Buffington v. Arch Insurance Company et al
Filing
79
OPINION AND ORDER by Judge Frank H. Seay denying 38 Motion for Summary Judgment and denying 63 Motion for Partial Summary Judgment. (adw, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
HAROLD BUFFINGTON,
Plaintiff,
VS.
ARCH INSURANCE COMPANY, a
Foreign Corporation; and
GALLAGHER BASSETT SERVICES,
INC., a Foreign Corporation.
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Case No. CIV-14-78-FHS
OPINION AND ORDER
This matter comes before the Court on the Defendants’ Motion
for Summary Judgment (Dkt. # 38).
October 20, 2014 (Dkt. # 56).
November 3, 2014 (Dkt. # 64).
Plaintiff filed a response on
Defendants’ filed their reply on
Plaintiff filed a sur-reply on
November 17, 2014 (Dkt. # 74) in which he “incorporates” by
reference his Motion for Partial Summary Judgment (Dkt. # 63) which
is
also
before
the
Court.
Defendants
filed
a
response
to
Plaintiff’s motion on November 10, 2014 (Dkt. # 67) and Plaintiff
filed a reply on November 14, 2014 (Dkt. # 73).
STATEMENT OF UNDISPUTED FACTS
1.
On February 28, 2011, Arch Insurance Company sold a
commercial insurance policy to B & B.
This policy was in effect on
July 30, 2011.
2.
On July 30, 2011, Plaintiff was employed as a commercial
tractor-trailer truck driver for B & B Gas Well Services, LLC (“B
& B”) and was involved in a single vehicle accident while driving
a B & B truck.
3. According to witnesses at the scene, Plaintiff made a left
turn
“by
going
the
wrong
way
through
the
merge
lane”
while
traveling at a high rate of speed, at which point Plaintiff lost
control of the truck causing the truck to roll over and come “to
rest on the driver’s side.”
4.
See, Dkt. # 38-2.
Plaintiff did not submit a written claim or demand to Arch
Insurance Company but, in September of 2011, he submitted a claim
with
B
&
disability
B’s
workers
benefits.
compensation
insurer
Additionally,
on
for
medical
September
6,
and
2011,
Plaintiff’s counsel sent an email to “Gallagher & Bassett Attn:
Brenda Bass” advising Defendants “of his intent to pursue a claim
for UM benefits under the applicable policy.”
Dkt. # 7-3, p. 4 at
¶ 11.
5.
On
February 3,
2012,
Brenda
Bass’s
employment
with
Gallagher Bassett ended.
6.
On or around October 18, 2013, Plaintiff submitted a UM
Demand by sending an email to Brenda Bass at the email address
utilized approximately two years earlier. Plaintiff did nothing to
verify the email address prior to sending his demand and he never
followed up thereafter to ensure that the Defendants had, in fact,
received his demand.
7.
Gallagher
Bassett
Services,
administrator for Arch Insurance Company.
2
Inc.
is
the
claims
LEGAL ANALYSIS
Summary judgment is appropriate where there is no dispute of
material facts and the moving party is entitled to judgment as a
matter of law.
Fed.R.Civ.P.56.
When presented with a summary
judgment motion, this Court must determine whether there “are any
genuine factual issues that properly can be resolved only by the
finder of fact because they may reasonably be resolved in favor of
either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250,
106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).
When evaluating a
motion for summary judgment, this Court must examine the factual
record and reasonable inferences therefrom in the light most
favorable to the party opposing summary judgment. Gray v. Phillips
Petroleum Co., 858 F.2d 610, 613 (10th Cir. 1988).
The party
opposing
upon
summary
judgment,
however,
“may
not
rest
mere
allegations or denials of his pleading but . . . must set forth
specific facts showing that there is a genuine issue for trial.”
Anderson, 477 U.S. at 248, 106 S.Ct. at 2510 (quoting First
National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288,
88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)).
Plaintiff has sued both Arch Insurance Company and Gallagher
Bassett Services, Inc. for breach of contract, bad faith and
negligence. Plaintiff claims coverage under the uninsured motorist
policy issued to B & B, his employer at the time of the accident,
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for the alleged negligent acts of his employer in maintaining the
brakes on the truck he was driving in the course of his employment.
Defendants seek summary judgment under three theories. First,
Defendants claim Plaintiff has failed to show that Defendant Arch
is in breach of its contract because 1) Arch did not receive
Defendants UM demand until served with the petition herein; 2)
Arch’S investigation of Plaintiff’s claim is ongoing; and 3)
Plaintiff
has
failed
to
show
he
is
entitled
to
coverage.
Additionally, Defendant Gallagher Bassett argues they were not a
party to the insurance contract and, therefore, they are not a
proper party to this lawsuit. Plaintiff responds by claiming 1) he
is “legally entitled to recover” under the uninsured motorist
policy; 2)
the evidence establishes a breach of Defendants’ duty
of good faith and fair dealing in the handling of Plaintiff’s UM
claim; and 3) the contract between Arch and Gallagher Bassett was
made for the benefit of Plaintiff, thus precluding dismissal of
Gallagher Bassett at this time. In their reply, Defendants concede
Plaintiff’s submission of an affidavit of Donald Byrd creates a
question of fact as to whether the condition of the brakes on the
truck driven by Plaintiff was a contributing factor to his accident
and whether any negligence of B & B was the proximate cause of any
problem with the brakes.
Defendants, however, still maintain
Plaintiff has failed to present any material facts which would
warrant a finding that their refusal to pay the claim pending
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completion of the investigation was unreasonable.
Plaintiff has
filed a sur-reply claiming Defendants denied the claim for an
improper reason and therefore, bad faith has been shown.
Plaintiff, in his motion for partial summary judgment, claims
he is entitled to summary judgment as a matter of law on all of his
claims.
Defendants dispute this for the same reasons asserted in
their motion for summary judgment.
Based upon the record herein, this Court denies both parties’
motions and finds there are questions of fact which must be
determined by a jury.
First, there is question of fact as to
whether the Defendants received Plaintiff’s claim which was emailed
to the last known email address of a person who had not worked for
Defendant Gallagher Bassett for more than eighteen months prior
thereto.
Second, if a jury finds the claim was, in fact, received
by the Defendant, there is a question of fact as to whether
Defendants investigation was reasonable under the circumstances of
this particular case.
Accordingly, the Defendants’ motion for
summary judgment (Dkt. # 38) is denied and the Plaintiff’s motion
for partial summary judgment (Dkt. # 63) is denied.
Conclusion
For
the
reasons
stated
herein,
this
Court
denies
the
Defendants’ Motion for Summary Judgment (Dkt. #38) and denies the
Plaintiff’s Motion for Partial Summary Judgment (Dkt. # 63).
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It is so ordered on this 20th day of November, 2014.
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