Thompson v. Prop. & Cas. Ins. Co. of Hartford

• Decision Date: 16 December 2015
• Docket Number: No. CV-13-02437-PHX-JAT,CV-13-02437-PHX-JAT
• Parties: William U. Thompson, Plaintiff, v. Property & Casualty Insurance Company of Hartford, Defendant.
• Court: U.S. District Court — District of Arizona

William U. Thompson, Plaintiff, v. Property & Casualty Insurance Company of Hartford, Defendant.

No. CV-13-02437-PHX-JAT

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

December 16, 2015

ORDER

Pending before the Court is Property & Casualty Insurance Company of Hartford ("Hartford")'s Motion for Summary Judgment. (Doc. 53). The motion is in response to William U. Thompson ("Plaintiff")'s suit for breach of contract after Hartford refused to honor a homeowner's insurance policy (the "Policy") claim following an alleged burglary of Plaintiff's Scottsdale, Arizona residence. The Court now rules on the motion.

I. Background

Prior to addressing Hartford's motion, a recitation of the facts underlying the matter is necessary. In the interest of clarity and consistency, the Court will reproduce in full the factual discussion from its March 30, 2015, Order (Doc. 55):

Hartford issued a homeowners insurance policy (the "Policy") to Plaintiff for the period of February 9, 2009 through February 9, 2010. The Policy excludes coverage for an insured who before or after a loss "(1) intentionally concealed or misrepresented any material fact or circumstance; (2) made false statements of fact which, if known to Hartford, would have caused Hartford not to issue the policy; or (3) engaged in fraudulent conduct relating to the insurance." (Doc. 25 ¶ 2).

Plaintiff claimed his home was burglarized between July 24, 2009 and July 31, 2009. He reported the burglary to the Scottsdale Police Department, estimating the value of his stolen items to be approximately $40,000. In August 2009, Plaintiff submitted a claim to Hartford for his alleged loss, and on October 21, 2009, Hartford received Plaintiff's proof of loss, which listed 465 items that Plaintiff claimed were stolen from his home. Plaintiff valued his loss at $211,189.

When Hartford investigated Plaintiff's claim, it learned that Plaintiff had made at least ten prior insurance claims, including five prior burglary claims at the same residence. Hartford obtained a recorded statement from Plaintiff. Hartford also took Plaintiff's Examination under Oath ("EUO"). During the EUO, Plaintiff testified to losses that increased the value of his claim to between $353,189 to $463,149.

On May 3, 2011, Hartford sent Plaintiff's attorney a letter in which Hartford stated, in part:

We have now completed our investigation and we have determined that there is no coverage under Mr. Thompson's Property & Casualty Insurance Company of Hartford ("Hartford") policy. (Doc. 25-1 at 156).

The letter then extensively detailed the factual circumstances surrounding Hartford's determination of no coverage. (Id. at 157-69). Finally, the letter concluded:

"Based upon our investigation, as noted above, we have determined that Mr. Thompson intentionally concealed or misrepresented material facts and circumstances regarding his claim and therefore coverage under his policy is denied.

If you believe that Hartford has erred in any way in its investigation or analysis, please let us know and we will be happy to consider your position. If you or Mr. Thompson believes you or Mr. Thompson have any other facts orinformation which would assist us in this matter and cause further consideration, please forward such materials at your earliest convenience and we will consider same. Should you and/or Mr. Thompson feel that Harford's decision is based upon incomplete or inaccurate information, please contact me to discuss the matter further. If any changes occur in the circumstances of this matter, please notify us immediately. All rights, terms, conditions and exclusions of the policy remain in full force and effect and are completely reserved.

There may be other reasons why coverage does not apply and Hartford does not waive its right to contest or deny coverage for any other valid reason that may arise or is later discovered. Hartford reserves the right to bring a declaratory judgment action or other legal action to determine its duties, including, but limited to, whether coverage is, in fact, available under the policy." (Id. at 169-70).

Plaintiff's counsel wrote to Hartford to ask for a revised decision, indicating that "[m]y client does not accept the decision from your client" and "there is no basis for the Hartford to deny the claim based on intentional concealment or misrepresentation of material facts and circumstances regarding the claim." (Id. at 181, 183). On September 11, 2012, Hartford sent Plaintiff's counsel a letter in which Hartford concluded that "we have determined that Mr. Thompson intentionally concealed or misrepresented material facts and circumstances regarding his claim and therefore coverage under his policy is denied." (Id. at 154). Like the first letter, this second letter also stated that Hartford would be happy to consider Plaintiff's position if Plaintiff believed Hartford had erred in its investigation or analysis. (Id.)

On October 29, 2013, Plaintiff filed this lawsuit against Hartford for breach of contract, unjust enrichment, and breach of the covenant of good faith and fair dealing (i.e. bad faith).

(Doc. 55 at 1-3). On August 8, 2014, Hartford filed a motion for summary judgment on Plaintiff's claim of bad faith. (Doc. 24). On March 30, 2015, this Court granted Hartford's motion, concluding that the claim was time-barred, as Plaintiff failed to filesuit within the two-year statute of limitations. (Doc. 55 at 5-6). On May 15, 2015, Hartford filed the pending motion, which seeks summary judgment on Plaintiff's remaining claims for breach of contract and unjust enrichment, as well as on Hartford's counterclaim against Plaintiff for fraud. (Doc. 53). Having set forth the pertinent factual and procedural background, the Court turns to Hartford's motion.

II. Legal Standard

Summary judgment is appropriate when "the movant shows that 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 asserting that a fact cannot be or is genuinely disputed must support that assertion by . . . citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits, or declarations, stipulations . . . admissions, interrogatory answers, or other materials," or by "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Rule 56(c)(1)(A), (B). Thus, summary judgment is mandated "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 Corp. v. Catrett, 477 U.S. 317, 322 (1986).

Initially, the movant bears the burden of pointing out to the Court the basis for the motion and the elements of the causes of action upon which the non-movant will be unable to establish a genuine issue of material fact. Celotex Corp., 477 U.S. at 323. The burden then shifts to the non-movant to establish the existence of material fact. Id. The non-movant "must do more than simply show that there is some metaphysical doubt as to the material facts" by "com[ing] forward with 'specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (emphasis in original) (quoting Fed. R. Civ. P. 56(e) (1963) (amended 2010)). A dispute about a fact is "genuine" if the evidence is such that areasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The non-movant's bare assertions, standing alone, are insufficient to create a material issue of fact and defeat a motion for summary judgment. Id. at 247-48. But in the summary judgment context, the Court construes all disputed facts in the light most favorable to the non-moving party. Ellison v. Robertson, 357 F.3d 1072, 1075 (9th Cir. 2004).

Summary judgment is generally disfavored when the motion presents issues of a party's "motives and intent." Continental Maritime of San Francisco, Inc. v. Pacific Coast Metal Trades Dist. Council, etc., 817 F.2d 1391, 1393 (9th Cir. 1987) (citing Poller v. Columbia Broadcasting System, 368 U.S. 464, 473 (1963)). Nonetheless, it "may be granted where 'the non-moving party does not show any genuine issue of material fact and does not present an adequate record to support a finding in his favor.'" Id. (quoting Dimidowich v. Bell & Howell, 803 F.2d 1473, 1477 (9th Cir. 1986)).

III. The Parties' Evidentiary Disputes

Prior to addressing the merits of Hartford's motion, the Court must resolve two evidentiary disputes that bear on the Court's analysis: (1) Hartford's introduction of statements from an unavailable witness; and (2) Plaintiff's affidavit.

A. Mr. Elek's Transcribed Statements

On October 4, 2010, during Hartford's investigation of Plaintiff's insurance claim, Hartford sent "Detective" James L. Peters—described as an "investigator"—to interview Les Elek, the owner of Rose Jewelers. (Doc. 54-3 at 54). Hartford sought to ask Mr. Elek about a transaction he conducted with Plaintiff some fifteen years ago, where Mr. Elek allegedly sold Plaintiff two crystal chandeliers worth approximately $30,000 each. In the transcribed interview between Mr. Elek and Detective Peters, Mr. Elek explicitly stated that he sold Plaintiff "[j]ust" a single chandelier and that Plaintiff "only bought one." (Id. at 56). Mr. Elek elaborated that at the time, he only had two chandeliers in his store, andafter he sold Plaintiff a single Waterford chandelier, the second chandelier was then "stored for a number of years" because Mr. Elek "couldn't sell it." (Id. at 55). He went on to state that the second chandelier was currently in storage at his ex-wife's residence. (Id. at 56-57). In addition to the number of chandeliers he sold to Plaintiff,...