Bridgham-Morrison v. Nat'l Gen. Assurance Co., CASE NO. C15-927RAJ

LAURIE BRIDGHAM-MORRISON and DEREK MORRISON, Plaintiff, v. NATIONAL GENERAL ASSURANCE COMPANY, a foreign insurer, Defendant.

CASE NO. C15-927RAJ

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE

May 11, 2016

HONORABLE RICHARD A. JONES

ORDER

I. INTRODUCTION

This matter comes before the Court on Plaintiffs Laurie Bridgham-Morrison and Derek Morrison (collectively, "Plaintiffs") Motion for Partial Summary Judgment (Dkt. # 56), Defendant National General Assurance Company's ("Defendant") Motion for Summary Judgment (Dkt. # 58), and Plaintiffs' two Motions for Voluntary Dismissal (Dkt. # 65 & 70). For the reasons set forth below, the Court GRANTS Plaintiffs' Motions for Voluntary Dismissal, GRANTS Defendant's Motion for Summary Judgment, and DENIES Plaintiffs' Motion for Partial Summary Judgment.

II. BACKGROUND

This contentious insurance dispute began on November 9, 2010,¹ when Mrs. Bridgham-Morrison was rear ended while driving a vehicle covered under Defendant'sUnderinsured Motorist ("UIM") policy. See Dkt. # 1-1 ("Am. Compl.") ¶ 2.5. Mrs. Bridgham-Morrison made an insurance claim with Defendant the day of the accident. See Dkt. # 62 (Magalski Decl.) ¶ 3. After confirming coverage under the personal injury protection ("PIP") provisions of its policy, Defendant promptly began paying for Mrs. Bridgham-Morrison's medical treatment and household services, ultimately paying $10,000 in PIP benefits (the PIP policy limit), $4,920 in income loss benefits, and $3,600 to reimburse Plaintiffs for household services. See id. ¶ 4. Mrs. Bridgham-Morrison's initial attorney, M. Wayne Boyack,² contacted Defendant around this time as well, indicating that he was representing Mrs. Bridgham-Morrison. See Dkt. # 59-3 (Ferguson Decl.) Ex. 3.

For reasons not entirely clear to the Court, Mr. Boyack did not contact Defendant again until January 18, 2013, providing a police report, medical records and bills relating to the accident, and a letter from Mrs. Bridgham-Morrison's employer. See Dkt. # 63 (Wittels Decl.) ¶ 3, Ex. 1. Defendant assigned Jeffrey Wittels to handle Mrs. Bridgham-Morrison's claim. Id. ¶ 2. Mr. Boyack followed up on February 4, 2013, enclosing a copy of the demand letter he sent to the other driver's insurer, State Farm, as well as the supporting materials, which apparently included Mrs. Bridgham-Morrison's records pertaining to the collision, as well as a "Special Damage Statement" outlining her medical expenses and loss of earnings up to May 2012. See Dkt. # 57-1 (Traverso Decl.) Ex. A at 4-6. On July 22, 2013, Mr. Boyack followed up with a letter that stated he "now ha[d] the information needed to assess the total value of [Mrs. Bridgham-Morrison's] claim," and attached a doctor's letter and note. See Dkt. # 63 (Wittels Decl.) Ex. 2.

At that juncture, Mr. Wittels undertook his initial evaluation of Mrs. Bridgham-Morrison's UIM claim. In doing so, he accepted all of the claimed (and documented) medical expense and wage loss and requested additional information regarding her lostwages. See id. ¶ 6. Mr. Wittels then conducted his initial evaluation and estimated Mrs. Bridgham-Morrison's noneconomic damages as ranging between $88,000 and $130,000, resulting in a total value between $166,191.48 and $208,191.48. See id. ¶ 7, Ex. 3 at 22-23. Mr. Wittels also requested additional documentation for Mrs. Bridgham-Morrison's lost wages (see id. Ex. 3 at 21), which Mr. Boyack forwarded on October 10, 2013 (see id. Ex. 4). Mr. Wittels subsequently requested $100,000 - the policy limits - in settlement authority. See Dkt. # 57-2 (Traverso Decl.) Ex. B at 5.

It appears (though it is not entirely clear) that around October 24, 2013, Mr. Wittels' supervisor instructed him to review his initial evaluation. See id. at 5; Dkt. # 63 (Wittels Decl.) ¶ 12. Whatever the case, Mr. Wittels reevaluated Mrs. Bridgham-Morrison's claim and revised his estimated range for Mrs. Bridgham-Morrison's noneconomic damages downward. Dkt. # 63 (Wittels Decl.) ¶ 14, Ex. 5 at 33-35. He ultimately estimated that Mrs. Bridgham-Morrison's noneconomic damages ranged from $53,000 to $75,000, with her total UIM claim's value ranging between $131,252 and $153,252. Id. at 35. Consequently, Mr. Wittels requested $38,000 in settlement authority, which he received. See Dkt. # 57-2 (Traverso Decl.) Ex. B at 2.

After receiving such authority, Mr. Wittels contacted Mr. Boyack and offered $17,000 to settle Mrs. Bridgham-Morrison's UIM claim. See id. That was not accepted and in November 2013, Mr. Wittels offered $20,000 and Mr. Boyack lowered Plaintiffs' demand to $85,000. See Dkt. # 63 (Wittels Decl.) ¶ 17; Dkt. # 72-10 (Traverso Decl.) Ex. S at 13. By December 2013, however, Plaintiffs' current attorney, Terrence Traverso, entered the fray. See Dkt. # 59-9 (Ferguson Decl.) Ex. 9. In response, around January 9, 2014, Defendant assigned another adjuster, Brian Carroll, to adjust Mrs. Bridgham-Morrison's claim. See Dkt. # 60 (Carroll Decl.) ¶ 2; Dkt. # 72-10 (Traverso Decl.) Ex. S at 13.

At that point, despite voluminous correspondence, Plaintiffs provided little explanation for their continued demands for a higher settlement offer and nodocumentation. See Dkt. # 59-10 (Ferguson Decl.) Ex. 10. At best, Plaintiffs' new correspondence finally introduces Mr. Morrison as a claimant (id. at 3) and alludes to increased economic damages, which Plaintiffs assume to be "fully documented" (id. at 25). Whatever the case, after over a year, the Parties had still noted resolved the claim and Plaintiffs filed suit. See Dkt. # 1.

III. LEGAL STANDARD

a. Federal Rule of Civil Procedure 56 - Summary Judgment

Summary judgment is appropriate if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving party will have the burden of proof at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). On an issue where the nonmoving party will bear the burden of proof at trial, the moving party can prevail merely by pointing out to the district court that there is an absence of evidence to support the non-moving party's case. Celotex Corp., 477 U.S. at 325. If the moving party meets the initial burden, the opposing party must set forth specific facts showing that there is a genuine issue of fact for trial in order to defeat the motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The court must view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150-51 (2000).

b. Federal Rule of Civil Procedure 41(a) - Voluntary Dismissal

Pursuant to Federal Rule of Civil Procedure 41(a)(2), a plaintiff may voluntarily dismiss his claims "only by court order, on terms that the court considers proper" unless the defendant has not yet filed an answer or motion for summary judgment or the parties have stipulated to dismissal. A "plaintiff may dismiss some or all of the defendants, orsome or all of his claims" pursuant to Rule 41(a). See Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997) (citing Concha v. London, 62 F.3d 1493, 1506 (9th Cir. 1995); Pedrina v. Chun, 987 F.2d 608, 609-10 (9th Cir. 1993)); but see Bailey v. Shell W. E & P, Inc., 609 F.3d 710, 719 (5th Cir. 2010) ("Rule 41(a) dismissal only applies to the dismissal of an entire action—not particular claims") (citing Exxon Corp. v. Md. Cas. Co., 599 F.2d 659, 662 (5th Cir. 1979)).

"A district court should grant a motion for voluntary dismissal under Rule 41(a)(2) unless a defendant can show that it will suffer some plain legal prejudice as a result." Smith v. Lenches, 263 F.3d 972, 975 (9th Cir. 2001) (citing Waller v. Fin. Corp. of Am., 828 F.2d 579, 583 (9th Cir. 1987)). "Legal prejudice" in this regard "means 'prejudice to some legal interest, some legal claim, some legal argument.'" Id. (quoting Westlands Water Dist. v. United States, 100 F.3d 94, 97 (9th Cir. 1996)). However, "[l]egal prejudice does not result merely because a defendant will be inconvenienced by potentially having to defend the action in a different forum or because the dispute will remain unresolved." WPP Luxembourg Gamma Three Sarl v. Spot Runner, Inc., 655 F.3d 1039, 1059 n.6 (9th Cir. 2011) (citing Smith, 263 F.3d at 976).

IV. DISCUSSION

a. Voluntary Dismissal

The Court begins with Plaintiffs' requests to dismiss the majority of their claims. See Dkt. # 65 & 70. Following Defendant's Motion for Summary Judgment and tender of the UIM policy limits to the Plaintiffs, Plaintiffs no longer wish to assert their claims for breach of fiduciary duty, violations of the Washington Consumer Protection Act, negligence, and breach of contract. See id. Instead, the only claims they now assert are their claims for bad faith and violations of the Washington Insurance Fair Conduct Act ("IFCA"). See id. Defendant does not oppose dismissal, but requests an expedited summary judgment briefing schedule should Plaintiffs decide to reassert these claims. See Dkt. # 73.

Because of the apparent consensus between the Parties, the Court GRANTS Plaintiffs' request. Plaintiffs' sole remaining claims are for violations of the IFCA and for bad faith. However, the Court will not impose Defendant's requested expedited briefing schedule. The time for amending pleadings has long since passed. See Dkt. # 29 (setting December 9, 2015 deadline for amending pleadings). Good cause likely does not exist for amending the Scheduling Order or to permit Plaintiffs to reassert claims they have already voluntarily dismissed.

b. Summary Judgment Motions for Plaintiffs' IFCA...