a fraudulent insurance claim and found by a court to have intentionally

misrepresented material facts related to an insurance claim and submitted a fraudulent claim. This



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No. 19-3317, Am. Land Investment Ltd. v. Allstate Ins. Co., et al.


would especially be true if the current insurance claim was for the same property and similar

damage involved in the previous fraudulent insurance claim, as was the case here. Accordingly,

Mr. Liette’s misrepresentation was calculated to mislead Allstate’s investigation by attempting to

hide the underlying facts regarding his 2011 claim and the results of the subsequent lawsuit by

United Ohio Insurance, which were relevant matters for Allstate to investigate. See id. at ¶ 10.

        There is no merit to ALI’s contention in its brief that any misrepresentation by Mr. Liette

was not material to the investigation because Allstate discovered the truth.2 Materiality is judged

at the time of the misrepresentation—not at a later time or at the time of trial. Id. at ¶ 10–11.

Therefore, it is irrelevant to the question of whether a misrepresentation is material that an

insurance company later discovered the truth during its investigation.

        Further, ALI’s comparison of Mr. Liette’s testimony regarding the 2011 insurance claim

to Boyer v. Allstate Indem. Co., 127 F. Supp. 3d 802 (N.D. Ohio 2015), is unpersuasive. In Boyer,

a fire destroyed a family’s home. Id. at 803–04. In the course of investigating the cause of the

fire and whether a member of the family intentionally caused the fire, the wife was asked about

the status of her marriage. Id. at 805. Contrary to the wife’s testimony that her marriage was fine

and that she had never consulted with anyone about getting a divorce, the insurance company

discovered that the wife was divorcing her husband and had requested a restraining order against

him. Id. But the court did not find the wife’s answers amounted as a matter of law to material

misrepresentations because the wife also explained that she stayed with her husband after the fire,

moving with him to his mother’s home, and that she was working on her marriage before the fire.

Id. at 809. The court appeared to view these statements as possibly ameliorating how misleading



2
 ALI appeared to concede during oral argument that claims history is material, and counsel stated that he was “not
pushing” an argument regarding the materiality of this issue. The argument was however clearly articulated in ALI’s
brief.

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No. 19-3317, Am. Land Investment Ltd. v. Allstate Ins. Co., et al.


the wife’s other testimony was. The court accordingly concluded that the issue of whether the

wife’s statements amounted to material misrepresentations was an issue best left for the trier of

fact because reasonable minds could differ. Id.

       Contrary to ALI’s assertion, Boyer is unquestionably not “exactly the same factual

scenario” as this case. Here, Mr. Liette did not provide any statements that could be construed as

mitigating his misrepresentations about the 2011 insurance claim and the results of the subsequent

lawsuit by United Ohio Insurance. His sole excuse for these misleading statements is that he could

not recall the specifics about the prior claim, but, as discussed above, no reasonable person would

find this believable. Also, ALI’s argument that the fact the insurance companies here and in Boyer

both ultimately discovered the truth means that the misrepresentations were immaterial to the

investigations is contrary to the law on material misrepresentations as explained above. Thus, this

case bears little resemblance to Boyer.

       The district court was correct to conclude that Mr. Liette’s misrepresentation on this topic

was material as a matter of law and to grant summary judgment in favor of Allstate on the breach

of contract claim on this ground. Because this material misrepresentation is sufficient to grant

summary judgment to Allstate, we do not need to discuss the other two alleged material

misrepresentations.

       For the reasons stated above, we affirm the judgment of the district court.




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