Bernabe v. USAA General Indemnity Company et al

Filing 39

OPINION AND ORDER by Chief Judge Claire V Eagan that Garrison Property and Casualty Insurance Company's Motion for Summary Judgment (Dkt. # 32) is denied without prejudice to refiling after the conclusion of discovery. Plaintiff's Opposed Motion Under Fed. R. Civ. Pro. 56(d) to Deny Defendant's Motion for Summary Judgment or to Defer Consideration of the Motion so that Plaintiff May Take Discovery (Dkt. # 35) is granted. ; denying 32 Motion for Summary Judgment; granting 35 Motion for Miscellaneous Relief (Re: 7 Amended Complaint ) (RGG, Chambers)

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA

FRANK BERNABE,
Plaintiff,
v.
GARRISON PROPERTY AND CASUALTY
INSURANCE COMPANY,

Defendant.

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Case No. 11-CV-0408-CVE-FHM

OPINION AND ORDER
Now before the Court are Garrison Property and Casualty Insurance Company’s Motion for
Summary Judgment (Dkt. # 32) and Plaintiff’s Opposed Motion Under Fed. R. Civ. Pro. 56(d) to
Deny Defendant’s Motion for Summary Judgment or to Defer Consideration of the Motion so that
Plaintiff May Take Discovery (Dkt. # 35). Defendant has filed a response in opposition to plaintiff’s
motion (Dkt. # 36).
Plaintiff brought this action against defendant on May 9, 2011 in state court alleging breach
of contract and breach of the duty of good faith and fair dealing. See Dkt. # 2-1. Defendant
removed the action on June 29, 2011. See Dkt. # 2. Plaintiff is the named insured on an automobile
insurance policy issued by defendant. On May 10, 2009, plaintiff reported that his automobile had
been stolen. After an investigation, defendant denied plaintiff’s claim based on alleged material
misrepresentations by plaintiff. Plaintiff’s petition alleges that defendant breached the insurance
policy by refusing to pay the claim and that defendant acted in bad faith in denying the claim. A
scheduling order was entered on October 28, 2011, setting a discovery cutoff date of February 29,

2012. Dkt. # 30. Defendant filed its motion for summary judgment on November 15, 2011. It
appears that no discovery has taken place.
Defendant argues that summary judgment is warranted on plaintiff’s contract claim because
plaintiff did not incur any damages and that summary judgment is warranted on plaintiff’s bad faith
claim because defendant’s denial of the claim was “reasonable and legitimate.” Dkt. # 33 at 1.
Rather than file an opposition to the summary judgment motion, plaintiff has moved under Rule 56
for denial or deferral of the summary judgment motion pending discovery. Plaintiff’s attorney
admits that he could oppose the motion for summary judgment of the contract claim without
discovery. However, plaintiff’s attorney has submitted an affidavit stating that he is unable to
oppose the summary judgment motion on the bad faith claim without further discovery, including
the depositions of defendant’s insurance adjusters and discovery related to an expert retained by
defendant.
Rule 56(d) provides: “If a nonmovant shows by affidavit or declaration that, for specified
reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering
the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3)
issue any other appropriate order.” Fed. R. Civ. P. 56(d). The Tenth Circuit has stated that “a party
seeking to defer a ruling on summary judgment under Rule 56[(d)] must file an affidavit that
explains why facts precluding summary judgment cannot be presented. This includes identifying
the probable facts not available and what steps have been taken to obtain these facts.” Libertarian
Party of NM v. Herrera, 506 F.3d 1303, 1308 (10th Cir. 2007).
The Court has reviewed the parties’ submissions and finds that plaintiff has sufficiently
demonstrated that he is unable to present facts essential to justify his opposition to summary

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judgment.

Plaintiff has not had the opportunity to conduct any discovery of defendant’s

investigation into plaintiff’s insurance claim. Thus, plaintiff is unable to present facts relating to
what information was considered during defendant’s investigation and whether that investigation
was conducted in good faith.
In its opposition to plaintiff’s motion, defendant requests that, even if the Court finds that
discovery is warranted on the bad faith claim, it still consider defendant’s summary judgment motion
on the contract claim. Given the fact that it does not appear that any discovery has been conducted
in this case, and that the time for discovery has not yet expired, the Court finds that it is not in the
interest of judicial economy to separately consider two summary judgment motions.
IT IS THEREFORE ORDERED that Garrison Property and Casualty Insurance
Company’s Motion for Summary Judgment (Dkt. # 32) is denied without prejudice to refiling after
the conclusion of discovery.
IT IS FURTHER ORDERED that Plaintiff’s Opposed Motion Under Fed. R. Civ. Pro.
56(d) to Deny Defendant’s Motion for Summary Judgment or to Defer Consideration of the Motion
so that Plaintiff May Take Discovery (Dkt. # 35) is granted.
DATED this 4th day of January, 2012.

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