Hunting v. Am. Family Mut. Ins. Co., CASE NO. C19-5783MJP
| Decision Date | 20 October 2020 |
| Docket Number | CASE NO. C19-5783MJP |
| Court | U.S. District Court — Western District of Washington |
| Parties | JAMI HUNTING, Plaintiff, v. AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Defendant. |
HONORABLE MARSHA J. PECHMAN
THIS MATTER is before the Court on Defendant American Family Insurance Company's Renewed Motion for Partial Summary Judgment Re 2 Year Suit Limitation and for Partial Summary Judgment on Extracontractual Claims. [Dkt. # 48].
The largely undisputed material facts are reflected in the documents in the record. In 2014, Hunting purchased a "Businessowners" commercial property insurance policy from American Family, to provide coverage for her Puyallup rental home. In September 2014, Hunting rented the home to the Gonzales family. The renters stopped paying rent (and had more than the authorized 8 tenants1 in the home), and Hunting terminated the lease effective May 1, 2017. She claims that Gonzales told her she "would be sorry" she terminated the lease. Hunting inspected the property on May 3 and discovered that the Gonzalez family had vandalized the property, damaging the walls, ceilings, doors, windowsills, carpet, appliances, and plumbing. [See generally Hunting Declaration, Dkt. # 59, and attached exhibits (before and after photographs)]. Hunting also lists the damaged items in her Response. [Dkt. # 54 at 4-5].
Hunting notified American Family of the loss and made a claim for vandalism damages under her policy. American Family assigned a senior adjuster, Erik Boe, to handle the claim. Boe hired an independent adjuster, James Gomez of Frontier Adjusters, to inspect the home and its damage. Gomez did so on May 17. [Boe Dec., Dkt. # 18-1 at p. 4].
On May 31, Boe informed Hunting by phone that Gomez's inspection determined that the bulk of the damage was wear and tear, faulty or inadequate maintenance, or tenant neglect. He offered to have Gonzales estimate the upstairs bathroom water damage, and she asked him to do so. [Dkt. # 18-1 at p. 11]. Based on Gomez's report and estimates, Boe denied the bulk of Hunting's claim by email on June 7, again explaining that most of the damage was the result of (excluded) "wear and tear," not (covered) vandalism. Boe told Hunting that the vandalism portion of the damage ($1879.94) was less than the policy's $2500 vandalism deductible. He again offered to open a water damage claim (net $ 2067.64, after the $1000 water damage deductible), if Hunting wanted to do so. [Dkt. # 18-1 at p. 11].
Hunting's complaint [Dkt. # 1-2] alleges that she sought to negotiate her claim directly with American Family from June 2017 until November 2018. She now concedes that she had health issues which prevented her from pursuing her claim during that 17-month period. InNovember 2018, Hunting hired a public adjuster, Jack Thomas of Casualty Loss Consultants (CLC), to pursue her claim for coverage. On November 20, 2018, Thomas informed Boe that he had been retained. [Dkt. # 18-1 at p. 13]. In response to Thomas's request, Boe sent Thomas a copy of Hunting's American Family insurance policy on December 5, 2018. [Wenzel-Grette Dec., Dkt. # 49-6].
On January 3, 2019, Boe sent Thomas a letter highlighting the Policy's two-year suit limitation period. [Dkt. # 18-1 at p. 15]. On January 23, Boe asked Thomas for more information about whether the damages had been repaired and urged Thomas to contact him if Hunting was claiming any additional damage related to vandalism, so that American Family could re-inspect the home. [Dkt. # 49-7].
Thomas responded the next day, January 24, promising a Proof of Loss and enclosing a Washington Insurance Fair Conduct Act (IFCA) notice, accusing American Family of bad faith. He claimed American Family had unreasonably delayed its investigation and unreasonably determined the damage was wear and tear, not vandalism. [Dkt. # 18-1 at pp. 17-18]. Thomas submitted the Proof of Loss to Boe on January 31, claiming that replacement repairs would cost almost $100,000, based on an estimate prepared for Hunting by a contractor, Prime NW Construction. [Dkt. # 49-8 at p. 1].
Boe responded to Thomas's January 24 letter on February 6. He again sought information about "whether any of the damage claimed as vandalism had been repaired," and asked Thomas to arrange a re-inspection of the property. [Dkt. # 18-1 at p. 20]. That inspection apparently occurred, with Gomez and Thomas present.
On March 5, following the re-inspection, Boe informed Thomas that American Family's assessment of the damage had "not changed since its initial inspection on May 16, 2017." Hereiterated that most of the damage was the result of excluded wear and tear, lack of maintenance, or home remodel. He explained again that the covered vandalism component ($1879.94) was less than Hunting's $2500 deductible, but again offered to open a separate water damage claim. Boe concluded that "no payment can be issued at this time." [Dkt. # 18-1 at p. 24].
Thomas responded to Boe by email the next day, March 6. He said Boe's March 5 letter was "expected" and informed Boe that "the insured will now proceed with a law suit and you can expect to receive a complaint in the next few weeks." He also claimed that American Family had "apparently denied the loss of rents claim." [Dkt. # 20-1 at p. 5].
Boe responded to Thomas by certified mail on March 27. He refuted Thomas's claim that American Family had changed its position on the water damage claim (clarifying that he had never agreed that the water damage was the result of vandalism) and pointed out that no water damage claim had been submitted. He reiterated that the vandalism loss was less than the deductible, and described why American Family had determined that most of the estimated repairs involved wear and tear, maintenance, and home remodel, not vandalism repair. He noted that Thomas had not previously claimed lost business income (rent) and offered four weeks' rent for the time it would take to repair the vandalism damage. Boe concluded by confirming that "American Family reserves and does not waive its rights under the policy." [Dkt. # 49-9].
This is the last documented contact Boe had with Thomas, CLC, or Hunting, before the lawsuit was filed.
On April 5, Hunting emailed Thomas about American Family's March 27 letter, asking about "the next steps." [Dkt. # 49-11 at p. 2]. Thomas replied on April 8, informing Hunting thathe "did a letter" informing American Family that "we are moving forward with the lawsuit."2 He told her: "there will be no negotiations on your claim so this is the time you have to decide whether or not you want to go ahead with a law suit." Hunting responded on April 11 that she "definitely wants to move forward" in court. [Dkt. # 49-11 at p. 1]. American Family demonstrates that Hunting did not produce these emails until after the discovery cutoff.
The letter referenced in Thomas's email does not appear in the voluminous record. Also missing is the "May 1 letter" Thomas claims he sent to "Defendant," as part of continuing to approach it with adjusting the Hunting claim." [Thomas Dec., Dkt. # 56 at pp. 2-3; the same claim was made in Thomas's earlier Dec., Dkt. # 15 at p. 2].
In any event, Thomas now claims that he had "several conversations with adjuster Gomez," which occurred "in later May and June 2019." He claims that Gomez told him he would "speak to management and recommend they cover the entire loss." [Thomas Dec., Dkt. # 56 at pp. 2-3]. Thomas claims he never heard back; Gomez denies any conversation took place.
Hunting sued in July 2019, asserting breach of contract and extracontractual bad faith (Washington Consumer Protection Act and Insurance Fair Conduct Act) claims. [Dkt. # 1-2]. Hunting seeks the actual cash value of the repairs and lost rental income. She also claims American Family failed to timely and reasonably investigate and resolve her claim, and unfairly valued it. She seeks extracontractual damages (trebled), fees, and costs. Hunting's Initial Disclosures articulated a claim for $600,000, including her bad faith claims. [See Wenzel-Grette Dec. Dkt. # 28-2 at Ex. B, p. 3].
Summary judgment is proper "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). In determining whether an issue of fact exists, the Court must view all evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. Anderson Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986); Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir. 1996). A genuine issue of material fact exists where there is sufficient evidence for a reasonable factfinder to find for the nonmoving party. Anderson, 477 U.S. at 248. The inquiry is "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." Id. at 251-52. The moving party bears the initial burden of showing that there is no evidence which supports an element essential to the nonmovant's claim. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the movant has met this burden, the nonmoving party then must show that there is a genuine issue for trial. Anderson, 477 U.S. at 250. If the nonmoving party fails to establish the existence of a genuine issue of material fact, "the moving party is entitled to judgment as a matter of law." Celotex, 477 U.S. at 323-24.
There is no requirement that the moving party negate elements of the non-movant's case. Lujan v. National Wildlife Federation, 497 U.S. 871 (1990). Once the moving party has met its burden, the non-movant must then produce concrete evidence, without merely relying on allegations in the pleadings, that there remain genuine factual issues. Anderson v. Liberty Lobby, Inc., 477...
To continue reading
Request your trial