Preview
1 PETER SCHWARTZ (SBN: 109859)
pschwartz@grsm.com
2 CHRISTOPHER R. WAGNER (SBN: 162092)
cwagner@grsm.com
3 STEVEN R. INOUYE (SBN: 245024)
sinouye@grsm.com
4 GORDON REES SCULLY MANSUKHANI, LLP
633 West Fifth Street, 52nd Floor
5 Los Angeles, CA 90071
Telephone: (213) 576-5019
6 Facsimile: (213) 680-4470
7 Attorneys for Defendant,
FIRE INSURANCE EXCHANGE
8
9 SUPERIOR COURT OF CALIFORNIA
10 COUNTY OF SONOMA – HALL OF JUSTICE
11 GARY KOOP, ) CASE NO. SCV-266944
Gordon Rees Scully Mansukhani, LLP
) [Assigned for All Purposes to Hon. Oscar A.
633 West Fifth Street, 52nd Floor
12 Plaintiff, ) Pardo, Dept. 19]
Los Angeles, CA 90071
)
13 vs. ) DEFENDANT FIRE INSURANCE
) EXCHANGE’S SEPARATE
14 FIRE INSURANCE EXCHANGE, dba STATEMENT OF DISPUTED
)
FARMERS INSURANCE GROUP; MATERIAL FACTS IN OPPOSITION
15 BRIAN HUNSAKER, ) TO PLAINTIFF GARY KOOP’S
) MOTION FOR SUMMARY
16 Defendants. ) JUDGMENT
)
17 )
)
18 ) Complaint filed: August 24, 2020
) Trial Date: November 8, 2023
19
20
21 Defendant Fire Insurance Exchange (“Fire”) hereby submits its Separate Statement of
22 Disputed Material Facts in support its Opposition to Plaintiff Gary Koop’s (“Plaintiff”) Motion
23 for Summary Judgment of Causes of Action for Breach of Contract, Reformation, Fraud,
24 Misrepresentation and Negligence.
25 ///
26 ///
27 ///
28 ///
-1-
DEFENDANT FIRE INS. EXCHANGE’S SEPARATE STATEMENT OF DISPUTED MATERIAL
FACTS IN OPPOSITION TO PLAINTIFF GARY KOOP’S MOTION FOR SUMMARY JUDGMENT
1 SEPARATE STATEMENT OF MATERIAL FACTS
2 Issue 1: Plaintiff is not entitled to summary judgment on his first cause of action for breach of
3 contract.
4 Plaintiff’s Facts and Defendant Fire’s Response and
5 Supporting Evidence Supporting Evidence
6 1. Plaintiff, Gary Koop, bought a custom- Disputed.
built, 5 bedroom, 3.5 bath, 2,967 sq. foot home
7 at 2650 Amber Lane, Santa Rosa, California Objection. Lacks foundation. Lacks evidentiary
(“the Property”) in the Reibli-Wallace support.
8 neighborhood in 2006, paying over $1 million
for the home. Fire does not dispute that Plaintiff, Gary Koop,
9 (“Plaintiff”) bought a 5 bedroom, 3.5 bath,
10 Supporting Evidence: 2,967 sq. foot home at 2650 Amber Lane,
Declaration (“Decl.”) of Gary Koop (“Koop Santa Rosa, California (“the Property”) in the
11 Decl.”), ¶¶ 2-3. Reibli-Wallace neighborhood in 2006, paying
Gordon Rees Scully Mansukhani, LLP
over $1 million for the home.
633 West Fifth Street, 52nd Floor
12
Fire disputes that the Property was “custom-
Los Angeles, CA 90071
13 built.” While the Property may have had
certain custom features, Plaintiff has not
14 submitted evidence that the overall floorplan,
design, style or shape of the home was unique
15
from other homes in the area. Furthermore, the
16 uniqueness of any architectural design
(compared to other designs) is ultimately a
17 factual issue subject to determination by the
jury.
18
19 Price’s claim log notes dated September 24,
2019 state:
20
21 “Agent [Brian Hunsaker (“Hunsaker”)] said
this home is a nice quality home, its not a high-
22 end custom home in the area like customer
seems to think.”
23
(Tucker Decl., Ex. 32. [FIRE-CLAIMS 0272-
24 0273].)
25
Farmers’ Bulletin dated September 15, 2014
26 provides the following guidelines to assist
insurance agents in evaluating whether or not a
27 home should be considered “custom” as
follows:
28
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DEFENDANT FIRE INS. EXCHANGE’S SEPARATE STATEMENT OF DISPUTED MATERIAL
FACTS IN OPPOSITION TO PLAINTIFF GARY KOOP’S MOTION FOR SUMMARY JUDGMENT
1 “Custom homes are distinguished by style and
shape more than by finishes, and may contain
2 Above Average or Premium quality finishes.
Custom homes by definition are custom
3
designed for the homeowner by a professional
4 architect. These homes can be recognized by
the unique style and/or shape which vary from
5 the other homes in the area. They are typically
quite large (square footage of living area in
6 excess of 3,500 feet). The following
guidelines can help you decide which quality
7 grade to select if the home has both Above
Average and Premium quality finishes.
8
9 If the home has Above Average quality
features as described in the table below,
10 but the overall floor plan and style are
typical to the area and not custom in
11 nature, select the “Above Average”
Gordon Rees Scully Mansukhani, LLP
overall quality.
633 West Fifth Street, 52nd Floor
12 If the home has Above Average quality
Los Angeles, CA 90071
13 features as described in the table below,
but the overall floor plan and style are
14 more custom in nature, select the
“Custom” overall quality.
15 If the home has Premium grade features
as described in the table below, select
16 the “Premium” overall quality, since
this also accounts for the unique style
17
and shapes found in custom homes.”
18
(Declaration of Plaintiff’s counsel Stacy
19 Tucker filed in support of Plaintiff’s motion for
summary judgment (“Tucker Decl.”), Ex. 14.)
20
21 2. As originally built, the redwood home Undisputed.
included redwood steps leading up to large
22
double front doors. The house included oak
23 floors, stained glass windows, built-in etched
glass cabinetry, a marble fireplace, and floor-
24 to-ceiling built in bookshelves. The home was
a PG&E Award-Winning Passive Solar Home.
25
26 Supporting Evidence:
Koop Decl., ¶¶ 2-4; Bunger Decl., ¶¶ 2-4, 7-8,
27
12, 14, 18.
28 3. Plaintiff’s home had vaulted ceilings, Undisputed.
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DEFENDANT FIRE INS. EXCHANGE’S SEPARATE STATEMENT OF DISPUTED MATERIAL
FACTS IN OPPOSITION TO PLAINTIFF GARY KOOP’S MOTION FOR SUMMARY JUDGMENT
1 interior French doors, a custom-made redwood
spiral staircase with abalone inlays, crown
2 molding in every room and chair rail in the
majority of the rooms, three marble baths, a
3
wet bar, and a crystal chandelier. In 2004, the
4 family that built the Property installed a
marble top breakfast bar, granite countertops,
5 and Miele appliances in preparation for sale.
6 Supporting Evidence:
Tucker Decl., Exs. 2-4; Bunger Decl., ¶¶ 5-6,
7 10-11, 16.
8
4. The Property also included a redwood barn Undisputed.
9 designed to match the house, with an included
pump room for the 240 foot well. There was a
10 separate redwood garage, a basketball court,
and a baseball pitching machine field.
11
Gordon Rees Scully Mansukhani, LLP
Supporting Evidence:
633 West Fifth Street, 52nd Floor
12 Bunger Decl., ¶17.
Los Angeles, CA 90071
13
5. On April 7, 2006, the Bungers sold the Undisputed.
14 Property to Mark Picano for $1,055.00.
15 Supporting Evidence:
Bunger Decl., ¶ 24.
16
6. On September 7, 2006, Mr. Picano sold the Undisputed.
17 Property to Mr. Koop.
18
Supporting Evidence:
19 Koop Decl., ¶ 2.
20 7. Mr. Koop used Hunsaker as his insurance Disputed.
agent, as Hunsaker had insured the house for
21 Mr. Picano and held himself out as an Objection. Misstates testimony. Vague as to
authority on the Property, telling Mr. Koop the term “authority on the Property.”
22 that he had visited the Property in the past and
knew the interior. Plaintiff’s declaration does not state that
23
Hunsaker held himself out as an “authority” on
24 Supporting Evidence: the Property.
Koop Decl., ¶ 5.
25 Plaintiff’s declaration specifically states:
26 “I selected Brian Hunsaker as my insurance
agent because he was currently insuring the
27 home. He informed me that he had all the
information about the home already, and did
28
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DEFENDANT FIRE INS. EXCHANGE’S SEPARATE STATEMENT OF DISPUTED MATERIAL
FACTS IN OPPOSITION TO PLAINTIFF GARY KOOP’S MOTION FOR SUMMARY JUDGMENT
1 not interview me about specific details of the
home.”
2
(Declaration of Plaintiff Gary Koop submitted
3
in support of Plaintiff’s motion for summary
4 judgment (“Koop Decl.”), ¶ 5.)
5 8. Hunsaker lied to Mr. Koop. He had never Disputed.
seen the inside of the Property.
6 Objection. Misstates testimony and evidence.
Supporting Evidence: Vague as to the phrase “seen the inside.”
7 Tucker Decl., Ex. 24 (Deposition (“Dep.”) of
Brian Hunsaker (“Hunsaker Dep.”)) at 20:24- Plaintiff has not submitted any evidence that
8
25, 21:1, 57:25, 58:1-9. Hunsaker ever lied to Plaintiff or specifically
9 stated that he had “seen the inside” of the
Property.
10
Plaintiff’s declaration states:
11
Gordon Rees Scully Mansukhani, LLP
“I selected Brian Hunsaker as my insurance
633 West Fifth Street, 52nd Floor
12 agent because he was currently insuring the
Los Angeles, CA 90071
home. He informed me that he had all the
13
information about the home already, and did
14 not interview me about specific details of the
home.”
15
(Koop Decl., ¶ 5.)
16
9. Hunsaker did not visit the home before Disputed.
17 insuring it for Plaintiff. He simply pulled into
the driveway once to have him sign forms after Objection. Misstates testimony.
18 preparing the insurance application.
19 Hunsaker testified that he “drove by to take a
Supporting Evidence:
Koop Decl., ¶5; Tucker Decl, Ex. 24, photo”, that he performed a “visual exterior
20 Hunsaker Dep. at 55:16:25, 56:1-16. inspection” and that he “visually looked at the
home.”
21
(Tucker Decl., Ex. 24, Hunsaker Dep. at 55:24;
22 56:8-9, 15-16.)
23
10. Hunsaker also did not visit the house Disputed.
24 when he insured it originally for Mr. Picano,
stating that he may have “driven by it” to Objection. Misstates testimony. Vague as to
25 “inspect” it. the term “visit”.
26 Supporting Evidence: Hunsaker testified that “I drove to the
Tucker Decl., Ex. 24 (Hunsaker Dep.) at property”, but “I do not recall” getting out of
27 57:25, 58:1-9. the car.
28
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DEFENDANT FIRE INS. EXCHANGE’S SEPARATE STATEMENT OF DISPUTED MATERIAL
FACTS IN OPPOSITION TO PLAINTIFF GARY KOOP’S MOTION FOR SUMMARY JUDGMENT
1 (Tucker Decl., Ex. 24, Hunsaker Dep. at 57:25,
58:1-9.)
2
11. Claiming to be an expert on the specifics Disputed.
3
of the Property, Hunsaker wrote a low-end
4 Protector Plus insurance policy to Plaintiff on Objection. Misstates evidence. Vague as to
September 5, 2006, setting Coverage A limits “expert on the specifics” and “low-end.”
5 of $478,000.
No evidence was submitted to support this
6 Supporting Evidence: statement.
See RJN, Ex. H, Declaration of J. Jones
7 (“Jones Decl.”), Ex. 10. There is no evidence that Hunsaker ever
claimed to be an “expert on the specifics” of
8
the Property or that he wrote a “low-end”
9 policy. In addition, Exhibit 10 cited by
Plaintiff is actually a “Next Generation
10 Homeowners Policy” (not a Protectors Plus)
which was in effect from September 5, 2017 to
11 September 5, 2018 and had a policy limit of
Gordon Rees Scully Mansukhani, LLP
$649,000.
633 West Fifth Street, 52nd Floor
12
Los Angeles, CA 90071
Fire does not dispute that, in September 2006,
13
Plaintiff applied for and received a “Protector
14 Plus” insurance policy from Fire. However,
Plaintiff’s Coverage A limits were actually set
15 at $495,000 (not $478,000).
16 (Tucker Decl., Ex. 50 [FIRE-POLICY 0056].)
17 12. Farmers written underwriting guidelines Disputed.
require that every insured home be inspected:
18
Objection. Misstates evidence. Vague as to the
19 “Prior to binding any property risk, the term “underwriting guidelines.”
agent must ensure that the entire residence
20 premises complies with the Acceptable No evidence was submitted to support this
Maintenance & Condition Expectations statement.
21 including the interior, exterior, and all
appurtenant structures. This will assure the Exhibit 42 cited by Plaintiff is not a Farmers’
22 insurability, desirability, valuation, and the underwriting guideline. It is a Findings Report
proper classification of the risk to be insured. Agreement regarding a septic system.
23 This requirement exists regardless of any
24 company-initiated inspection.” (Tucker Decl., Ex. 42 [FIRE 1027].)
25 Supporting Evidence:
Decl. of Tucker, Ex. 42 at FIRE 1027.
26
13. To ensure that customers complied with Disputed.
27 this requirement, agents were instructed to
offer a discount for agreeing to an interior Objection. Misstates evidence.
28
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DEFENDANT FIRE INS. EXCHANGE’S SEPARATE STATEMENT OF DISPUTED MATERIAL
FACTS IN OPPOSITION TO PLAINTIFF GARY KOOP’S MOTION FOR SUMMARY JUDGMENT
1 inspection.
Jared Schmitz (“Schmitz”) never testified that
2 Supporting Evidence: Farmers® insurance agents were instructed to
Tucker Decl., Exhibit 43, Schmitz Dep. at offer a discount for agreeing to an interior
3
50:25, 51: 1-25; 52: 1-16. inspection.
4
Schmitz testified “I don’t believe [agents are]
5 required to [inspect properties] today.”
Schmitz also testified that “I don’t know if
6 they were necessarily required to [offer a
discount] or how any of that worked – on their
7 end.”
8
(Tucker Decl., Exhibit 43, Schmitz Dep. at
9 50:25; 51: 1-3; 52:3-9.)
10 14. Hunsaker never asked Koop if he could Disputed.
inspect the interior of the Property, and never
11 informed him of a discount related to interior Objection. Misstates testimony.
Gordon Rees Scully Mansukhani, LLP
inspection.
633 West Fifth Street, 52nd Floor
12 No evidence was submitted in support of this
Los Angeles, CA 90071
Supporting Evidence: statement.
13
Koop Decl., ¶ 5.
14 Plaintiff’s declaration does not claim that
Hunsaker never “asked” Plaintiff to inspect the
15 interior of the home or that Hunsaker never
“informed” Plaintiff of any discount.
16
Plaintiff’s declaration states:
17
“I selected Brian Hunsaker as my insurance
18 agent because he was currently insuring the
19 home. He informed me that he had all the
information about the home already, and did
20 not interview me about specific details of the
home.”
21
(Koop Decl., ¶ 5.)
22
15. When the Policy was written in 2006, Disputed.
23 Farmers also required that a third-party
24 inspection company visit the Property and Objection. Misstates testimony.
inspect it for underwriting.
25 In his deposition, Schmitz broadly testified that
Supporting Evidence: “Farmers require[s] inspections” to occur.
26 Tucker Decl., Ex. 43, Schmitz Dep. at 50:2-24.
Fire does not dispute that it often requires third
27 party inspection companies to visit homes and
conduct an exterior inspection for underwriting
28
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DEFENDANT FIRE INS. EXCHANGE’S SEPARATE STATEMENT OF DISPUTED MATERIAL
FACTS IN OPPOSITION TO PLAINTIFF GARY KOOP’S MOTION FOR SUMMARY JUDGMENT
1 purposes.
2 Fire disputes that it was required to hire an
inspection company to visit the Property in
3
2006 in order to conduct an interior inspection.
4
(Tucker Decl., Ex. 43, Schmitz Dep. at 50:2-
5 24.)
6 16. Farmers never sent anyone to inspect the Disputed.
property.
7 Objection. Misstates testimony.
Supporting Evidence:
8
Koop Decl., ¶ 5. Hunsaker testified that he “drove by to take a
9 photo”, that he performed a “visual exterior
inspection” and that he “visually looked at the
10 home.”
11 (Tucker Decl., Ex. 24, Hunsaker Dep. at 55:24;
Gordon Rees Scully Mansukhani, LLP
56:8-9, 15-16.)
633 West Fifth Street, 52nd Floor
12
Los Angeles, CA 90071
Plaintiff’s declaration does not state that
13
Farmers never sent anyone to inspect the
14 property. Instead, Plaintiff’s declaration states:
15 “Mr. Hunsaker simply brought me the
application to sign. He pulled into the
16 driveway, I signed it in the driveway on
September 14, 2006. He did not enter the
17 home.”
18 (Koop Decl., ¶ 5.)
19
17. Farmers used Residential Component Undisputed.
20 Technology, or “RCT,” as a software program
to prepare replacement estimates for homes in
21 2006.
22 Supporting Evidence:
Tucker Decl., Ex. 7.
23
24 18. Farmers began using 360Value in June Undisputed.
2007 for its high value homes only.
25
Supporting Evidence:
26 Tucker Decl., Ex. 7.
27 19. On June 8, 2011, Farmers announced that Undisputed.
it would transition to using 360Value for every
28
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DEFENDANT FIRE INS. EXCHANGE’S SEPARATE STATEMENT OF DISPUTED MATERIAL
FACTS IN OPPOSITION TO PLAINTIFF GARY KOOP’S MOTION FOR SUMMARY JUDGMENT
1 home, not just high value homes.
2 Supporting Evidence:
Tucker Decl., Ex. 8.
3
4 20. In the 360Value program, the software Disputed.
pre-populates most choices based on the
5 information provided by the insured. The Objection. Misstates evidence. Vague as to the
agent has significant flexibility to change those phrase “most choices.” Relevance.
6 prepopulated fields if he chooses, and
360Value encourages its users to do so in its Plaintiff has not submitted evidence to support
7 training materials. this statement.
8
Supporting Evidence: The Farmers’ Bulletin dated June 3, 2008 cited
9 Tucker Decl., Ex. 7. by Plaintiff in Exhibit 7 only concerns “High
value Homes”. Furthermore, it merely states:
10
“Navigate to the 360Value Web site, review
11 the valuation and contact the customer. Then
Gordon Rees Scully Mansukhani, LLP
make all necessary changes directed by the
633 West Fifth Street, 52nd Floor
12 customer to reflect the accurate characteristics
Los Angeles, CA 90071
of the home.”
13
14 (Tucker Decl., Ex. 7.)
15 Fire does not dispute that the 360Value
program pre-populates certain fields based
16 upon information provided by its insureds.
Fire also does not dispute that agents and
17 insureds have the ability to change pre-
populated fields if they so choose. In addition,
18 Fire does not dispute that it encourages agents
19 and insureds to make changes and corrections
in order to accurately reflect the features which
20 exist at the properties.
21
21. The 360Value software calculates the cost Disputed.
22 of rebuilding differently depending on the
style and grade of house assigned in the Objection. Misstates evidence.
23 system. The grade choices are “standard,”
24 defined as “typical of standard tract-style The function of the 360Value software is much
houses built in recent decades;” “above more complicated than Plaintiff’s statement. It
25 average,” defined on the Farmers’ website as calculates the reconstruction cost value of a
“upgraded tract style houses built in recent home based upon numerous different factors,
26 decades;” “custom,” defined as “upgraded not only the “style” and “grade” of the house.
tract-style houses with additional custom
27 features;” and “premium,” “custom-built The Farmers’ Bulletin dated September 15,
houses with plenty of premium features.” 2014 provides guidance on how to use the
28
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DEFENDANT FIRE INS. EXCHANGE’S SEPARATE STATEMENT OF DISPUTED MATERIAL
FACTS IN OPPOSITION TO PLAINTIFF GARY KOOP’S MOTION FOR SUMMARY JUDGMENT
1 360Value program as follows:
Supporting Evidence:
2 Tucker Decl., Ex. 14. “360Value displays a default Quality Grade
based on dwelling information the customer
3
provides and pre-filled data that the customer
4 confirmed. If the customer believes the default
Quality Grade is not accurate, you can use the
5 Quality Wizard to help determine the
appropriate Quality Grade. …
6
The Quality Wizard has specific questions
7 about building details and u
Preview
1 PETER SCHWARTZ (SBN: 109859) pschwartz@grsm.com 2 CHRISTOPHER R. WAGNER (SBN: 162092) cwagner@grsm.com 3 STEVEN R. INOUYE (SBN: 245024) sinouye@grsm.com 4 GORDON REES SCULLY MANSUKHANI, LLP 633 West Fifth Street, 52nd Floor 5 Los Angeles, CA 90071 Telephone: (213) 576-5019 6 Facsimile: (213) 680-4470 7 Attorneys for Defendant, FIRE INSURANCE EXCHANGE 8 9 SUPERIOR COURT OF CALIFORNIA 10 COUNTY OF SONOMA – HALL OF JUSTICE 11 GARY KOOP, ) CASE NO. SCV-266944 Gordon Rees Scully Mansukhani, LLP ) [Assigned for All Purposes to Hon. Oscar A. 633 West Fifth Street, 52nd Floor 12 Plaintiff, ) Pardo, Dept. 19] Los Angeles, CA 90071 ) 13 vs. ) DEFENDANT FIRE INSURANCE ) EXCHANGE’S SEPARATE 14 FIRE INSURANCE EXCHANGE, dba STATEMENT OF DISPUTED ) FARMERS INSURANCE GROUP; MATERIAL FACTS IN OPPOSITION 15 BRIAN HUNSAKER, ) TO PLAINTIFF GARY KOOP’S ) MOTION FOR SUMMARY 16 Defendants. ) JUDGMENT ) 17 ) ) 18 ) Complaint filed: August 24, 2020 ) Trial Date: November 8, 2023 19 20 21 Defendant Fire Insurance Exchange (“Fire”) hereby submits its Separate Statement of 22 Disputed Material Facts in support its Opposition to Plaintiff Gary Koop’s (“Plaintiff”) Motion 23 for Summary Judgment of Causes of Action for Breach of Contract, Reformation, Fraud, 24 Misrepresentation and Negligence. 25 /// 26 /// 27 /// 28 /// -1- DEFENDANT FIRE INS. EXCHANGE’S SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS IN OPPOSITION TO PLAINTIFF GARY KOOP’S MOTION FOR SUMMARY JUDGMENT 1 SEPARATE STATEMENT OF MATERIAL FACTS 2 Issue 1: Plaintiff is not entitled to summary judgment on his first cause of action for breach of 3 contract. 4 Plaintiff’s Facts and Defendant Fire’s Response and 5 Supporting Evidence Supporting Evidence 6 1. Plaintiff, Gary Koop, bought a custom- Disputed. built, 5 bedroom, 3.5 bath, 2,967 sq. foot home 7 at 2650 Amber Lane, Santa Rosa, California Objection. Lacks foundation. Lacks evidentiary (“the Property”) in the Reibli-Wallace support. 8 neighborhood in 2006, paying over $1 million for the home. Fire does not dispute that Plaintiff, Gary Koop, 9 (“Plaintiff”) bought a 5 bedroom, 3.5 bath, 10 Supporting Evidence: 2,967 sq. foot home at 2650 Amber Lane, Declaration (“Decl.”) of Gary Koop (“Koop Santa Rosa, California (“the Property”) in the 11 Decl.”), ¶¶ 2-3. Reibli-Wallace neighborhood in 2006, paying Gordon Rees Scully Mansukhani, LLP over $1 million for the home. 633 West Fifth Street, 52nd Floor 12 Fire disputes that the Property was “custom- Los Angeles, CA 90071 13 built.” While the Property may have had certain custom features, Plaintiff has not 14 submitted evidence that the overall floorplan, design, style or shape of the home was unique 15 from other homes in the area. Furthermore, the 16 uniqueness of any architectural design (compared to other designs) is ultimately a 17 factual issue subject to determination by the jury. 18 19 Price’s claim log notes dated September 24, 2019 state: 20 21 “Agent [Brian Hunsaker (“Hunsaker”)] said this home is a nice quality home, its not a high- 22 end custom home in the area like customer seems to think.” 23 (Tucker Decl., Ex. 32. [FIRE-CLAIMS 0272- 24 0273].) 25 Farmers’ Bulletin dated September 15, 2014 26 provides the following guidelines to assist insurance agents in evaluating whether or not a 27 home should be considered “custom” as follows: 28 -2- DEFENDANT FIRE INS. EXCHANGE’S SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS IN OPPOSITION TO PLAINTIFF GARY KOOP’S MOTION FOR SUMMARY JUDGMENT 1 “Custom homes are distinguished by style and shape more than by finishes, and may contain 2 Above Average or Premium quality finishes. Custom homes by definition are custom 3 designed for the homeowner by a professional 4 architect. These homes can be recognized by the unique style and/or shape which vary from 5 the other homes in the area. They are typically quite large (square footage of living area in 6 excess of 3,500 feet). The following guidelines can help you decide which quality 7 grade to select if the home has both Above Average and Premium quality finishes. 8 9 If the home has Above Average quality features as described in the table below, 10 but the overall floor plan and style are typical to the area and not custom in 11 nature, select the “Above Average” Gordon Rees Scully Mansukhani, LLP overall quality. 633 West Fifth Street, 52nd Floor 12 If the home has Above Average quality Los Angeles, CA 90071 13 features as described in the table below, but the overall floor plan and style are 14 more custom in nature, select the “Custom” overall quality. 15 If the home has Premium grade features as described in the table below, select 16 the “Premium” overall quality, since this also accounts for the unique style 17 and shapes found in custom homes.” 18 (Declaration of Plaintiff’s counsel Stacy 19 Tucker filed in support of Plaintiff’s motion for summary judgment (“Tucker Decl.”), Ex. 14.) 20 21 2. As originally built, the redwood home Undisputed. included redwood steps leading up to large 22 double front doors. The house included oak 23 floors, stained glass windows, built-in etched glass cabinetry, a marble fireplace, and floor- 24 to-ceiling built in bookshelves. The home was a PG&E Award-Winning Passive Solar Home. 25 26 Supporting Evidence: Koop Decl., ¶¶ 2-4; Bunger Decl., ¶¶ 2-4, 7-8, 27 12, 14, 18. 28 3. Plaintiff’s home had vaulted ceilings, Undisputed. -3- DEFENDANT FIRE INS. EXCHANGE’S SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS IN OPPOSITION TO PLAINTIFF GARY KOOP’S MOTION FOR SUMMARY JUDGMENT 1 interior French doors, a custom-made redwood spiral staircase with abalone inlays, crown 2 molding in every room and chair rail in the majority of the rooms, three marble baths, a 3 wet bar, and a crystal chandelier. In 2004, the 4 family that built the Property installed a marble top breakfast bar, granite countertops, 5 and Miele appliances in preparation for sale. 6 Supporting Evidence: Tucker Decl., Exs. 2-4; Bunger Decl., ¶¶ 5-6, 7 10-11, 16. 8 4. The Property also included a redwood barn Undisputed. 9 designed to match the house, with an included pump room for the 240 foot well. There was a 10 separate redwood garage, a basketball court, and a baseball pitching machine field. 11 Gordon Rees Scully Mansukhani, LLP Supporting Evidence: 633 West Fifth Street, 52nd Floor 12 Bunger Decl., ¶17. Los Angeles, CA 90071 13 5. On April 7, 2006, the Bungers sold the Undisputed. 14 Property to Mark Picano for $1,055.00. 15 Supporting Evidence: Bunger Decl., ¶ 24. 16 6. On September 7, 2006, Mr. Picano sold the Undisputed. 17 Property to Mr. Koop. 18 Supporting Evidence: 19 Koop Decl., ¶ 2. 20 7. Mr. Koop used Hunsaker as his insurance Disputed. agent, as Hunsaker had insured the house for 21 Mr. Picano and held himself out as an Objection. Misstates testimony. Vague as to authority on the Property, telling Mr. Koop the term “authority on the Property.” 22 that he had visited the Property in the past and knew the interior. Plaintiff’s declaration does not state that 23 Hunsaker held himself out as an “authority” on 24 Supporting Evidence: the Property. Koop Decl., ¶ 5. 25 Plaintiff’s declaration specifically states: 26 “I selected Brian Hunsaker as my insurance agent because he was currently insuring the 27 home. He informed me that he had all the information about the home already, and did 28 -4- DEFENDANT FIRE INS. EXCHANGE’S SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS IN OPPOSITION TO PLAINTIFF GARY KOOP’S MOTION FOR SUMMARY JUDGMENT 1 not interview me about specific details of the home.” 2 (Declaration of Plaintiff Gary Koop submitted 3 in support of Plaintiff’s motion for summary 4 judgment (“Koop Decl.”), ¶ 5.) 5 8. Hunsaker lied to Mr. Koop. He had never Disputed. seen the inside of the Property. 6 Objection. Misstates testimony and evidence. Supporting Evidence: Vague as to the phrase “seen the inside.” 7 Tucker Decl., Ex. 24 (Deposition (“Dep.”) of Brian Hunsaker (“Hunsaker Dep.”)) at 20:24- Plaintiff has not submitted any evidence that 8 25, 21:1, 57:25, 58:1-9. Hunsaker ever lied to Plaintiff or specifically 9 stated that he had “seen the inside” of the Property. 10 Plaintiff’s declaration states: 11 Gordon Rees Scully Mansukhani, LLP “I selected Brian Hunsaker as my insurance 633 West Fifth Street, 52nd Floor 12 agent because he was currently insuring the Los Angeles, CA 90071 home. He informed me that he had all the 13 information about the home already, and did 14 not interview me about specific details of the home.” 15 (Koop Decl., ¶ 5.) 16 9. Hunsaker did not visit the home before Disputed. 17 insuring it for Plaintiff. He simply pulled into the driveway once to have him sign forms after Objection. Misstates testimony. 18 preparing the insurance application. 19 Hunsaker testified that he “drove by to take a Supporting Evidence: Koop Decl., ¶5; Tucker Decl, Ex. 24, photo”, that he performed a “visual exterior 20 Hunsaker Dep. at 55:16:25, 56:1-16. inspection” and that he “visually looked at the home.” 21 (Tucker Decl., Ex. 24, Hunsaker Dep. at 55:24; 22 56:8-9, 15-16.) 23 10. Hunsaker also did not visit the house Disputed. 24 when he insured it originally for Mr. Picano, stating that he may have “driven by it” to Objection. Misstates testimony. Vague as to 25 “inspect” it. the term “visit”. 26 Supporting Evidence: Hunsaker testified that “I drove to the Tucker Decl., Ex. 24 (Hunsaker Dep.) at property”, but “I do not recall” getting out of 27 57:25, 58:1-9. the car. 28 -5- DEFENDANT FIRE INS. EXCHANGE’S SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS IN OPPOSITION TO PLAINTIFF GARY KOOP’S MOTION FOR SUMMARY JUDGMENT 1 (Tucker Decl., Ex. 24, Hunsaker Dep. at 57:25, 58:1-9.) 2 11. Claiming to be an expert on the specifics Disputed. 3 of the Property, Hunsaker wrote a low-end 4 Protector Plus insurance policy to Plaintiff on Objection. Misstates evidence. Vague as to September 5, 2006, setting Coverage A limits “expert on the specifics” and “low-end.” 5 of $478,000. No evidence was submitted to support this 6 Supporting Evidence: statement. See RJN, Ex. H, Declaration of J. Jones 7 (“Jones Decl.”), Ex. 10. There is no evidence that Hunsaker ever claimed to be an “expert on the specifics” of 8 the Property or that he wrote a “low-end” 9 policy. In addition, Exhibit 10 cited by Plaintiff is actually a “Next Generation 10 Homeowners Policy” (not a Protectors Plus) which was in effect from September 5, 2017 to 11 September 5, 2018 and had a policy limit of Gordon Rees Scully Mansukhani, LLP $649,000. 633 West Fifth Street, 52nd Floor 12 Los Angeles, CA 90071 Fire does not dispute that, in September 2006, 13 Plaintiff applied for and received a “Protector 14 Plus” insurance policy from Fire. However, Plaintiff’s Coverage A limits were actually set 15 at $495,000 (not $478,000). 16 (Tucker Decl., Ex. 50 [FIRE-POLICY 0056].) 17 12. Farmers written underwriting guidelines Disputed. require that every insured home be inspected: 18 Objection. Misstates evidence. Vague as to the 19 “Prior to binding any property risk, the term “underwriting guidelines.” agent must ensure that the entire residence 20 premises complies with the Acceptable No evidence was submitted to support this Maintenance & Condition Expectations statement. 21 including the interior, exterior, and all appurtenant structures. This will assure the Exhibit 42 cited by Plaintiff is not a Farmers’ 22 insurability, desirability, valuation, and the underwriting guideline. It is a Findings Report proper classification of the risk to be insured. Agreement regarding a septic system. 23 This requirement exists regardless of any 24 company-initiated inspection.” (Tucker Decl., Ex. 42 [FIRE 1027].) 25 Supporting Evidence: Decl. of Tucker, Ex. 42 at FIRE 1027. 26 13. To ensure that customers complied with Disputed. 27 this requirement, agents were instructed to offer a discount for agreeing to an interior Objection. Misstates evidence. 28 -6- DEFENDANT FIRE INS. EXCHANGE’S SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS IN OPPOSITION TO PLAINTIFF GARY KOOP’S MOTION FOR SUMMARY JUDGMENT 1 inspection. Jared Schmitz (“Schmitz”) never testified that 2 Supporting Evidence: Farmers® insurance agents were instructed to Tucker Decl., Exhibit 43, Schmitz Dep. at offer a discount for agreeing to an interior 3 50:25, 51: 1-25; 52: 1-16. inspection. 4 Schmitz testified “I don’t believe [agents are] 5 required to [inspect properties] today.” Schmitz also testified that “I don’t know if 6 they were necessarily required to [offer a discount] or how any of that worked – on their 7 end.” 8 (Tucker Decl., Exhibit 43, Schmitz Dep. at 9 50:25; 51: 1-3; 52:3-9.) 10 14. Hunsaker never asked Koop if he could Disputed. inspect the interior of the Property, and never 11 informed him of a discount related to interior Objection. Misstates testimony. Gordon Rees Scully Mansukhani, LLP inspection. 633 West Fifth Street, 52nd Floor 12 No evidence was submitted in support of this Los Angeles, CA 90071 Supporting Evidence: statement. 13 Koop Decl., ¶ 5. 14 Plaintiff’s declaration does not claim that Hunsaker never “asked” Plaintiff to inspect the 15 interior of the home or that Hunsaker never “informed” Plaintiff of any discount. 16 Plaintiff’s declaration states: 17 “I selected Brian Hunsaker as my insurance 18 agent because he was currently insuring the 19 home. He informed me that he had all the information about the home already, and did 20 not interview me about specific details of the home.” 21 (Koop Decl., ¶ 5.) 22 15. When the Policy was written in 2006, Disputed. 23 Farmers also required that a third-party 24 inspection company visit the Property and Objection. Misstates testimony. inspect it for underwriting. 25 In his deposition, Schmitz broadly testified that Supporting Evidence: “Farmers require[s] inspections” to occur. 26 Tucker Decl., Ex. 43, Schmitz Dep. at 50:2-24. Fire does not dispute that it often requires third 27 party inspection companies to visit homes and conduct an exterior inspection for underwriting 28 -7- DEFENDANT FIRE INS. EXCHANGE’S SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS IN OPPOSITION TO PLAINTIFF GARY KOOP’S MOTION FOR SUMMARY JUDGMENT 1 purposes. 2 Fire disputes that it was required to hire an inspection company to visit the Property in 3 2006 in order to conduct an interior inspection. 4 (Tucker Decl., Ex. 43, Schmitz Dep. at 50:2- 5 24.) 6 16. Farmers never sent anyone to inspect the Disputed. property. 7 Objection. Misstates testimony. Supporting Evidence: 8 Koop Decl., ¶ 5. Hunsaker testified that he “drove by to take a 9 photo”, that he performed a “visual exterior inspection” and that he “visually looked at the 10 home.” 11 (Tucker Decl., Ex. 24, Hunsaker Dep. at 55:24; Gordon Rees Scully Mansukhani, LLP 56:8-9, 15-16.) 633 West Fifth Street, 52nd Floor 12 Los Angeles, CA 90071 Plaintiff’s declaration does not state that 13 Farmers never sent anyone to inspect the 14 property. Instead, Plaintiff’s declaration states: 15 “Mr. Hunsaker simply brought me the application to sign. He pulled into the 16 driveway, I signed it in the driveway on September 14, 2006. He did not enter the 17 home.” 18 (Koop Decl., ¶ 5.) 19 17. Farmers used Residential Component Undisputed. 20 Technology, or “RCT,” as a software program to prepare replacement estimates for homes in 21 2006. 22 Supporting Evidence: Tucker Decl., Ex. 7. 23 24 18. Farmers began using 360Value in June Undisputed. 2007 for its high value homes only. 25 Supporting Evidence: 26 Tucker Decl., Ex. 7. 27 19. On June 8, 2011, Farmers announced that Undisputed. it would transition to using 360Value for every 28 -8- DEFENDANT FIRE INS. EXCHANGE’S SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS IN OPPOSITION TO PLAINTIFF GARY KOOP’S MOTION FOR SUMMARY JUDGMENT 1 home, not just high value homes. 2 Supporting Evidence: Tucker Decl., Ex. 8. 3 4 20. In the 360Value program, the software Disputed. pre-populates most choices based on the 5 information provided by the insured. The Objection. Misstates evidence. Vague as to the agent has significant flexibility to change those phrase “most choices.” Relevance. 6 prepopulated fields if he chooses, and 360Value encourages its users to do so in its Plaintiff has not submitted evidence to support 7 training materials. this statement. 8 Supporting Evidence: The Farmers’ Bulletin dated June 3, 2008 cited 9 Tucker Decl., Ex. 7. by Plaintiff in Exhibit 7 only concerns “High value Homes”. Furthermore, it merely states: 10 “Navigate to the 360Value Web site, review 11 the valuation and contact the customer. Then Gordon Rees Scully Mansukhani, LLP make all necessary changes directed by the 633 West Fifth Street, 52nd Floor 12 customer to reflect the accurate characteristics Los Angeles, CA 90071 of the home.” 13 14 (Tucker Decl., Ex. 7.) 15 Fire does not dispute that the 360Value program pre-populates certain fields based 16 upon information provided by its insureds. Fire also does not dispute that agents and 17 insureds have the ability to change pre- populated fields if they so choose. In addition, 18 Fire does not dispute that it encourages agents 19 and insureds to make changes and corrections in order to accurately reflect the features which 20 exist at the properties. 21 21. The 360Value software calculates the cost Disputed. 22 of rebuilding differently depending on the style and grade of house assigned in the Objection. Misstates evidence. 23 system. The grade choices are “standard,” 24 defined as “typical of standard tract-style The function of the 360Value software is much houses built in recent decades;” “above more complicated than Plaintiff’s statement. It 25 average,” defined on the Farmers’ website as calculates the reconstruction cost value of a “upgraded tract style houses built in recent home based upon numerous different factors, 26 decades;” “custom,” defined as “upgraded not only the “style” and “grade” of the house. tract-style houses with additional custom 27 features;” and “premium,” “custom-built The Farmers’ Bulletin dated September 15, houses with plenty of premium features.” 2014 provides guidance on how to use the 28 -9- DEFENDANT FIRE INS. EXCHANGE’S SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS IN OPPOSITION TO PLAINTIFF GARY KOOP’S MOTION FOR SUMMARY JUDGMENT 1 360Value program as follows: Supporting Evidence: 2 Tucker Decl., Ex. 14. “360Value displays a default Quality Grade based on dwelling information the customer 3 provides and pre-filled data that the customer 4 confirmed. If the customer believes the default Quality Grade is not accurate, you can use the 5 Quality Wizard to help determine the appropriate Quality Grade. … 6 The Quality Wizard has specific questions 7 about building details and u