Watts v. Allstate Indemnity Company et al

Filing 290

ORDER signed by Judge Lawrence K. Karlton on 3/30/2011 ORDERING Plaintiff's Motions 260 and 266 are GRANTED in part and DENIED in part. Plaintiff's Motion for Relief from Judgment on the basis of newly discovered evidence is DENIED. Pla intiff's Motion for Relief from Judgment on the basis of excusable neglect is GRANTED. Plaintiff is GRANTED relief from the court's May 12, 2011 order 255 except on the issue as to whether Allstate breached its obligations by failing to p ay to have the seatbelts replaced even if they were undamaged. The courts conclusion, in the May Order, that the "insurance policy did not require Allstate to replace plaintiff's undamaged seatbelts following the collision" remains unaltered. (Krueger, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT WATTS, on behalf
of himself individually and
all others similarly situated,
NO. CIV. S-08-1877 LKK/GGH

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Plaintiff,
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v.

O R D E R

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ALLSTATE INDEMNITY CO.,
an Illinois corporation, et al.,

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Defendants.
/

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This is a class-action lawsuit against Allstate Indemnity

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Company (“Allstate”) for five causes of action: Breach of Contract,

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Bad Faith, Breach of Implied Covenant of Good Faith and Fair

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Dealing, Fraud/Misrepresentation, and Unfair Competition. Plaintiff

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has not yet moved for class certification. The claims arise from

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Allstate’s

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replacement,

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insurance policies are involved in collisions. This court granted

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summary judgment to defendant on all of plaintiff’s claims on May

alleged
and/or

practices
repair

regarding

after

1

cars

seatbelt
covered

by

inspection,
Allstate’s

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12, 2011. Pending before the court are the following motions by

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plaintiff: a Rule 59(a) Motion for a New Trial, a Rule 59(e) Motion

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to Alter or Amend the Judgment, a Local Rule 230(j) Motion for

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Reconsideration, a Rule 60(b) Motion for Relief from Judgment; and

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a Rule 56(e) Motion for Leave to File a Corrected Statement of

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Disputed Facts. For the reasons stated herein, plaintiff’s motions

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are GRANTED in part and DENIED in part.

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I. Background

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A. Factual Background

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Plaintiff Robert Watts purchased a car insurance policy from

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defendant Allstate Indemnity Company (“Allstate”) in 2004. Depo.

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of Robert Watts (“Watts Depo”) 19:7-14, Ex. B of Defs.’ Mot. for.

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Summary J., ECF No. 202-2. The policy provides that “Allstate will

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pay for direct and accidental loss to [plaintiff’s] insured auto

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or a non-owned auto. . . from a collision with another object or

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by upset of that auto or trailer.” Allstate Auto Insurance Policy

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(“Policy”) 18, Pl.’s Ex. A, ECF No. 211-1.

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On March 29, 2006, plaintiff’s 2005 Honda Civic was involved

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in a collision while it was being driven by plaintiff’s wife.

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During the accident, both the driver and the front-seat passenger

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were restrained by their seat belts. As a result of the accident,

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the front seat passenger suffered a fractured rib, and the driver

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suffered from serious neck injuries. At the time of the collision,

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plaintiff was insured under the car insurance policy issued by

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Allstate. Following the accident, plaintiff arranged for the

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vehicle tow to Artistic Collision, a garage of plaintiff’s own
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choosing, and not part of Allstate’s direct repair programs. Watts

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Depo 31:15. On March 30, 2006, Artistic Collision Shop Manager

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Bryan Welsh prepared a “visible damage quote.” Depo. of Bryan Welsh

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(“Welsh Depo”) 14:11-14. Ex. C of Defs.’ Mot. for. Summary J., ECF

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No. 202-4. The visible damage quote did not include any amount for

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inspection, repair, or replacement of the seatbelts. Mr. Welsh

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testified that he did not recall inspecting the seatbelts. Id. at

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17.

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Plaintiff then presented a claim to Allstate for repairs to

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the vehicles. On March 31, 2006, Allstate adjuster Elio Lencioni

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prepared an estimate for the repair. Mr. Lencioni’s estimate did

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not include any amount for inspection or repair of plaintiff’s

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seatbelts, although Lenocioni testified that it would have been his

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custom and practice to inspect the seatbelt for “fraying, twisting,

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any deformation, any stitching that was coming loose,” to “pull

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[the seatbelt] hard to see if it locks,” to see if it goes back to

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where it is supposed to go. And then to insert it in the buckle

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make sure that it inserts in the buckle and it releases from the

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buckle, . . . as it’s supposed to.” Depo. of Elio Lencioni 148,

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Def.’s Ex. D. Mr. Lencioni stated that several circumstances would

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prompt him to conduct the type of inspection describe above,

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including any time there was “significant front-end damage” to the

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vehicle, and “if it’s a significant impact of any kind.” Id. at

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143-144. Mr. Lencioni clarified that “a significant impact would

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be. . . a hard hit,” and stated that if he saw that kind of impact,

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he “would look at the seatbelts.” Id. at 144:12-18.
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Artistic Collision then repaired the car in accordance with

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Mr. Lencioni’s estimate. Artistic Collision did not replace the

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vehicle’s seatbelts. Allstate then paid Artistic Collision for the

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repairs. Welsh Depo 24.

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At some point between the time of the accident and September

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18, 2007, plaintiff reviewed the owner’s manual issued by Honda for

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his vehicle. Watts Depo 75:13. In the owner’s manual, plaintiff

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read that seatbelts should be replaced in all vehicles involved in

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serious

collisions.

Watts

Depo

83:6.

On

September

18,

2007,

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plaintiff sent a letter to Allstate that stated, among other

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things, “we have several concerns that we believe need further

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repair. . . this was a major frontal impact. The damage to the car

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exceeded $6500 and both driver and passenger sustained injuries.

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The airbags did not deploy and we are requesting that the airbag

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sensors be inspected to ensure that they are operating correctly.

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We are also requesting that the seatbelt tensioners be replaced.”

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Watts Depo 66:8-13, Ex. 27 (“September 18 Letter”).

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In response, Allstate adjuster Tina Parker directed plaintiff
to contact Artistic Collision or the Bureau of Automotive Repairs.

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Plaintiff filed his complaint in this action on February 29,

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2008. On April 30, 2008 Allstate demanded an appraisal of the loss

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pursuant to the Appraisal Clause in the Policy. Martin Decl. Ex.

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A 2, Ex. 1.

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In May, 2008, plaintiff took his vehicle to the Elk Grove

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Honda dealership to have the seatbelts replaced based on the

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recommendation in the Honda Owner’s Manual. Watts Depo. 84:1-7. Mr.
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Watts did not ask the dealership to inspect the seatbelts before

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replacing them. Id. at 84. Plaintiff paid the Honda dealership

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$1029 to replace the seatbelts, and was not reimbursed for the cost

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by Allstate.

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In addition to the specific facts surrounding plaintiff’s

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collision

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Allstate had a general scheme or policy to “increase profitability

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by refusing to replace, repair, or inspect seatbelts in it’s

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policyholders’ vehicles that were damaged and made unsafe in

and

his

claim

to

Allstate,

plaintiff

alleges

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automobile collisions.” Second Amended Complaint 5:1-2.

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that

B. Procedural History

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Plaintiff’s Second Amended Complaint, filed on April 20, 2009,

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asserts six causes of action against defendant Allstate on behalf

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of similarly situated plaintiffs: (1) Breach of Contract, (2) Bad

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Faith, (3) Breach of the Implied Covenant of Good Faith and Fair

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Dealing, (4) Fraud/Misrepresentation, (5) Unfair Competition, and

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(6) RICO violations. This court previously dismissed plaintiff’s

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RICO claim. See July 1, 2009 Order, ECF No. 79.

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i. The May Order

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On May 12, 2011, this court granted defendant’s motion for

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summary judgment on all claims, and entered judgment in favor of

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defendant. May 12, 2011 Order, ECF No. 255 (“May Order”). The May

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order concluded that plaintiff had not demonstrated a genuine issue

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of material fact concerning whether his seatbelts were actually

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damaged in the accident or whether Allstate was contractually

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obligated to replace seatbelts that were in use during a serious
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1

collision,

whenever

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the

vehicle’s

owner’s

manual

recommends

replacement.

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In the order granting summary judgment to defendant, this

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court held that plaintiff had not presented evidence sufficient to

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rebut defendant’s evidence that “the seatbelt assemblies were in

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superb condition.” May Order 12 (quoting Decl. Davee). The court

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held that plaintiff’s evidence, consisting of plaintiff’s wife’s

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declaration that the seatbelt occasionally got stuck or was loose

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and an expert declaration that simply cited plaintiff’s wife’s

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declaration,

did

not

effectively

rebut

defendant’s

technical

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expert’s conclusion that the seatbelts were undamaged. See May

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Order 13:15-18.

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The order additionally analyzed whether there was a triable

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issue as to whether the defendant breached its obligation by

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failing to have the undamaged seatbelts replaced. The court held

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that “such an obligation may be present if the Policy is ambiguous,

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and if. . . at the time the Policy was purchased, Allstate believed

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that the policyholder’s understanding was that Allstate would

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adhere to the owner’s manual recommendation when paying to restore

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a vehicle to it’s pre-accident condition.” May Order 14:13-18. The

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court then evaluated the evidence that might have supported an

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inference

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seatbelts in accordance with owner’s manual recommendations. The

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court

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deposition testimony of Allstate’s senior training specialist

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Thomas

that

found

Allstate

that

Parrett

and

intended

plaintiff’s

portions

to

bind

proffered

of
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the

itself

evidence,

training

to

replace

including

materials

that

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reference the owner’s manual, was not sufficient to show that

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Allstate intended to bind itself to adhere to the owner’s manuals.

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The court noted that the training material’s recommendation that

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adjusters consult owner’s manuals for additional information “is

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hardly the equivalent of being bound by that manual.” May Order 16,

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n. 4.

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The court granted summary judgment to defendant on all of

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plaintiff’s claims.

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ii. The Pending Motions

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On June 9, 2011, plaintiff filed two documents with the court.

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In one document, ECF No. 260, plaintiff moves for a new trial (Fed.

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R. Civ. P. 59(a)),1 alteration or amendment of the May order (Fed.

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R. Civ. P. 59(e)), and reconsideration of the May Order (Local Rule

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230(j)). In the second document, ECF No. 266, plaintiff moves for

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relief from the May Order (Fed. R. Civ. P. 60(b)), leave to file

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a corrected statement of disputed material facts (Fed. R. Civ. P.

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56(e)), and/or reconsideration of the May Order.

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For reasons not understood by the court, plaintiff has moved
for a new trial under Fed. R. Civ. P. 59(a), even though there has
not been a trial in this case. Plaintiff moves for a new trial on
the basis of newly discovered evidence, which is also grounds for
relief from judgment under Fed. R. Civ. P. 60(b)(2) Since “the same
standard applies for establishing this ground for relief whether
the motion is under Rule 59 or 60(b)(2),” 11 Wright & Miller
Federal Practice & Procedure § 2808 (2d ed. 1995), the court
construes plaintiff’s Rule 59(a) motion for a new trial based on
newly discovered evidence as a Rule 60(b)(2) motion for relief from
judgment.
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II. Standards
A. Standard for Rule 60(b) Relief from Judgment

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Federal Rule of Civil Procedure 60(b) provides: “On motion and

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just terms, the court may relieve a party . . . from a final

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judgment” in the case of mistake or excusable neglect, newly

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discovered evidence, fraud, a judgment that is void, satisfaction

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of the judgment, or for any other reason that justifies relief.

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Fed. R. Civ. P. 60(b). Rule 60(b) “attempts to strike a proper

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balance between the conflicting principles that litigation must be

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brought to an end and that justice should be done.” Delay v.

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Gordon, 475 F.3d 1039, 1044 (9th Cir, 2007)(quoting 11 Wright &

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Miller Federal Practice & Procedure § 2851 (2d ed. 1995). Rule

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60(b) may only be used to set aside a prior judgment, and not to

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grant affirmative relief. Id.

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B. Standard for Altering or Amending the Judgment

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A party moving under Rule 59(e) or Rule 60(b) on the basis of

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newly discovered evidence must show that the evidence (1) existed

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at the time of the trial, (2) could not have been discovered

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through

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production of it earlier would have been likely to change the

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disposition of the case. Jones v. Aero/Chem Corp., 921 F.2d 875,

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878 (9th Cir. 1990)(internal citations omitted).

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C. Standard for Local Rule 230(j) Reconsideration

due

diligence,

and

(3)

was

of

such

magnitude

that

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Local Rule 230(j) applies to motions for reconsideration filed

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in the Eastern District. That rule requires the movant to brief the

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court on, inter alia, “what new or different facts or circumstances
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were not shown upon such prior motion, or what other grounds exist

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for the motion; and why the facts or circumstances were not shown

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at the time of the prior motion.”

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III. Analysis

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Plaintiff asserts that relief from judgment is warranted in

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this case based on plaintiff’s counsel’s excusable neglect (Fed.

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R. Civ. P. 60(b)(1)) and that altering or amending the judgment

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is warranted based on newly discovered evidence (Fed. R. Civ. P.

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59(e), 60(b)(2)).

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A. Excusable Neglect

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Plaintiff

argues

that

plaintiff’s

counsel’s

failure

to

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properly cite evidence in the opposition to defendant’s summary

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judgment motion, and the Statement of Disputed Facts in support

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thereof, and plaintiff’s counsel failure to properly authenticate

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some evidence relied on in the opposition was excusable neglect

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warranting relief from judgment under Rule 60(b). As an explanation

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for these omissions, plaintiff states that defendant successfully

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overwhelmed

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depositions during the time that plaintiff’s counsel was preparing

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the opposition to the summary judgment motion. Pl.’s Mot. for

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Relief

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excusable neglect, plaintiff’s counsel omitted citations to the

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Declaration of Sandy Browne, “an expert with over 44 years of

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experience in vehicle occupant safety and restraint systems.” Pl.’s

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Memo

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seatbelts worn in the collision “are deemed damaged.” Brown Decl.,

from

9:1-2.

plaintiff’s

Judgment

In

that

counsel

4:10-14.

by

scheduling

Plaintiff

declaration

9

Ms.

states

Browne

five

that,

states

expert

due

that

to

the

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Ex. D to Pl.’s Opp’n to Summary Judgment, ECF No. 232. Plaintiff

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argues that this evidence supports plaintiff’s position that

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Allstate

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plaintiff’s seatbelts. Ms. Browne’s declaration was submitted as

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an exhibit to plaintiff’s opposition to summary judgment, but was

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not cited in plaintiff’s brief, nor in plaintiff’s response to

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defendant’s separate statement of undisputed facts.

breached

its

obligation

when

it

did

not

replace

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“The determination [of what constitutes excusable neglect

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within the meaning of Bankruptcy Rule 9006(b)] is at bottom an

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equitable

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surrounding the party's omission. These include. . . the danger of

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prejudice to the debtor, the length of the delay and its potential

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impact on judicial proceedings, the reason for the delay, including

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whether it was within the reasonable control of the movant, and

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whether the movant acted in good faith.” Pioneer Inv. Servs. Co.

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v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380 (1993). In the

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Ninth Circuit, this equitable test applies to Rule 60(b) motions

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asserting excusable neglect. Briones v. Riviera Hotel & Casino 116

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F.3d 379, 381 (9th Cir. 1997); see also Bateman v. United States

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Postal Serv., 231 F.3d 1220, 1224 (9th Cir. Cal. 2000)(holding that

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the district “court abused its discretion because it failed to

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conduct the equitable analysis laid out in Pioneer and Briones”).

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Plaintiff argues that the instant motion for relief from judgment

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satisfies the Pioneer test adopted by the Ninth Circuit.

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i. Danger of prejudice to the opposing party

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one,

taking

account

of

all

relevant

circumstances

Defendant states, without offering anything in the way of
10

1

analysis or explanation that “granting plaintiff a second chance

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to relitigate defendants’ summary judgment motion would prejudice

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defendants.” Def’s Opp’n to Mot. for Relief from Judgment 8:16-17.

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“Prejudice requires greater harm than simply that relief would

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delay resolution of the case.” Lemoge v. United States, 587 F.3d

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1188, 1196 (9th Cir. 2009). The case cited by defendants for the

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proposition that delay can constitute prejudice is distinguishable

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from the instant case in that “the district court correctly

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concluded that [plaintiff’s] counsel had already caused ‘numerous

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and lengthy delays,’ and that the defendants would be prejudiced

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by the additional time and money a further delay in the proceedings

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would cause.” Cranmer v. Tyconic, Inc., 278 Fed. Appx. 744, 747

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(9th Cir. 2008). Here, defendant does not make any allegations of

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prior delays caused by plaintiff’s counsel. Having found no danger

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of prejudice to the defendant, beyond delay in the resolution of

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the case, the court finds that this factor weighs in favor of

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granting plaintiff’s motion.

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ii. The length of the delay and its potential impact on the

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proceedings

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Plaintiff filed his Rule 60(b) motion with four weeks of the

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court’s order granting summary judgment. Rule 60(c) requires that

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a motion for relief from judgment be brought “within a reasonable

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time.” Delays of similar length have been found to be reasonable.

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See Laurino v. Syringa Gen. Hosp., 279 F.3d 750, 753 (9th Cir.

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2002)(five weeks reasonable), Bateman, 231 F.3d at 1225 (finding

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a delay of “a little more than one month” to be “minimal.”).
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Accordingly, the court finds that this factor weighs in favor of

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granting plaintiff’s motion.

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iii. The reason for the delay

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Although typically courts should “give little weight to the

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fact that counsel was experiencing upheaval in this law practice,”

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Pioneer, 507 U.S. at 380, “a party should not be deprived of the

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opportunity to present the merits of the claim because of a

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technical error or slight mistake by the party’s attorney.” Wright

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& Miller Federal Practice & Procedure § 2858 (2d ed. 1995).

10

Here,

plaintiff

asserts

strategic

that

timing.

.

delay
aimed

was
at

caused

by

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“defendant’s

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plaintiff’s counsel in an attempt to impair plaintiff’s ability to

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file his opposition to defendant’s Motion for Summary Judgment.”

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Pl.’s Memo 7:17-19. Plaintiff states that defendant moved for, and

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received an order from Magistrate Judge Newman on April 7, 2011,

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requiring expert depositions to be completed before April 30, 2011.

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See April 8, 2011 Order, ECF No. 200. The following day, defendants

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moved for summary judgment, setting the motion for hearing on May

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8, 2011. Plaintiff’s opposition to the motion was due on April 25,

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2011. Thus, between April 8, 2011 and April 25, 2011, plaintiff’s

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counsel was obligated to participate in five depositions and

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prepare an opposition to the motion for summary judgment. Plaintiff

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claims that the omission of key evidence and failure to properly

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authenticate other evidence was the result of plaintiff’s counsel

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being overwhelmed by the compressed time table caused by defense

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counsel’s “gamesmanship.” Pl.’s Memo 7. At no time did plaintiff
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.

the

overwhelming

1

request that the court continue the summary judgment hearing,

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although defendant’s opposition to this motion indicates that

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plaintiff did attempt to get a stipulation to continue the hearing.

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Defendant states that it had attempted to schedule the expert

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depositions prior to seeking an order from Magistrate Judge Newman,

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but that plaintiff’s counsel did not cooperate. Def.’s Opp’n 3.

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Further, defendant argues that plaintiff filed additional evidence

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in opposition to the summary judgment motion on May 5, 2011, after

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defendant filed its reply. Defendant argues that, given this

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extensive surreply submitted by plaintiff, plaintiff’s counsel had

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plenty of time to correct the omissions before the hearing on the

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summary judgment motion.

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The

court

finds,

in

its

equitable

discretion,

that

the

14

compressed time table under which plaintiff’s counsel was working

15

while preparing the opposition to the summary judgement motion is

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an excusable reason for a delay in presenting the court with

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citations to evidence supporting plaintiff’s position. This factor,

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therefore, weighs in favor of granting plaintiff’s motion.

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iv. Whether the movant acted in good faith

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The court sees no evidence that plaintiff or his counsel has

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failed to act in good faith. It appears to the court that the

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omission of citations to Ms. Browne’s declaration and plaintiff’s

23

failure to authenticate certain pieces of evidence were caused by,

24

at

25

preparing the opposition to summary judgment. Indeed, plaintiff’s

26

opposition appeared to the court to be less-than-complete at the

worst,

sloppiness

on

the

part

13

of

plaintiff’s

counsel

in

1

time it was filed.

2

Taking into account relevant circumstances surrounding the

3

plaintiff’s omission, as set forth in Pioneer, supra, the court

4

finds that plaintiff’s omissions were the result of excusable

5

neglect on the part of plaintiff’s counsel.

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v. Whether the evidence omitted due to excusable neglect warrant

7

relief from the May Order

8

Having found that excusable neglect led to the omission of the

9

citations to the Sandy Browne declaration, the court now turns to

10

whether that evidence changes the court’s analysis of defendant’s

11

summary judgment motion.

12

Plaintiff asserts that, due to excusable neglect, plaintiff’s

13

counsel omitted citations to the Declaration of Sandy Browne, “an

14

expert with over 44 years of experience in vehicle occupant safety

15

and restraint systems.” Pl.’s Memo 9:1-2. In that declaration Ms.

16

Browne states that the seatbelts worn in the collision “are deemed

17

damaged.” Browne Decl., Ex. D to Pl.’s Opp’n to Summary Judgment,

18

ECF

19

collision, the seat belt webbing becomes stretched and elongated,

20

and does not return to its previous elasticity. Id. If credited,

21

this testimony raises a triable issue as to whether the seatbelts

22

were actually damaged in the collision, and therefore whether

23

defendant breached its policy by failing to pay to replace the

24

seatbelts. Whether to credit the testimony turns on whether the

25

testimony is admissible under Fed. R. Evidence 702, which governs

26

the admissibility of expert testimony. The Supreme Court has set

No.

232.

According

to

Browne,

14

when

a

seatbelt

is

in

a

1

forth

the

factors

that

a

district

court

should

consider

in

2

determining admissibility of expert testimony. Those factors are

3

“(1) whether a theory or technique "can be (and has been) tested,"

4

(2) "whether the theory or technique has been subjected to peer

5

review and publication," (3) "the known or potential rate of

6

error," and (4) whether it is generally accepted in the scientific

7

community.” Wagner v. County of Maricopa, 2012 U.S. App. LEXIS 4721

8

(9th Cir. 2012) (quoting Daubert v. Merrell Dow Pharms., 509 U.S.

9

579 (1993)). The purpose of the factors is to determine whether the

10

evidence is both reliable and relevant. The test is flexible, and

11

the inquiry “must be tied to the facts of a particular case." Kumho

12

Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 150 (1999), citing

13

Daubert. “Whether Daubert's specific factors are, or are not,

14

reasonable measures of reliability in a particular case is a matter

15

that the law grants the trial judge broad latitude to determine.”

16

Kumho Tire Co., 526 U.S. at 153 (1999).

17

Plaintiff offers Browne’s testimony in order to prove that

18

Allstate was contractually obligated to pay for the replacement of

19

the seat belts following the collision because the seat belts were

20

“deemed damaged” and could not have returned to its original

21

condition. The court now analyzes whether Browne’s expert testimony

22

on this point is reliable and relevant under the framework set

23

forth in Daubert and Kumho Tire.

24

Ms. Browne is a former accident investigator with the National

25

Transportation Safety Board and the National Highway Traffic Safety

26

Administration. Browne Curriculum Vitae (“CV”), ECF No 233 at 13.
15

1

She has completed approximately 2000 hours of training in accident

2

investigation

3

Stanford University, the Department of Transportation, and the

4

National Transportation Safety Board. That training included course

5

on “seat belt systems, and their construction, their performance,

6

their testing requirements, their failures, their inefficiencies,

7

and the biomechanical result of lap belts.” Browne Depo. 36-37. She

8

has published dozens of articles on automobile accidents, including

9

on the performance of lap and shoulder belts in car accidents, and

10

has provided numerous trainings on car accidents to the California

11

Highway Patrol, including on restraint systems. In the course of

12

her experience as an investigator and as a consultant in seat belt

13

safety, Browne has personally inspected dozens of seat belts that

14

have been involved in car accidents.

through

the

University

of

Southern

California,

15

Based on this experience and training, Browne testified that

16

in her opinion “once you load2–once you have an accident with a

17

sufficient dynamic to cause the occupant to load that seat belt

18

system, that it will not return to its original condition.” Browne

19

Depo. 70. This opinion was based on her understanding of “the way

20

the system operates, the way the webbing looks after significant

21

loading, and the fact that the webbing system – the seatbelt is

22

designed to stretch.” Id.

23
24

In her declaration, Browne asserted that her conclusion that
the seatbelts were damaged

25
2

26

A seatbelt is “loaded” when an occupant has actually been
restrained by the seatbelt system. Browne Depo. 73.
16

1
2
3
4
5
6
7
8
9

is further bolstered by the material I have reviewed
relating to the Watts collision. Webbing loads occur
primarily in frontal collisions, such as experienced
by the Watts vehicle. . . If a front collision
distorts the frame or unibody of a vehicle, as occured
here, one should assume that the webbing was loaded.
Also, medical records indicate that the driver. . .
sustained injuries from the collision. Medical records
further indicate that the. . . passenger. . . impacted
the shoulder harness of her seatbelt with sufficient
force to fracture her rib. . . Accordingly, this
collision loaded the seatbelts and would have resulted
in at least the stretching of seatbelt webbing.
Webbing, once loaded, does not return to its previous
elasticity.
Brown Decl. ¶ 28-30.

10

The court finds the Browne testimony to be reliable and

11

relevant. Ms. Browne’s experience and training in biomechanics and

12

engineering is vast, and her conclusions are relevant to a core

13

issue in this case. Further, the court finds that the evidence

14

raises a triable issue on the factual question of whether the

15

Watts’ seatbelts were damaged following the collision. Accordingly,

16

summary judgment for defendants is not appropriate on this issue,

17

plaintiff’s motion for relief from judgment is GRANTED.

18

B. Newly Discovered Evidence

19

In addition to excusable neglect, plaintiff asserts that

20

relief from judgment is warranted because of newly discovered

21

evidence.3 Rule 60(b)(2) provides that a could may grant relief

22
23
24
25
26

3

As previously noted, plaintiff’s argument with respect to
newly discovered evidence was made pursuant to a Motion for a New
Trial under Rule 59(b). Because there has been no trial in this
case, the court construes plaintiff’s Rule 59(b) motion as a Motion
for Relief from Judgment under Rule 60(b)(2), which utilizes the
same test as that for a Rule 59(b) motion based on newly discovered
evidence.
17

1

from judgment if there is “newly discovered evidence that, with

2

reasonable diligence could not have been discovered in time to move

3

for a new trial under Rule 59(b).” In addition, a judgment may be

4

altered or amended under Fed. R. Civ. P. 59(e) based on newly

5

discovered evidence, Dixon v. Wallowa County, 336 F.3d 1013, 1022

6

(9th Cir. 2003), and plaintiff has moved for Rule 59(e) relief.

7

A party moving under Rule 59(e) or Rule 60(b) on the basis of

8

newly discovered evidence must show that the evidence (1) existed

9

at the time of the trial, (2) could not have been discovered

10

through

due

diligence,

and

(3)

was

of

such

magnitude

that

11

production of it earlier would have been likely to change the

12

disposition of the case. Jones v. Aero/Chem Corp., 921 F.2d 875,

13

878 (9th Cir. 1990)(internal citations omitted). Plaintiff argues

14

that deposition testimony by Allstate’s expert Robert Lange is

15

newly discovered evidence that creates a genuine issue of material

16

fact that would have defeated summary judgment.

17

a. Whether the evidence existed at the time of the trial

18

Plaintiff states that Mr. Lange’s deposition was taken on May

19

2, 2011, before the court’s May 12, 2011 order granting summary

20

judgment to defendant. Pl.’s Mot. for a New Trial 5:22. Although

21

the transcript of the deposition was not available until after the

22

grant of summary judgment, the testimony itself was. Therefore, the

23

court concludes that the evidence existed at the time of trial.

24

ii. Whether the evidence could not have been discovered through

25

due diligence

26

Plaintiff’s opposition to summary judgment was submitted one
18

1

week prior to the deposition of Mr. Lange on May 2, 2011. Plaintiff

2

contends that defendant’s counsel “concealed Mr. Lange’s testimony

3

by refusing to make him available for deposition until after

4

plaintiff’s opposition to summary judgment was due. Pl.s Mot. for

5

a New Trial 2:16-17. At the time that the parties scheduled Mr.

6

Lange’s

7

judgment motion, and plaintiff did not yet know that the deposition

8

would take place after the opposition’s April 25, 2011 due date.

deposition,

defendant

had

not

yet

filed

its

summary

9

Defendant counters that the deposition testimony was actually

10

in plaintiff’s possession before the court’s May 12 order granting

11

summary judgment, and that plaintiff filed a surreply on May 5,

12

2011 after taking Mr. Lange’s deposition, but did not include

13

evidence from Mr. Lange’s deposition in that filing. Further,

14

defendant

15

depositions earlier, but that plaintiff’s counsel refused to

16

cooperate. This refusal by plaintiff’s counsel, according to

17

defendant, negates any claim of due diligence by plaintiff.

asserts

that

it

attempted

to

schedule

all

expert

18

The court concludes that plaintiff acted with due diligence.

19

At the time the depositions were scheduled, plaintiff did not know

20

that defendant was going to schedule a motion for summary judgment.

21

Even after the summary judgment motion was filed and plaintiff

22

became aware that Mr. Lange’s deposition would take place after the

23

opposition was due, plaintiff did not know that Mr. Lange’s

24

deposition

25

requesting an extension of the deadline for the filing of the

26

opposition.

would

produce

strong

19

enough

evidence

to

warrant

1

iii. Whether the evidence was of such magnitude that production

2

of it earlier would have been likely to change the disposition

3

of the case.

4

Plaintiff’s offered newly discovered evidence purportedly

5

creates a genuine issue of material fact as to whether Allstate

6

believed that policyholders would expect it to adhere to the

7

owner’s manual’s recommendations when restoring a vehicle to its

8

pre-accident condition. Plaintiff states that Mr. Lange, an expert

9

on collision repair industry standards, testified at his deposition

10

that when a manufacturer’s service manual is silent on whether to

11

replace seatbelts after a collision, members of the repair industry

12

have to look at the owner’s manual.

13

The court concludes that Mr. Lange’s deposition testimony is

14

not evidence of a contractual obligation on the part of Allstate

15

to replace seatbelts in every collision according to the owner’s

16

manual. In his deposition, Mr. Lange stated, “my view is that the

17

information that is useful and appropriate for consideration with

18

respect to post-collision treatment of safety belts would be

19

embedded in service manuals, not owner’s manuals.” Lange Depo.

20

147:16-19. Mr. Lange went on to state “it’s my opinion that the

21

primary source [for determination of seat belt replacement or

22

inspection] should be the repair service manual. If there’s nothing

23

there, then obviously the repair industry has to go elsewhere.

24

Owners’ manuals may be the places that an operator would look.” Id.

25

at 149:9-14 (emphasis added).

26

In this case, the vehicle service manual stated that the
20

1

seatbelts should be replaced in every collision in which the

2

airbags had been deployed, whereas the vehicle owner’s manual

3

stated that seatbelts should be replaced in all vehicles involved

4

in serious collisions. Plaintiff characterizes the vehicle service

5

manual as being silent on what to do in the event of a serious

6

collision in which the airbags do not deploy. Plaintiff argues

7

that, given the vehicle service manual’s “silence” on this issue,

8

Allstate was contractually bound to adhere to the owner’s manual

9

recommendations.

10

The court finds this position to be untenable. Mr. Lange’s

11

deposition testimony does not show such a contractual obligation.

12

There was no uniform custom within the automobile repair industry

13

to adhere to the owner’s manual. In fact, Mr. Lange stated

14

explicitly that there is no uniform process within the automobile

15

repair industry for determining what stems should be taken to

16

determine seatbelt replacement following a collision. See Lange

17

Depo. 146:9-14.

18

The court’s inquiry on this question is for the purpose of

19

determining what Allstate’s contractual obligations were with

20

respect to replacing seatbelts following a serious collision, such

21

as the one plaintiff’s insured car was involved in. Plaintiff’s

22

evidence shows that there is a variety of sources that vehicle

23

repair professionals consult when determining how to restore cars

24

following collisions. Plaintiff has not produced any evidence that

25

Allstate’s belief was that its clients would expect that their

26

insure

cars

to

be

restored

according
21

to

owner’s

manual

1

recommendations.

2

Accordingly, the court concludes that Mr. Lange’s testimony

3

is not of such a magnitude that it would change the disposition of

4

the court’s summary judgment order.

5
6
7

IV. Conclusion
For the reasons discussed herein, the court ORDERS as
follows:

8

[1] Plaintiff’s Motions, ECF No. 260 and ECF No. 266

9

are GRANTED in part and DENIED in part.

10

[2] Plaintiff’s Motion for Relief from Judgment on the

11

basis of newly discovered evidence is DENIED.

12

[3] Plaintiff’s Motion for Relief from Judgment on the

13

basis of excusable neglect is GRANTED. Plaintiff is

14

GRANTED relief from the court’s May 12, 2011 order,

15

ECF No. 255, except on the issue as to whether

16

Allstate breached its obligations by failing to pay to

17

have the seatbelts replaced even if they were

18

undamaged. The court’s conclusion, in the May Order,

19

that the “insurance policy did not require Allstate to

20

replace plaintiff’s undamaged seatbelts following the

21

collision” remains unaltered.

22

IT IS SO ORDERED.

23

DATED:

March 30, 2012.

24
25
26
22