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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
John and Vanessa Coker as Personal                                                                         )   C.A. No. 3:11-cv-0446-CMC
Representatives of the Estate of John                                                                      )
Wilson Coker, III, deceased,                                                                               )
)
Plaintiffs,                                                                                                )
                                                                                                           )   OPINION AND ORDER
vs.                                                                                                        )   ON DEFENDANT’S MOTION
                                                                                                           )   FOR RECONSIDERATION
Fireman’s Fund Insurance Company,                                                                          )
)
Defendant.                                                                                                 )
___________________________________  )
This matter is before the court on motion of Defendant,  Fireman’s Fund Insurance Company
(“FFIC”), to reconsider the denial of FFIC’s motion for summary judgment.   See Dkt. No. 26
(order); Dkt. No. 35 (motion).  For reasons set forth below, the motion is denied to the extent it seeks
modification of the order denying summary judgment and granted to the extent it seeks clarification
of the relief which might be granted through this action.
DISCUSSION
Breach of Contract and Bad Faith Failure to Pay Insurance Benefits.  As explained in
the prior order, the record evidence is susceptible to multiple interpretations, one of which is that
FFIC
intentionally delayed the process [of perfecting a Replacement Cost claim], failed to
provide information requested by [Plaintiffs], promised to obtain estimates which
were not timely sought, or made statements suggesting greater uncertainty in the
process than necessary, all for the purpose of discouraging [Plaintiffs] from pursuing
or perfecting a Replacement Cost claim.
Dkt. No. 26 at 4 (emphasis in original).  FFIC’s present motion fails to persuade the court either that
the evidence is not susceptible to this interpretation or that such an interpretation would not support




both a finding of breach of contract and a finding of bad faith failure to pay first party insurance
benefits.
Appraisal.   FFIC argues, and the court agrees, that the insurance policy established a
mechanism for resolving disputes as to valuation: the appraisal process.   Unfortunately, despite
mentioning the availability of this process in two letters sent to the Cokers or their representatives
before suit was filed, FFIC never invoked its right to appraisal until the last day of the fact-discovery
process, a full six months after suit was filed.  See Dkt. No. 26. at 5 (discussing request to compel
appraisal).  In the interim, the Cokers incurred additional delays and the expense of litigation and
FFIC gained the benefit of the discovery process.   The court is not persuaded that it erred in
concluding FFIC waived its right to invoke the appraisal process under these circumstances.
Jury Issue and Remedy.  FFIC’s waiver of its right to invoke the appraisal process means
that, if the jury finds FFIC breached the contract, then it will be for the jury to decide the proper
maximum value to be paid under the Replacement Cost Provision.1   This is not to suggest that a
judgment for damages would be entered based on the jury’s valuation determination.  Instead, some
hybrid remedy such as that suggested by FFIC will be necessary in light of the policy provisions
which envision actual payment being made only after the Cokers expend sums in excess of the
policy limits to rebuild or replace the home.2    In contrast, if the jury finds FFIC liable for bad faith
1  As noted in the earlier order, the evidence would also support a finding that “the Cokers
failed to fully cooperate in FFIC’s investigation, leading to the failure to reach agreement on the
maximum amount available under the Replacement Cost Provision.”   If the jury draws this
inference, it would not find FFIC in breach of contract.  Absent a finding that FFIC breached the
contract, the jury would have no reason to consider damages-related issues.
2  FFIC proposes that the court enter “an equitable order of specific performance [requiring
FFIC to] reimburse the Cokers for an amount up to the Replacement Cost Value, as determined by
the jury, only after [the Cokers] incur additional costs rebuilding or replacing the home.”  See Dkt.
2




failure to pay benefits, then it could award damages on that claim which damages could be reduced
to a monetary judgment.
CONCLUSION
For the reasons set forth above, FFIC’s motion to reconsider is denied except to the extent
it seeks clarification of the relief available which clarification is provided above.
IT IS SO ORDERED.
s/ Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
UNITED STATES DISTRICT JUDGE
Columbia, South Carolina
January 27, 2012
No. 30 at 6.  While the court reserves any final determination as to the proper form of relief until the
time of trial, it is, at present, inclined to adopt FFIC’s proposal on this point.
3

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