              Case: 12-15226    Date Filed: 02/15/2013        Page: 1 of 3

                                                                   [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT

                          ________________________

                                 No. 12-15226
                            Non-Argument Calendar
                          ________________________

                      D.C. Docket No. 4:09-cv-01338-VEH

DENNIS QUARLES,
LUANNE QUARLES,
                                llllllllllllllllllllllllllllllllllllllllPlaintiffs - Appellants,

                                       versus

NATIONWIDE PROPERTY & CASUALTY INSURANCE COMPANY,
a Corporation,
                    llllllllllllllllllllllllllllllllllllllllDdDefendant – Appellee,

FRANK AMOS, et al.,

                                                                                Defendants.

                          ________________________

                   Appeal from the United States District Court
                      for the Northern District of Alabama
                          ________________________

                               (February 15, 2013)

Before BARKETT, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM:
                Case: 12-15226        Date Filed: 02/15/2013       Page: 2 of 3

       Dennis and Luanne Quarles appeal from an adverse summary judgment in

favor Nationwide Property & Casualty Company (“Nationwide”).

       The Quarleses, Alabama residents, were insured under an insurance policy

issued by Nationwide, an Ohio corporation. The Quarleses filed a claim with

Nationwide for a fire that occurred at the Quarleses’ home. Following

Nationwide’s investigation, the claim was denied based upon the insurance

policy’s exclusions regarding arson and misrepresentation. The Quarleses filed an

action against Nationwide in the Circuit Court of Etowah County, Alabama,

alleging state law claims for breach of contract, fraud/suppression, bad faith and

negligence. Following removal to the United States District Court for the Northern

District of Alabama. Nationwide filed an Answer, asserting, inter alia, the

affirmative defense of arson.1 Nationwide filed a motion for summary judgment

along with supporting evidence. Nationwide’s motion for summary judgment was

unopposed because the Quarleses failed to file a timely responsive pleading.2 The

district court granted summary judgment in favor of Nationwide and dismissed the


       1
          Alabama recognizes a statutory affirmative defense that prevents an insured who
commits arson from recovering insurance benefits. To establish this affirmative defense for the
purpose of denying coverage under the policy, Nationwide must show “(1) the fire was
intentionally set; (2) [the Quarleses] had a motive for committing the alleged arson; and (3) [the
Quarleses] either set the fire or had it set, which may be proved by unexplained surrounding
circumstantial evidence implicating [the Quarleses].” Shadwrick v. State Farm Fire & Cas. Co.,
578 So.2d 1075, 1077 (Ala. 1991).
        2
          The Quarleses did file an untimely opposition to the motion for summary judgment,
accompanied by a motion seeking permission to do so. Nationwide filed a motion to strike the
response as untimely, which was granted.
                                                 2
              Case: 12-15226     Date Filed: 02/15/2013    Page: 3 of 3

case with prejudice. We review a district court’s grant of summary judgment de

novo. Shannon v. Jack Eckerd Corp., 113 F.3d 208, 210 (11th Cir. 1997).

      Pursuant to Federal Rule of Civil Procedure 56, “[t]he court shall grant

summary judgment if the movant shows that there is no genuine dispute as to any

material facts, and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56. Nationwide’s motion for summary judgment presented evidence in the

form of a Nationwide claims adjuster affidavit, Nationwide claim file or log notes,

bank records, the insurance policy, the Quarleses’ sworn proof of loss and tax

returns, an affidavit of the Nationwide fire investigator, along with the cause and

origin investigation report, a reservation of rights letter from Nationwide to the

Quarleses, and portions of an examination under oath of the insured, Dennis

Quarles. On appeal, the Quarleses only argue that the record before the district

court contained evidence which would support justifiable inferences that present

genuine issues of material fact. However, the undisputed evidence before the court

was sufficient to establish the affirmative defense of arson and support a summary

judgment in favor of Nationwide.

      AFFIRMED.




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