NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 18a0202n.06
Case No. 17-3921
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

NGOC TRAN, Plaintiff-Appellant,

v. FEDERAL INSURANCE COMPANY, Defendant-Appellee. ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO

BEFORE: MOORE, THAPAR, and BUSH, Circuit Judges. THAPAR, Circuit Judge. Ngoc Tran ow ned a lot of gold jewelry—$374,330 worth, to be exact. A few years ago, she decided it was time to insure her collection, so she purchased a valuable-articles policy from Federal Insurance Co mpany (“Federal”). About eight months later, Tran reported the jewelry stolen a nd sought to collect on the policy. Federal suspected that the burglary was an in side job. For starters, the responding officer did not think the crime scene—which would have required the purported burg lar to make a rather acrobatic leap thr ough a window—looked like a break-in. And Federal spotted a number of other inconsistencies and oddities in Tran’s stor y, including the substantial disparity between her reported annual income ($0) and monthly living expenses (sometimes in excess of $5000). So the company asked Tran to provide various bu siness and personal records to corroborate herCase No. 17-3921 Tran v. Fed. Ins. Co.

- 2 - story. But for one reason or an other, Tran failed substantia lly to do so. After several unsuccessful attempts to obtain th e records, Federal denied Tran’s claim, citing her “failure to cooperate.” Tran filed suit, seeking to compel Federal to cover the claimed loss. The district court granted Federal summary judgment, holding that Tran had failed to cooperate with the company’s investigation. Tran now appeals. This court reviews the gr ant of summary judgment de novo. Peffer v. Stephens , 880 F.3d 256, 262 (6th Cir. 2018).
I. Insurance policies often include “cooperation cl ause[s]” that impose certain duties on the insured party in the event of a loss. See Doerr v. Allstate Ins. Co. , 121 F. App’x 638, 640 (6th Cir. 2005). Tran’s policy had a cooperation clause requiring he r to “produce all records and documents” that the insurance company requested . R. 132, Pg. ID 2581. Be cause Tran failed to produce many requested documents, Federal maintains that it does not have to pay out her claim. Under Ohio law, an insured party’s failure to comply with a cooperation clause lets the insurer off the hook if the insured’s noncooperati on “result[s] in mate rial and substantial prejudice to the insurance company.” Gabor v. State Farm Mut. Auto. Ins. Co. , 583 N.E.2d 1041, 1043 (Ohio Ct. App. 1990) (citing State Farm Mut. Auto. Ins. Co. v. Holcomb , 458 N.E.2d 441, 445 (Ohio Ct. App. 1983)); see also Luntz v. Stern , 20 N.E.2d 241, 244–45 (Ohio 1939). Generally, whether a party’s nonc ooperation relieves the insurer of the obligation to pay is a question of fact. Doerr , 121 F. App’x at 640. But where the material facts are undisputed, as here, the court may decide the question as a matter of law. Id

. Here, Federal repeatedly requested records from Tran, and Tran repeatedly failed to produce many of those records. In itially, Tran claimed that she did not have the records. Then,Case No. 17-3921 Tran v. Fed. Ins. Co.

- 3 - instead of retrieving copies of those records from third parties—such as her bank and accountant—she gave Federal writte n authorization to get the documents. The problem is, even with Tran’s written authoriza tion, many of the third parties would not provide the records directly to the company. When Federal eventually got ahold of some records, Tran refused to confirm their accuracy. For example, the company obtained a fe w years’ tax returns from Tran’s accountant, but Tran would not verify that they accurately represented her income. In another instance, Federal got Tran’s phone records from AT&T, but Tran claimed not to remember the identities of eight key telephone numbers liste d in the log. And when Federal obtained win/loss statements from local casinos (Tran’s live -in boyfriend was a gambler), Tr an disputed the statements’
accuracy. Then there is the information that Federal was never able to obtain in the course of its claims investigation: Tran’s complete bank account informati on, as well as two years’ tax returns. Tran initially told Federal that she did not have a ny bank accounts. After further questioning, she admitted to having two accounts, but she still never gave Federal complete account information. Tran also claimed that tw o years of missing tax returns simply did not exist, but did not offer evidence to support that claim. So wh en all was said and done, Tran provided the insurance company only some of the documents and information it requested and refused to confirm the accuracy of several key documents Federal obtained on its own accord. This level of noncompliance was material and substantial. Federal had reason to question Tran’s story about the burglary. And Tran’s fail ure to provide the request ed records impeded its ability to investigate the truth of her claims. The bank records and tax re turns would have shed light on Tran’s financial situa tion in the years surrounding the al leged burglary. So too wouldCase No. 17-3921 Tran v. Fed. Ins. Co.

- 4 - the casino records reflecting her boyfriend’s gambling habit. Instead, Federal confronted a record that suggested Tran had no annual inco me, yet somehow maintained monthly expenses sometimes exceeding $5,000 around the time of the loss. Likewise, identifying the phone
numbers that Tran contacted ar ound the time of the burglary woul d have provided Federal with the names of potential witnesses (or accomplices). But Tran’s obstinacy frustrated the company’s ability “to determine [Tran’s] motive, a libi, or any other aspect of [her] involvement (or non-involvement)” in the alleged burglary. Doerr , 121 F. App’x at 6 41. Moreover, because Tran’s noncooperation persisted fo r months and affected several categories of information, it impaired Federal’s “ability to comple te a full and fair investigation.” Id . at 642. Her noncooperation was thus prejudicial too. Tran nevertheless insists that her attempte d compliance was enough. She reasons that she provided some records and made an effort to obtai n others. But Tran sets the bar for compliance too low. A party’s compliance with some of a policy’s requirements does not excuse the party’s material failure to comply with others. Id. at 640 (citing Walker v. Buck , 621 N.E.2d 1307, 1309 (Ohio Ct. App. 1993)). And although Tran provide d Federal with author izations to obtain records from third parties, it was Tran’s undisputed responsibility un der the contract to obtain the requested documents—not Federal’s. See Ponamerenko v. Allstate Ins. Co ., No. 4:94 CV 2153, 1995 U.S. Dist. LEXIS 22460, at *28 (N.D. Oh io, June 13, 1995) (applying Ohio law). Tran has not pointed to anything in the contract or the facts of th is case that would allow her to “wipe [her] hands of the responsibility of provi ding the requested documents” just by signing an authorization form. Id . (“Plaintiff’s position is tantamount to saying that opening one’s file cabinets to an opposing party in response to requests for production of documents would somehow be considered a sufficien t response to the request.”).Case No. 17-3921 Tran v. Fed. Ins. Co.

- 5 - Tran also argues that Federal cannot pr ove that her failure to cooperate was willful , because she did not destroy any documents or fail to produce documents that she had in her possession. Maybe so, but this argument misses th e point. If Tran did not currently have the requested records, the cooperation clause obligated her to make an effort to obtain them. See Mobley v. Phila. Indem. Ins. Co. , 218 F. App’x 456, 462–63 (6th Ci r. 2007) (summary judgment appropriate where insured made no attempt to obtain requested records). And though Tran attempts to analogize to Templin v. Grange Mutual Casualty Co. , this is not a case where circumstances outside Tran’s control—such as a fire—prevented her from obtaining the records. 611 N.E.2d 944, 947–48 (Ohio. Ct. App. 1992) (summary judgment inappropriate where insured partially cooperated and provided sworn assertion that the records he could not provide were destroyed in a fire). Tran’s imperfect recordke eping is not a license to sit on her hands. And while Tran suggests that she did ev entually make an effort to obt ain her tax returns, she did not do so until more than a year afte r she filed this suit. That is not “cooperation.” Tran does not point to any other facts in the record supporting this argument, and we decline to “scour the record” to construct the argument for her. LidoChem, Inc. v. Stoller Enters., Inc. , 500 F. App’x 373, 388 (6th Cir. 2012) (Thapar, J., concurring). Th e district court thus properly granted summary judgment to Federal on the grounds that Tran failed to cooperate.
II. In the course of discovery, the district cour t deemed the income stated on two of Tran’s tax returns admitted after she refused to admit or deny the income. Tran now claims this decision was erroneous. But since the district court properly granted summary judgment due to Tran’s failure to cooperate, Tran’s challenge to its ruling on the request for admission is moot. See McPherson v. Mich. High Sch. Athletic Ass’n , 119 F.3d 453, 458 (6th Cir. 1997) (en banc)Case No. 17-3921 Tran v. Fed. Ins. Co.

- 6 - (noting that an issue is moot where the relief sought would not “make a difference to the legal interests of the parties” (citation omitted)).
* * * * *
We AFFIRM

.