Vickers v. Progressive N. Ins. Co.

• Decision Date: 19 November 2018
• Docket Number: Case No. 18-CV-52-TCK-FHM
• Citation: 353 F.Supp.3d 1153
• Parties: Joseph VICKERS, Plaintiff, v. PROGRESSIVE NORTHERN INSURANCE COMPANY, Defendant.
• Court: U.S. District Court — Northern District of Oklahoma

353 F.Supp.3d 1153

Joseph VICKERS, Plaintiff,

v.PROGRESSIVE NORTHERN INSURANCE COMPANY, Defendant.

Case No. 18-CV-52-TCK-FHM

United States District Court, N.D. Oklahoma.

Signed November 19, 2018

Grant Bailey Thetford, John Michael Thetford, Levinson, Smith & Huffman, P.C., Tulsa, OK, for Plaintiff.

Benjamin Michael McCaslin, Gerard F. Pignato, Pignato Cooper Kolker & Roberson PC, Brad Roberson, Dawn Michelle Goeres, Paul M. Kolker, Roberson, Kolker, Cooper & Goeres, P.C., Oklahoma City, OK, for Defendant.

OPINION AND ORDER

TERENCE C. KERN, United States District JudgeBefore the Court are (1) Defendant Progressive Northern Insurance Company's Motion for Partial Summary Judgment on Plaintiff's claim for Breach of Contract (Doc. 9); (2) Defendant Progressive Northern Insurance Company's Motion for Partial Summary Judgment on Plaintiff's claim for Breach of the Duty of Good Faith and Fair Dealing (Doc. 10); (3) Plaintiff Joseph Vickers's Motion for Summary Judgment (Doc. 12); and Defendant's Motion to Bifurcate Trial (Doc. 76). For reasons discussed below, Defendant Progressive Northern Insurance Company's Motion for Partial Summary Judgment on Plaintiff's claim for Breach of Contract (Doc. 9) is DENIED ; Defendant Progressive Northern Insurance Company's Motion for Partial Summary Judgment on Plaintiff's claim for Breach of the Duty of Good Faith and Fair Dealing (Doc. 10) is GRANTED ; Plaintiff Joseph Vickers's Motion for Summary Judgment (Doc. 12) is DENIED , and Defendant's Motion to Bifurcate Trial (Doc. 76) is DENIED AS MOOT .

I. Factual Background¹

On January 10, 2015, Plaintiff Joseph Vickers ("Plaintiff") was involved in an automobile accident ("accident") with Jordan Rahman ("Rahman"), in which he sustained bodily injuries. Plaintiff was not negligent in causing the accident. At the time of the accident, Rahman had a liability automobile insurance policy with limits of $25,000 per person and $50,000 per accident.

At the time of the accident, Plaintiff was driving a 2005 GMC Sierra ("Sierra") owned by Rick G. or Vicki Vickers. The Sierra was identified on the declarations page of, and insured under, Rick Vickers' business automobile insurance policy by Allmerica Financial Benefit Insurance (of the Hanover Group of Insurance Companies) to Mosquito Man, LLC ("the Hanover Policy") (Doc. 10, Exh. 17, pg. 179). The Hanover Policy had liability coverage on the Sierra, but no uninsured or underinsured motorist coverage ("UM coverage"). Rick Vickers also owned two personal vehicles, which he insured under a policy with Progressive Northern Insurance Company ("the Progressive policy"). Rick Vickers was the named insured of the Progressive policy, while Blake Vickers and Joseph Vickers were listed as "Drivers and household residents." (Doc. 10, Exh. 17, pg. 182.) The Progressive Policy had UM coverage with limits of $100,000 per person and $300,000 per accident, and was in effect at the time of the accident. However, the Sierra was not listed on the declarations page of the Policy.

Additionally, at the time of the accident, Plaintiff resided with Rick Vickers, Plaintiff's father. The Progressive Policy's UM coverage pays for damages sustained by an "insured person," a category that includes resident relatives such as Plaintiff. (Doc. 9, Exh. 7, pg. 105.) However, the Progressive Policy also contains an exclusion ("Exclusion 1(b)"), which states that its UM coverage will not apply to bodily injury sustained by any person while using or occupying:

b. a motor vehicle that is owned by or available for regular use of you or a relative .

This exclusion does not apply:

(i.) to a covered auto that is insured under this Part III; or

(ii.) to a relative who is insured for uninsured motorist coverage under any other motor vehicle insurance policy he or she has obtained

In early 2015, Progressive Northern Insurance Company ("Defendant" or "PNIC") implemented a process for evaluating UM coverage claims that fell within Exclusion 1(b), and developed and implemented guidelines based on the advice of Defendant's counsel, Dawn M. Goeres. These guidelines are as follows:

(a.) When the person seeking UM coverage is using or occupying a motor vehicle which does not fall within the definition of a "covered auto ," but is owned by or available for the regular use of a person who falls within the definition of "you " or a "relative ," and that motor vehicle is covered by another policy of automobile insurance which provides both liability coverage and UM coverage, PNIC's coverage determination is that the full limit of UM coverage on the PNIC policy of insurance at issue is portable and available to the person seeking UM coverage;

(b.) When the person seeking UM coverage is using or occupying a motor vehicle which does not fall within the definition of a "covered auto ," but is owned by or available for the regular use of a person who falls within the definition of "you " or a "relative ," and that motor vehicle is covered by another policy of automobile insurance which provides only liability coverage but does not provide UM coverage, PNIC's coverage determination is that Exclusion 1(b) applies to bar coverage, but UM coverage in an amount equal to the statutory mandatory minimum limits of liability coverage will be imputed onto the PNIC policy at issue, and that amount will be portable and available to the person seeking UM coverage; and

(c.) When the person seeking UM coverage is using or occupying a motor vehicle which does not fall within the definition of a "covered auto ," but is owned by or available for the regular use of a person who falls within the definition of "you " or a "relative ," and that motor vehicle is not covered by any other policy of automobile insurance, PNIC's coverage determination is that Exclusion 1(b) applies to bar all UM coverage under the PNIC policy at issue, and no UM coverage will be portable or available to the person seeking UM coverage.

(Doc. 9, Exh. 9, pg. 134).

The Progressive policy also contains the following provision:

TERMS OF POLICY CONFORMED TO STATUTES

If any provision of this policy fails to conform to the statutes of the state listed on your application as your residence, the provision shall be deemed amended to conform to such statutes. All other provisions shall be given full force and effect. Any disputes as to the coverages provided or the provisions of this policy shall be governed by the law of the state listed on your application as your residence.

(Doc. 9, Exh. 7, pg. 24)

II. Procedural Background

On October 26, 2015, Plaintiff's attorney sent a letter to Defendant, claiming UM benefits under the Progressive policy. After sending this letter, Plaintiff gave a recorded statement for Defendant on December 16, 2015 (Doc. 9, Exh. 4, pg.55), and the parties began to correspond regularly, approximately once a month. (Doc. 10, Exhs. 11-18, pgs. 148-191; Doc. 14, Exh. 11, pg. 159). During this correspondence, in addition to its initial document requests, Defendant requested any policy of insurance in force for the Sierra at the time of the accident—in this case, the Hanover policy—at least twice. (Doc. 10, Exh. 13, pg. 157.) On February 29, 2016, Defendant issued a conditional denial of coverage, as its investigation found no policy of insurance in effect on the Sierra at the time of the accident. (Doc. 10, Exh. 14, pg. 169.) Subsequently, on April 4, 2016, Plaintiff's counsel emailed Defendant the Hanover policy. (Doc. 10, Exh. 13, pg. 173.)

Finally, on May 5, 2016, Defendant sent Plaintiff's counsel a letter indicating that, pursuant to Exclusion 1(b), no coverage existed under the Progressive Policy, but that it had made the business decision to afford $25,000 of UM coverage to Plaintiff. Id. When it informed Plaintiff of this decision, Defendant stated that "the decision to afford this amount of coverage is not in any way an admission that coverage exists under the Policy." (Doc. 11, Exh. D, pg. 58.) Plaintiff accepted this offer on May 17, 2016 (Doc. 14, Exh. 11, pg. 160), and Defendant tendered $25,000 on July 1, 2016 (Doc. 9, Exh. 14, pg. 159). Defendant also confirmed that accepting the $25,000 would not waive Plaintiff's right to pursue any claims he believed he had against Defendant.

Plaintiff filed suit against Rahman and Progressive Direct Insurance Company on March 7, 2017. On May 11, 2017, Plaintiff filed his Amended Petition against Rahman and Defendant, who issued the Progressive Policy. After Plaintiff settled his claims against Rahman, Defendant removed this case to this Court on January 22, 2018. (Doc. 2.)

III. Summary Judgment Standard

Summary judgment is proper only if "there is no genuine issue as to any material fact, and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). The moving party bears the burden of showing that no genuine issue of material fact exists. See Zamora v. Elite Logistics, Inc. , 449 F.3d 1106, 1112 (10th Cir. 2006). In its summary judgment analysis, the Court resolves all factual disputes and draws all reasonable inferences in favor of the non-moving party. Id. However, the party seeking to overcome a motion for summary judgment "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

A movant that "will not bear the burden of persuasion at trial need not negate the nonmovant's claim," but may "simply ... point[ ] out to the court a lack of evidence for the nonmovant on an essential element of the nonmovant's claim." Adler v. Wal-Mart Stores, Inc. , 144 F.3d 664, 671 (10th Cir. 1998) (internal citations omitted). If the movant makes this prima facie showing, "the burden shifts to the nonmovant to go beyond the pleadings and ‘set forth specific facts’ that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant." Id. (citing ...