Eisenberg v. Insurance Co. of North America, 86-6128

Citation815 F.2d 1285
Decision Date28 April 1987
Docket NumberNo. 86-6128,86-6128
Parties107 Lab.Cas. P 55,821 Lewis EISENBERG, Plaintiff-Appellant, v. INSURANCE COMPANY OF NORTH AMERICA, Cigna Corporation, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Michael S. Duberchin, North Hollywood, Cal., for plaintiff-appellant.

James S. Bryan, Los Angeles, Cal., for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before REINHARDT and WRIGHT, Circuit Judges, and MUECKE, * District Judge.

MUECKE, Senior District Judge:

OVERVIEW

In this diversity case, the Appellant, Lewis Eisenberg, has asserted three claims against his former employer, the Insurance Company of North America ("ICNA"). Specifically, the Appellant has charged that by terminating his employment, ICNA has 1) breached an oral employment contract; 2) breached the implied covenant of good faith and fair dealing; and 3) tortiously inflicted emotional distress. On December 26, 1985, ICNA moved for summary judgment. The District Court granted the Motion on June 24, 1986. The Court's Order reasoned that the Appellant failed to sufficiently demonstrate the existence of a genuine factual dispute as to the cause of his termination, 638 F.Supp. 746. On July 2, 1986, the Appellant filed a timely Notice of Appeal.

FACTS AND PROCEEDINGS BELOW

On January 29, 1979, the Appellant accepted an offer of employment as a claims supervisor from ICNA. Due to alleged economic considerations, in May of 1983 ICNA eliminated two positions at the facility where the Appellant was employed. On May 25, 1983, the Appellant was notified that his position was one of the two subject to elimination. Pursuant to an ICNA policy The Appellant filed his complaint in the Los Angeles County Superior Court on August 13, 1984. His complaint's argument was four pronged. It alleged that his termination constituted 1) a breach of contract; 2) a breach of the implied covenant of good faith and fair dealing; 3) fraud; and 4) intentional infliction of emotional distress. On November 26, 1984, the case was removed to the United States District Court for the Central District of California based upon the existence of complete diversity of citizenship between the Appellant and ICNA.

the Appellant was also informed that he would remain on the company's payroll until June 23, 1983 and that his formal termination would be effective as of August 18, 1983. The Appellant was further advised that, between May 25, 1983 and July 20, 1983, attempts would be made to relocate him within the company. Such attempts were unavailing, and on August 18, 1983 the Appellant was formally terminated.

ICNA filed a Motion for Summary Judgment on December 26, 1985. The Motion argued that the Appellant's first and second claims were barred by the statute of frauds, the second and fourth claims were barred by a one year statute of limitations and the third claim for fraud was without merit. In his Response to the Motion, the Appellant abandoned his fraud claim. The Appellant's Response also stated that the basis for his breach of the covenant of good faith and fair dealing claim was an employment discharge in violation of public policy. 1

Specifically, the Appellant argued that he had been terminated for his refusal to violate California law. This refusal consisted of the Appellant's unwillingness to violate guidelines of the California Department of Insurance at his company's behest. In support of this contention, the Appellant adduced his own declaration and two ICNA interoffice memoranda. The district court found that the Appellant's Response to ICNA's Motion was merely conclusionary and lacked adequate specificity as to "the nature and significance of the alleged 'violation' or its connection with the course of [the Appellant's] employment...." Based on this reasoning, the district court rejected the Appellant's entire case.

DISCUSSION
I. DID THE DISTRICT COURT ERR IN GRANTING SUMMARY JUDGMENT?

A de novo standard of review is applied to a district court's grant of summary judgment. Ralph C. Wilson Industries, Inc. v. Chronicle Broadcasting Co., 794 F.2d 1359, 1362 (9th Cir.1986). Thus, this Court applies the same summary judgment standard as the district court. The standard for a grant of summary judgment reflects the standard governing the grant of a directed verdict. Anderson v. Liberty Lobby, Inc., --- U.S. ----, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). Hence, the question is whether "reasonable minds could differ as to the import of the evidence ..." Id. 106 S.Ct. at 2511. "If the evidence is merely colorable ... or is not significantly probative, summary judgment may be granted." Id.

In making the determination of whether summary judgment should be granted, the court must also consider applicable burdens of proof. If the plaintiff is unable to sufficiently adduce evidence that could lead a reasonable jury to conclude In the present case, the district court granted ICNA's Motion for Summary Judgment because the Appellant failed to proffer sufficient evidence that he had been terminated in contravention of public policy and his Response to ICNA's Motion was conclusionary. As to the question of the sufficiency of evidence, the Appellant tendered three documents in support of his claims. In his declaration, the Appellant stated that he was terminated because of his refusal to cooperate in the violation of California Department of Insurance guidelines. 2 Furthermore, the Appellant also submitted two of the company's interoffice memoranda to buttress his position. In the first memorandum, one of the Appellant's superiors advises another that a client is finding the Appellant uncooperative and troublesome. In the second memo, a superior informs yet another superior of the complaint and suggests that if something is not done about the Appellant soon, a major account will be lost.

                that the plaintiff has satisfied his burden of proof, his claim is subject to an unfavorable summary disposition.  Id. at 2512.  Of course, however, the non-moving party's evidence is to be taken as true and all inferences are to be drawn in the light most favorable to the non-moving party.  Id. at 2513.  Moreover, if the non-moving party adduces direct evidence of a genuine issue of fact, such evidence is not to be weighed against the moving party's conflicting evidence, but rather is to be submitted to the trier of fact for resolution.   T.W. Electrical Serv., Inc. v. Pacific Electrical Contractors Ass'n., 809 F.2d 626, 630-31 (9th Cir.1987)
                

Viewing the evidence in the light most favorable to the Appellant, we find that the district court's grant of summary judgment was unwarranted. In the context of a summary adjudication, "[t]he evidence of the non-movant is to be believed." Anderson, 106 S.Ct. at 2513. Therefore, the Appellant's declaration is to be accepted as true. Moreover, if inferences are to be drawn in favor of the Appellant, the interoffice memoranda must be construed as discussing the Appellant's unwillingness to cooperate in the violation of Department of Insurance guidelines. 3 Taken together, these three factors could lead a reasonable jury to find in favor of the Appellant. Furthermore, since these three factors constitute direct evidence of a material factual dispute, the Appellant's evidence should not be weighed against the evidence of ICNA. T.W. Electrical at 631-32.

The district court also found the Appellant's Response merely "conclusionary." However, we find that the Appellant articulated his claim with sufficient specificity. The Appellant declared that he refused to cooperate with a client's violation of Department of Insurance guidelines. He persisted with this refusal despite his employer's instructions to cooperate. After several superiors discussed the Appellant's uncooperativeness, his employment was terminated. The Appellant's argument is not unpremised. Therefore, the Appellant's Response is not merely conclusionary.

Finally, the district court concluded that the Appellant failed to adequately specify the "nature and significance" of the alleged public policy violation. The Appellant, however, specifically stated that the violation consisted of his discharge in retaliation for his complaints concerning the size of claim manager caseloads. Hence, the "nature" of the violation is clear. As to the "significance" of the violation, we find that termination in retaliation for failure to violate an Insurance Department guideline is contrary to public policy. It is clear that the caseload guidelines of Moreover, even if the Appellant had failed to demonstrate his caseload complaints were protected by public policy, it would not mean that the district court had sufficient basis to reject all the Appellant's claims. Public policy aside, an employer's right to terminate an employee is not unqualified. The right is tempered by the explicit and implicit terms of the employment agreement. Pugh v. See's Candies, 116 Cal.App.3d 311, 171 Cal.Rptr. 917, 922 (1 Dist.1981). Parties may provide, expressly or impliedly, that the employee may only be discharged for "good cause." In determining whether an agreement permits the employee's termination only for good cause, a court may consider the employer's personnel policies and the employer's communications reflecting assurances of continued employment. Id., 171 Cal.Rptr. at 925.

                the Department represent a public policy to insure that each insurance claim receives adequate consideration.  Such a policy is obviously thwarted when a claims manager is overwhelmed with claims. 4   Thus, the Appellant's discharge in violation of public policy argument was legally sufficient
                

In the present case, the Appellant adduced direct evidence that ICNA's policies and communications permitted discharge only for good cause. In fact, the district court specifically assumed that the Appellant...

To continue reading

Request your trial
582 cases
  • Montara Water and Sanitary v. County of San Mateo
    • United States
    • U.S. District Court — Northern District of California
    • February 26, 2009
    ...law. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir.1987). The Court must view the evidence in the light most favorably to the non-moving party, and all reasonable infer......
  • Sega Enterprises Ltd. v. Maphia, C 93-04262 CW.
    • United States
    • U.S. District Court — Northern District of California
    • December 18, 1996
    ...56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Eisenberg v. Insurance Co. of North America, 815 F.2d 1285, 1288-89 (9th Cir. 1987). The moving party bears the burden of showing that there is no material factual dispute. Therefore, the Cou......
  • Indep. Housing Services v. Fillmore Ctr.
    • United States
    • U.S. District Court — Northern District of California
    • December 28, 1993
    ...evidence as true; all inferences are to be drawn in the light most favorable to the non-moving party. Eisenberg v. Insurance Co. of North America, 815 F.2d 1285, 1289 (9th Cir.1987). B. All defendants claim that summary judgment should be granted in their favor because all plaintiffs lack s......
  • Schroeder v. McDonald
    • United States
    • U.S. District Court — District of Hawaii
    • December 3, 1992
    ...for a grant of summary judgment reflects the standard governing the grant of a directed verdict. See Eisenberg v. Insurance Co. of North America, 815 F.2d 1285, 1289 (9th Cir.1987), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). Thus,......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT