Hunton v. American Zurich Insurance Company

Filing 282

ORDER - Zurich's motion for summary judgment (Docs. 223 , 240 ) is DENIED. FURTHER ORDERED that Hunton' 247 motion to strike is GRANTED IN PART. The Clerk of the Court shall strike from the record Zurich's separate statement of controverting facts and accompanying exhibits (Docs. 246 , 252 ). Signed by Judge Douglas L Rayes on 3/6/2018. (ATD)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Bryan Hunton,
Plaintiff,

10
11

American Zurich Insurance Company,

13

ORDER

v.

12

No. CV-16-00539-PHX-DLR

Defendant.

14
15
16

Plaintiff Bryan Hunton accuses Defendant American Zurich Insurance Company

17

(“Zurich”) of handling his worker’s compensation claim in bad faith and seeks both

18

compensatory and punitive damages. (Doc. 1-1 at 5-14; Doc. 68.) Before the Court are

19

Zurich’s motion for summary judgment on the availability of punitive damages (Docs.

20

223, 240), and Hunton’s motion to strike Zurich’s reply, controverting statement of facts,

21

and exhibits 74-95 (Doc. 247). The motions are fully—indeed, excessively—briefed. As

22

explained below, Zurich’s motion for summary judgment is denied and Hunton’s motion

23

to strike is granted in part.1

24

I. Summary Judgment Standard

25

Summary judgment is appropriate when there is no genuine dispute as to any

26

material fact and, viewing those facts in a light most favorable to the nonmoving party,

27
28

1

7.2(f).

Zurich’s request for oral argument is denied. See Fed. R. Civ. P. 78(b); LRCiv.

1

the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). Summary

2

judgment may also be entered “against a party who fails to make a showing sufficient to

3

establish the existence of an element essential to that party’s case, and on which that

4

party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322

5

(1986). A fact is material if it might affect the outcome of the case, and a dispute is

6

genuine if a reasonable jury could find for the nonmoving party based on the competing

7

evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party seeking

8

summary judgment “bears the initial responsibility of informing the district court of the

9

basis for its motion, and identifying those portions of [the record] which it believes

10

demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323.

11

The burden then shifts to the non-movant to establish the existence of material factual

12

issues that “can be resolved only by a finder of fact because they may reasonably be

13

resolved in favor of either party.” Anderson, 477 U.S. at 250.

14

II. Discussion

15

Having reviewed the parties’ briefs and competing separate statements of fact, the

16

Court will eschew an exhaustive recitation of the evidence and arguments. Suffice it to

17

say that, based on the briefing, the Court cannot confidently conclude that there are no

18

genuine issues of material fact bearing on the availability of punitive damages. This is

19

particularly so because it appears that Hunton’s punitive damages theory is so intertwined

20

with his bad faith evidence that disputes of fact on the latter likely apply equally to the

21

former.

22

The Court emphasizes that its decision is based on the briefing before it because

23

the parties’ briefs have not brought clarity to the facts material to the punitive damages

24

issue. For perspective, this is an insurance bad faith action in which neither party has

25

moved for summary judgment on the tort itself. Both parties agree, then, that Hunton’s

26

bad faith claim is suitable for trial, and for this reason there obviously will be genuinely

27

disputed facts touching on the manner in which Zurich handled Hunton’s worker’s

28

compensation claim. The sole issue raised on summary judgment is whether Hunton also

-2-

1

can present sufficient evidence to justify an award of punitive damages.2

2

In insurance bad faith actions, punitive damages are unavailable “absent evidence

3

reflecting something more than conduct necessary to establish the tort.” Filasky v.

4

Preferred Risk Mut. Ins. Co., 734 P.2d 76, 83 (Ariz. 1987) (internal quotation and citation

5

omitted). “The something more is an evil mind, which is satisfied by evidence that

6

defendant’s wrongful conduct was motivate by spite, actual malice, or intent to defraud

7

or defendant’s conscious and deliberate disregard of the interest and rights of others.”

8

Volz v. Coleman Co., Inc., 748 P.2d 1191, 1194 (Ariz. 1987) (internal quotation and

9

citation omitted). Given the limited relief Zurich seeks, the briefs should have addressed

10

with laser focus the evidence (or lack thereof) of the “something more.” Assuming that

11

Zurich acted in bad faith, is there also sufficient evidence that its conduct was motivated

12

by spite, actual malice, or intent to defraud, or that Zurich consciously and deliberately

13

disregard Hunton’s interests and rights? Yet the briefing on this discrete question spans

14

nearly 900 pages, which overflow with information and argument over matters that might

15

be pertinent to the underlying bad faith claim, but seem not to materially bear on the

16

“something more.”

17

Take, for example, Hunton’s supplemental statement of fact 64, which states

18

“Bryan Hunton was 43 years old and had worked as a surveyor at Sundt for over 17 years

19

when he sustained an injury at work on September 18, 2014.” (Doc. 228-1 ¶ 64.) This

20

fact provides exposition but is immaterial to whether Zurich acted with an evil mind, and

21

therefore should not be listed in a document reserved for “facts that establish a genuine

22

issue of material fact or otherwise preclude judgment in favor of the moving party.”

23

LRCiv 56.1(b). Or consider paragraph 65 of the same, which states “[a]fter finishing

24

hammering stakes into the ground with a sledgehammer, [Hunton] felt pain in his lower

25

back when he went to get into his truck which increased throughout the day.” (Doc. 228-

26

1 ¶ 65.) How this fact precludes summary judgment on the availability of punitive

27
2

28

Zurich moves for summary judgment on Hunton’s punitive damages “claim,” but
punitive damages is a remedy, not a substantive claim. See Martin v. Medtronic, Inc., 63
F. Supp. 3d 1050, 1061 (D. Ariz. 2014).
-3-

1

damages is lost on the Court. Zurich nonetheless saw it fit to submit an unauthorized

2

separate statement of controverting facts to controvert Hunton’s supplemental statement

3

of controverting facts, and therein Zurich “dispute[s] in part” paragraph 65, evidently

4

because “[t]he incident report does not mention a ‘sledgehammer[.]’” (Doc. 252 ¶ 65.)

5

Does the sledgehammer make it any more or less likely that Zurich acted with the

6

requisite evil mind? To make matters worse, Zurich’s filing of an unauthorized separate

7

statement of controverting facts spurred another round of briefing on whether to strike

8

Zurich’s reply submissions.

9

“The parties’ voluminous objections are sadly representative of a growing trend

10

where attorneys . . . raise every objection imaginable without regard to whether the

11

objections are necessary, or even useful, given the nature of summary judgment motions

12

in general, and the facts of their cases in particular.” Marceau v. Int’l Broth. of Elec.

13

Workers, 618 F. Supp. 2d 1127, 1141-42 (D. Ariz. 2009) (internal quotations and citation

14

omitted).

15

imposes specific requirements on the form and content of summary judgment motions

16

with the goal of simplifying the process.

They also reflect a fundamental misunderstanding of LRCiv 56.1, which

17

A. Non-Compliance with LRCiv 56.1

18

“Any party filing a motion for summary judgment must file a statement, separate

19

from the motion and memorandum of law, setting forth each material fact on which the

20

party relies in support of the motion.” LRCiv 56.1(a) (emphasis added). Each of these

21

facts “must refer to a specific admissible portion of the record where the fact finds

22

support (for example, affidavit, deposition, discovery response, etc.).” Id. In turn:

23
24
25
26
27
28

Any party opposing a motion for summary judgment must file
a statement, separate from that party’s memorandum of law,
setting forth: (1) for each paragraph of the moving party’s
separate statement of facts, a correspondingly numbered
paragraph indicating whether the party disputes the statement
of fact set forth in that paragraph and a reference to the
specific admissible portion of the record supporting the
party’s position if the fact is disputed; and (2) any additional
facts that establish a genuine issue of material fact or
otherwise preclude judgment in favor of the moving party.
Each additional fact must be set forth in a separately
numbered paragraph and must refer to a specific admissible
-4-

1
2

portion of the record where the fact finds support.
LRCiv 56.1(b) (emphasis added).

3

Importantly, these rules do not require each and every fact appearing in the motion

4

to also be listed in a separate statement. Often, expositional facts are referenced in the

5

motion because they provide the Court with context, and sometimes these expositional

6

facts are disputed, but not in any way that matters to the outcome (sledgehammers come

7

to mind). But these expositional facts have no place in a party’s separate statement,

8

which should be limited only to those factual assertions material to the disposition of the

9

motion. Facts are material if they might affect the outcome. Anderson, 477 U.S. at 248.

10
11

Too many of the parties’ factual squabbles fall outside this definition.
In a related vein,

15

[LRCiv 56.1(b)] requires the controverting party to provide a
specific record reference supporting the party’s position if a
fact is disputed; it does not permit explanation and argument
supporting the party’s position to be included in the response
to the moving party’s statement of facts. Argument may be
made in the response or reply brief on the motion for
summary judgment, but within the page limits.

16

Pruett v. Arizona, 606 F. Supp. 2d 1065, 1075 (D. Ariz. 2009). When reviewing the non-

17

movant’s separate controverting statement of facts, the Court therefore may disregard

18

everything but the word “admitted” or “disputed,” and the corresponding references to

19

the record. Id. The rule also distinguishes between controverting facts, which respond

20

directly to the specific factual assertion made by the movant, and “additional facts that

21

establish a genuine issue of material fact or otherwise preclude judgment in favor of the

22

moving party a non-moving party.”

23

undisputed but the non-movant believes additional information precludes summary

24

judgment, the proper response is to admit the movant’s factual assertion and then to

25

include any additional material information in a separately numbered paragraph.

12
13
14

If a factual assertion made by the movant is

26

Hunton’s 222-paragraph separate controverting statement of facts repeatedly flouts

27

these rules. For example, in paragraph 2 of its separate statement of facts, Zurich asserts:

28

“In September 19, 2014 Plaintiff reported his injury to his supervisor.” (Doc. 224 ¶ 2.)

-5-

1

Hunton responds: “Plaintiff admits the injury was reported to his supervisor on

2

September 19, 2014. Further, Plaintiff attempted to report the injury to his supervisor on

3

the day of the injury and was unable to do so because his supervisor was not in the

4

office.” (Doc. 228-1 ¶ 2.) Everything after the word “admits” is improper. If Hunton

5

believes that his previous attempt to report his injury is material to the punitive damages

6

inquiry, he was required by LRCiv 56.1(b) to include that additional fact in a separately

7

numbered paragraph. If, however, this information is expositional but immaterial to

8

whether Zurich acted with an evil mind, it should have been omitted from the separate

9

controverting statement entirely.3

10

Hunton also improperly disputes facts as “incomplete” or “misleading,” which is

11

just another way of saying that he agrees with the factual statement made by Zurich but

12

believes additional information is material, or that a jury reasonably could draw different

13

inferences from the fact (the latter is an argument that should be raised in the

14

memorandum of law). For example, in paragraph 5 of its separate statement of facts,

15

Zurich asserts: “Dr. Johnston gave Plaintiff a brace for his back and released him to full

16

duty.” (Doc. 224 ¶ 5.) None of this is disputed; Hunton admits that Dr. Johnston gave

17

him a brace for his back and that Dr. Johnston released him to full duty. Yet Hunton

18

purported to dispute this fact because Zurich did not also state that Hunton “was

19

instructed to wear [the back brace] at all times while working and instructed to take anti-

20

inflammatory medication for pain, and to begin an ice and heat regimen,” or that

21

Hunton’s work release was “within his tolerance with the use of lumbar support.” (Doc.

22

228-1 ¶ 5.) Zurich, however, is not obligated to throw in the kitchen sink. The rules

23

require only that it supply the Court with a list of all material facts that it relies upon in its

24

motion. If Hunton believes his ice and heat regimen is material to the punitive damages

25

question (which the Court doubts), LRCiv 56.1(b) required him to include this

26

information as a separately numbered statement of additional fact precluding summary

27

judgment. But this additional information is no basis for disputing the fact Zurich

28
3

For examples of similar violations, see Doc. 228-1 ¶¶ 27, 29, 30, 38.
-6-

1

actually asserted.4

2

Many of these same paragraphs also contain impermissible explanation or

3

argument over the significance or implication of facts, and others dispute facts in

4

immaterial ways.5 For example, in paragraph 10 of its separate statement, Zurich asserts

5

that it spoke with Hunton on October 1, 2014. (Doc. 224 ¶ 5.) In response, Hunton

6

disputes the fact, in part because he claims the call occurred on October 2 rather than

7

October 1.

8

explanation for how the date of the call affects the punitive damages analysis.

(Doc. 228-1 ¶ 5.)

Absent from either party’s brief, of course, is any

9

Summary judgment is appropriate only where there are no genuine disputes of

10

material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P.

11

56(a). This District’s Local Rules were designed to make this analysis more efficient. In

12

a perfect world, movants would include only material facts in their separate statements,

13

and non-movants would either admit or dispute those facts (with appropriate record

14

citations) and, if necessary, separately enumerate additional facts that preclude summary

15

judgment. By comparing the two documents, the Court quickly should be able to glean

16

which facts, if any, are genuinely disputed with some degree of confidence that the facts

17

included in the separate statements are material. If no facts are genuinely disputed, the

18

Court can proceed to the parties’ legal arguments and assess whether the movant is

19

entitled to judgment as a matter of law. If, however, any of the material facts enumerated

20

in the movant’s separate statement are genuinely disputed, the inquiry should end

21

because a genuine dispute of material fact precludes summary judgment.

22

But the world is not perfect. Movants too often include immaterial, expositional

23

facts in their separate statements, or take liberties in their characterization or

24

paraphrasing. In turn, non-movants too often use their separate controverting statements

25

to argue over the legal significance of facts—or even semantics (see Doc. 228-1 ¶ 1)—

26
4

27
28

For examples of similar violations, see Doc. 228-1 ¶¶ 10, 12, 15, 20, 25, 26, 40,
47, 50, 60.
5

The Court has been down this road before. See McClure v. Country Life Ins.
Co., No. CV-15-02597-PHX-DLR, 2017 WL 3268841, at *1-2 (D. Ariz. Aug. 1, 2017).
-7-

1

and flood the pages with additional information that is immaterial to the specific issue

2

presented by the motion. In doing so, the parties needlessly complicate this Court’s task,

3

as the Court no longer can compare competing separate statements with any confidence

4

that the information contained therein is material or the disputes genuine. These practices

5

largely have robbed LRCiv 56.1’s procedure of all usefulness.6 Instead of a tool to help

6

the Court quickly identify genuine and material factual disputes, the Court routinely is

7

bogged down in voluminous documents that simply muddy the waters.

8

B. Motion to Strike (or, More Non-Compliance with LRCiv 56.1)

9

Hunton’s motion to strike highlights another form of non-compliance with LRCiv

10

56.1. As previously noted, the Local Rules require the movant to submit a separate

11

statement enumerating all material facts that the movant believes are undisputed. In turn,

12

the non-movant must file a separate, controverting statement of facts that either admits or

13

controverts each of the movants factual statements. The non-movant may also offer—in

14

separately numbered paragraphs—additional facts that preclude summary judgment.

15

Here, Zurich’s separate statement contains 63 paragraphs of factual assertions that

16

Zurich contends are undisputed and material to the punitive damages question. (Doc.

17

224.) In response, Hunton submitted a 222-paragraph separate controverting statement of

18

facts. (Doc. 228-1.) The first 63 paragraphs (or at least portions of them) respond to

19

Zurich’s 63 factual assertions.

20

information that Hunton ostensibly believes precludes summary judgment on the

21

availability of punitive damages. Zurich then submitted with its reply memorandum its

22

own separate controverting statement of facts, which responds to each of Hunton’s 159

23

statements of additional fact and attaches 159 pages of new exhibits. (Docs. 246, 252.)

24

Hunton argues that Zurich’s separate controverting statement of facts and its

The remaining 159 paragraphs offer additional

25
26
27
28

6

For this reason, this Court’s standard case management order now eschews
LRCiv 56.1 in favor of a simpler process that eliminates separate statements of facts.
(standard order available at http://www.azd.uscourts.gov/sites/default/files/judgeorders/DLR%20Case%20Management%20Order%20-%20After%20050117.pdf). Alas,
this matter is governed by an older version of the Court’s case management order and
therefore remains subject to LRCiv 56.1 oft-misused procedures.
-8-

1

accompanying exhibits should be stricken because the filings are unauthorized. The

2

Court agrees.

3
4

A party may move to strike “any part of a filing or submission on the ground that
it is prohibited (or not authorized) by a statute, rule, or court order.” LRCiv 7.2(m).

5

The Local Rules do not authorize a separate Statement of
Facts in the Reply as they explicitly do for a Response. . . .
Should a moving party have any objections or replies to
arguments or facts made in the Response or its supporting
statement of facts, these “. . . must be included in the
responding party’s reply memorandum for the underlying
motion and may not be presented in a separate responsive
memorandum.” LRCiv. 7.2(m)(2).

6
7
8
9
10

E.E.O.C. v. AutoZone, Inc., No. 06-CV-0926-PHX-SMM, 2008 WL 2509302, at *1 (D.

11

Ariz. June 19, 2008); see also Marceau, 618 F. Supp. 2d at 1141 (“LRCiv 56.1(d), which

12

permits the moving party to file a reply memorandum, does not permit the moving party

13

to file a separate responsive memorandum to any additional facts in the non-moving

14

party’s separate statement of facts.

15

response to the objection must be included in the responding party’s reply memorandum

16

for the underlying motion and may not be presented in a separate responsive

17

memorandum.’”); Kinnally v. Rogers Corp., No. CV-06-2704-PHX-JAT, 2008 WL

18

5272870, at *2 (D. Ariz. Dec. 12, 2008) (“The Local Rules do not contemplate attaching

19

additional exhibits to replies in support of summary judgments or filing a separate

20

response to the non-moving party’s statement of facts. This is consistent with the moving

21

party’s need to show no genuine issue of material facts exists and that there is no need for

22

a trier of fact to weigh conflicting evidence, assuming the non-moving party’s evidence is

23

true.” (internal quotation and citation omitted)).7

Instead, LRCiv 7.2(m)(2) requires that ‘[a]ny

24

Zurich contends that it submitted a separate statement controverting Hunton’s

25

additional statements of fact to ensure that these additional facts are not deemed

26

undisputed. (Doc. 253 at 4.) This argument reflects a misunderstanding of the summary

27
28

7

Effective December 1, 2017, the Local Rules now make this explicit. See LRCiv
56.1(b) (“No reply statement of facts may be filed.”).
-9-

1

judgment standard. Hunton has not moved for summary judgment on any aspect of this

2

case and, therefore, is not arguing that the facts material to his claims are undisputed. To

3

the contrary, he offered his additional statements of fact to establish the existence of a

4

factual dispute. Accordingly, the effect of Hunton’s additional factual statements going

5

unrebutted is not that they are deemed undisputed. If those additional facts are both

6

material and supported by citations to admissible portions of the record, they show only

7

that the pertinent facts are genuinely disputed.

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24

This point succinctly was made by the Court in Isom v. JDA Software,
Incorporated:
Defendant apparently miscomprehends the standard for
deciding a motion for summary judgment, in which the
movant bears the burden of proving “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).
Explicating the logical possibilities for a supplemental
statement of facts demonstrates why Defendant’s argument
must fail. Each of Plaintiff’s supplemental facts necessarily
must fall into one of the following categories: (1) not
material to deciding the motion, (2) material to deciding the
motion and disputed, or (3) material to deciding the motion
and undisputed. A movant is not prejudiced by not
responding to facts falling into the first category because a
court does not consider immaterial facts in ruling on a motion
for summary judgment. . . . Nor is a movant prejudiced by
not responding to facts falling into the second category
because disputed facts serve to defeat the motion for
summary judgment. Defendant in its unauthorized response
disputes a number of Plaintiff’s supplemental facts; if just one
of these facts is material to deciding the motion, then
Defendant has necessarily defeated its own motion. Thus,
Defendant can gain nothing by disputing these facts. Finally,
a movant is not prejudiced by not responding to facts falling
into the third category because the movant’s agreement that
these supplemental facts are undisputed merely further
supports the non-movant’s position.
No. CV-12-02649-PHX-JAT, 2015 WL 3953852, at *1 (D. Ariz. June 29, 2015).

25

Stranger still is that Zurich admittedly cites to only 19 of these additional

26

statements of fact in its reply memorandum, meaning that it must have considered the

27

other 140 paragraphs to be either undisputed or immaterial.

28

Zurich’s contention that it could not sufficiently address all of Hunton’s additional

- 10 -

This, in turn, undermines

1

statements of fact in its reply memorandum—even after the Court allowed Zurich to file

2

an enlarged, 17-page reply brief. (Doc. 253 at 3.) Certainly, Zurich could have found

3

space within those 17 pages to address the 19 additional statements of fact that Zurich

4

considered relevant to the punitive damages issue. Moreover—and of particular import

5

to this order—if those 19 statements are material (as Zurich’s response to the motion to

6

strike seems to suggest), then it would appear that summary judgment is inappropriate

7

either because there are genuine disputes of material fact, or because Zurich failed to set

8

forth all facts material to the issue in its original motion. See LRCiv 56.1(a).

9

III. Conclusion

10

“Lawyers are tasked with bringing clarity out of chaos, and voluminous filings

11

rarely do that.” State Comp. Ins. Fund v. Drobot, SACV 13-0956 AG (JCGx), 2016 WL

12

6661338, at *1 (C.D. Cal. Aug. 10, 2016). Regrettably, the briefing in this case has sown

13

more chaos than it has ordered. As a result, the Court cannot confidently conclude that

14

there are no material factual disputes bearing on the availability of punitive damages.

15

Indeed, Zurich’s reply memorandum and response to Hunton’s motion to strike suggest

16

that there are at least 19 disputed assertions of fact that bear on the punitive damages

17

question.

18

For all of these reasons, the Court will strike from the record Zurich’s separate

19

statement of controverting facts and its accompanying exhibits.

20

Hunton’s motion to strike Zurich’s reply memorandum because Zurich was authorized to

21

file it. The Court also denies Zurich’s motion for summary judgment on the availability

22

of punitive damages because Zurich has not demonstrated that there are no genuine

23

disputes of material fact or that it is entitled to judgment as a matter of law. Of course,

24

nothing in this order precludes Zurich from arguing that the Court should direct a verdict

25

in its favor on the punitive damages claim after the presentation of Hunton’s evidence at

26

trial. With any luck, the presentation at trial will order the chaos.

27
28

The Court denies

IT IS ORDERED that Zurich’s motion for summary judgment (Docs. 223, 240)
is DENIED.

- 11 -

1

IT IS FURTHER ORDERED that Hunton’s motion to strike (Doc. 247) is

2

GRANTED IN PART. The Clerk of the Court shall strike from the record Zurich’s

3

separate statement of controverting facts and accompanying exhibits (Docs. 246, 252).

4

Dated this 6th day of March, 2018.

5
6
7
8
9

Douglas L. Rayes
United States District Judge

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

- 12 -