Konoloff v. Safeco Ins. Co. of Am., 3:20-cv-01622-AR

CourtUnited States District Courts. 9th Circuit. United States District Court (Oregon)
PartiesNICHOLE L. KONOLOFF, and JASON EAVES, Plaintiffs, v. SAFECO INSURANCE COMPANY OF AMERICA, a Liberty Mutual Company, SUBARU OF AMERICA, Inc., and SUBARU CORPORATION,f/k/a Fuji Heavy Industries, Ltd., Defendants.
Docket Number3:20-cv-01622-AR
Decision Date27 July 2022


SAFECO INSURANCE COMPANY OF AMERICA, a Liberty Mutual Company, SUBARU OF AMERICA, Inc., and SUBARU CORPORATION,f/k/a Fuji Heavy Industries, Ltd., Defendants.

No. 3:20-cv-01622-AR

United States District Court, D. Oregon

July 27, 2022



Plaintiffs Nichole L. Konoloff and Jason Eaves bring this action against defendants Subaru of America, Inc. ("SOA'') and Safeco Insurance Company of America.[1] Konoloff, who


owned a 2014 Subaru Forester vehicle ("the vehicle") manufactured by SOA and insured by Safeco, alleges that on September 6, 2018, the vehicle suddenly accelerated from a parked position, causing injuries to herself and passenger Eaves. Plaintiffs allege four claims-breach of express and merchantability warranties,fraudulent concealment,and deceptive trade practices-arising out of the accident. Plaintiffs seek more than $10 million in economic, noneconomic,and punitive damages.

Presently before the court is defendants' motion for summary judgment[2] under Federal Rule of Civil Procedure (Rule) 56. Plaintiffs did not respond. As explained below,defendants' motion should be granted.


Summary judgment is appropriate when "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). A party seeking summary judgment bears the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317,323 (1986). In determining whether to grant summary judgment,the court must view the evidence in the light most favorable to the nonmoving party. Curley v. City of N. Las Vegas, 772 F.3d 629,631 (9th Cir. 2014); Hernandez v. Space/abs Med. Inc., 343 F.3d 1107, 1112 (9th Cir. 2003). A dispute about a material fact is "genuine" only if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,248 (1986). There is no genuine issue for trial "[w]here the record taken as a whole could not lead a rational trier of fact


to find for the non-moving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

If the moving party shows no issue of material fact exists, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Celotex, 477 U.S. at 324. A party cannot defeat a summary judgment motion by relying on the allegations set forth in the complaint, unsupported conjecture, or conclusory statements. Hemandez, 343 F.3d at 1112. Summary judgment should be entered against "a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322; Long v. Cnty. of L.A., 442 F.3d 1178, 1185 (9th Cir. 2006) (moving party is entitled to judgment as a matter of law "[i]f the non-moving party fails to make this showing").


Plaintiffs' action arises out of a single motor vehicle accident on September 6, 2018 (the "accident"), in which Konoloff was driving and Eaves was the front passenger. Konoloff alleges that she and Eaves were stopped in the parking lot of Deanz Greenz Marijuana Dispensary in Southeast Portland when the vehicle suddenly accelerated 10 to 15 feet, striking a nearby parked


car and knocking over a portion of an adjacent fence before the vehicle stopped. Plaintiffs did not report the accident to the police and did not seek immediate medical attention. On September 14, 2018, in a recorded interview with Safeco's insurance adjuster, Konoloff stated that she and Eaves were not injured in the accident. Deel. Stephen P. Yoshida Supp. SOA's Mot. Summ. J. ("Yoshida Deel.") Ex. 1 at 2, ECF No. 32-1. The vehicle was not kept; it was sold for salvage, and later repaired and resold.

On September 6, 2020, plaintiffs filed a complaint in Multnomah County Circuit Court alleging four causes of action: (1) breach of warranty; (2) breach of implied warranty of merchantability; (3) fraud by omission or fraudulent concealment; and (4) deceptive trade practices under Oregon's Unfair Trade Practices Act ("UTPA"), O.R.S. § 646.607. Contrary to Konoloff's statement to her insurance adjuster, plaintiffs seek to recover medical expenses for the injuries sustained in the accident. Compl. ¶10, ECF No. 1-1. Plaintiffs also seek "damages and restitution in an amount to be proven at trial" and $10 million in punitive damages. Id. at 28 (prayer for relief). Defendants removed the action to this court on September 17, 2020. Notice of Removal, ECF No. 1.

During discovery, defendants repeatedly sought to understand the nature and extent of plaintiffs' alleged injuries and, on April 15, 2021, moved to compel responses to SOA's requests for documents and interrogatories. Mot. Compel, ECF No. 11. On May 13, 2021, Magistrate Judge John V. Acosta held a discovery conference on SOA's motion to compel. Minutes of Proceedings, ECF No. 16. Plaintiffs did not respond, failed to appear at the discovery conference, and failed to inform the court that they could not attend. Id. Judge Acosta granted SOA's motion and determined SOA was entitled to fees. Judge Acosta further required


plaintiffs' counsel to appear at an in-person hearing on June 1, 2021, and show cause why he should not be held in contempt for failing to appear and for failing to register for the court's electronic filing system, Id., Plaintiffs' counsel appeared at the June 1, 2021, show-cause hearing, and was ordered to pay SOA's attorney fees and to register for CM/ECF notifications within 14 days, Minutes of Proceedings, ECF No. 21.

On July 23, 2021, Judge Acosta set a telephone status conference to discuss ongoing discovery issues; plaintiff's counsel again failed to appear, Minutes of Proceedings, ECF No, 25, Judge Acosta set over the discovery conference until August 3, 2021, Id., At the August 3 conference, defendants' counsel again expressed difficulties obtaining discovery and Judge Acosta ordered plaintiff to produce responsive documents by August 11, Minutes of Proceedings, ECF No. 26.

Defendants took Konoloff's deposition on September 7, 2021, at which time they learned - for the first time-that she has preexisting injuries from a June 2016 motor-vehicle accident and a history of panic-attack episodes that she alleges are caused by driving. SOA Mot. Extend at 4, ECF No. 27. SOA also learned during Konoloff's deposition that plaintiffs had not turned over all discoverable materials, including photographs of the accident scene and vehicle just after the accident, plaintiffs' online research into "unintended acceleration" related to the vehicle and other vehicles, and text messages sent between Konoloff and a witness. Id. at 6. Upon learning this, SOA promptly moved to extend the discovery deadline to obtain the information. Id. After reviewing SOA's motion, Judge Acosta set an in-person hearing for November 15, 2021, requiring Konoloff and Eaves to personally appear, advising them that failure to appear "will result in sanctions." Order, ECF NO. 28.


At the November 15 hearing, Judge Acosta ordered plaintiffs to produce the outstanding discovery identified by SOA in their motion, permitted the parties' experts to inspect the vehicle at a mutually agreeable time, and required plaintiffs to provide to defendants "an itemized list of their respective injuries" resulting from the accident by December 6, 2021. Minutes of Proceedings, ECF No. 30.

On December 14, 2021, plaintiffs provided the required "itemized list" to defendants. Yoshida Deel. Ex. 5. In it, Konoloff asserts she is entitled to $25,000 in economic damages and $3.5 million in non-economic damages. Id. at 3. Eaves asserts he is entitled to $5,000 in economic damages and $1.5 million in non-economic damages. Id. Plaintiffs also contend that based on the itemized list and the allegations in the complaint, they "have sufficiently alleged the circumstances upon which their [$10 million] punitive damages claim is made." Id. at 2. The itemized list provides no factual allegations supporting plaintiffs' requested damages and did not come with any documentation. Id.

On January 20, 2022, defendants moved for summary judgment on all claims. Defendants contend that there is no genuine issue of material fact as to plaintiffs' lack of personal injuries or entitlement to economic damages and noneconomic damages. Alternatively, defendants move to strike plaintiffs' claim for punitive damages. Plaintiffs never responded. On February 22, defendants filed a reply and asked that the motion be considered on an expedited basis. Reply, ECF No. 39. On February 23, 2022, Judge Acosta stayed the pending case-management deadlines. Scheduling Order, ECF No. 40. On March 3, 2022, plaintiffs filed an expert-witness list and requested oral argument on the motion for summary judgment. ECF Nos. 41-42. On March 4, Judge Acosta denied plaintiffs' request for argument and ordered the witness list


stricken from the record because they "did not seek leave to file late or timely seek an extension." Order, ECF No. 43. On March 24,the case was reassigned to this court. Notice of Reassignment,ECF No. 44.

On July I,2022,plaintiffs moved to consolidate this case with Weston v. Subaru of America, Inc., Case No. 1:20-cv-05876-CPO-SAK (D.N.J.). Pls.' Mot. Consol., ECF No. 46. On July 15, 2022, plaintiffs moved to have this court reconsider Judge Acosta's March 4 Order denying oral argument and striking the witness list. Pls.' Mot. Recons., ECF No. 50.


On August 31, 2021, Safeco served plaintiffs by email with Requests for Admissions under Rule 36. Yoshida Deel. Ex...

To continue reading

Request your trial

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