Curtis et al v. Progressive Northern Insurance Company

Filing 187

ORDER granting 149 defendant's Motion for Summary Judgment (as more fully set out in order). Signed by Judge Patrick R Wyrick on 1/11/2022. (ks)

Case 5:17-cv-01076-PRW Document 187 Filed 01/11/22 Page 1 of 21

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
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RACHEL CURTIS,
Plaintiff,
v.
PROGESSIVE NORTHERN
INSURANCE COMPANY,
Defendant.

Case No. CIV-17-01076-PRW

ORDER
In 2017, Rachel Curtis was involved in two separate accidents that resulted in total
loss of her two vehicles. She sued, alleging her insurer’s vehicle valuation methodology
systemically underpays settlement claims and both breached the contract and violated
Oklahoma insurance law. Before the Court now is Progressive Northern Insurance
Company’s Motion for Summary Judgment (Dkt. 149), Ms. Curtis’s Response in
Opposition (Dkt. 159), and Progressive’s Reply (Dkt. 170). For the reasons set forth below,
Progressive’s Motion for Summary Judgment is GRANTED in full.
Background
Around June 8, 2017, Ms. Curtis was involved in an accident that resulted in a total
loss claim on her 2006 Chevrolet Malibu 4-cylinder vehicle (“4-cylinder Malibu”). At the
time, Ms. Curtis was a household member covered by her mother’s insurance policy (“the
Policy”) with Progressive. The Policy limited Progressive’s liability for loss to a covered
vehicle at: “the lowest of (a) the actual cash value of the . . . property at the time of the loss
1

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reduced by the applicable deductible; (b) the amount necessary to replace the . . . property
reduced by the applicable deductible; (c) the amount necessary to repair the damaged
property to its pre-loss condition reduced by the applicable deductible; or (d) the Stated
Amount shown on the declarations page for that covered auto.” 1 The “actual cash value”
is to be “based upon the market value, age, and condition of the vehicle.” 2
To calculate the actual cash value of totaled vehicles, Progressive used a software
program called WorkCenter Total Loss, which was developed by Mitchell International,
Inc., and J&D Power and Associates. WorkCenter employs a multi-step process that
compares the totaled vehicle to similar vehicles in the local market. 3 For the 4-cyclinder
Malibu, WorkCenter examined four comparable 2006 4-cylinder Malibu vehicles located
within sixty-six miles of Oklahoma City. Three of the comparable vehicles had not yet sold
and thus received a “projected sold adjustment” downward from the list price. The fourth
vehicle, which had recently been sold and was listed with only a partial VIN number, did
not receive a projected sold adjustment downward. Based on these vehicles and the preloss condition of Ms. Curtis’s 4-cylinder Malibu, Progressive determine that the totaled
vehicle’s actual cash value was $4,400.02. After applying deductibles and taxes,

1

Def.’s Mot. for Summ. J. (Dkt. 149, Ex. 4), at 77.

2

Id. at 78.

3

The WorkCenter Total Loss program determines the totaled vehicle’s make, model, year,
and configuration; identifies comparable for-sale or recently sold vehicles in the local
market; adjusts the prices of comparable vehicles based different mileage or options;
applies a “projected sold adjustment” to for-sale comparable cars to account for different
between list price and sale price; averages the adjusted value of examined comparable
vehicles to reach a “base value”; and adjusts the base value of the totaled vehicle to account
for pre-loss condition. See Def.’s Mot. for Summ. J. (Dkt. 149), at 9.
2

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Progressive offered Ms. Curtis $4,048.85 to settle the claim. Ms. Curtis accepted this offer
and purchased a 2006 Chevrolet Malibu 6-cyclinder (“6-cyclinder Malibu”) with the
settlement money.
Around July 4, 2017, Ms. Curtis was involved in an accident that resulted in a total
loss claim on her 6-cyclinder Malibu. Again, Progressive used the WorkCenter program to
calculate the actual cash value of the totaled vehicle. This time, WorkCenter examined five
2006 Chevrolet Malibu vehicles located within sixty-six miles of Oklahoma City. Four of
the comparable vehicles had not yet been sold and thus received the projected sold
adjustment downward from the list price. The fifth vehicle, which had recently been sold
and was listed with only a partial VIN number, did not receive the projected sold
adjustment. Based on these vehicles and the pre-loss condition of Ms. Curtis’s 6-cylinder
Malibu, Progressive determine that the second totaled vehicle’s actual cash value was
$4,593.82. After applying deductibles and taxes, Progressive offered Ms. Curtis $4,282.54
to settle the claim. Ms. Curtis rejected this valuation.
Rather than the WorkCenter determination of actual cash value, Ms. Curtis
contended Progressive should have paid her $6,125, the expected “clean retail” value of a
2006 6-cylinder Malibu as listed in the National Automobile Dealers Association
(“NADA”) guidebook. Ms. Curtis subsequently hired an independent appraiser who
suggested an actual cash value of $6,700, based on his personal inspection of the vehicle,
the NADA guidebook value, and three comparable vehicles listed for sale in Des Moines,
Iowa, Maysville, Kentucky, and Republic, Missouri. After receiving this valuation, Ms.
Curtis revised her requested actual cash value payment upward to $6,790.
3

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After the parties failed to resolve their disagreement, 4 Ms. Curtis brought suit
alleging breach of contract, breach of the duty of good faith and fair dealing, fraud, unjust
enrichment, and a prayer for injunctive relief. All claims were generally predicated on the
assertion that Progressive’s use of the WorkCenter program systematically undervalued
claims and defrauded its policy-holders in violation of the contract and state law.
Progressive moved for summary judgment on all counts. Ms. Curtis sought to certify a
class, but this Court denied certification and Ms. Curtis filed an interlocutory appeal. The
Tenth Circuit affirmed the denial of class certification and the Court now returns to
Progressive’s pending motion for summary judgment. Jurisdiction is proper under 28
U.S.C. § 1332 as Ms. Curtis is a citizen of Oklahoma and Progressive is a corporate entity
incorporated in Wisconsin, and Oklahoma law applies to the analysis of Ms. Curtis’s claims
in this case. 5
Legal Standard
Federal Rule of Civil Procedure 56(a) requires “[t]he court [to] grant summary
judgment if the movant shows that there is no genuine dispute as to any material fact and

4

T he Policy contained a provision that allowed a dissatisfied claimant to formally
challenge a valuation, after which both parties would hire independent appraisers and
submit values to an umpire. See Def.’s Mot. for Summ. J. (Dkt. 149, Ex. 4), at 97. From
the briefs and the record, there is no indication Ms. Curtis attempted to utilize this process.
5

See Racher v. Westlake Nursing Home L.P., 871 F.3d 1152, 1162 (10th Cir. 2017) (“In
diversity cases . . . federal courts must apply state substantive law . . . .”); Bernal v. Charter
Cty. Mut. Ins. Co., 209 P.3d 309, 311 (Okla. 2009) (“[I]n automobile vehicle insurance
cases . . . . the validity, interpretation, application and effect of the provisions of a motor
vehicle insurance contract should be determined in accordance with the laws of the state in
which the contract was made . . . .”).
4

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the movant is entitled to judgment as a matter of law.” In deciding whether summary
judgment is proper, the Court does not weigh the evidence and determine the truth of the
matter asserted, but instead determines only whether there is a genuine dispute for trial
before the fact-finder. 6 The movant bears the initial burden of demonstrating the absence
of a genuine, material dispute and an entitlement to judgment. 7 A fact is “material” if, under
the substantive law, it is essential to the proper disposition of the claim. 8 A dispute is
“genuine” if there is sufficient evidence on each side so that a rational trier of fact could
resolve the issue either way. 9
If the movant carries the initial burden, the nonmovant must then assert that a
material fact is genuinely disputed and must support the assertion by “citing to particular
parts of materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations (including those made for purposes of
the motion only), admissions, interrogatory answers, or other materials”; by “showing that
the materials cited [in the movant’s motion] do not establish the absence . . . of a genuine
dispute”; or by “showing . . . that an adverse party [i.e., the movant] cannot produce
admissible evidence to support the fact.” 10 The nonmovant does not meet its burden by

6

See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Birch v. Polaris
Indus., Inc., 812 F.3d 1238, 1251 (10th Cir. 2015).

7

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

8

Anderson, 477 U.S. at 248; Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670
(10th Cir. 1998).

9

Anderson, 477 U.S. at 248; Adler, 144 F.3d at 670.

10

Fed. R. Civ. P. 56(c)(1); see also Celotex Corp., 477 U.S. at 322.
5

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“simply show[ing] there is some metaphysical doubt as to the material facts” 11 or
theorizing a plausible scenario in support of its claims. Instead, “the relevant inquiry is
whether the evidence presents a sufficient disagreement to require submission to a jury or
whether is so one-sided that one party must prevail as a matter of law.” 12
Discussion
Oklahoma Statutes
The Court must first address Ms. Curtis’s allegation that Progressive’s contract and
actions “violate[d] applicable Oklahoma” statutes. 13 She contends that Okla. Stat. tit. 47,
§ 1111 “provides the framework on what Progressive is required to pay on a total loss
claim,” and that Okla. Stat. tit. 36, § 1250.8 “provides the methods to arrive at a settlement
of a total loss vehicle.” 14
Okla. Stat. tit. 47, § 1111 establishes that a vehicle is a total loss when the cost of
repairs exceeds “sixty percent (60%) of the fair market value of the vehicle.” 15 The statute
also defines “fair market value” as “the value of a vehicle as listed in the current National

11

Neustrom v. Union Pac. R.R. Co., 156 F.3d 1057, 1066 (10th Cir. 1998) (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)).
12

Neustrom, 156 F.3d at 1066 (quoting Anderson, 477 U.S. at 251–52); Bingaman v. Kan.
City Power & Light Co., 1 F.3d 976, 980 (10th Cir. 1993)).
13

Third Am. Compl. (Dkt. 33), at 16.

14

Pl.’s Resp. in Opp. (Dkt. 159), at 7–8, 9.

15

Okla. Stat. tit. 47, §§ 1111(C)(1).
6

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Auto Dealers Association guidebook or other similar guidebook or the actual cash value,
whichever is greater.” 16
Okla. Stat. tit 36, § 1250.8(A)(2), the Oklahoma Unfair Claims Settlement Practices
Act, covers “Motor vehicle total loss or damage claim” and provides:
An insurer may elect a cash settlement based upon the actual
cost, less any deductible provided in the policy, to purchase a
comparable motor vehicle, including all applicable taxes,
license fees and other fees incident to a transfer of evidence of
ownership, or a comparable motor vehicle. Such cost may be
determined by:
a. the cost of a comparable motor vehicle in the local market
area when a comparable motor vehicle is currently or
recently available in the prior ninety (90) days in the local
market area,
b. one of two or more quotations obtained by an insurer
from two or more qualified dealers located within the local
market area when a comparable motor vehicle is not
available in the local market area, or
c. the cost of a comparable motor vehicle as quoted in the
latest edition of the National Automobile Dealers
Association Official Used Car Guide or monthly edition of
any other nationally recognized published guidebook. 17
The next subsection requires any insurance settlement that “deviates from the
methods described in subsection A of this section . . . shall be supported by documentation
. . . [and a]ny deductions from such cost . . . shall be measurable, discernible, itemized, and
specified.” 18

16

Id. §§ 1111(A)(2).

17

Okla. Stat. tit. 36, § 1250.8(A)(2).

18

Id. § 1250.8(B).
7

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When resolving insurance disputes, Oklahoma law requires that any insurance
policy not in compliance with the Oklahoma insurance code “be construed and applied in
accordance with such conditions and provisions as would have applied had such policy . . .
been in full compliance with this Code.” 19 Ms. Curtis claims that the Policy and subsequent
actions violated these statutes in two ways. First, she argues that the Policy, by fixing
liability at “the lowest of” various valuation methods, violated Title 47, § 1111’s
requirement to pay “whichever is greater” from various methods. Thus, according to Ms.
Curtis, Progressive should have paid her the “greater” NADA value of $6,125 rather than
WorkCenter-derived value of $4,282.54. Second, she argues that Progressive failed to pay
the cost of a singular comparable vehicle, as required under Title 36, § 1250.8(A)(2)(a). 20
Worse yet, she claims, some of the other vehicles Progressive used as comparators had
only partially-viewable VIN numbers—which she calls “phantom” vehicles—that
prevented her from confirming the differences in mileage, equipment, and condition.
Neither argument is persuasive.

19

Okla. Stat. tit. 36, § 3620; see also Davis v. Progressive Northern. Ins. Co., 288 P.3d
270, 273 (Okla. Civ. App. 2012).
20

Ms. Curtis also argues that Progressive failed to pay the “actual cost,” failed to “obtain
quotes from qualified dealers,” and failed to “pay the NADA value.” See Pl.’s Resp. in
Opp. (Dkt. 159), at 9. However, these contentions are irrelevant accoutrements of the
primary argument that Progressive failed to pay the cost of a comparable vehicle. On failure
to pay the actual cost of her vehicles, since the cost of a comparable vehicle is one of the
permissible methods of determining actual cost, the two claims are duplicative. Meanwhile,
obtaining quotes or paying the NADA value are merely alternative methods to paying the
cost of a comparable motor vehicle; since the WorkCenter program relies on the
comparable motor vehicle method, consideration of the two alternate methods of
determining actual cost is unnecessary.
8

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First, Title 47, § 1111’s “fair market value” definition doesn’t govern in this
context. Section 1111 falls within the “Vehicle License and Registration Act” chapter of
the Oklahoma “Motor Vehicles” title. 21 The section establishes procedures for determining
when a vehicle is a total loss and for returning certificates of title to the Oklahoma Tax
Commission after a vehicle has been totaled and will be either salvaged or junked—it does
not provide a framework for insurance settlements. The “fair market value” definition of
“whichever is greater” from “the value of a vehicle as listed in the current National Auto
Dealers Association guidebook or other similar guidebook or the actual cash value” is thus
the mechanism to apply when determining whether the vehicle is a total loss. It does not,
however, dictate what an insurer must pay for a total loss claim. Section 1111 requires
Progressive to take the highest of the various potential values and determine if the cost of
repair for safe operation exceed 60% of that highest value, and if so, to declare the vehicle
a total loss. It does not require Progressive to pay the highest possible value when settling
the liability owed under its insurance policies. Thus, section 1111 does not “provide[] the
framework on what Progressive is required to pay on a total loss claim,” as Ms. Curtis
asserts.
Second, the Policy complies with the value calculation requirements of
section 1250.8. Subsection 1250.8(A)(2)(a) permits Progressive to calculate the actual cash

21

Section 1111 also does not fall in the correct statutory title to be amenable to the
“construed and applied in accordance with such conditions and provisions as would have
applied had such policy . . . been in full compliance with this Code” requirement of Title
36, § 3620. Section § 3620 refers only to compliance with the Insurance Code, which is
contained wholly in Title 36, whereas section 1111 is found in Title 47.
9

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value of a vehicle by examining “the cost of a comparable motor vehicle in the local market
area.” Ms. Curtis argues that by deriving a value from multiple comparable vehicles in the
local market, Progressive is violating the singularity aspect of subsection 1250.8(A)(2)(a)’s
permitted methodology. But among the traditional tools of statutory interpretation is the
semantic canon of numbers, which advises: “In the absence of a contrary indication . . . the
singular includes the plural.” 22 Here, Progressive’s conduct complies with subsection
1250.8(A)(2)(a), and the statute contains no contrary indication foreclosing insurers’
compliance via multiple rather than singular. Furthermore, according to the statute itself,
unfair claim settlement practices must have been “committed flagrantly and in conscious
disregard of this act or any rules promulgated hereunder.” 23 Where subsection 1250.8(A)
imposing consumer protections by requiring an examination of at least one comparable
vehicle in a local market to provide a fair actual cash value of the insured vehicle, rising
about this floor of protections by examining multiple comparable vehicles to better provide
an accurate valuation cannot be a flagrant violation of the insurance code. Thus, neither the
Policy nor Progressive’s subsequent use of the WorkCenter program violates section
1250.8.
Third, even if Progressive had violated either section 1111 or section 1250.8, neither
statute creates a private right of action by which Ms. Curtis may seek to enforce the

22

ANTONIN SCALIA & BRYAN A. GARNER, READING LAW 129 (2012) (“[U]nless context
indicates otherwise . . . words importing the singular include and apply to several persons,
parties, or things.”)

23

Okla. Stat. tit. 36, § 1250.3.
10

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standards. Enforcement of section 1111 falls to the Oklahoma Tax Commissioner, while
enforcement of section 1250.8 falls to the Oklahoma Insurance Commissioner. 24 In Walker
v. Chouteau Lime Company, the Oklahoma Supreme Court rejected the idea that “there is
a private cause of action against an insurer who violates provisions of the Unfair Claim
Settles Practices Act.” 25 And although Oklahoma courts have not definitively answered
whether section 1111 embodies a private right of action, they have provided the governing
standard: when a statute “expressly places the right of prosecution in a public entity, there
can be no intent to create a private right of action.” 26 Since Title 47 “clearly places
enforcement in the hands of governmental authorities”—the Oklahoma Tax
Commission 27—“the right of action is exclusively vested in such governmental
authority.” 28 Thus, even if Progressive had violated either section 1111 or section 1250.8,
Ms. Curtis has no private right of action to seek remedy and cannot avoid this proscription
by dressing up a prohibited statutory claim as something else. 29

24

849 P.2d 1085 (Okla. 1993); see also Howard v. Zimmer, Inc., 299 P.3d 463, 470 n.28
(Okla. 2013) (“No private cause of action against insurer who violates provisions of Unfair
Claim Settlement Practices Act where the power to regulate was expressly given to the
Insurance Commissioner.”).
25

Walker, 49 P.2d at 1085.

26

Howard, 299 P.3d at 470.

27

Okla. Stat. tit. 47, § 1149 (“It shall be the duty of the Oklahoma Tax Commission, and
the Tax Commission is hereby granted authority and jurisdiction to administer this
act . . . .”).
28

Oklahoma ex rel. Okla. Bar Ass’n v. Mothershed, 264 P.3d 1197, 1227 (Okla. 2007).

29

See Morgan v. Valley Ins. Co., 2009 WL 1683787, at *1 (W.D. Okla. June 12, 2009)
(“[T]he Tenth Circuit has rejected the argument that, because existing law is part of every
contract, a violation of the [Unfair Claims Settlement Practices] Act may be asserted under
11

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Accordingly, the Policy does not violate either Title 47, § 1111 or Title 36, § 1250.8,
and even if it did, Ms. Curtis wouldn’t have a private right of action.
Summary Judgment
While the Oklahoma statutes don’t control the outcome, Ms. Curtis also raises
claims for breach of contract, breach of the duty of good faith and fair dealing, fraud, unjust
enrichment, and a prayer for injunctive relief. The Court considers each in turn.
(1)

Breach of Contract

Insurance policies are “contracts interpreted as a matter of law.” 30 Parties “contract
for risk coverage” and will be “bound by policy terms.” 31 Courts apply the contract as
written and do “not rewrite an insurance contract to benefit either party.” 32 For this breach
of insurance contract claim, Ms. Curtis must prove: (1) the formation of a contract, (2) a
breach of that contract, and (3) damages suffered as a result of the breach. 33 The Court
concludes summary judgment for Progressive is warranted on this claim, since based on
the evidence in the record, Ms. Curtis cannot prove she was entitled to more than
Progressive’s actual cash value offer.

a contractual theory. . . . The Oklahoma Supreme Court would not permit a contractual
recovery for an alleged violation of the Act.”)
30

BP Am., Inc. v. State Auto Property & Cas. Ins. Co., 148 P.3d 832, 835 (Okla. 2005);
see also Dodson v. Saint Paul Ins. Co., 812 P.2d 372, 376 (Okla. 1991).

31

BP Am., 148 P.3d at 835.

32

Id.; see also Avenmo Ins. Co. v. White, 841 P.2d 588, 590 (Okla. 1992) (“[W]e will not
rewrite the policy’s terms simply because doing so would favor the insured.”).

33

See Wheeler’s Meat Market, Inc. v. Travelers Casualty Ins. Co., 2018 WL 11184650, at
*2 (W.D. Okla. Feb. 21, 2018) (citing Dig. Design Grp., Inc. v. Info. Builders, Inc., 24 P.3d
834, 843
12

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The contractual provision in question promises to pay the vehicle’s “actual cash
value based upon the market value, age, and condition of the vehicle.” The Policy further
notes that this value calculation may involve “estimating, appraisal, or injury evaluation
systems” and “may include compute software, databases, and specialized technology.” 34
The crux of Ms. Curtis’s breach of contract claim is that this provision guaranteed her either
the NADA “clean retail” valuation or her private appraiser’s estimated value. But as
Progressive correctly observes, no provision in the Policy guarantees a right to the NADA
value, a private appraiser’s value, or the greatest of potential estimated values.
Ms. Curtis responds that the Policy is governed by Connecticut Fire Insurance
Company v. Youngblood, 35 an Oklahoma Supreme Court case from 1947. In Youngblood,
“actual cash value” meant what the vehicle would “bring in a fair market after reasonable
efforts to find a purchaser who will give the highest price.” 36 So in Ms. Curtis’s eyes,
Progressive is obligated to pay her the “actual cash value” of her vehicles, meaning the
“fair market value,” meaning presumably either the NADA clean retail value of §6,125 or
the private appraiser estimate of $6,790. But Youngblood predated the enactment of the
Oklahoma Uniform Claim Settlement Practices Act, so the legal weight of the Youngblood
value scheme has since been displaced by Title 36, § 1250.8, with which the Policy
complies. And even if Youngblood’s “fair market value” standard applied, Ms. Curtis

34

See Def.’s Mot. for Summ. J. (Dkt. 149, Ex. 4), at 101.

35

184 P.2d 792 (Okla. 1947).

36

Youngblood, 184 P.2d at 229 (quoting Black’s Law Dictionary, 3rd ed.).
13

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advances no arguments why the NADA value or private appraiser estimate is the fair
market value instead of the WorkCenter program’s actual cash value.
Ms. Curtis is thus left with the sole contention that the WorkCenter program’s value
is not the “actual cash value,” and instead either the NADA value or the private appraiser
estimate is the real actual cash value. 37 This alone is insufficient to demonstrate breach of
the contractual provision. Value appraisal is not an exact science 38 and even Ms. Curtis’s
own appraiser admitted equally qualified appraisers “can reach different opinions about the
value of a vehicle.” 39 Here, the Policy stated the actual cash value would be calculated by
considering the “market value, age, and condition of the vehicle at the time the loss occurs”
and “estimating, appraisal, or injury evaluation systems” that “may include computer
software, databases, and specialized technology.” 40 From the record, it appears that
Progressive did just that—using the WorkCenter software program to gather estimates and
appraisals of comparable vehicles in local markets, and adjusting the actual value based on
the age, mileage, and condition of Ms. Curtis’s vehicles.

37

Progressive believes Ms. Curtis also challenges the “comparable” vehicles under her
breach of contract claim. Whether this was originally true or not, Ms. Curtis appears to
have abandoned this argument under breach of conflict so she could maintain the argument
under her bad faith claim without being duplicative. See Pl.’s Resp. in Opp. (Dkt. 159).
Thus, the Court deals with her challenges to the comparable vehicles under those claims.
To the extent that Ms. Curtis did intend to challenge the comparable vehicles under breach
of contract, the Court reasoning on this issue as it pertains to the other claims would apply
here as well, so the Court would still find no breach of contract.
38

See Sinclair Wy. Refining Co. v. Infrassure, Ltd., 970 F.3d 1317, 1324 (10th Cir. 2020).

39

Bauer Dep. (Dkt. 149, Ex. 7), at 61.

40

Def.’s Mot. for Summ. J. (Dkt. 149, Ex. 4), at 101.
14

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Ms. Curtis alleges no deviations from the method described by the Policy. She has
identified no authority that requires she be paid either the NADA value or the private
appraiser estimate. And she has not presented evidence indicating how the WorkCenter
value violates the express terms of the contract, instead merely contending she deserves
more. But simply because certain outcomes might have benefited Ms. Curtis more does
not, standing alone, demonstrate a breach of the contract. Accordingly, there are no
genuinely disputed material facts, Progressive has not breached the contract, and
Progressive is entitled to judgment as a matter of law on the breach of contract claim.
(2)

Breach of the Duty of Good Faith and Fair Dealing

Turning to Ms. Curtis’s bad faith claim, it is well established that “an insurer has an
implied duty to deal fairly and act in good faith with its insured” and “the violation of this
duty gives to an action in tort.” 41 Ms. Curtis argues that Progressive engaged in bad faith
on two fronts. First, by misrepresenting that the comparable vehicles were “identical” when
they actually differed in mileage, condition, and options. And second, by misrepresenting
as comparable vehicles some vehicles that displayed only partial VIN numbers. 42

41

Christian v. Am. Home. Assur. Co., 577 P.2d 899, 904 (Okla. 1977).

42

These two contentions are functionally the same allegations raised throughout Ms.
Curtis’s various complaints and appear again in her claim for fraud, so the Court will
examine these two contentions in full as pertaining to fraud. Ms. Curtis also alleged that
Progressive engaged in bad faith since it declined to pay her idea of “fair market value”
despite “clear precedential authority” to do so. Pl.’s Resp. in Opp. (Dkt. 159), at 16.
However, as the Court held when resolving the breach of contract claim, the precedent Ms.
Curtis cited is not binding and does not dictate the result she desires.
15

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However, the absence of any one element defeats a bad faith claim, 43 and one of the
elements of bad faith is that the insurer unreasonably did not pay a claim in full. 44
Accordingly, a party must establish breach of the insurance contract in order to maintain a
related bad faith claim. Ms. Curtis seeks to avoid this conclusion by citing one case to the
contrary, Vining v. Enterprise Financial Group, 45 where the Tenth Circuit observed that
no Oklahoma court had yet held that “an insured must actually prevail on a separate
underlying breach of contract claim in order to maintain a successful bad faith claim.” 46
Yet Vining was decided in 1998. Cases decided after Vining establish that a plaintiff must
establish a breach of the underlying contract in order to maintain a bad faith claim, since
“a determination of liability under the contract is a prerequisite to a recovery for a bad faith
breach of an insurance contract.” 47 Accordingly, since Ms. Curtis failed to establish that
Progressive breached the insurance contract, Progressive is entitled to summary judgment
on the bad faith claim.

43

Beers v. Hillory, 241 P.2d 285, 292 (Okla. Civ. App. 2010); see also Edens v. The
Netherlands Ins. Co., 2015 WL 1285905, at *4 (N.D. Okla. Aug. 31, 2015).
44

See Toppins v. Minnesota Life Ins. Co, 460 F. App’x 768, 771 (10th Cir. 2012) (quoting
Beers, 241 P.3d at 292).

45

148 F.3d 1206 (10th Cir. 1998).

46

Id. at 1214.

47

Davis v. GHS Health Maint. Org., Inc., 22 F.3d 1204, 1210 (Okla. 2001); see also Davis
v. Fed. Ins. Co, F. Supp. 3d 1189, 1199 (W.D. Okla. 2019) (“As Plaintiffs cannot establish
breach of the insurance contract, Defendant is also entitled to summary judgment on
Plaintiffs’ bad faith tort claim.”); Edens, 2015 WL 1285905, at *4 (same).
16

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(3)

Fraud/Constructive Fraud/Negligent Misrepresentation

Ms. Curtis also generally alleged that Progressive engaged in either actual fraud,
constructive fraud, or negligent misrepresentation. Under Oklahoma law, the elements of
actual fraud are: (1) a material misrepresentation, (2) known to be false at the time made,
(3) made with specific intent that a party would rely on it, and (4) the party relied on the
material misrepresentation to their detriment. 48 Constructive fraud, or negligent
misrepresentation, requires largely the same elements, but “does not necessarily involve
any moral guilty, intent to deceive, or actual dishonesty of purpose.” 49
Although under Oklahoma law, “a claim for fraud must be distinct from a claim for
breach of contract,” 50 here Ms. Curtis constructed her pleadings to maintain a distinct claim
separate from the breach of contract claim. Namely, she argues that Progressive materially
misrepresented “that they were using identical comparable vehicles on her claims,” 51 but
the comparable vehicles not identical, as they differed in mileage, condition, and options.
For support, Ms. Curtis cites the WorkCenter report, which stated: “The comparable
vehicles are identical to the loss vehicle except where adjustments are itemized.” 52

48

See Key Finance, Inc. v. Koon, 371 P.3d 1133, 1137 (Okla. Civ. App. 2015) (citing
Bowman v. Presley, 212 P.3d 1210, 1218 (Okla. 2009)).
49

Id. at 1138; see also Croslin v. Enerlex, Inc., 308 P.3d 1041, 1046 (Okla. 2013).

50

Edwards v. Farmers Ins. Co., 534 P.2d 679, 681 (N.D. Okla. Nov. 24, 2009) (citing Fox
v. Overton, 534 P.2d 679, 681 (Okla. 1975)).
51

Pl.’s Resp. in Opp. (Dkt. 159), at 27.

52

Def.’s Mot. for Summ. J. (Dkt. 149, Ex. 4), at 10.
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According to Ms. Curtis, this material misrepresentation was known to be false and used
to induce her to accept a lower settlement than her vehicles were worth.
Setting aside that Ms. Curtis never accepted the settlement offer for the 6-cyclinder
Malibu and therefore never relied to her detriment, there was no material
misrepresentation. It is true, the vehicles examined to arrive at the WorkCenter value were
not identical to Ms. Curtis’s vehicles. But Progressive never promised that they would be—
the representation in question explicitly noted “comparable vehicles are identical . . .
except where adjustments are itemized,” and that itemized adjustments would be made to
each compared vehicle “to reflect consumer purchasing behavior,” for “differences in
configuration,” “differences in mileage,” and “differences in equipment.” 53 This alone
undercuts the notion that Progressive claimed it used identical vehicles. The comparable
vehicles examined by the WorkCenter program were the same make, model, and year as
Ms. Curtis’s vehicles, and the report itemized all value adjustments made for each vehicle’s
particular differences. 54
Progressive promised to compare identical vehicles except for certain defined
exceptions, and it examined vehicles that were indeed identical except for differences
within the defined exceptions. 55 Accordingly, there is no genuine dispute of material fact

53

Id.

54

See id. at 6–9.

55

Ms. Curtis also spends some time arguing that two of the comparable vehicles examined
in the report for her 6-cyclinder Malibu were sold for pennies on the dollar prior to be listed
for sale at the price recorded in the WorkCenter report. This neither shows that the vehicles
were substantively different nor contravenes the stated methods of the WorkCenter
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regarding the representation made, Progressive made no material misrepresentation, and
Progressive therefore entitled to summary judgment on Ms. Curtis’s assortment of fraud
claims. 56
(5)

Unjust Enrichment

In her Third Amended Complaint, Ms. Curtis also raised a claim of unjust
enrichment, contending Progressive “received unjust financial and material gains to the
detriment of the Plaintiff . . . by payment of less than the full value of total loss claims.” 57
Unjust enrichment occurs when a party “has money in its hands that, in equity and good
conscience, it should not be allowed to retain.” 58 The Oklahoma Supreme Court has
observed that the commonly-recognized elements of unjust enrichment are: (1) the unjust,
(2) retention of, (3) a benefit received, (4) at the expense of another. 59 However, given the
Court’s conclusion that Progressive did not breach the contract and Ms. Curtis has no right
or entitlement to the higher NADA value or private appraiser estimate for her vehicle, the

program, which examines the price at which a vehicle is currently listed for sale, not
whatever price the vehicle might have been sold for previously.
56

In her Response in Opposition to Progressive’s Motion for Summary Judgment, Ms.
Curtis did not reallege the other contention from her bad faith claim—that Progressive
misled her by examining “phantom” vehicles that only had partial VIN numbers—under
her assorted fraud claims. See Pl.’s Resp. in Opp. (Dkt. 159), at 26–27. Even if she had not
failed to make this argument here, she would still fail to prove fraud, as the vehicles with
partial VIN numbers were the vehicles sold within the previous ninety days—as permitted
by Title 36, § 1250.8(A)(2)(a)—and Progressive did not reveal the full numbers due to
contractual obligations and protection of buyers’ privacy. See Def.’s Reply (Dkt. 170), at
7.
57

Third Am. Compl. (Dkt. 33), at 14.

58

Harvell v. Goodyear Tire & Rubber Co., 164 P.3d 1028, 1035 (Okla. 2006).

59

Okla. Dep’t of Sec. ex rel. Faught v. Blair, 213 P.3d 645, 658 (Okla. 2010).
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Court cannot conclude that Progressive has been unjustly enriched by not paying Ms.
Curtis her preferred value. Furthermore, the unjust enrichment claim is barred by law since
Ms. Curtis’s only method of providing unjust behavior is by proving Progressive failed to
pay the full value of the insurance claim, but such behavior would also have been a breach
of the contract and “a party is not entitled to pursue a claim for unjust enrichment when it
has an adequate remedy at law.” 60 Accordingly, the Court finds that Progressive is entitled
to summary judgment on the unjust enrichment claim.
(6)

Injunctive Relief

Finally, Ms. Curtis sought some form of non-specified injunctive relief against
Progressive. As Progressive noted, this claim is “[q]uixotic” because the only possible
remedy to address Ms. Curtis’s injuries is money damages. However, since the Court found
that Progressive is entitled to summary judgment on all other claims, Ms. Curtis is not
entitled to any relief, injunctive or otherwise.
Conclusion
Since the statutes Ms. Curtis invokes are inapplicable to resolution of this case,
Progressive has carried its burden and demonstrated there is no genuine dispute of material
fact and it is entitled to summary judgment on all claims as a matter of law. Ms. Curtis has
failed her rebuttal burden and has not pointed to materials in the record sufficient to
resurrect a genuine dispute or prove a question of fact that need be submitted to a jury. At

60

Am. Biomed. Grp., Inc. v. Techtrol, Inc., 374 P.3d 820, 828 (Okla. 2016). Ms. Curtis
cites two cases in an attempt to evade this bar, but both cited cases were decided before
American Biomedical and fail to persuasively distinguish the rule.
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best, Ms. Curtis has metaphysical doubts about Progressive’s methods and offers nothing
more than a plausible scenario why she should have been paid more. Accordingly, the
Court finds that Progressive must prevail as a matter of law and Progressive’s Motion for
Summary Judgment (Dkt. 149) is GRANTED IN FULL.
IT IS SO ORDERED this 11th day of January 2022.

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