Glover et al v. Erie Insurance Company

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
BARRY B. GLOVER and
DEBORAH M. GLOVER,
Plaintiffs,
v. 	CIVIL NO. 2:25-CV-03
(KLEEH)
ERIE INSURANCE COMPANY,
Defendant.
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS’ MOTION FOR
SUMMARY JUDGMENT [ECF NO. 12] AND GRANTING ERIE’S MOTION FOR
SUMMARY JUDGMENT [ECF NO. 11]
Pending are the parties’ cross-motions for summary judgment.
For 	the 	reasons 	discussed 	below, 	the 	Court 	denies 	Plaintiffs’
motion and grants Defendant’s motion.
I. 	PROCEDURAL HISTORY
Plaintiffs 	Barry 	B. 	Glover 	and 	Deborah 	M. 	Glover 	(together,
“Plaintiffs”) 	filed 	a 	complaint 	against 	Defendant 	Erie 	Insurance
Company 	(“Erie”) 	in 	the 	Circuit 	Court 	of 	Pendleton 	County, 	West
Virginia, 	on 	January 	14, 	2025, 	asserting 	one 	claim 	of 	Insurance
Bad 	Faith. 	See 	ECF 	No. 	1-2. 	On 	February 	13, 	2025, 	the 	case 	was
removed 	to 	this 	Court. 	See 	ECF 	No. 	1. 	Erie 	filed 	an 	answer 	on
February 19, 2025. 	See ECF No. 2. 	The parties have filed cross-
motions for summary judgment, which are fully briefed. 	Plaintiffs
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GLOVER V. ERIE 	2:25-CV-03
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS’ MOTION FOR
SUMMARY JUDGMENT [ECF NO. 12] AND GRANTING ERIE’S MOTION FOR
SUMMARY JUDGMENT [ECF NO. 11]
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move for summary judgment solely on the question of coverage, and
Erie 	moves 	for 	summary 	judgment 	with 	respect 	to 	the 	entire
complaint, asserting that there is no coverage and that Plaintiffs’
bad faith claim fails as a matter of law.
II. 	ALLEGATIONS IN THE COMPLAINT
Plaintiffs 	are 	married. 	Compl., 	ECF 	No. 	1-2, 	at 	¶ 	1. 	They
own certain tracts or parcels of land in Franklin, West Virginia.
Id. 	at 	¶ 	4. 	The 	Town 	of 	Franklin 	owns 	and 	operates 	the 	Franklin
Municipal 	Water 	Department 	(the 	“Water 	Department”), 	which 	is
governed 	by 	the 	Public 	Service 	Commission 	of 	West 	Virginia. 	Id.
¶ 5. 	The Water Department provides general domestic, commercial,
and 	industrial 	water 	service. 	Id. 	It 	owns 	a 	water 	tower, 	which
is 	located 	on 	a 	tract 	of 	real 	estate 	immediately 	adjoining
Plaintiffs’ 	real 	estate, 	including 	Plaintiffs’ 	home 	at 	29 	Elm
Street, 	Franklin, 	West 	Virginia. 	Id. 	¶¶ 	6, 	38. 	The 	Water
Department also has an easement for water distribution lines from
the 	water 	tower, 	which 	goes 	across 	Plaintiffs’ 	real 	estate. 	Id.
¶ 6. 	In the past, Barry Glover notified the Water Department about
water leaks onto his property, which were destroying a public road
maintained by the Town of Franklin. 	Id. ¶ 7. 	In May or June 2017,
Barry 	Glover 	met 	with 	Water 	Department 	employees 	and 	the 	Mayor
regarding the water leak. 	Id. ¶ 8.
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GLOVER V. ERIE 	2:25-CV-03
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS’ MOTION FOR
SUMMARY JUDGMENT [ECF NO. 12] AND GRANTING ERIE’S MOTION FOR
SUMMARY JUDGMENT [ECF NO. 11]
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On or about August 5, 2020, Plaintiffs purchased an Eriesecure
Home Insurance Policy and Personal Umbrella Insurance Policy from
Erie. 	Id. 	¶ 	9. 	The 	property 	and 	casualty 	policy 	was 	assigned 	a
policy 	number 	of 	Q565707999, 	with 	a 	policy 	period 	from 	August 	7,
2020, 	to 	August 	7, 	2021 	(the 	“Policy”). 	Id.; 	Exh. 	A 	to 	Compl.
Plaintiffs have since renewed the Policy annually. 	Id. ¶ 9.
In 	the 	summer 	of 	2022, 	Plaintiffs 	noticed 	foundational 	and
exterior 	wall 	failures 	at 	their 	residence. 	Id. 	¶ 	10. 	They
contracted 	with 	Lantz 	Construction 	Company 	(“Lantz”) 	to 	view,
evaluate, 	and 	provide 	an 	estimate 	regarding 	the 	necessary
foundational 	and 	exterior 	wall 	repairs 	at 	their 	home. 	Id. 	¶ 	11.
On 	July 	14, 	2022, 	Lantz 	visited 	and 	advised 	Plaintiffs 	that 	the
walls 	failure 	at 	their 	home 	was 	a 	result 	of 	water 	damage. 	Id. 	¶
12. 	By 	letter 	dated 	August 	23, 	2023, 	Lantz 	informed 	Plaintiffs
that 	the 	estimated 	cost 	to 	make 	the 	necessary 	repairs 	was
$168,357.00. 	Id. 	On November 7, 2023, Lantz informed Plaintiffs
that 	the 	estimated 	cost 	of 	repairs 	had 	increased 	to 	$221,596.00.
Id. 	Plaintiffs assert that as a result of the Water Department’s
actions, 	inactions, 	and/or 	omissions, 	Plaintiffs 	have 	suffered
extensive property damage. 	Id. ¶ 14.
On May 1, 2023, Plaintiffs filed a civil action for negligence
against 	the 	Town 	of 	Franklin 	in 	the 	Circuit 	Court 	of 	Pendleton
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GLOVER V. ERIE 	2:25-CV-03
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS’ MOTION FOR
SUMMARY JUDGMENT [ECF NO. 12] AND GRANTING ERIE’S MOTION FOR
SUMMARY JUDGMENT [ECF NO. 11]
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County, West Virginia, which was assigned civil action number CC-
36-2023-C-9. 	Id. 	¶ 	15. 	During 	discovery, 	on 	December 	12, 	2023,
Plaintiffs filed a claim with Erie relating to the damage to their
residence. 	Id. 	¶ 	16. 	The 	claim 	was 	assigned 	a 	number 	of
A00005516665. 	Id.
Erie 	employed 	Donan 	Engineering 	(“Donan”) 	to 	conduct 	an
examination of Plaintiffs’ claim. 	Id. ¶ 17. 	On December 29, 2023,
a 	Donan 	engineer 	completed 	a 	report. 	Id. 	Donan 	concluded 	that
groundwater 	and 	surface 	water 	adjacent 	to 	the 	foundation
contributed to the damages asserted by Plaintiffs in the Pendleton
County civil action. 	Id. ¶ 18. 	Donan investigated at Plaintiffs’
home 	for 	60 	to 	90 	minutes, 	focusing 	on 	taking 	pictures 	of 	the
structural 	damage. 	Id. 	Donan 	did 	not 	investigate 	the 	source 	of
the water that was causing the damage. 	Id. 	On February 19, 2024,
Plaintiffs 	emailed 	Erie 	to 	ask 	about 	the 	status 	of 	their 	claim.
Id. 	¶ 	19. 	On 	March 	8, 	2024, 	by 	letter, 	Erie 	informed 	Plaintiffs
that their claim was denied. 	Id. ¶ 20.
Plaintiffs hired expert witnesses with Downstream Strategies
to 	conduct 	studies 	regarding 	the 	cause 	of 	the 	water 	damage. 	Id.
¶ 	21. 	On 	August 	27, 	2024, 	by 	letter, 	Erie 	informed 	Plaintiffs
that 	based 	on 	Plaintiffs’ 	claim 	and 	the 	report 	by 	Donan, 	unless
certain 	repairs 	were 	completed 	by 	December 	27, 	2024, 	their
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GLOVER V. ERIE 	2:25-CV-03
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS’ MOTION FOR
SUMMARY JUDGMENT [ECF NO. 12] AND GRANTING ERIE’S MOTION FOR
SUMMARY JUDGMENT [ECF NO. 11]
5
insurance 	policies 	would 	be 	canceled 	by 	Erie. 	Id. 	¶ 	22. 	On
November 	21, 	2024, 	Plaintiffs 	secured 	financing 	with 	Pendleton
Community 	Bank 	in 	the 	amount 	of 	$230,000.00 	for 	the 	necessary
repairs 	to 	their 	residence. 	Id. 	¶ 	23. 	On 	December 	17, 	2024,
Downstream 	Strategies 	concluded 	that 	the 	groundwater 	causing 	the
issue of Plaintiffs’ residence was from the municipal water supply
and due to the presence of Chlorine and Chlorine disinfection by-
products, which are not naturally occurring. 	Id. ¶ 24.
Based on these facts, Plaintiffs assert one count of Insurance
Bad 	Faith 	against 	Erie 	and 	ask 	the 	Court 	to 	declare 	that 	Erie 	is
obligated to indemnify them for the damage to their property.
III. STANDARD OF REVIEW
Summary 	judgment 	is 	appropriate 	if 	“there 	is 	no 	genuine
dispute 	as 	to 	any 	material 	fact 	and 	the 	movant 	is 	entitled 	to
judgment as a matter of law.” 	Fed. R. Civ. P. 56(a). 	The movant
“bears the initial responsibility of informing the district court
of the basis for its motion, and identifying those portions of the
pleadings, depositions, answers to interrogatories, and admissions
on 	file, 	together 	with 	the 	affidavits, 	if 	any, 	which 	it 	believes
demonstrate 	the 	absence 	of 	a 	genuine 	issue 	of 	material 	fact.”
Celotex 	Corp. 	v. 	Catrett, 	477 	U.S. 	317, 	323 	(1986) 	(internal
quotation marks omitted). 	The burden then shifts to the nonmoving
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GLOVER V. ERIE 	2:25-CV-03
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS’ MOTION FOR
SUMMARY JUDGMENT [ECF NO. 12] AND GRANTING ERIE’S MOTION FOR
SUMMARY JUDGMENT [ECF NO. 11]
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party 	to 	present 	“specific 	facts 	showing 	that 	there 	is 	a 	genuine
issue 	for 	trial.” 	Blair 	v. 	Defender 	Servs., 	Inc., 	386 	F.3d 	623,
625 (4th Cir. 2004) (citations omitted).
“When 	the 	moving 	party 	has 	carried 	its 	burden . . . , its
opponent 	must 	do 	more 	than 	simply 	show 	that 	there 	is 	some
metaphysical 	doubt 	as 	to 	the 	material 	facts.” 	Matsushita 	Elec.
Indus. 	Co., 	Ltd. 	V. 	Zenith 	Radio 	Corp., 	475 	U.S. 	574, 	586 	(1986)
(citations 	omitted). 	Rather, 	the 	Court 	must 	ask 	“whether 	the
evidence presents a sufficient disagreement to require submission
to a jury or whether it is so one-sided that one party must prevail
as 	a 	matter 	of 	law.” 	Anderson 	v. 	Liberty 	Lobby, 	Inc., 	477 	U.S.
242, 	251–52 	(1986). 	At 	its 	core, 	the 	summary-judgment 	process
examines 	whether 	a 	trial 	is 	needed. 	See 	id. 	at 	250. 	“Where 	the
record taken as a whole could not lead a rational trier of fact to
find 	for 	the 	non-moving 	party, 	there 	is 	no 	genuine 	issue 	for
trial.” 	Matsushita, 	475 	U.S. 	at 	587 	(citation 	and 	internal
quotation marks omitted).
“When 	faced 	with 	cross-motions 	for 	summary 	judgment, 	the
court 	must 	review 	each 	motion 	on 	its 	own 	merits 	to 	determine
whether 	either 	of 	the 	parties 	deserves 	judgment 	as 	a 	matter 	of
law.” 	Rossignol 	v. 	Voorhaar, 	316 	F.3d 	516, 	523 	(4th 	Cir. 	2003)
(citation 	and 	internal 	quotation 	marks 	omitted). 	The 	same
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GLOVER V. ERIE 	2:25-CV-03
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS’ MOTION FOR
SUMMARY JUDGMENT [ECF NO. 12] AND GRANTING ERIE’S MOTION FOR
SUMMARY JUDGMENT [ECF NO. 11]
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standards 	of 	review 	apply 	when 	both 	parties 	file 	motions 	for
summary judgment. 	See ITCO Corp. v. Michelin Tire Corp., 722 F.2d
42, 45 n. 3 (4th Cir. 1983) (“The court is not permitted to resolve
genuine 	issues 	of 	material 	facts 	on 	a 	motion 	for 	summary
judgment — even where . . . both parties have filed cross motions
for summary judgment.”).
IV. 	DISCUSSION
As discussed below, the Court finds that the Policy does not
provide 	coverage 	for 	Plaintiffs’ 	property 	damage, 	and 	Erie 	is
entitled to judgment as a matter of law on the bad faith claim.
A. 	Because 	it 	is 	undisputed 	that 	Plaintiffs’ 	damage 	was
caused 	by 	water 	and/or 	earth 	movement, 	the 	Policy 	does
not provide coverage.
After 	reviewing 	the 	parties’ 	briefs 	and 	the 	Policy 	itself,
the 	Court 	finds 	that 	no 	coverage 	is 	available 	for 	Plaintiffs’
property damage. 	The Policy provides,
PROPERTY PROTECTION – SECTION I
OUR PROMISE – Dwelling Coverage
“We” will pay for loss to:
1. 	“your” 	dwelling 	which 	includes 	“your”
manufactured home at the “residence premises”
shown 	on 	the 	“Declarations.” 	This 	includes
attached 	structures, 	building 	equipment,
fixtures, including solar panels and windmills
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GLOVER V. ERIE 	2:25-CV-03
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS’ MOTION FOR
SUMMARY JUDGMENT [ECF NO. 12] AND GRANTING ERIE’S MOTION FOR
SUMMARY JUDGMENT [ECF NO. 11]
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servicing 	the 	premises. 	It 	also 	includes
accessories which service and are connected to
“your” manufactured home.
2. 	construction 	material 	at 	the 	“residence
premises” 	for 	use 	in 	connection 	with 	“your”
dwelling.
This 	coverage 	does 	not 	apply 	to 	land 	and
water, including natural water, above or below
the surface of the ground.
Exh. 2 to Erie MSJ, ECF No. 11-4, at 3. 	It also provides,
PERILS WE INSURE AGAINST – Dwelling And Other
Structures Coverages
“We” pay for direct physical loss to property
insured 	under 	the 	Dwelling 	And 	Other
Structures 	Coverages 	unless 	the 	loss 	is
excluded elsewhere under this policy.
Id. at 5. 	The Policy provides the following exclusionary language
with respect to water damage:
EXCLUSIONS 	– 	What 	We 	Do 	Not 	Cover 	– 	Dwelling
And Other Structures Coverages
“We” do not pay for loss resulting directly or
indirectly from any of the following, even if
other 	events 	or 	happenings 	contributed
concurrently, or in sequence, to the loss:
. . .
9. 	by water damage, meaning:
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GLOVER V. ERIE 	2:25-CV-03
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS’ MOTION FOR
SUMMARY JUDGMENT [ECF NO. 12] AND GRANTING ERIE’S MOTION FOR
SUMMARY JUDGMENT [ECF NO. 11]
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a. 	flood, 	surface 	water, 	waves, 	including
tidal 	wave 	and 	tsunami, 	tides, 	tidal 	water,
storm 	surge 	or 	overflow 	of 	a 	body 	of 	water.
“We” do not coverage spray from any of these,
whether or not driven by wind;
b. 	water 	or 	sewage 	which 	backs 	up 	through
sewers 	or 	drains 	or 	water 	which 	enters 	into
and 	overflows 	from 	within 	a 	sump 	pump, 	sump
pump 	well 	or 	any 	other 	system 	designed 	to
remove subsurface water which is drained from
the foundation area.
This 	exclusion 	does 	not 	apply 	if 	Sewers 	Or
Drains 	Backup 	Coverage 	is 	shown 	on 	the
“Declarations.” 	However, the amount shown on
the “Declarations” is the maximum amount “we”
will 	pay 	for 	any 	one 	direct 	loss 	caused 	by
water or sewage which backs up through sewers
or drains, or which enters into and overflows
from within a sump pump, sump pump well or any
other 	system 	designed 	to 	remove 	subsurface
water 	which 	is 	drained 	from 	the 	foundation
area;
c. 	water 	below 	the 	surface 	of 	the 	ground.
This includes water which exerts pressure on,
or 	flows, 	seeps 	or 	leaks 	through 	any 	part 	of
a 	building 	or 	other 	structure, 	including
sidewalks, driveways, foundations, pavements,
patios, swimming pools or decks; or
d. 	waterborne material carried or otherwise
moved by any of the water referred to in this
exclusion.
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MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS’ MOTION FOR
SUMMARY JUDGMENT [ECF NO. 12] AND GRANTING ERIE’S MOTION FOR
SUMMARY JUDGMENT [ECF NO. 11]
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This exclusion applies, but is not limited to,
escape, overflow or discharge, for any reason,
of 	water 	or 	waterborne 	material 	from 	a 	dam,
levee, 	seawall 	or 	any 	other 	boundary 	or
containment system.
“We” 	do 	pay 	for 	direct 	loss 	that 	follows,
caused 	by 	fire, 	explosion, 	sonic 	boom 	or
theft.
Exh. 2 to Def. MSJ, ECF No. 11-4, at 6-7.
The Policy provides the following exclusionary language with
respect to earth movement:
EXCLUSIONS 	– 	What 	We 	Do 	Not 	Cover 	– 	Dwelling
And Other Structures Coverages
“We” do not pay for loss resulting directly or
indirectly from any of the following, even if
other 	events 	or 	happenings 	contributed
concurrently, or in sequence, to the loss:
. . .
8. 	by 	earth 	movement, 	due 	to 	natural 	or
manmade events, meaning earthquake, including
land 	shock 	waves, 	or 	tremors 	before, 	during,
or after a volcanic eruption, mine subsidence,
sinkhole, landslide, mudslide, mud flow, earth
sinking, 	rising 	or 	shifting. 	Coverage 	is
provided 	for 	direct 	loss 	caused 	by 	fire,
explosion, 	theft 	or 	breakage 	of 	glass
resulting 	from 	earth 	movement, 	mine
subsidence, 	sinkhole, 	landslide, 	mudslide,
mud 	flow, 	or 	earth 	sinking, 	rising 	or
shifting.
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SUMMARY JUDGMENT [ECF NO. 12] AND GRANTING ERIE’S MOTION FOR
SUMMARY JUDGMENT [ECF NO. 11]
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Id. at 6.
Overall, 	the 	record 	shows 	that 	the 	damage 	complained 	of 	by
Plaintiffs 	is 	water 	damage. 	In 	the 	complaint, 	Plaintiffs 	assert
that 	the 	damage 	is 	from 	water. 	See 	Compl., 	ECF 	No. 	1-2, 	at 	¶ 	12
(“Lantz . . . 	advised 	the 	Plaintiffs 	that 	the 	foundational 	and
exterior 	walls 	failure 	at 	their 	residence 	was 	a 	result 	of 	water
damage.”); 	id. 	at 	¶ 	18 	(“Donan . . . concluded 	that 	groundwater
and 	surface 	water 	adjacent 	to 	the 	foundation 	contributed 	to 	the
damages 	asserted 	by 	the 	Plaintiffs 	in 	the 	aforesaid 	civil
action.”); 	id. 	at 	¶ 	21 	(“Plaintiffs 	hired . . . Downstream
Strategies 	to 	conduct 	studies 	regarding 	the 	cause 	of 	the 	water
causing damage to their residence in the aforesaid civil action.”);
id. at ¶ 24 (“Downstream Strategies concluded that the groundwater
causing the issue to the Plaintiffs residence was from a municipal
water 	supply . . . .”). 	In 	Barry 	Glover’s 	deposition, 	he
testified as follows:
Q. 	Do 	you 	believe 	those 	water 	leaks 	were
caused by the Town of Franklin?
A. 	Yes.
Q. 	And 	that 	would 	be 	man-made 	events
committed 	by 	the 	Town 	of 	Franklin 	in
installing 	and 	maintaining 	its 	water
lines?
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GLOVER V. ERIE 	2:25-CV-03
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS’ MOTION FOR
SUMMARY JUDGMENT [ECF NO. 12] AND GRANTING ERIE’S MOTION FOR
SUMMARY JUDGMENT [ECF NO. 11]
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A. 	Yes.
Q. 	This water damage, was some of the water
on the surface?
A. 	No, not necessarily. 	It was mainly under
the -- under the surface.
Q. 	So it had been water below the surface of
the ground?
A. 	Right.
B. 	Glover 	Dep., 	ECF 	No. 	11-2, 	at 	36:2–15. 	Water 	damage, 	which
specifically 	includes 	damage 	resulting 	from 	subsurface 	water, 	is
excluded under the Policy.
Donan 	also 	found 	that 	the 	presence 	of 	subsurface 	water 	had
resulted 	in 	earth 	movement. 	Specifically, 	Donan 	found 	that 	the
settlement that occurred at Plaintiffs’ home was “due to downhill
movement 	and 	consolidation 	of 	the 	soils” 	and 	that 	“[g]roundwater
and 	surface 	water 	adjacent 	to 	the 	foundation 	have 	contributed 	to
the 	settlement 	and 	lateral 	pressure.” 	Donan 	Report, 	ECF 	No. 	11-
6, at 7. 	Earth movement, as discussed, is also excluded under the
Policy. 1
1 In Erie Insurance Property & Casualty Company v. Chaber, 801 S.E.2d 207,
213–14 (W. Va. 2017), the Supreme Court of Appeals of West Virginia concluded
that the exclusion due to “natural or man-made events” applied to earth movement
resulting from any cause.
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GLOVER V. ERIE 	2:25-CV-03
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS’ MOTION FOR
SUMMARY JUDGMENT [ECF NO. 12] AND GRANTING ERIE’S MOTION FOR
SUMMARY JUDGMENT [ECF NO. 11]
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Plaintiffs 	argue 	that 	there 	are 	genuine 	issues 	of 	material
fact 	with 	respect 	to 	causation. 	They 	argue 	that 	the 	record
contains 	extensive 	evidence 	that 	their 	loss 	was 	caused 	by
accidental 	discharge 	of 	municipal 	water, 	not 	merely 	natural
groundwater or earth movement. 	Specifically, Plaintiffs point to
the chlorine and disinfection by-products in groundwater samples.
Plaintiffs 	cite 	Erie’s 	expert’s 	statement 	that 	“[i]nsufficient
evidence 	is 	available 	to 	determine 	whether 	the 	water 	tower 	pipes
leak 	or 	contributed 	to 	groundwater 	toward 	the 	house.” 	Id. 	at 	6.
The 	Court, 	after 	reviewing 	the 	entire 	record, 	finds 	no 	other
explanation for the damage other than the water damage and/or earth
movement described above, both of which are not covered under the
Policy. 	No 	genuine 	issue 	of 	material 	fact 	exists 	regarding
coverage. 	Erie is entitled to judgment as a matter of law on the
issue 	of 	coverage, 	and 	Plaintiffs’ 	motion 	for 	summary 	judgment
must be denied.
B. 	Erie 	is 	entitled 	to 	judgment 	as 	a 	matter 	of 	law 	with
respect 	to 	the 	bad 	faith 	claim 	because 	Plaintiffs 	have
failed 	to 	produce 	specific 	facts 	showing 	that 	there 	is
a genuine issue for trial.
“A 	first-party 	bad 	faith 	action 	is 	one 	wherein 	the 	insured
sues his/her own insurer for failing to use good faith in settling
a claim filed by the insured.” 	Syl. Pt. 2, Loudin v. Nat’l Liab.
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GLOVER V. ERIE 	2:25-CV-03
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS’ MOTION FOR
SUMMARY JUDGMENT [ECF NO. 12] AND GRANTING ERIE’S MOTION FOR
SUMMARY JUDGMENT [ECF NO. 11]
14
& 	Fire 	Ins. 	Co., 	716 	S.E.2d 	696 	(W. 	Va. 	2011). 	An 	insured 	first
party has the right “to bring a bad faith cause of action against
his/her insurer under the common law and the West Virginia Unfair
Trade Practices Act.” 	Id. at 700.
Here, the Court has already held that no coverage exists for
Plaintiffs’ 	property 	damage. 	The 	Court 	will 	assess 	Plaintiffs’
response 	to 	Erie’s 	motion 	and 	whether 	Plaintiffs 	have 	shown 	the
existence 	of 	any 	material 	fact 	which 	would 	preclude 	summary
judgment for Erie with respect to the bad faith claim. 	Plaintiffs
have not met this burden.
In 	response 	to 	Erie’s 	motion, 	first, 	Plaintiffs 	assert 	that
Erie’s 	denial 	letter 	was 	dated 	January 	16, 	2024, 	but 	was 	not
received until March 8, 2024. 	This will be discussed below.
Second, 	Plaintiffs 	assert 	that 	Erie’s 	denial 	letter
misidentified 	the 	policy 	number. 	In 	reply, 	Erie 	contends 	that
this 	is 	simply 	untrue; 	the 	denial 	letter 	did 	not 	misidentify 	the
policy 	number. 	Upon 	review, 	the 	Court 	agrees 	with 	Erie 	that 	the
policy 	number 	is 	not 	misidentified. 	This 	is 	not 	a 	genuine 	issue
of material fact that would preclude summary judgment.
Third, 	Plaintiffs 	contend 	that 	Erie 	selectively 	relied 	on
Donan 	while 	ignoring 	“contradictory 	evidence,” 	such 	as 	chemical
testing 	conducted 	by 	Downstream 	Strategies, 	Lantz’s 	repair
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GLOVER V. ERIE 	2:25-CV-03
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS’ MOTION FOR
SUMMARY JUDGMENT [ECF NO. 12] AND GRANTING ERIE’S MOTION FOR
SUMMARY JUDGMENT [ECF NO. 11]
15
proposals, 	and 	Plaintiffs’ 	testimony 	and 	chlorine 	testing. 	In
reply, 	Erie 	asserts 	that 	the 	source 	of 	water 	has 	no 	relevance 	to
the application of the exclusions in the Policy. 	The Court agrees
with 	Erie 	that 	the 	source 	of 	the 	water 	has 	no 	bearing 	on 	the
undisputed fact that the property damage was caused by water and/or
earth 	movement, 	both 	of 	which 	are 	not 	covered 	under 	the 	Policy.
This 	is 	not 	a 	genuine 	issue 	of 	material 	fact 	that 	would 	preclude
summary judgment.
Fourth, 	Plaintiffs 	argue 	that 	in 	August 	2024, 	Erie 	issued 	a
cancellation 	notice 	requiring 	Plaintiffs 	to 	complete 	the 	very
repairs 	it 	denied 	as 	uncovered. 	Given 	that 	the 	Court 	has 	agreed
with 	Erie 	that 	no 	coverage 	is 	available, 	this 	is 	not 	a 	genuine
issue of material fact that would preclude summary judgment.
Fifth, 	Plaintiffs 	assert 	that 	claim 	notice 	was 	given 	on
December 	12, 	2023, 	but 	the 	file 	remained 	open 	into 	2025 	with
repeated reassignments and no resolution. 	In reply, Erie asserts
that it denied the claim by letter dated January 16, 2024, and to
the 	extent 	the 	claim 	remains 	open, 	it 	is 	open 	because 	of 	the
pending declaratory judgment action. 	To the extent that Plaintiffs
are arguing that the “open” status of the file is a genuine issue
of 	material 	fact 	that 	would 	preclude 	summary 	judgment 	on 	the 	bad
faith claim, the Court disagrees.
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GLOVER V. ERIE 	2:25-CV-03
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS’ MOTION FOR
SUMMARY JUDGMENT [ECF NO. 12] AND GRANTING ERIE’S MOTION FOR
SUMMARY JUDGMENT [ECF NO. 11]
16
The 	only 	issue, 	therefore, 	upon 	which 	Plaintiffs 	can
reasonably 	rely 	to 	preclude 	summary 	judgment 	is 	the 	fact 	that
Erie’s 	denial 	letter 	was 	dated 	January 	16, 	2024, 	but 	was 	not
received 	until 	March 	8, 	2024. 	This 	two-month 	delay 	in 	mailing
time 	is 	not 	a 	genuine 	issue 	of 	material 	fact 	that 	would 	preclude
summary 	judgment 	in 	this 	case. 	Having 	found 	that 	no 	coverage 	is
available, 	and 	Plaintiffs 	have 	not 	produced 	sufficient 	facts 	to
show 	that 	a 	trial 	on 	a 	bad 	faith 	claim 	is 	needed, 	a 	trial 	is 	not
needed 	in 	this 	matter. 	Erie 	is 	entitled 	to 	judgment 	as 	a 	matter
of law.
V. 	CONCLUSION
For the reasons discussed, the Court ORDERS as follows:
x 	Plaintiffs’ 	motion 	for 	summary 	judgment 	is
DENIED [ECF No. 12];
x 	Erie’s motion for summary judgment is GRANTED
[ECF No. 11];
x 	This case is STRICKEN from the Court’s active
docket; and
x 	The 	Clerk 	is 	DIRECTED 	to 	enter 	a 	separate
judgment order.
It is so ORDERED.
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GLOVER V. ERIE 	2:25-CV-03
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS’ MOTION FOR
SUMMARY JUDGMENT [ECF NO. 12] AND GRANTING ERIE’S MOTION FOR
SUMMARY JUDGMENT [ECF NO. 11]
17
The 	Clerk 	is 	directed 	to 	transmit 	copies 	of 	this 	Memorandum
Opinion and Order to counsel of record.
DATED: March 27, 2026
____________________________
THOMAS S. KLEEH, CHIEF JUDGE
NORTHERN DISTRICT OF WEST VIRGINIA
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